DAVID ENRICH Servants of the Damned: Giant law firms and the corruption of justice. Reviewed by Braham Dabscheck
David Enrich delivers a cautionary tale of the capture of US courts by vested interests.
The powerful have always needed handmaidens to tend to their needs. They employ small armies of professionals – lawyers, accountants, scientists, engineers, technical and cyber experts, publicists and others to defend and advance their interests. The professionals who are the subjects of David Enrich’s Servants of the Damned are lawyers; in particular, the American law firm Jones Day. The title for this book comes from a 2004 quote in the magazine American Lawyer: ‘From handguns to tobacco, Jones Day defends the powerfully damned and the damned powerful.’
There are two generic ways in which Jones Day and other leading American law firms tend to the needs of the powerful. The first, in the traditional way most of us understand the work of lawyers, is in providing legal advice and representing clients in cases before courts, tribunals and other regulatory bodies. This is performing work in the current legal environment, the status quo. The second, and potentially more interesting, way they work is to change the status quo to enhance the ability of the powerful to manage and control the future. There are two sides to this work.
The first is to change legislation and associated regulations to ensure that they will not adversely impact the powerful in legal battles to come. The second is to ensure that the ‘right’ people, people with dispositions favourable to the powerful, are appointed to courts, tribunals and regulatory bodies so that when issues emerge, decisions are made which favour them; or, at a minimum, mitigate any harm that may be visited upon them when circumstances dictate they should be punished for a ‘misdemeanour’.
David Enrich is a journalist with the New York Times and Servants of the Damned is based on interviews with over 180 people – the majority of them current or former Jones Day employees – and the usual documents associated with legal research. The book is organised into three essentially chronological sections. The first covers the years 1893 to 2003, beginning with the formation of Jones Day as a small firm in Cleveland, Ohio, and the appointment of Steve Brogan as Jones Day’s managing partner.
This section provides material on not only the growth of Jones Day over this period but also changes that have occurred to the legal profession more generally in America. Especially after World War II, the strategy of Jones Day was to grow both domestically and overseas by either opening up new offices or merging with existing firms. In 2018, it had 42 offices worldwide (with four in Australia – Sydney, Melbourne, Brisbane and Perth), employing over 2500 lawyers and grossing over US$2 billion. Its management style is that of a strong or, in Enrich’s view, an autocratic managing director who preaches a mantra of ‘not whining’ and getting on with the job to associates. Enrich provides examples of internal tensions over the years; those who have fallen out with management have had their employment terminated.
The second section examines how Jones Day operates within the status quo, particularly in representing a number of corporations and powerful organisations accused of breaching legislation or producing products that have caused harm to consumers and society more generally. He is highly critical of the way in which Jones Day and other leading law firms operate:
There is a certain element of fear inherent in a plaintiff or witness or journalist going up against a firm that employs thousands of attorneys and is financed by giant multinationals. Firms can bury you in paperwork, subpoena you into submission, bog down the legal process in the hopes of exhausting you emotionally and financially. They draw on virtually infinite resources … The frequent result of this vast power imbalance is a legal system skewed heavily in favor of the world’s richest companies and individuals at the expense of everyone else. This is bad. But sometimes it gets worse. Lawyers at megafirms attempt to frighten opponents into quiescence. Maybe it’s a dark-of-night visit from a private investigator. Maybe it’s formal letters, sent by certified mail, warning of ruinous litigation in situations where the lawyers know perfectly well that any such suit would be tossed out of court. Maybe it’s a veiled threat that embarrassing information might find its way into the public domain.
The third and final section is concerned with the work of Jones Day in taking steps to change the status quo – changing legislation and appointing ‘right-minded’ persons to courts, tribunals and regulatory bodies. Most of this discussion is associated with Jones Day’s historic links to the Republican Party and, more specifically, aligning itself with Donald Trump’s successful presidential campaign and its lawyers going on to fill various posts during his presidency. In saying this, it should be pointed out that the desire of American corporations and powerful individuals to change the status quo has a long history that predates the advent of Donald Trump. However, it is a process that has been accelerated by neoliberalism. For an excellent account of its intellectual trajectory, see Nancy MacLean’s Democracy in Chains: The deep history of the radical right’s stealth plan for America (Scribe, 2017).
Jones Day partner Don McGahn was appointed to the position of White House counsel. He took the position on the condition that ‘He needed to have complete control over the process of selecting federal judges.’ Another Jones Day partner, Noel Francisco, was appointed Solicitor General. This is the most senior legal position in the United States federal government; among other things, the Solicitor General represents the federal government in cases before the Supreme Court. Enrich documents how a large number of Jones Day lawyers were appointed to federal regulatory bodies. To the extent that corporations had dealings with such bodies, it made good sense to have Jones Day represent them in proceedings.
Enrich is highly critical of the revolving door between the private and public sectors where lawyers, accountants, consultants and bankers bounce ‘back and forth between their corporate jobs and the government’. It may appear that this helps each side of those relationships to gain an enhanced understanding of the other. However, Enrich comments:
There is a pronounced pattern of industry insiders arriving in Washington and continuing to advance their clients’ interests – and then returning to the private sector, where they are rewarded with promotions and hefty pay rises … The incentives are similarly bad for public servants who hope one day to land a lucrative job with a major law or accounting firm. What better way to win favor with would-be employers than to make decisions that benefit them or their clients?
Don McGahn stepped down as Donald Trump’s White House counsel in October 2018. In that time he had been in charge of selecting two successful nominees to the Supreme Court (Justices Neil Gorsuch and Brett Kavanagh) and more than 150 members of federal courts, representing approximately one quarter of these courts. Enrich comments:
This would be one of Jones Day’s great legacies … Through its successful representation of Trump and the installation of its lawyers in the White House, the firm played a crucial role in a once-in-a-generation remaking of the federal judiciary that would outlast Trump … Inside and outside the government, Jones Day had arguably done as much as any private institution to help Trump and his administration … Once-and-future Jones Day lawyers had helped reshape a smorgasbord of federal bodies … which had been transformed into a political appendage of the White House.
In his Prologue, Enrich points out that the activities of Jones Day have flown ‘mostly under the radar’, adding:
Here was a corner of the business world, that despite size, money, and clout, had mostly escaped outside attention, allowing the legal industry to make the planet a more dangerous, less just place under the guise of providing trusted legal counsel.
David Enrich’s object is to bring to light the activities of Jones Day to a broader audience. He has succeeded in this very readable and engaging account of how this particular handmaiden works on behalf of the rich and powerful.
David Enrich Servants of the Damned: Giant law firms and the corruption of justice Scribe 2022 PB 384pp $35.00.
Braham Dabscheck is a Senior Fellow at the Melbourne Law School at Melbourne University who writes on industrial relations, sport and other things.
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