Russiagate 2.0 The Immense Trump-Barr Scandal Begging the Atteention of Congress and Media

Attorney General Bill Barr’s alarming expansion of political control at the DOJ in advance of the election is also a story of corporate capture: a single law firm, Kirkland & Ellis, has a revolving door monopoly on the highest ranks of the Department of Justice that deserves far more scrutiny.

A tight network of former Kirkland lawyers – including Barr, his two highest-ranking deputies, and numerous other top officials – has achieved an extraordinary level of control at the DOJ, and has played a key role in putting the agency to work for the president.

The Kirkland network appears to have provided the political and legal muscle behind one of the DOJ’s most controversial recent moves: its decision to take over the president’s defense in the E. Jean Carroll defamation lawsuit by claiming that the president was acting in his official capacity in denying Carroll’s rape allegation. Just prior to that intervention, Barr had installed former Kirkland lawyers – including a longtime partner who was hired by the DOJ in August – into key positions at the Civil Division and its Torts Branch, which is handling the case. Though a federal judge rejected the DOJ’s attempt to get it dismissed, discovery in the case was effectively delayed until after the election, with obvious benefits for Trump.

This pattern of appointments, detailed below for the first time, lends further support to the charge that Barr is running the DOJ as if it is the president’s private law firm; the name of that firm is Kirkland & Ellis.

But the firm has other clients, of course. Its reach into the DOJ raises massive conflict of interest concerns: it is hard to see how the DOJ could possibly handle any case involving a Kirkland client – and there are many – with the necessary degree of independence. At an agency where the attorney general has argued that political appointees have “ultimate authority” on any key decision, you have to go at least three levels down on the org chart to find someone who was not recently on the Kirkland payroll.

The story of Kirkland & Ellis and the Department of Justice provides a telling window onto the relationship between the Trump administration and the corporate power networks that benefit from and help drive Trump’s hold on power (while also hedging their bets with Democrats). It is important to understand this larger context of power relationships regardless of the outcome of the election, though it may be especially important in some post-election scenarios.

The Kirkland network controls the Department of Justice

Kirkland & Ellis has long been a prominent corporate law firm, though during the Trump years it has gained the distinction of becoming the largest law firm in the world by revenue. Industry observers chalk this up to its large roster of private equity clients and increased focus on dealmaking. Trump administration and Republican Party ties likely helped: it is one of the most conservative large law firms in the country, according to one study, and former Kirkland attorneys hold many powerful appointments throughout the Trump administration.

At the DOJ under Barr, however, the firm’s network has achieved a startling level of control. The DOJ has long had a revolving door issue with major corporate law firms, including under Democratic administrations – Obama had a serious Covington & Burling problem, and Democratic-leaning firms are certainly keen to take over a potential Biden DOJ – but Barr has taken it to a new level. Most notably, the DOJ’s three highest-ranking officials were all Kirkland attorneys prior to joining the Trump administration:

• Bill Barr has a longstanding relationship with the firm dating back to 1994, when he was general counsel at GTE, a predecessor to Verizon (where Barr also served as general counsel). In a 2006 interview with Corporate Counsel, he sang the firm’s praises, saying that he looks to it for “big, important litigation” and citing its “strength at every level.” Though Barr has never been a partner at the firm, he has done several stints there over the years: he was of counsel in 2009, served as a consultant to the firm in 2011 on the BP oil spill case, and was of counsel there again from 2017 until his appointment as attorney general, handling work for Caterpillar and Cerberus, the private equity firm. (Notably, Barr’s high-level corporate relationships extend far beyond just his work at Kirkland, and he held several corporate directorships prior to his appointment.)

• Barr’s number two, Deputy Attorney General Jeffrey Rosen, was a longtime partner at Kirkland prior to joining the Trump administration as deputy secretary of transportation in 2017. Trump appointed him as deputy attorney general at Barr’s recommendation in 2019. Rosen’s past clients include the U.S. Chamber of Commerce, General Motors, and Raytheon.

• Principal Deputy Associate Attorney General Claire Murray, who Barr brought on as principal deputy associate attorney general in May 2019, was a Kirkland partner before joining the White House counsel’s office in 2017. The third-ranking position on the DOJ’s org chart, associate attorney general, is unfilled, so Murray is acting in that capacity. Murray worked for a range of corporate clients at Kirkland, including Boeing, Syngenta, and United Technologies. At the White House she played a key role in handling the Supreme Court nomination of another former Kirkland partner, Brett Kavanaugh, for whom she had previously clerked.

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Shortly into her tenure, Murray joked to an industry conference that “our philosophy is that an agency can never be led by too many lawyers from Kirkland & Ellis” (apparently seeing no problem with this). Indeed, the firm’s reach into the DOJ goes beyond the three highest-ranking positions:

• Jeff Clark, assistant attorney general in charge of the Environmental and Natural Resources Division (ENRD), was a longtime partner prior to joining the DOJ in 2018. Barr recently made Clark acting assistant attorney general in charge of the Civil Division.
• Another former partner, Principal Deputy Assistant Attorney General Jonathan Brightbill, has reportedly taken on many of Clark’s responsibilities at ENRD as Clark focuses on his new role at the Civil Division.
• Beth Williams, assistant attorney general in charge of the Office of Legal Policy – which oversees the judicial appointment process at the DOJ – was a partner prior to joining DOJ in 2017.
• John Moran, chief of staff to the deputy attorney general and associate attorney general, was a partner prior to joining the Trump White House in 2017. He moved to the DOJ in 2018, and served as Barr’s deputy chief of staff from February 2019 until August 2020.
• Steven Engel, the assistant attorney general in charge of the Office of Legal Counsel, did a stint as a Kirkland associate a long time ago, from 2002 to 2006, but one of his deputies, Devin DeBacker, has a more recent relationship – he was a partner at the firm prior to joining the Trump White House (he moved to the DOJ in August).
• The deputy assistant general in charge of the Torts Branch, Doug Smith, was a longtime partner prior to his appointment in August.
• Kellen Dwyer, a former Kirkland lawyer who joined the DOJ in 2014, was recently appointed deputy assistant attorney general in charge of the Office of Law and Policy in the National Security Division. The appointment raised concerns because Dwyer replaced a career official at a division that signs off on the legality of the federal government’s counterterrorism and counterintelligence activity, in advance of the election. Dwyer’s qualifications are unclear, at best; he is known mainly for inadvertently revealing federal charges against Julian Assange.
• The assistant attorney general in charge of the Criminal Division, Brian Benczkowski, was a longtime partner prior to joining the Trump administration and moved back through the revolving door to Kirkland in September.

Though this list is exhausting, it is not exhaustive, and Kirkland’s ties to the administration also extend to other parts of the Trump administration. Perhaps most notably, given its special relationship with both the DOJ and the president, the White House counsel’s office is currently led by former partner Pat Cipollone, and deputy counsels Patrick Philbin and John Eisenberg are also former partners. As press reports have noted, several of the above DOJ officials also served in the White House counsel’s office prior to joining the DOJ, including Murray, DeBacker, and Moran.

The number of revolving door relationships with Kirkland is notable on its own, but it is also important to consider the ways in which such a close-knit insider network can be deployed to move a deeply controversial institutional agenda – such as, say, a campaign to put the DOJ to work for the president in advance of the upcoming election.

Indeed, Barr’s personnel moves with respect to the Carroll case indicate that he has, in fact, brought this network to bear on a significant decision related to the president’s personal matters in the run-up to the election.

Barr taps the Kirkland network to take over the president’s defense in the Carroll defamation suit

In early September, the DOJ took the extraordinary step of taking over the president’s defense in the E. Jean Carroll defamation lawsuit. In certifying the case, the DOJ adopted the new position that the president had been acting in his official capacity in denying Carroll’s allegations that Trump had raped her during the mid-1990s.

The move drew sharp criticism. How could the president possibly be acting in his official capacity in denying a decades-old rape allegation? The timing of the move was extremely fortunate for the president, as well: it effectively delayed a high-profile case against Trump just two months prior to the election, on the deadline for appeal and just prior to deadlines to provide some of the required discovery materials, including a DNA sample. Legal experts have noted that the DOJ could have, and should have, taken this step much earlier if this was its position all along.

In defending the maneuver, Barr attempted to characterize it as a routine decision by a civil servant, telling reporters that “this has become somewhat routine to the extent that the certification process has been delegated to an attorney in the tort section of the civil division of the Justice Department.”

Barr’s personnel moves suggest otherwise: he made two key appointments just prior to the certification that have gone unnoticed, but suggest that he leaned heavily on the Kirkland network to move this supposedly routine, bureaucratic decision.

In August, the DOJ appointed a longtime partner at the firm, Doug Smith, as deputy assistant attorney general in charge of the Torts Branch, which was responsible for the decision. The appointment was made shortly before the September 8th certification, but it has gone unnoticed so far. This was an unusual career jump for Smith, who had been at Kirkland since 1996, representing corporate clients like Dow and Philip Morris. Smith’s LinkedIn profile now boasts that he is “the chief litigator in charge of the Torts Branch of the U.S. Department of Justice, responsible for representing the United States and its officials, including the President and the Attorney General, in all tort actions in federal courts.”

On September 5th, just three days prior to the DOJ’s certification of the case, Barr named Jeff Clark acting assistant attorney general in charge of the Civil Division, which oversees the Torts Branch. Clark, a longtime Kirkland partner before joining the DOJ, also continues to serve in his position as assistant attorney general in charge of the Environmental and Natural Resources Division. Clark’s name appears at the top of the initial filing, though it was signed by James Touhey, the director of the Torts Branch.

Touhey must have suddenly found himself surrounded by a phalanx of Kirkland attorneys as he exercised his supposedly independent authority to sign off on the certification. The names of Clark, Smith, and Civil Division Counsel William Lane – who was an associate at the firm prior to joining the Trump administration – all appear at the top of the DOJ’s most recent filings in the case. Lane was scheduled to deliver oral arguments on behalf of the DOJ, but was not allowed to enter the courthouse due to quarantine restrictions, and the hearing was called off.

This week a federal judge rejected the DOJ’s argument that the United States should be substituted as the defendant in the case. But regardless of whether the DOJ appeals, what appear to have been primary objectives – delaying the case, and associated discovery, until after the election, and removing the case to federal court – were achieved.

Barr’s DOJ has been taking other troubling steps with respect to the upcoming election, and has signaled that he is willing to do more. The network deployed in the Carroll case gives us some sense of the role Barr’s in-house law firm is playing in moving this agenda.

Kirkland & Ellis has many high-powered corporate clients with interests before the DOJ

Kirkland’s DOJ branch office raises obvious conflict of interest concerns beyond its work for the president, given the firm’s roster of high-powered corporate clients.

For instance, Kirkland represented Goldman Sachs in the massive 1MDB corruption case, which culminated in a DOJ settlement last week. Though the bank paid a $2.9 billion fine and admitted wrongdoing, it escaped more serious penalties, such as a guilty plea in the United States and an independent monitor. The Kirkland network played a key role at DOJ: the official who oversaw it, Brian Benczkowski, was a partner at the firm prior to joining the DOJ as assistant attorney general in charge of the criminal division. Benczkowski moved back through the revolving door to the firm in September.

Benczkowski has a longstanding relationship with Mark Filip, the Kirkland lawyer Goldman retained to work on the case. When Filip was deputy attorney general under George W. Bush, Benczkowski was his chief of staff. Subsequently the pair was co-counsel for Kirkland on at least three high-profile DOJ cases, representing BP in the Deepwater Horizon oil spill case (which Barr also worked on for Kirkland), Volkswagen in its emissions scandal, and Abbott Laboratories in the misbranding of an epilepsy drug. Goldman Sachs’s hiring of Filip in the 1MDB case raised questions about whether Benczkowski would recuse himself. Incredibly, despite his close ties to Filip, he received an ethics waiver to work on the case. Barr also received a waiver.

Another notable example: Boeing retained the firm (Filip, specifically) to represent it in the 737 Max investigation. There has been little news about the case in recent months. Though Barr recused himself because of his ties to Kirkland, it is unclear if Benczkowski did. Other DOJ officials, including Claire Murray and John Moran, counted Boeing as a client during their time at Kirkland.

There are certainly many other examples – the DOJ-Kirkland crew’s list of past clients is stacked with corporate giants that have interests or cases before the DOJ, from private equity firms like Blackstone Group to defense contractors like Raytheon. (Kirkland’s representations of Russia’s Alfa Bank in the Trump-Russia investigation and Jeffrey Epstein have also, of course, raised eyebrows.).

Though some of the DOJ’s recent cases, including its antitrust case against Google, appear to be positive steps, it is hard to see how Kirkland’s extensive client list is not shaping the DOJ’s agenda. And its impact goes beyond which investigations it chooses to take up, and how it handles them: the DOJ recently issued guidance, for instance, that was seen as a significant boost to private equity firms and Special Purpose Acquisition Companies (SPACs). Kirkland leads the industry in private equity deals, and has done more than twice as many SPAC deals as any other firm this year.

Barr and the rest of the Kirkland network serve at the pleasure of the president, but they also answer to corporate America.

What will Barr’s Kirkland network do next?

Barr has demonstrated a deep contempt for voters and protesters with, of course, strong racist, authoritarian undertones. This is visible in his recent pronouncements and policy moves at the DOJ – ginning up the spectre of voter fraud, attacking Black Lives Matter protesters, and reversing a longstanding DOJ policy against prosecutorial interference into elections, among other things – and also on a more personal level, in his fond recollections of his younger days spent punching protesters.

Barr’s disregard for basic rights is especially disturbing in light of the tight network of corporate lawyers he can rely on to move his agenda at DOJ. Barr has already put the DOJ to work for Trump in ways that cross the line into inappropriate involvement in the election, and he has the personnel in place to do more. The DOJ’s abilities to use law enforcement power to block vote counting appear limited, but there are other levers: announcements of investigations or targeted crackdowns on protest could do a lot to fan the flames of a post-election crisis.

Kirkland attorneys have been on the scene in another contested election. Supreme Court Justice Brett Kavanaugh was a partner at the firm when he served on Bush’s Florida recount team in 2000. He had also done pro bono work as an attorney for the family of Elián González in a case that is widely believed to have played a key role in winning Florida for Bush. His co-counsel in that case was none other than Jeff Clark, now acting head of the Civil Division, and one of the officials Barr moved into a key position of responsibility with respect to the decision to intervene on the president’s behalf in the Carroll case.

Kirkland puts a lot of effort into cultivating a positive image and bipartisan relationships: it routinely takes on pro bono clients, has high-profile Democratic partners, donates heavily to both parties, and even participates in an election protection program. If it really wants to protect the integrity of the election, a public disavowal of its branch office at the DOJ may be in order.