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In The Game of Trump, Jones Day Outplays Kirkland Ellis

Vivia Chen

February 1, 2021

Chess-2489553_1920The law firm that’s leaving the biggest paw print on the Trump administration is NOT Jones Day. It’s Kirkland & Ellis.

Who’d have thunk it?

God knows that’s not how it was supposed to play out. In the early days of La Régime Trump, Jones Day lawyers dominated, grabbing jobs in the new administration like hungry shoppers at a Birkin sample sale. At least a dozen Jones Day lawyers joined, including Don McGahn (White House counsel), Noel Francisco (solicitor general) and John Gore (assistant attorney general). Another dozen or so followed soon after.

I was hoping to cover the shenanigans of those merry Jones Day pranksters for at least four years. (Didn’t we have fun with McGahn for a while? Remember how I thought he was slimy and compared him to The Talented Mr. Ripley? Such days of innocence.)

But then the Jones Day brethren spoiled the fun by steadily bailing out, ushering in the Kirkland era. And guess what? The Jones Day folks receded to the background, looking not so terrible in comparison.

I don’t know if this means Jones Day lawyers are savvier, but in the Game of Trump, in which the key to survival is cutting out in the nick of time, it sure looks that way.

Although Jones Day lawyers wreaked havoc on civil rights (DOJ’s Eric Dreiband challenged affirmative action), installed intractably conservative judges (McGahn handpicked Justices Brett Kavanaugh, Neil Gorsuch and others), tried to derail LGBTQ rights (DOJ’s Hashim Mooppan argued that ”employers under Title VII are permitted to consider employees’ out-of-work sexual conduct”), pushed racist policies (Francisco was a major advocate for the Muslim travel ban) and thumbed their noses at ethical rules (all of them?), those positions are more or less what you’d expect from conservatives schooled by The Federalist Society.

But at least they didn’t try to annihilate democracy.

Not so with the Kirkland gang.

Oh, where to begin? I guess Bill Barr would have to be the firm’s leading representative. Almost immediately after becoming attorney general, Barr turned the DOJ (which had about a dozen Kirkland alums in top positions) into a private law firm serving the president’s interests. Barr pushed the envelope on executive power to the brink of authoritarianism, distorted the Mueller report and, until the very end, fanned Trump’s fantasy that he could stay in power. He even forced the DOJ to defend Trump in the defamation suit brought by E. Jean Carroll, who alleged she was raped by Trump. (Oh, I know, Barr tried to redeem himself at the end by refuting Trump’s claim of voter fraud, but it was a bit late in the day, no?)

Of course, the freshest and perhaps most disturbing episode involving Kirkland alums was that attempt by Jeffrey Clark, the then-acting head of DOJ’s civil division, to depose Jeffrey Rosen, the then-acting attorney general who succeeded Barr. As the New York Times reported, Clark told Rosen, his boss and mentor, that he was taking over so that he could lead the charge to overturn the presidential election results in Georgia. The only thing that stopped the takeover, according to the Times, was that other DOJ leaders threatened to resign en masse.

What can we say? Jones Day lawyers are looking mighty fine compared to their esteemed counterparts from Kirkland. No wonder Jones Day alums seem to be landing on their feet, while Kirkland’s are scrambling.

Jones Day has shown little hesitancy in welcoming back lawyers who played in Trumpland. Not only have McGahn and Gore returned to the fold, but Francisco just got elevated to head Jones Day’s Washington office. Other returnees include former acting GC of Homeland Security Chad Mizelle (fun fact: his wife Kathryn Kimball Mizelle, also a former Jones Day associate, got anointed to a federal judgeship last year despite a “not qualified” rating by the ABA) and Kaytlin Roholt Lane, who served briefly on the Senate Judiciary Committee. And it wouldn’t be at all surprising if others follow.

And those Kirkland alums? I know it’s trendy to speculate about whether Kirkland will take them back, but is it really hard to guess? Unless they’ve been out of Trump’s immediate orbit, why would Kirkland want them? (Law.com reports that “most former Kirkland lawyers who served in some capacity in Trump’s administration have not returned to the firm yet, according to public records and career profiles.”)

Certainly, I’d bet that any lawyer who’s been associated with Trump’s attempts to overturn the election is burnt toast at Kirkland and elsewhere in Big Law. Aiding and abetting a crazy commander in chief in the grand finale is not the kind of credential that’s in demand at most major firms.

In the end, the Kirkland gang was left holding the bag of an administration that’s destined to be the worst in U.S. history.

But don’t get me wrong. I’m not saying that the Jones Day bunch was smarter, more principled or somehow superior. For all I know, some were secretly cheering on the Kirkland gang and hoping that the election would be miraculously overturned. (Let’s not forget that the firm is still contesting the extended ballot deadline in Pennsylvania and that the lead lawyer is none other than Gore, one of the early joiners of the Trump administration.)

Give the Jones Day crew credit, though, for having amazing timing. They sucked up to Trump early and got powerful positions that shaped the federal judiciary for a generation, dismantled regulations and promulgated policies that favored corporate interests—endearing them to clients. Then they got the hell out. Before things got totally crazy. And rode back to the firm victorious.

Brilliantly played, no?

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The Careerist takes an inside look at how lawyers shape their careers and manage their lives. The blog aims to dissect developments in the profession, provide useful information and advice, and give lawyers a platform to voice their views. The goal is to provide a fresh, provocative take on the state of lawyering.

About Vivia Chen

Vivia Chen

Vivia Chen, The Careerist's chief blogger, has been covering the business and culture of law firms for a decade. A former corporate lawyer, Chen is fascinated by those who thrive (as well as those who don't) in the legal profession. Her take: Success in the law (and life) doesn't always travel a linear path. If you have topics you'd like to discuss or information to share, contact her: [email protected]

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