Drew Angerer/Pool via AP
Attorney general nominee Merrick Garland testifies at Monday’s confirmation hearing before the Senate Judiciary Committee.
This piece has been co-published with The Intercept. Ryan Grim contributed reporting.
The first day of Senate Judiciary hearings for Merrick Garland, Joe Biden’s appointee for attorney general, was surprisingly uneventful. Garland faced little meaningful pushback from Republicans, while assuring them repeatedly that he would not bring anything even resembling political motivation into the Department of Justice. “I would not have taken this job if I thought that politics would have any influence over prosecutions and investigations,” he said. With support from at least John Cornyn and Chuck Grassley on the Republican side, Garland is likely to sail through to confirmation.
But while Garland was asked about investigating Hunter Biden, he was barely asked about the burgeoning ranks of corporate lawyers who are joining or expected to be joining the DOJ. In both the transition team and early hires, the Biden Department of Justice, with Garland as its presumptive lead, looks to be drawing extensively on the ranks of BigLaw representatives to staff its most powerful and important posts.
Several of the lawyers up for major positions at DOJ have personal connections to Garland going back decades, including when he worked in the agency during the Clinton administration. In the intervening years when Garland became a federal judge, these colleagues went to work for Big Tech and other corporate clients. Now, Garland seems content to bring them back into the fold regardless of their records in the intervening years. Though the Biden administration has attempted to break from the usual list of BigLaw expats for judicial nominations, Garland’s fealty to old colleagues is making the Justice Department look quite familiar.
Garland’s most concerning connection is Jamie Gorelick, who, despite being unlikely to get a formal role within the department, is positioning herself as a fixer with Washington’s most direct line to Garland’s office and unique power to influence the Biden DOJ. Currently a partner at the powerful firm WilmerHale, Gorelick was the former number two ranking member in the Clinton Justice Department, where Garland served as her top deputy. Gorelick helped Garland secure his judgeship on the D.C. Circuit Court, and since Biden’s announcement of Garland’s nomination, she has been advertising her proximity to Garland and their lengthy friendship. Gorelick and Garland went to college together, and in a recent interview, she referred to Garland as her “wingman.”
That’s particularly concerning given Gorelick’s recent history. Gorelick is a notorious wheeler and dealer inside Washington, known for using her connections to ward off penalties for corporate offenders. Gorelick was hired to help Google beat a burgeoning antitrust case during the Obama years, successfully pressuring the White House and DOJ to put the brakes on a criminal investigation into the firm. In a separate case against Google, Gorelick also helped shut down a U.S. attorney, to the point that DOJ even apologized to the company. Gorelick was rumored to have arranged the apology.
Gorelick’s record does not stop with Big Tech. She has also represented the cities of Chicago and Baltimore against probes into the respective police murders of Laquan McDonald and Freddie Gray. She defended BP after the Gulf oil spill, getting the company off the hook for the economic distress brought to the region and dodging demands that the company help pay to restore the Gulf of Mexico, an agreement so favorable to the company that it surprised onlookers. She contributed significant legal work on behalf of the notorious predatory for-profit college University of Phoenix, and lobbied against Obama administration efforts to curb subsidies to private student loan firms. She’s represented Jared Kushner as he navigated federal ethics and anti-nepotism laws while taking a job in the Trump White House, and she even did work for former President Richard Nixon. She’s a former board member of Fannie Mae and a current board member of Amazon.
Since the announcement of Garland’s appointment, Gorelick has been advertising her access to him. WilmerHale, the firm at which she’s a partner, ran an article about their proximity, boasting her appearance on three legal podcasts where she details her unique personal connection and forecasts what Garland’s confirmation means for the future of the Department of Justice, before subsequently deleting the page. Gorelick did not respond to a request for comment.
Already established at DOJ is Brian Boynton, whom the Biden administration hired to serve as the current chief deputy and acting head of the Civil Division. Boynton, another D.C. lawyer who was also a partner at WilmerHale until recently, helped see through the Sprint/T-Mobile merger, and worked on behalf of predatory for-profit colleges to keep the Obama administration from enacting protections for student borrowers. One of Boynton’s first moves in the Biden DOJ was to block lawyers representing students alleging to have been defrauded by for-profit colleges from deposing former Trump secretary of education and notorious champion of for-profit education Betsy DeVos.
Elsewhere, Emily Loeb has been announced as associate deputy attorney general, leaving her post as partner of the law firm Jenner & Block. Loeb most recently represented Apple in the House antitrust investigation, and was described by those involved with the investigation to have been an obstructionist force.
Garland: “Fortunately or unfortunately, the best antitrust lawyers in the country have some involvement, one way or another” in tech.
Meanwhile, Susan Davies, a former partner at notorious Republican BigLaw firm Kirkland & Ellis, onetime employer of Ken Starr and Brett Kavanaugh, is expected to join the Garland Department of Justice in some form as well. Her page has been removed from the Kirkland & Ellis website and her email bounces back. At Kirkland & Ellis, which was once home to Trump appointees Alex Azar, John Bolton, Alex Acosta, and even former attorney general William Barr, Davies defended Facebook against antitrust charges.
Davies and Garland have history as well, having worked together in the Clinton DOJ; she also helped with Garland’s failed Supreme Court nomination. The Prospect and The Intercept have previously reported that Garland was pushing Davies to head the Antitrust Division at DOJ. In his hearing Monday, Garland said that Davies would not be leading the Antitrust Division, though he did not confirm that she would not work at the agency in some capacity.
Meanwhile, two sources with knowledge of the hearings who requested anonymity because of their work on personnel matters told the Prospect and The Intercept that Garland was prepped for this week’s proceedings by attorney Karen Dunn, who represented Amazon CEO Jeff Bezos during the recent House Antitrust Subcommittee hearings on Big Tech, and defended Apple in a suit alleging antitrust violations by the firm. The Prospect reported that Dunn was an early Big Tech favorite for assistant attorney general for antitrust, but her candidacy was shot down by the Biden transition team. Her involvement in the hearing could mean that she may be under consideration for a different role within DOJ.
In a statement, Justice Department spokesperson Dena Iverson said: “All department employees, career and appointed, are governed by comprehensive federal ethics rules, including rules concerning recusals related to conflicts of interest. The department hires talented lawyers with a wide range of professional experiences, including from all levels of government, academia, non-profit organizations, and law firms.” A handful of staffers have come from those backgrounds, like nominee for the Civil Rights Division Kristen Clarke (a civil rights advocate) and her principal deputy Pam Karlan (of Stanford Law). But that not everyone in DOJ will come out of BigLaw is cold comfort.
OF COURSE, GARLAND HASN’T YET BEEN INSTALLED as attorney general, which means that none of the recent and projected hires are technically his. But it stands to reason that the putative head of the Department of Justice would have influence on and awareness of who is filling the top roles in his department. Given the clear connections to Garland through his time at DOJ and D.C. law firms like WilmerHale and others, there is every indication that these hires are consistent with his preferences.
Garland did take time during his hearing to defend the inevitability of corporate lawyers in his Justice Department, including tech lawyers in his Antitrust Division. “Fortunately or unfortunately, the best antitrust lawyers in the country have some involvement, one way or another” in tech, Garland insisted. “We can’t exclude every single good lawyer from being able to be in the division.”
All of that points to a concerning trend for a department that will be especially important in the Biden years. Confidence in the DOJ as an institution is particularly low; for all of Trump’s transgressions, the department served as no meaningful check on his criminality.
Not only will the Biden DOJ be tasked with spearheading antitrust investigations into a number of Big Tech firms, it will also have to take on police department abuse and malfeasance, investigations into the January 6 insurrection, and the vast and far-reaching corruption of the Trump administration.
Is a Clinton-era DOJ, teeming with corporate lawyers who have worked on behalf of for-profit colleges and the very same Big Tech firms the government is supposed to be investigating, up to the enormous task at hand?
