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How lawyers from Jones Day influenced Trump’s Supreme Court picks : NPR

How lawyers from Jones Day influenced Trump’s Supreme Court picks : NPR


This is FRESH AIR. I’m Terry Gross. You may not be familiar with the law firm Jones Day, but that firm was embedded in the Trump presidential campaigns, and former and future lawyers from Jones Day were embedded in Trump’s administration. Partners in the firm left to become Trump’s White House counsel, his solicitor general and to take high-ranking positions in the Justice Department and several federal agencies. The firm helped reshape the Supreme Court and the federal appeals courts, pushing them to the right, while also helping the Trump administration win many cases in those courts. It reshaped federal agencies while advancing the conservative goal of deregulation.

My guest, David Enrich, has written a new book about Jones Day called “Servants Of The Damned: Giant Law Firms, Donald Trump, And The Corruption Of Justice.” He says for much of Jones Day’s history, it was a juggernaut in the field of corporate litigation. It raked in billions a year in fees from tobacco, opioid, gun and oil companies, among many other giant corporations in need of a state-of-the-art defense. David Enrich’s previous book, “Dark Towers: Deutsche Bank, Donald Trump, And An Epic Trail Of Destruction,” was about the bank that became famous for financial scandals and loaned Trump about $2 billion when no other bank would touch him because of his defaults and lawsuits. Enrich is the New York Times’ business investigations editor.

Before we begin, just for disclosure, Jones Day is an NPR underwriter, and their underwriting credit has been heard on our show. David Enrich, welcome back to FRESH AIR. I learned so much from your book. Thank you. Give us a sense of how embedded Jones Day lawyers – and I should say these are lawyers who left the firm to work in the Trump administration – how embedded were they in the administration? Name some of the many positions held by Jones Day former lawyers.

DAVID ENRICH: Well, to answer the question of how embedded, the answer is very embedded. There is embedded to basically an unprecedented degree throughout the White House and the Justice Department, as well as other agencies – basically, everywhere you looked, you would find a once and future Jones Day lawyer. The White House counsel, Don McGahn, was a very prominent Jones Day lawyer, and he surrounded himself in the White House with several senior Jones Day partners and associates who he brought with him. At the Justice Department, the solicitor general, Noel Francisco, was a once and future Jones Day partner. And in the upper echelons of both this – in the civil division of the Justice Department, you had – some of the people right beneath the attorney general were from Jones Day. You had someone at the Consumer Product Safety Commission, the Federal Energy Regulatory Commission, the Commerce Department. On and on the list goes. So they were more embedded in the Trump administration than any law firm I can think of in any past presidential administration.

GROSS: You write that it became hard to distinguish between where Jones Day’s influence ended and Trump’s influence began. Can you elaborate on that?

ENRICH: Yeah, well, the influence kind of moved in both directions. So shortly after Trump became president, Jones Day lawyers start, both inside the administration and outside the administration – those still at the firm – started accomplishing things that they had long sought to accomplish but had not been able to do. And the clearest example of this to me is a series of lawsuits that Jones Day had brought on behalf of a bunch of Catholic organizations that were basically challenging an important provision of Obamacare, the Affordable Care Act. And those lawsuits had been brought years earlier, and they had bounced around through the federal court system.

And the Supreme Court in 2016 – so shortly before the election – this was after Scalia’s death. Basically, the court was deadlocked, and they said, look. We’re not going to make a decision on this important case. We’re going to kick it back to the federal courts and the Obama administration and the Jones Day lawyers and see if they can hash out a compromise. And there was no compromise to be had, it turned out. Months later, Trump takes office. And one of the first things that his administration does with the help of Don McGahn is they basically say they’re going to end an Obama administration policy that sought to require employers to provide contraception coverage for their employees, which was part of Obamacare. And this was the subject of the lawsuit. So right on the face, it represented a big win for Jones Day and its clients.

The extraordinary thing about this, to me, was that when they actually settled all of these legal disputes – you know, there’s a settlement agreement that all parties have to sign. And you look at the settlement document, and on the signatures page there are four Jones Day lawyers that had been working on this, which is not unusual. And there’s one single person from the United States government whose signature is attached. And his name is Brett Shumate, and he later becomes a Jones Day lawyer. So Jones Day hires the person who had basically signed the settlement agreement. And in the settlement agreement is an unusual provision which says that Jones Day, which had been representing these Catholic organizations pro bono – so was not charging for the work that it did – it is going to receive a payment of millions of dollars from the government to compensate it for its costs.

GROSS: So how much of an agenda does Jones Day have – how much of a political agenda?

ENRICH: Well, the law firm isn’t a monolith, and I think it’s important to kind of say that at the outset. And there – this is a law firm that has something like 2,500 lawyers in dozens of countries all over the world. And like any large organization or large law firm, there are employees and lawyers at Jones Day that have, I think, a wide range of political views ranging from far left to far right.

What sets Jones Day apart is the degree to which the leadership of the firm is fairly uniform in their conservative thinking. And the leaders of the firm, including the managing partner, a guy named Steve Brogan – and this is a description that one of Steve Brogan’s, I would say, allies used to describe him, which is that he is kind of a hardcore, right-wing, Catholic conservative. And that is a political and, obviously, religious viewpoint that is shared by many of the most powerful lawyers at the firm. And it’s one that they carried over with them, to a large extent, into the upper echelons of the Trump administration.

So their agenda included – and it ranged from, as you mentioned in the introduction, lots of deregulation and really getting the government out of the affairs of businesses to a very large extent and then also an agenda of what I think the right – people on the right would call religious liberty and, I think, people on the left and, to a certain degree, people in the center would say a much – dramatically eroding the separation of church and state in a way that allows religion to play a much more prominent role in public and political life.

GROSS: One of the very major accomplishments of the Trump administration was the appointment of three very conservative Supreme Court justices. This was how Roe v. Wade was overturned. Now, Don McGahn was the first White House counsel for the Trump administration. He had worked on the Trump campaign before that in the 2016 campaign. And before that, he was at Jones Day. When Don McGahn agreed to become White House counsel in the Trump administration, he made a deal with Senate Majority Leader Mitch McConnell and with Trump about appointing Supreme Court justices. Would you explain this deal and how it came to be?

ENRICH: So shortly after Trump was elected, Mitch McConnell gave some advice to Don McGahn. The advice was that instead of relying on a committee at the White House to debate and pick nominees for the Supreme Court and other federal courts, McConnell’s advice was, look. You should get Trump’s permission to just do this by yourself. You alone should have the power to pick the judges that Trump will nominate. McGahn liked the sound of that. He proposed it to Trump. And Trump, when he offered McGahn the job of White House counsel, readily agreed to this. And so McGahn, very quickly, before Trump even was sworn in as president, all of a sudden, was sitting on this enormous power that was really quite unusual historically. And he was the one who would be picking the people that Trump nominated to all sorts of federal courts.

GROSS: Is it fair to say that the people who McGahn picked to have Trump appoint to the court were people who shared – whose judicial record was in sync with many of Jones Day’s clients and their needs?

ENRICH: Yeah. I think that – I think it’s not only in sync with the clients’ needs but also the political beliefs of the leaders of Jones Day. So one of the core kind of tenets of McGahn’s judicial philosophy was this real antipathy toward what he calls kind of derisively the administrative state, which is basically a reference to all sorts of federal agencies and unelected bureaucrats at those federal agencies making decisions willy-nilly that tend to trample on the rights, in his view, of private citizens and private companies. And McGahn hated that. And he was very careful to pick not only Supreme Court justices but also lower court judges who shared that view. And one – probably the biggest result of that is that it translates into judges who no longer give nearly as much deference to the rights and authority of federal agencies as had been the norm. And so that translates into a much less powerful federal government in particular as it interacts with and tries to regulate powerful industries and companies, which is certainly – that’s something that was very appealing to a very large number of Jones Day’s biggest corporate clients.

GROSS: And after Don McGahn left his position as White House counsel in the Trump administration, he went back to Jones Day.

ENRICH: Yep. He came right back, got a big promotion, got a bunch more money. And he was kind of the first in what would become a whole parade of people who went from the Trump administration back into the law firm. And it was not – it was – a lot of these were people who had started off at Jones Day, then went to the Trump administration and then returned. But there were also a lot of people who had not previously worked at Jones Day, had worked at – maybe at other law firms. And with the return of McGahn, Jones Day became, essentially, a refuge for veterans of the Trump administration, who – many of whom had really developed quite controversial backstories and had taken quite controversial and polarizing and, you know, legally dubious actions while in the Trump administration, and therefore, I think, were pretty radioactive for many other big law firms. But Jones Day welcomed many of them with open arms.

GROSS: Trump’s solicitor general, the person who represents the White House in the Supreme Court, was a Jones Day partner who left Jones Day for the Trump administration. This is Noel Francisco. And he had clerked for Justice Scalia back a while ago. And Scalia had actually worked at Jones Day in the 1960s. So the interconnections with Jones Day are so plentiful. So what are some of the cases that Noel Francisco argued before the Supreme Court representing the Trump administration that he won?

ENRICH: So he was the – probably the most powerful and forceful advocate of both a social conservative agenda and kind of Trump’s hard-line agenda on things like immigration. So there was a case involving a baker in Colorado who did not want to make a wedding cake for a gay couple. Francisco argued that one successfully on behalf of the baker. He fought successfully against an injunction that would have blocked funding for Trump’s border wall along the Mexican border. He defended Trump’s ban on travelers from Muslim-majority countries. And he worked very hard to erode the power of labor unions. And I think it’s important to note here that, again, Jones Day is not a monolith.

And at the same time, for example, that Francisco was defending Trump’s ban on travelers from Muslim countries and defending the border wall and things like that, Jones Day had a very robust pro bono practice that was doing what I think you can fairly describe as lifesaving work along the U.S.-Mexican border, representing people who had tried to get across the border and had been tied up in immigration courts there and couldn’t afford their own lawyers. And so the firm, in many ways, I think, had kind of a split personality. But Francisco argued, I believe, 17 cases before the Supreme Court during his term as solicitor general. And many of these cases align very neatly with the political ideology that he and McGahn and many other of the top people at Jones Day all shared.

GROSS: You write that Jones Day penetrated the federal government under Trump and is now taking advantage of a judicial revolution it helped set in motion. How is it taking advantage of that now?

ENRICH: Well, it’s now bringing cases through the Supreme Court and through the lower courts that were basically made possible by this deluge of very conservative federal judges that are now on the benches of many courts. So just in the Supreme Court’s past term, which was, obviously, one of the most, I think, radical and farthest-reaching Supreme Court terms certainly of my lifetime, and Jones Day played pivotal roles in some of these cases. And I think the biggest one was the case – the West Virginia v. EPA case that dramatically hemmed in the power of the EPA to regulate carbon emissions. And that was brought on behalf of a Jones Day client, a big coal company. And, you know, there are – Jones Day was the law firm that basically ended the eviction moratorium during the pandemic that the Biden administration had imposed. And Jones Day, just reading kind of the tea leaves and talking to their lawyers now, it’s quite clear that they are plotting a wide range of attacks on the power of the federal government to oversee private businesses and private companies in a way that, again, it goes back to Don McGahn and his colleagues’ kind of hatred of the so-called administrative state. And it’s – they are now in a position to be able to much more forcefully advocate those positions and be successful in their advocacy thanks to all of the judges that Trump, at McGahn’s direction and with McConnell’s support, managed to get on to virtually every federal court in the country.

GROSS: So Trump’s solicitor general, who had been a lawyer at Jones Day, returned to Jones Day after leaving his position in the Trump administration.

ENRICH: That’s right. And he was – Noel Francisco’s return really marked – it not only a moment where Jones Day was rising to this kind of pinnacle of power. They now had both the former White House counsel and the former solicitor general of the United States on their payroll. But it also became a turning point inside the law firm, where a number of the firms, not just low-level kind of liberals who like to grumble, but also some of the people higher up in the firm who had watched with mounting dismay as Trump basically trampled on many of the democratic norms of this country, it left an increasing number of people inside the law firm with a pretty bitter taste in their mouths.

GROSS: Well, let’s take a short break here and then we’ll talk some more. If you’re just joining us, my guest is David Enrich, author of the new book “Servants Of The Damned: Giant Law Firms, Donald Trump, And The Corruption Of Justice.” We’ll be right back. This is FRESH AIR.


GROSS: This is FRESH AIR. Let’s get back to my interview with David Enrich, author of a new book about the international law firm Jones Day and how embedded its former and future lawyers were within the Trump administration. The book is called “Servants Of The Damned: Giant Law Firms, Donald Trump, And The Corruption Of Justice.”

Did Jones Day ever represent Trump personally?

ENRICH: No, they did not. They represented starting in 2015 – the law firm represented his campaign, and they did so through the 2016 cycle and then again the 2020 campaign, which basically – that was work that basically started on Inauguration Day of 2017. And so they were front and center on both of his presidential campaigns, but they were not representing him personally.

GROSS: They tried.

ENRICH: They did try. That’s a very good point. Back in 2017, when Trump was president, and basically McGahn was in the White House and wanted to be spending his time on, you know, getting lots of Federalist Society lawyers on the federal courts, and to a lesser extent, kind of dismantling his hated administrative state. He found himself instead spending a ton of time dealing with this kind of mountain of problems that was threatening to come cascading down on Trump related to the Russia investigation and other matters. And he basically encouraged his former colleagues at Jones Day, in particular the managing partner, Steve Brogan, to make a play for the firm and for Brogan in particular, to come in and basically take over the legal representation of Trump personally.

And this was something that even at the time struck a lot of people inside Jones Day as really reckless. And the firm was already – its fate and reputation was really entwined with Trump, who was, you know, from the outset, obviously a very controversial, polarizing figure. And now Brogan made a play to really double down on that. And so on at least a couple of occasions in kind of the first half of 2017, he personally met with Trump in the Oval Office to pitch Jones Day’s services to the president. And it was not because they didn’t want it that they didn’t get it.

GROSS: So when Jones Day was representing the 2020 Trump campaign, did they participate in efforts to overturn the election after Trump lost?

ENRICH: I think the simplest way to answer that is to say no. But what they did do in Pennsylvania, which was one of the key battleground states that the election was hinging on, they did participate in efforts there to reduce or restrict how mail-in votes were counted. And there had been a – basically there’s a big debate over whether three extra days would be granted to people for their votes to be received after Election Day. Jones Day very vociferously argued that doing that, as the Pennsylvania Supreme Court had allowed, that doing that was basically an open invitation to people voting after Election Day, or it possibly could open the door to improper votes being counted.

And so they made a very concerted effort to prevent those votes from being counted. And they did that in a way that many people inside the law firm and in the broader legal community perceived as essentially jumping on the bandwagon with Trump and his allies of spreading unfounded concerns and fears about the risks of an election tainted by fraud.

GROSS: Well, let’s take another break here and then we’ll talk some more. If you’re just joining us, my guest is David Enrich, author of the new book “Servants Of The Damned: Giant Law Firms, Donald Trump, And The Corruption Of Justice.” And it focuses on the law firm Jones Day, the history of that law firm and how lawyers from that law firm became embedded within the Trump administration. We’ll be right back after a short break. I’m Terry Gross. And this is FRESH AIR.


GROSS: This is FRESH AIR. I’m Terry Gross. If you’re just joining us, my guest is David Enrich, author of the new book “Servants Of The Damned: Giant Law Firms, Donald Trump, And The Corruption Of Justice.” It’s about the international law firm Jones Day and how it represented the 2016 and 2020 Trump campaigns and how many of Jones Day’s lawyers found powerful positions within the Trump presidential administration. They helped Trump win and helped protect him while he was in the White House, helped push his agenda and move the Supreme Court and federal judiciary to the right. The relationship between Trump and Jones Day also helped further the agenda of many of its top leaders and many of the corporations the firm represents. This is an agenda relating to conservative politics, deregulation and gaining more influence and, for Jones Day, more power and billable hours. David Enrich is the New York Times business investigations editor.

Does Trump have an ongoing relationship with Jones Day now?

ENRICH: That is a very good question and one to which I do not fully know the answer. What I do know is that Jones Day continues to receive money from various Trump entities. So the Trump campaign, in some cases, is continuing to pay Jones Day for things – for services they’re continuing to provide. And a number of Trump political action committees and affiliated campaign committees are continuing to pay fairly large amounts of money to Jones Day for work that they are continuing to do. And so the relationship certainly still exists in that capacity. I’ve tried and tried to get a clear answer out of Jones Day and some of its senior lawyers about whether – if Trump decided he is officially running for president again in 2024, will Jones Day work for him? Will they take that assignment? And I have not been able to get a clear answer on that.

Jones Day keep saying they’re not going to comment on theoreticals and things like that, which I think is notable because there are a lot of other places – institutions, both law firms and elsewhere, that have made very clear that given the role that Trump and his associates have played over the past couple of years in really endangering, I think, some of our democratic norms, that is not something that many law firms would be willing to even consider participating in. And it’s possible Jones Day has made a decision not to do that, and they’re just not willing to say that out loud. But certainly they seem, at least in their communications with me, to be keeping their options open.

GROSS: You know, it’s interesting. You said that Trump is continuing to pay Jones Day for its services running his campaigns. Is that what they’re…


GROSS: …He’s paying them for or not?


GROSS: Yeah. So it’s interesting that he’s continuing to pay because he has a reputation of either not paying or shorting lawyers who have represented him. You tell a great story in the book about a horse. Would you tell that story?

ENRICH: So this comes up in the context of Jones Day lawyers trying to figure out whether it’s worth the risk of representing Trump initially. And one of the stories that circulated at the time, which I was able to confirm, was that back in the 1990s, another big law firm was representing Trump in his capacity as a businessman. And they basically racked up something, like, in the neighborhood of $2 million in legal bills. And Trump, when it came time to pay, just wouldn’t do it. And the the lead lawyer who was responsible for this relationship got so frustrated with Trump not only not paying but not even responding to his phone calls that he marched over to Trump Tower on Fifth Avenue, got upstairs, marched into Trump’s office and kind of gave him a tongue lashing about why on Earth he wasn’t paying the $2 million he owed.

And Trump looked kind of sheepish about it and made some apologetic noises and then said something to the effect of, look. I’m not going to pay you the $2 million I owe you, but I’ve got something better for you. And he reached into the drawer of his desk or maybe in a file cabinet and started rummaging around and pulled out what he said was a deed to a stallion, which he said was worth $5 million. And he proposed to this lawyer, who was standing there in just kind of disbelief, that instead of paying the $2 million in money that he owed, he would hand over this deed to what he claimed was a very expensive horse. And, you know, the lawyer, it turned out, wanted to be paid in money, not in animals…

GROSS: What a shock (laughter).

ENRICH: …And told Trump that was not acceptable. And Trump, lo and behold, ended up paying at least some of what he owed in the form of dollars.

GROSS: Who are some of the politicians that Jones Day is representing now?

ENRICH: They have a very wide range of politicians all on the conservative side, and it ranges from moderates like Susan Collins to people that are not moderate. So – and Ron Johnson, the Wisconsin senator who has been one of the leading peddlers of lies about COVID and the elections, is a Jones Day client. Kevin McCarthy, the House minority leader, who also has been a very vocal Trump ally, is another client. They’re representing a bunch of political action committees that are supporting particular candidates, and that includes a super PAC that is devoted in part to helping Herschel Walker win in Georgia. They’re representing Dr. Oz’s Senate campaign in Pennsylvania. And they’re getting hundreds and hundreds of thousands of dollars from the National Republican Party, through the RNC or their various House and Senate campaign committees. So it’s a real wide range of work, but it’s, I believe, entirely on the right.

GROSS: The chief of staff for Governor Ron DeSantis of Florida is a recent Jones Day alumni. So that’s a really important position right now since DeSantis seems to be a presidential hopeful, especially if Trump doesn’t run again.

ENRICH: Yeah. It’s interesting just looking around kind of the various places of Republican power in the country right now. And you see Jones Day – this kind of Jones Day diaspora spreading. And the lawyer who is in – who’s Ron DeSantis’ chief of staff is a really good example of that. Another example also in Florida is the judge who, earlier in the year, was the one who overturned the Biden administration’s mask mandate for planes and trains and things like that. That’s someone who was appointed to a federal court in Florida at the very tail end of the Trump administration. And this is someone who had only recently joined Jones Day. So this is a Jones Day lawyer who got tapped by the Trump White House to join a federal court. And at that point, they then hired the woman’s husband, who had been in the Trump Homeland Security Department, to join Jones Day. And now that judge is on the bench in Florida, making some very consequential decisions that have, again, aligned so neatly with McGahn’s worldview about the – about kind of curbing the power of federal agencies. It’s really just remarkable to see.

GROSS: Let me reintroduce you. If you’re just joining us, my guest is David Enrich, author of the new book “Servants Of The Damned: Giant Law Firms, Donald Trump And The Corruption Of Justice.” We’ll be right back after a short break. This is FRESH AIR.


GROSS: This is FRESH AIR. Let’s get back to my interview with David Enrich, author of a new book about the international law firm Jones Day and how embedded its former lawyers were within the Trump administration. And many of those people moved back to Jones Day after leaving the Trump administration. Jones Day also represented both of Trump’s presidential campaigns in 2016 and 2020.

Jones Day has had many clients representing many different things, but some of its clients have been major corporations who were bad actors in the sense that they lied. They covered things up, you know, like, RJR Tobacco that wouldn’t admit that nicotine was harmful, or Purdue Pharma that wouldn’t admit to what it knew about how addictive OxyContin was. As you write in the book, people assume, like, you know, everybody has the right to representation in the court. And some people assume that means everybody has the right to, you know, the best representation possible, which we know people don’t get, especially poor people often don’t get that. And also that, you know, lawyers should do everything in their power to help their client win. But if your client is a bad actor who maybe you know is covering up the truth, what is the responsibility of a giant law firm to speak out about what it knows or to at least not cover it up? Is there a responsibility? What are the ethics of that?

ENRICH: Yeah, it’s really complicated. And I think it depends whom you ask. And this is one of – you know, the Trump stuff in this book is a big focus. And it’s obviously, I think, in many ways, the sexiest stuff. But to me, the stuff about their corporate representation and some of the lines that I think they and their lawyers have crossed over the years in representing these big companies like RJR or Purdue Pharma or Abbott Labs, which is the big baby formula company – to me, those are in some ways just as important. Because there is, as you said, this notion that everyone, no matter what, always deserves the best legal representation they can have. And we kind of assume that that’s just the truth. And I’m not sure – I think it deserves a lot more skepticism than we sometimes give it. And what I’ve tried to focus on in the book are cases not just where the law firm is representing a, quote-unquote, “bad” client, but it’s where they’re representing a client like that and then also going really above and beyond the call of lawyerly duty to advance that client’s interests in ways that in some cases really are, I would say, negatively impacting not only their opponents in court but also the justice system overall.

GROSS: One of the dramatic techniques you write about relates to the RJR, the tobacco case, and a widow – of a man who she alleges died because of tobacco-related problems – was suing RJR. And tell us what Jones Day, was which was representing RJR, did to get her to back down.

ENRICH: Yeah. Basically, what happened is this widow is suing the company and they sat her down for a deposition and – where they’re supposed to basically, you know, just get all sorts of information out of her. And these depositions that corporate law firms conduct against witnesses or plaintiffs are just notoriously long, brutal. This one in particular, though, caught my attention as really extraordinary. The firm had learned that the husband who had died had been having an affair. And they learned that through examining the husband’s medical records, which made clear that he had contracted a very common STD through this extramarital affair. The widow, however, had not ever learned that her husband of many years had been having an affair.

And so during the deposition, the Jones Day lawyer brought this up and said, we understand your husband was having an affair. It was the first she’d heard of it. And Jones Day didn’t have to threaten that we’re going to bring this up at trial or air out your dirty laundry in public. It was really – the threat was kind of implied, and the widow was heartbroken. And this completely changed her – the way she remembered this man she’d been married to. And she abandoned the lawsuit because she just could not bear the risk of this being aired in public.

And, you know, Jones Day’s argument to me is that they were not trying to do that to shame the woman or to discourage her from bringing the lawsuit. They were simply trying to determine whether the STD that her husband had contracted maybe was the cause of all of these ailments that the husband had suffered from, which were allegedly related to smoking. And they’re kind of framing it as this is just our natural fact-finding mission.

But, you know, I’ve seen a pattern of this type of behavior by not only Jones Day but other corporate law firms as well, where they bring up in depositions and other settings highly damaging, highly personal information with the implied threat that it’s going to come out in court and really embarrass the person who’s bringing these cases. And they do that as a tactic to cow plaintiffs and to send a message to other would-be plaintiffs that if you dare to take us on and sue us, this is the treatment that you are likely to suffer, and it’s very effective.

GROSS: Another tactic you point out that Jones Day has used – in one case, they sent cartons and cartons and cartons of documents to the judge’s office. So when the judge returned to his office, he could barely get in. There were so many cartons. What is that tactic about?

ENRICH: So this was in a case that was brought against Abbott labs, which is the health care company that makes powdered infant formula, among other things. And there have been, over the years, a spate of cases of babies consuming powdered formula and contracting a type of meningitis that’s caused by bacteria that is allegedly in the powdered formula that causes severe brain damage or death. And so this is one of those cases. And the family of a child who had been severely brain damaged after consuming powdered formula had sued Abbott. And Jones Day – and they used a bunch of tactics. One of them was that – at least in the eyes of the federal judge who’s presiding over the case, the tactic was that Jones Day was just going to completely inundate the small-time firm that was representing the plaintiffs with just tens of thousands of pages of paperwork. And so the judge walked into his chambers one Saturday morning and literally thought that maybe another judge was moving in because there were just so many boxes stacked everywhere in his office.

And that was really, for this judge, who I spoke to at length for the book, the beginning of what he saw as just an extraordinary pattern of abuse of conduct by the Jones Day lawyers. And he described their conduct as appalling and the worst by a factor of ten that he’d ever seen during – over two decades on the federal bench. And it involved not just snowing the plaintiffs with all this evidence, but also, in his view, using really abusive tactics during depositions where they were – where Jones Day was, at times, kind of coaching witnesses, things like that. And so there’s a whole playbook that these law firms, including Jones Day, have mastered for taking on individuals who dare to threaten big companies. And it’s a playbook that they – that Jones Day in particular really mastered over the years of representing RJR on tobacco cases. And they’ve now deployed it just across a very wide range of cases on behalf of a wide range of very powerful companies.

GROSS: You know, when I read this story about the cartons of documents, I thought about the special master that now has to review all the documents before the FBI can proceed with that part of the criminal case involving the FBI’s search of top secret documents that Trump stored in Mar-a-Lago. And I’m wondering if you see an analogy there or if I’m just making an inappropriate connection.

ENRICH: No, that’s really interesting. I’d never thought of it. I never thought of that parallel. But I think you’re right. And Trump, over the years, has really mastered the art himself with – in litigation and in other matters of just delay, delay, delay. Buy time and just kick the can down the road. And that’s clearly part of what Trump and his team are trying to do by getting a special master to have to review all these documents. And that’s very much a tactic that law firms like Jones Day use when they’re going up against under-resourced and outmatched legal opponents. They try to delay, delay, delay.

And there’s another case that Jones Day – where they were defending Abbott against another lawsuit with very similar circumstances where they managed to tie up the litigation for three years in a dispute over whether the plaintiff’s, again, small-town lawyer should be kicked off the case because of some work he had done on a completely unrelated previous case. And they managed to do that. That delayed things by three years. And then there was a whole series of kind of procedural minutia that continued to bog the case down for years after that. And it’s – you know, Jones Day and its ilk will say, this is us just representing our clients and just seeking a fair outcome. The result, regardless of their intent, is that – and I think this is true for Trump and the special master, is that by delaying the reckoning, it wears down their opponents. It distracts their opponents. And it increases the chances that their opponents will simply give up and walk away because the fight is no longer worth it.

GROSS: My guest is David Enrich, author of the new book “Servants Of The Damned: Giant Law Firms, Donald Trump, And The Corruption Of Justice.” This is FRESH AIR.


GROSS: This is FRESH AIR. Let’s get back to my interview with David Enrich, author of a new book about the international law firm Jones Day and how embedded its former lawyers were within the Trump administration. The book is called “Servants Of The Damned: Giant Law Firms, Donald Trump, And The Corruption Of Justice.”

Jones Day is a very powerful, very big law firm with a lot of resources. When the leadership found out that you were writing this book, did they cooperate at all? Did they try to stop you or threaten to sue you?

ENRICH: They – it’s been kind of an interesting evolution with them. You know, I’ve spoken to a lot of people inside Jones Day. And I don’t think that most of those people were telling Jones Day higher-ups that I was working on this initially. But certainly, by the middle of last year, they had a very clear idea that I was working on this. I spent a lot of time trying unsuccessfully to communicate with Steve Brogan, who never once got on the phone or agreed to meet with me. And the tone of their communications with me kind of changed, I would say, pretty dramatically over time. And eventually, a number of the firm’s leaders agreed to answer questions at least over email, if not in person or over the phone. Although, some also agreed to meet with me. And more recently, as the firm have decided that this is not something they were very happy about, this project. They hired lawyers at another law firm actually to write a series of – I would say polite-but-not-very-happy letters to my publisher at HarperCollins, not threatening and certainly not trying to stop publication of the book. But it was a series of letters that – it’s very common to anyone in the news media. These are lawyers who – they’re not trying – they’re explicitly not trying to stop publication of the book, and they’re not threatening litigation. But they are writing very lawyerly letters that are meant to be read in a certain way and to kind of get people to be a little more cautious and to think twice about what they’re writing. And it’s kind of par for the course. I’ve seen instances of much more egregious bad behavior by lawyers in situations like this where they’re kind of actively threatening and really being over the top. And that was not the case here, but they were exerting some pressure.

GROSS: Does Jones Day have any official response to the book? Are they challenging anything that you state as fact in the book?

ENRICH: No, I don’t think they are at this point. I mean, there’s – I’ve gone through this, like, extremely extensive fact-checking process with the firm itself and also with many of its lawyers who are named in the book. And there are lots of points along the way of that fact-checking process where there were facts that they disputed or disagreed with. But those are things that have been changed before the book was published. And that’s, you know, that’s a normal part of the journalistic process is that I hear lots of things that I want to confirm as many of them as I can. And you go to people for fact-checking, and during fact-checking, you find out that you had things wrong and you fix them. So I think that’s been a pretty healthy, normal process. I know that some of the people in senior positions at Jones Day have found that process to be kind of infuriating, and they have not enjoyed this. But I think at the end of the day, the book is accurate and fair.

GROSS: As I was reading your book, especially the parts about Trump, I kept hearing Trump’s campaign slogan, drain the swamp. Did that happen to you, too, while you were writing the book, thinking about that pledge?

ENRICH: Yeah, it did. I mean, there – this is someone who obviously cast himself in the role as a Washington outsider and the enemy of special interests. And, you know, there are few firms in the world that are more politically connected and more inside Washington than Jones Day is. And so the notion that someone – this, you know, kind of outsider trying to shake things up would turn to a firm like Jones Day to staff his administration and help pick his judges and things like that. It is really antithetical to that. And I think the more – and you also see it in the fact that people were cycling back and forth between the Trump administration and their private practice, where they would go right back to representing corporate clients, in some cases, with interests before the Trump administration.

And, you know, there’s a couple of cases in the book where the firm is representing a big company like Walmart against an investigation by the Justice Department. And lo and behold, the Jones Day lawyers find ways to over and over again contact their recent colleagues who are now in powerful positions in the Justice Department to go to bat or to at least kind of curry favor on behalf of their embattled client. And when I think of the swamp and I think when Trump thinks of the swamp, there are few swampier things than that type of inside baseball lobbying.

GROSS: David Enrich, thank you for your reporting and for your interview today. I really, really appreciate it.

ENRICH: Thanks so much for having me.

GROSS: David Enrich is The New York Times business investigations editor and author of the new book “Servants Of The Damned: Giant Law Firms, Donald Trump, And The Corruption Of Justice.” Jones Day is an NPR underwriter, and their underwriting credit has been heard on our show. Tomorrow on FRESH AIR, my guest will be Nina Totenberg, a longtime NPR legal correspondent covering the Supreme Court. Her new book, “Dinners With Ruth,” is about her long friendship with Ruth Bader Ginsburg. They became friends before Ginsburg became a Supreme Court justice, before Totenberg became well-known for her NPR reporting. The book is also a memoir about Totenberg’s life. I hope you’ll join us. Roberta Shorrock directs the show. I’m Terry Gross.

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