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Op-Ed | The American Prospect | May 27, 2021

Justice Department Shot Through With Corporate Influence

Department of JusticeEthics in Government
Justice Department Shot Through With Corporate Influence

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The U.S. government is involved in hundreds of court cases each year, most of which are not followed closely. But the baseline assumption is that the government is defending the public interest and holding criminals accountable, even when most aren’t watching.

Unfortunately, in Merrick Garland’s Justice Department, that is not uniformly the case. Key acting officials, drawn from the halls of corporate power, are riddled with conflicts of interest that are already affecting their ability to protect the public. If the Justice Department is to serve all Americans rather than bolster individual fortunes and entrench corporate power, Merrick Garland must stop elevating corporate attorneys who have gotten rich fighting on corporate America’s behalf.

Brian Boynton, a former white-collar criminal defender and corporate attorney, is the acting head of the DOJ’s Civil Division, the department’s largest subagency. In that role, he manages over 1,100 staff charged with litigating “on behalf of over 100 different federal agencies” across “an array of the Federal Government’s legal interests ranging from challenges to immigration policies and decisions” to “intellectual property disputes,” according to a DOJ memo. His newly released financial disclosures show, however, that Boynton cut his teeth as a multimillionaire partner at notorious corporate law firm, WilmerHale. There, he represented big-business interests in industries cutting across the entire American economy. And now, he is expected to be on our side.

Despite only disclosing clients from the past year, the breadth of Boynton’s corporate work is staggering. An incomplete accounting shows he serviced predatory for-profit colleges like the University of Phoenix, pharmaceutical and medical device manufacturers like Eli Lilly and COVID vaccine maker Moderna, Big Tech companies like Google, major defense contractor Northrop Grumman, union-busters like Walmart, insurance giants like Cigna and State Farm, numerous hedge funds (including Renaissance Technologies, where billionaire conservative donor Robert Mercer plied his trade), Big Ag interest groups, and even the Democratic National Committee itself. Name an industry and Boynton likely worked for it.

Elizabeth Prelogar, the current acting solicitor general charged with representing the U.S. government before the Supreme Court in the most contentious of cases, has a similar record to Boynton. She represented Big Tech firms like Facebook, Uber, Snap, and Twitter, while also providing personal legal services to the billionaire founder of Yahoo and pharmaceutical firms Amgen, Lumos Pharma, and Syneos Health.

Most Americans find corporate ties like these deeply troubling. But for Attorney General Merrick Garland, they are not a problem. If anything, for him they may be a sign of these officials’ exceptional qualification for their roles. At his confirmation hearing in February, amid growing calls to keep BigLaw and tech-tied lawyers out of the top role in the Antitrust Division, Garland insisted, “‘Fortunately or unfortunately, the best antitrust lawyers in the country have some involvement, one way or another’ in tech,” and “We can’t exclude every single good lawyer from being able to be in the division.”

It’s hard to judge with any precision who the “best antitrust lawyers in the country” are, but there’s good reason to believe that Big Tech revolvers don’t rank among them. It does not, after all, take a brilliant legal mind to rubber-stamp mergers, as antitrust officials in the Obama administration overwhelmingly did before revolving out to Big Tech. Nor should anyone be impressed that, once on the outside, these former officials won the industry further regulatory favor from agencies primed to dole it out. Plaintiffs’ attorneys and advocates who overcome these odds are arguably much more deserving of plaudits than lawyers tied up with Big Tech (or other corporate sectors).

Even more notable than Garland’s rather dubious assertion, however, is the question he does not address: Do corporate attorneys achieve better outcomes for the American public?

All signs point to no. Across issue areas, an active revolving door has entrenched corporate power, with damaging consequences for the general public.

With Boynton and Prelogar, it’s more of the same. One of Boynton’s first moves as head of the Civil Division was to “block lawyers representing former for-profit college students from taking a sworn deposition of Donald Trump’s notoriously anti-student secretary of education, Betsy DeVos,” according to Republic Report. Boynton has worked for the for-profit college industry since at least 2010, and he has since disclosed working for disgraced for-profit University of Phoenix in 2020, right before taking office. Instead of recusing himself from the case, he proceeded with the defense of the Trump-era Education Department’s systematic rejection of student debt relief applications.

Prelogar just filed an amicus curiae brief before the Supreme Court in defense of Goldman Sachs. In her role as the “tenth justice,” Prelogar placed the weight of the United States against defrauded shareholders in a class action suit against the investment giant, so deeply intertwined with the U.S. government The New York Times dubbed it “Government Sachs.” Effectively, Prelogar tilted the balance in favor of the investment firm being sued for lying to shareholders about its conflicts of interest at the heart of the 2008 financial collapse. Her position should not be surprising, considering her private-sector experience representing multiple financial institutions including Fidelity National and Ambac Financial.

This underlines the fundamental problem of relying on corporate attorneys to lead the government’s legal thinking: They do not check their biases at the door. It is naïve to expect attorneys who spend the majority of their legal careers searching for every possible regulatory loophole to have a strict view about what level of corporate misconduct is legal. Attorneys who socialized and strategized with for-profit colleges and financial institutions, and fellow lawyers defending these institutions, will almost certainly have permissive prosecutorial instincts if and when they break the law. It is hard to be outraged by the conduct of the very people whom you have solicited as potential clients in the recent past (and likely will again post-government).

The influence of the corporate backgrounds of elite DOJ lawyers is also clear from their lack of urgency in reversing Trump-era legal positions. Prelogar’s deputy supported the PennEast gas pipeline in oral arguments before the Supreme Court in April. And the DOJ is still defending DeVos’s repeal of student debt regulation from a suit brought by the American Federation of Teachers. Continued inaction on these issues signals either incompetence or agreement with parts of the Trump administration’s corporate legal agenda. Perhaps both.

So Garland’s insistence on drawing from BigLaw is more likely to hurt than help the public. But there are some who will undoubtedly benefit from this preference: namely, Boynton, Prelogar, and their past and future corporate clients.

While BigLaw attorneys are in government, their former clients and others in their industry may enjoy more lenient enforcement and a friendlier ear. And while former political appointees face certain bars on lobbying and communication with employees of their former agencies for two years, lawyers like Boynton and Prelogar will be relatively unconstrained in their ability to help corporate clients when they soon return to the private sector. Both will be well positioned to use what they’ve gained from their “public service”—renewed contacts and deep familiarity with Garland’s Justice Department’s approach and strategy—to boost their already-inflated salaries. That sort of fresh, insider information demands top dollar, especially at the start of a new administration when so few have yet to revolve out.

Many of these potential future clients may not even need to wait for Boynton and Prelogar to leave to benefit. With hefty paychecks on the line, acting heads like Boynton and Prelogar may be reluctant to incur the wrath of their corporate patrons by fulfilling their prosecutorial duties if they want to return to their lucrative careers.

It’s time that Merrick Garland dropped the charade and admitted what has been clear to many for a long time: Hiring BigLaw attorneys plumps attorneys’ pocketbooks and increases corporate power, but it does not serve the public. In just a few months on the job, his own picks have underscored that fact. He must look elsewhere for nominees to the department’s remaining vacant positions, including the assistant attorney generals for both antitrust and tax.

IMAGE: Department of Justice

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