In a disappointing continuation from the Trump Administration, Politico reported last week that a Kirkland & Ellis lawyer is in contention to help lead the Department of Justice, raising serious concerns among anti-monopoly advocates. According to the article, Susan Davies, a litigation partner at Kirkland, might be the next assistant attorney general for antitrust.
Kirkland & Ellis has deep ties to the Republican party, flaunting notable alumni including Justice Brett Kavanaugh, Robert Bork, and Clinton-era special counsel turned disgraced Baylor president Ken Starr. The firm acts as a holding pen between Republican administrations, including most recently the Trump Administration. Several top Trump officials came to the administration from Kirkland, including National Security Advisor John Bolton, Attorney General William Barr, Labor Secretary Alex Acosta, and Health and Human Services Secretary Alex Azar.
Little Sis reported that Barr continued hiring from his former firm once nominated as Attorney General, creating a deep network of Kirkland attorneys that dominated the Department of Justice under Trump. Jeffrey Rosen, Barr’s number two at DOJ, previously defended clients including Raytheon, General Motors, and the Chamber of Commerce at Kirkland. Barr’s number three was Claire Murray, a Kirkland partner whose clients included Boeing, Syngenta, and United Technologies before joining the White House in 2017. After leaving Kirkland, Murray helped confirm Brett Kavanaugh to the Supreme Court. At an industry conference in 2019, Murray joked: “Our philosophy is that an agency can never be led by too many lawyers from Kirkland & Ellis.”
Beyond grooming Republican officials who have gone on to enforce horrific and violent immigration policies; order federal officers to use force against peaceful protesters; and helped shield Trump from the law; Kirkland & Ellis also works to protect corporate clients from federal investigations and lawsuits.
One of their most formidable practices is their antitrust practice, which shepherds corporate clients through merger and acquisition investigations from the FTC and DOJ Antitrust Division. Kirkland seems to rely heavily on hiring lawyers who were once tasked with challenging those mergers in government to attract high profile clients. The firm has made a habit of hiring former antitrust regulators, including two FTC staff attorneys in 2019. The practice is headed by Matthew Reilly, himself a former assistant director leading the Mergers IV division within the FTC’s Bureau of Competition.
The practice’s recent headlining cases include multiple billion-dollar deals in merger-driven industries including pharmaceuticals and healthcare. Kirkland lawyers advised AbbVie in the Pharma giant’s $63 billion acquisition of Allergan and BristolMyersSquibb’s recent $74 billion merger with Celgene, both in front of the FTC. The firm also advised health care company WellCare on their $17.3 billion merger with Centene in a case investigated by the DOJ Antitrust Division.
Davies herself has represented at least three clients in antitrust cases while at Kirkland. First, Davies defended Facebook in 2012 against a private antitrust case brought by a competitor in the online advertising market. The competitor unsuccessfully argued that Facebook was violating federal antitrust laws by threatening not to work with any advertisers who used the competitor’s product, which was biting into Facebook’s ad revenue.
Davies’ other antitrust clients include chemical producer Tronox. The FTC had sued alleging Tronox’s $2.4 billion purchase of Saudi-owned chemical mining company Cristal would reduce competition in the North American market for chloride process titanium dioxide, a white pigment frequently used in paint, paper and plastic. Davies also represented hospitality company Wyndham in the FTC’s suit alleging the company had data security failures that led to three data breaches, compromising consumers’ payment card information to an internet domain address registered in Russia. Wyndham, advised by Kirkland & Ellis, unsuccessfully argued that “Congress had never intended for the commission to be able to use its unfairness authority” to regulate companies’ data security. In other words, Davies never tried to defend Wyndham’s behavior itself, merely the FTC’s ability to hold it accountable.
Davies has defended at least one of the most denounced monopolies of our time (Facebook) and argued against the FTC’s power to hold corporations accountable for failing to safeguard consumers’ data. These facts do not bode well for how she might lead the DOJ’s Antitrust Division in an administration that is tasked with rebuilding both public trust in government and a functional executive branch.
Davies’ record while in government does not inspire much confidence either — as Deputy White House Counsel in the Obama administration, Davies was responsible for judicial selection, including “vetting potential judicial nominees and making recommendations to President Obama,” per her professional biography. Under her leadership, the judicial nomination team picked corporate attorneys over all other attorneys to serve on the federal bench by a margin of three to one. Fewer than four percent of Obama’s judicial nominees were public interest lawyers.
Both in private practice and in government service, Davies revealed her allegiance to corporate America to the detriment of public interest. Her firm is not only a safe haven for Repulican revolvers waiting for their next chance to jump back into government — it also has defended some of the most reviled figures of our time, including Jeffrey Epstein and BP in the devastating 2010 Deepwater Horizon oil spill. And no, we don’t buy that lawyers who defend unpopular clients should be shielded from criticism and consequences. As we wrote in the American Prospect:
“High-level legal appointees, including Biden’s picks for attorney general, deputy attorneys general, and solicitor general, will be some of the most powerful people in the nation, and their decisions in these roles will have a wide-ranging impact on the lives of the American people. These individuals should therefore be held to the highest ethical standards and face the strictest scrutiny during their hiring process. Their integrity and commitment to the public good should be impeccable.”
Davies and other token Democratic lawyers at Republican-leaning firms like Kirkland & Ellis provide the firm a serious service. Clients worried that a longstanding relationship with a “Republican” firm creates vulnerabilities should Democrats gain power can be assured that Kirkland provides clients access to Democratic favor-swapping as well as Republican, via figures like Davies. Another reason Davies is a powerful token with clients is the knowledge that astonishing attacks on government regulation, such as the authority of the FTC to enforce data security rules, sound more plausible coming from a Democrat than a Republican. “Even Obama’s former lawyer doesn’t believe the FTC can do this” is a compelling argument to far too many.
In other words, Davies’ willingness to serve as a Democrat at Trump’s favorite BigLaw firm helped that firm succeed. She helped make Trump’s lawyers rich and offered them reputational cover while they advocated for anyone from sleazy to reprehensible clients. She was, in word and deed, a “partner” to many of Trump’s lawyers, the “officers of the court” who served the opponent of the rule of law so loyally. Shouldn’t this decision to partner with Trump’s pals go on her permanent record?
Davies, and lawyers from Kirkland & Ellis in general, have made a business of commodifying government experience to the benefit of their corporate clients. They have no place in a Biden Administration that promised to “restore ethics in government” and proposed some of the most sweeping ethics plans in recent history. But there’s an extra slice of inappropriateness when a lawyer has chosen to associate themself with one of the least redeeming law firms in recent American history.
PHOTO: “U.S. Department of Justice headquarters, August 12, 2006” by Coolcaesar is licensed under the Creative Commons Attribution-Share Alike 3.0 Unported