Can Law Firms Avoid Landing on ‘Enemy’ List During the Trump Administration?
By Abigail Adcox
The original version of this story was published on National Law Journal
What You Need to Know
• As more Biden political appointees hit the job market in the coming weeks, law firms may be vetting candidates from the government even more.
• More than a dozen attorneys practicing at private law firms are on a list put out by Kash Patel, Trump's pick for FBI director, in his2022 book.
• Firms appear to be keeping their heads down, as Patel and other nominees still require Senate confirmation.
As Donald Trump solidifies his top cabinet picks, a brewing concern for some law firms is staying off a so-called enemies list.
During his campaign, Trump was focused on Americans he believes have wronged or betrayed him. They are worse, he said, than foreign adversaries of the United States, calling them "the enemy from within."
Additionally, Trump's pick for FBI director, Kash Patel, outlined “Members of the Executive Branch Deep State” in his 2022 book. That 60-person list includes more than a dozen attorneys in law firms, including at Paul, Weiss, Rifkind, Wharton & Garrison; King & Spalding; and Covington & Burling, among other firms, according to a full list outlined in media reports in the last week. Representatives for these firms either declined to comment or didn't reply to messages seeking comment.
Large law firms, which overwhelmingly supported Democratic nominee Kamala Harris during the election, appear to be keeping their heads down for now, not looking to make waves with the incoming administration. They are also trying to keep a balance by maintaining the same culture and many of the same choices as before the election.
“[Law firms] don't want to unnecessarily antagonize the [Trump] administration and so they're careful in what they say and don't say, so that they don't antagonize unnecessarily, but they're not interested in changing their practice to curry favor or to avoid criticism from the administration,” said one legal observer.
Still, as more Biden political appointees, including those Trump has been critical of, hit the job market in the coming weeks, law firms may be vetting candidates from the government even more.
"Whenever there's an administration change, and especially when people in an administration become very vocal about who they might feel are enemies to their administration, it's definitely something that would be concerning to any firm." – Jeffrey Lowe
“I think [law firm leaders] are always talking about things like this,” said Washington, D.C.-based legal recruiter Jeffrey Lowe at CenterPeak.“ Whenever there's an administration change, and especially when people in an administration become very vocal about who they might feel are enemies to their administration, it's definitely something that would be concerning to any firm.”
Lowe added that some firms are more “cavalier about it” than others.
Coinbase CEO Brian Armstrong already signaled to law firms the crypto company won’t work with law firms if they hire certain officials from theBiden administration.
“We've let all the law firms we work with know, that if they hire anyone who committed these bad deeds in the (soon to be) prior administration, we will no longer be a client of theirs,” Armstrong
wrote in an X post last week.
Armstrong went on to single out Milbank for hiring U.S. Securities and Exchange Commission Division of Enforcement Director Gurbir Grewal, writing that “Milbank recently messed up and hired Gurbir. We don't work with them now (and never will while he works there).” A Milbank representative did not immediately respond to a message seeking comment.
It remains to be seen whether Coinbase's position will be implemented more broadly across corporations and clients.
“I think clients will wait to see whether it's just rhetoric or whether there is a risk to the lawyer or the law firm, and clients may choose to avoid controversy and try a law firm that doesn't have someone on the list. So it might become a business issue if clients start to object," said Lanny Davis, a crisis management attorney and former White House counsel, but adding "I doubt it."
Some firms may want to have client feedback on some staffing and hiring matters, industry observers say. “Depending on who their biggest clients are, if the biggest clients they have turn out to be defense contractors, they may very well want to talk to their clients before they bring somebody aboard who might be particularly controversial,” said Stephen Saltzburg, a professor of law at George Washington University Law School.
Some firms may also be waiting to see what happens in the Senate confirmation process. Patel needs Senate confirmation for the job. Current FBI Director Christopher Wray indicated Wednesday he will resign in January at the end of the Biden administration.
Overall, Saltzburg and others said landing on an "enemy" list may not have a huge impact on a firm's business planning. “I don't think that most of the major law firms are going to forgo hiring people who have wide experience and know the players who are in the system. They're not going to shun those people just because Donald Trump might not like them,” Saltzburg added.
Here are the attorneys on Patel’s list practicing in private law firms:
Eric Holder, former attorney general under President BarackObama, is now senior counsel at Covington.
• Robert Hur, former special counsel who investigated Biden over the mishandling of classified files, is now a partner at King & Spalding.
• Gina Haspel, CIA director under Trump, is now a national security adviser at King & Spalding.
• Rod Rosenstein, former deputy attorney general under Trump, is now a partner at King & Spalding.
• Sally Yates, former deputy attorney general under Obama, is now a partner at King & Spalding and leads the firm’s crisis management practice.
• Michael Atkinson, former inspector general of the intelligence community. Atkinson is now a partner at Crowell & Moring and co-leads the firm’s national security group.
• Bill Barr, former attorney general in Trump’s first administration, and now a partner at Torridon, a firm he co-founded with Ted Ullyot, former general counsel at Facebook.
• Pat Cippolone, former White House counsel under Trump, is now a partner at Torridon.
• Pat Philbin, former deputy White House counsel under Trump, is now a partner at Torridon.
• Loretta Lynch, former attorney general during the Obama administration, is now a partner at Paul Weiss.
• John Carlin, former acting deputy attorney general during the Biden administration, is now co-chair of Paul Weiss’ investigation practice group, co-chair of the cyber security and data protection practice group and chair of the national security practice group.
• Mark Esper, secretary of defense under Trump, is now a senior adviser at Squire Patton Boggs.
• Michael Sussmann, who represented the Democratic National Committee in its response to Russian hacking in the 2016 presidential election, is now a partner at Fenwick & West.
Read the full post at law.com
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