The solicitor general of the United States is responsible for representing the federal government before the Supreme Court. Since its creation in 1870, the position has been one of the highest-ranking legal jobs in the U.S. government, subordinate only to the attorney general and the nine Supreme Court justices. The role has been a stepping-stone to seats on the high court (and, in the case of William Howard Taft, who became solicitor general in 1890, a way station before the White House). Aside from Scalia, Jones Day’s most prominent alum may well have been Erwin Griswold—the thirty-fourth man to serve as solicitor general.* So it was remarkable that, as Trump prepared to take office, there were two Jones Day lawyers rumored to be on the short list for the prestigious post.
One was Mike Carvin.1 He was a leading Supreme Court litigator and a reliable conservative. Carvin insisted to me that, while he’d heard whispers of being in contention, he “was not interested” in becoming solicitor general. But he also must have known he wasn’t cut out for the position. He lacked the managerial chops; one of the solicitor general’s jobs is to oversee a fleet of deputies and assistants. And he was too much of a bomb thrower for this dignified role, sometimes referred to as the “tenth justice.”
The other candidate was Noel Francisco. He, too, was a talented advocate and a reliable conservative with an impressive track record before the Supreme Court. Unlike Carvin, Francisco was mellow. Everyone seemed to like him, even if they loathed his politics.
Alas, Trump was gravitating toward another familiar figure: Chuck Cooper. Cooper was the Reagan administration veteran who had started his own firm with Carvin and, on the recommendation of Ted Cruz, plucked Francisco out of his Scalia clerkship. Trump’s nominee for attorney general, Jeff Sessions, offered Cooper the job, and Cooper in turn offered Francisco the role of his principal deputy. It wasn’t a hard sell; Francisco jumped at the opportunity to summit the legal profession. “He was excited,” Cooper told me.
Once he was formally nominated, Cooper would need to be approved by the Senate. Francisco, in a lower-ranking job, wouldn’t. While the solicitor general’s office sat vacant, Trump named Francisco to fill it in a temporary capacity.
Cooper helped prepare Jeff Sessions for his Senate confirmation hearings as attorney general. They were rough, which was not surprising given Sessions’s hardline views. Cooper knew he’d be in for an equally bumpy ride—he had left a long paper trail as a conservative lawyer. That prospect so unnerved Cooper that he told Sessions he was withdrawing from consideration.
The White House mulled a number of other replacement candidates—George Conway and Brett Kavanaugh were reportedly in the running—but by March 2017, the president had settled on Francisco. It surely helped that he was already serving as acting solicitor general—and that McGahn had recommended him to Trump.2 Trump announced the nomination with little fanfare in a press release about a few other appointees. Among those who praised the pick was Ted Cruz. “Noel and I have been close friends for over two decades, and I know him personally to be a brilliant lawyer and a principled conservative,” the Texas senator clapped.3
This was a wonderful, historic occasion for Francisco, the immigrant’s son, the pride of Oswego. He would later compare his role representing the Trump administration to his work for RJR. “Frankly the most interesting law practice is where you’re representing clients that are not particularly popular,” he told Catholic University students in 2018.4 “We had a partner at Jones Day who always described the perfect client as someone who was rich, pissed off, and wrong.”
Almost as much as for Francisco, this was also a seminal moment for Jones Day. The firm would have its representatives implanted in two of the most powerful legal jobs in the U.S. government: solicitor general and White House counsel. The key was to make sure that Francisco got confirmed, which was not a given. There was the hyper-partisan climate in Washington, of course, as well as the fact that Francisco had taken on a series of high-profile conservative causes, including the Zubik contraception case.
In the spring of 2017, an email went out to Jones Day partners. Its message was that they were expected to sign a public letter endorsing Francisco. This was too much for some Jones Day lawyers, appalled by the Trump administration’s first two months of norm-shattering shock and awe, including an executive order banning people from Muslim countries from entering the U.S. (Jones Day was among a number of law firms that filed Supreme Court briefs on behalf of clients opposing the travel ban.) One partner told me this was the moment she began looking for a new job. “I felt like I was being conscripted into supporting an administration I didn’t believe in,” she said.
That September, the Senate voted along party lines to confirm Francisco as solicitor general.
One day in 2017, the phone rang in Kevin McIntyre’s office at Jones Day. Warm and outgoing, with a head of curly orange hair, McIntyre had been at the firm for a quarter century and was the cohead of its energy practice. On the line was a White House staffer. “Kevin,” he asked, “can you come over and explain how FERC works?”
FERC was the Federal Energy Regulatory Commission, which oversees the transmission and sale of electricity, oil, and natural gas. McIntyre probably knew as much about FERC as anyone outside the agency—he had represented countless companies before the commission and had even written a book about energy policy. He was also a Republican, and he dutifully traipsed over to the White House. He sat down in a small room and briefed the staffers on FERC, its powers, and energy regulation more broadly.
At the end of the meeting, a White House aide popped a surprising question: “Would you like to be the agency’s chairman?” McIntyre later told a Jones Day colleague that he readily agreed; he considered it his dream job.5 That summer, though, McIntyre was diagnosed with a brain tumor.6 Trump nominated him anyway, and, following surgery and treatment, he took up the chairmanship in December 2017.
McIntyre’s conservative reputation and history of representing energy companies raised the hackles of environmental groups, which unsuccessfully opposed his nomination. But as chairman, he steered FERC on what even environmentalists regarded as a sensible, middle-of-the-road path. Notably, he shot down a push by the White House to help coal and nuclear companies—a plan that appeared designed in part to aid a mining company whose CEO was a big Trump backer.7
McIntyre would be at FERC for barely a year. He died, age fifty-eight, at his home in the Virginia suburbs on January 2, 2019, killed by the brain cancer. “We salute his high civic calling,” a lawyer at Natural Resources Defense Council, a leading environmental group, told the Washington Post, lauding McIntyre’s “fairness and evenhandedness.”8
To fill a vacancy on the Consumer Product Safety Commission, Trump nominated another Jones Day partner, Dana Baiocco. The CPSC has a vital role: It oversees more than fifteen thousand types of products, from baby toys to garage openers, and it can issue public warnings about faulty products or sue companies to force them to recall those products. Since its creation in 1972—a response to Ralph Nader’s movement for corporate responsibility and consumer rights—the CPSC has served as a last line of defense for people who unwittingly buy things that turn out to be deadly.
Baiocco, who got a journalism degree in college but opted for a career in the law, was not a natural choice for an agency whose duty was to protect people against powerful companies. Over nearly two decades at Jones Day, she had developed a specialty in, among other things, assisting companies that faced CPSC recalls.9 She represented Mattel when it got in trouble for knowingly selling toys that contained lead. She represented Yamaha Motor when its Rhino off-road vehicles revealed a tendency to flip, killing and maiming riders. She represented Honeywell when its face masks turned out not to protect workers against harmful substances like asbestos.10 And, like so many of her Jones Day colleagues, she represented RJR, whose products were the rare breed that, when used as directed, often had the predictable result of killing their user.
It wasn’t just Baiocco. Jones Day, like many other giant firms, was known for impeding aggressive enforcement of consumer protection laws. A reflexive pro-corporate attitude was part of the firm’s DNA. In a booklet for clients accused of selling defective products, Jones Day lamented how the CPSC and others had embraced the notion that companies “should be viewed as insurers of their products, for indefinite periods of time and regardless of how their products have been used.”11 (That was a distortion of what most consumer advocates wanted, which was for companies to promptly pull unsafe products and for people harmed by those products to have legal recourse against those at fault.) “Companies need to be well armed and well prepared to defend against this trend,” the booklet advised. “If your company has the misfortune to come under attack, give us a chance to be your lawyers.”
The Senate confirmed Baiocco, fifty to forty-five. Her arrival, along with the elevation of another Republican as the CPSC’s chairman, gave Republicans the upper hand. (This wasn’t automatic, since commissioners serve staggered seven-year terms.)
Until then, the commission had been turning up the heat on companies that made dangerous merchandise. Penalties and product recalls were on the rise.12 Now, with the commission in GOP hands, that trend reversed. The number of CPSC-forced recalls soon sank to its lowest level in sixteen years. The commission’s public warnings—traditionally a key method of spreading the word about perilous products—declined, too, as if the “mute” button had been pushed on the agency’s audio. In 2019, the CPSC didn’t penalize a single company for violating federal safety rules.13 It was unlikely that products across the board had suddenly become safer. A more plausible explanation was that Baiocco was helping erode the CPSC’s core powers, ceding ground to the types of companies she had spent years representing at Jones Day.
Not surprisingly, Baiocco took issue with that characterization. She told me that since she arrived at the CPSC, commissioners had voted four times on whether to impose financial penalties on companies; she voted yes all four times. “I am and always have been firmly committed to following the governing statutes and to the important mission of the agency,” she said.
But voting on penalties is a small part of the power that the commissioners wield. Consider the case of a popular three-wheel jogging stroller made by a company called Britax. The strollers, which sold under the brand name BOB (short for “Beast of Burden”), had a problem: Their front wheels kept falling off while they were in motion. Grown-ups who were pushing the strollers broke bones. Kids who were riding in them lost teeth. The CPSC staff concluded that nearly 500,000 of the BOBs should be recalled.
Britax refused, claiming that customers were at fault and that the CPSC had previously signed off on the bicycle-style quick-release feature that was at issue.14 It was the rare company to defy the agency, whose power to name and shame dangerous products and their makers often scared businesses into submission. In early 2018, the CPSC sued Britax to force it to recall the strollers.
Not long after, Baiocco joined the commission. A Washington Post investigation in 2019 found that her arrival decisively shifted the balance of power. She and another Republican commissioner, Ann Marie Buerkle, blocked the agency from subpoenaing former Britax employees to testify, a crucial blow to the CPSC’s case.* Months later, the agency dropped its lawsuit altogether and reached a settlement with Britax. The company produced a public-safety video and offered replacement bolts to certain customers. It was a far cry from the full recall that the safety experts on the commission’s staff had concluded was necessary.
“I think it was good for consumers,” Baiocco said.15
For a lawyer like her, with great experience representing companies in similar situations, the postscript should not have come as a surprise: Britax failed to notify retailers about its safety campaign, as the settlement required, and some of its replacement bolts proved defective and themselves had to be recalled.16
The procession of Jones Day appointments in the young administration was causing bitterness in Trump World. Some of the president’s loyalists blamed McGahn for stocking the upper ranks of the government with corporate lawyers, the exact opposite of the Make America Great Again populists who might really shake things up in Washington. It looked like the Trumpies’ initial instincts about McGahn being a swamp creature were well-founded after all. Thanks in large part to him and his Jones Day crew, this presidency was shaping up to be just as corporatist as any other Republican administration. Maybe more so.
This was obviously not a concern to Jones Day’s leaders. They set out to capitalize on their golden opportunity.
A group of about two dozen lawyers were sent on a “road show,” traveling the country to meet with companies that either were or might become Jones Day accounts and to explain what to expect from the Trump administration. They talked about regulations and law enforcement and the new personalities and the power dynamics. This was the kind of promotional tour that plenty of law firms might schedule when there was a change in governments, and Jones Day had done similar events in the past.17 This time, though, the firm had the advantage of knowing what it was talking about. “We saw it as a client development opportunity,” one participant told me. “The fact that we had represented the campaign was certainly a calling card.” So was the fact that the administration—including some of the federal agencies where big companies were most likely to encounter flak—was occupied by Jones Day alumni.
The firm even began running ads touting its expertise—not something it did lightly. Glen Nager was generally required to sign off all ads, and he was a stickler. Once, the San Francisco Symphony hosted a charitable event, and Jones Day, as a sponsor, got space for an ad in the evening’s program. The firm had a basket of preapproved taglines and images to use in situations like this: pictures of people rowing, phrases like “collaborating for clients.” The marketing department produced an ad with a photo of three women performing in an orchestra. When Nager reviewed the ad, he flipped out. The image, while apropos of the evening’s event, had not been authorized to be paired with the slogan that was being used; it was only permitted to go along with a line about “formidable multidisciplinary services.”
The ads that began appearing online in 2017 featured a photo of the White House and were headlined “Insights on the New Administration.” At the bottom was Jones Day’s logo and motto, One Firm Worldwide. The ads trumpeted the firm’s expertise in areas such as trade policy, energy, and so on.
Was it a coincidence that James Uthmeier was a top Commerce official and that Kevin McIntyre was headed to FERC—not to mention the hordes of Jones Day veterans in the White House and at the Justice Department? Perhaps. But there was no getting around the appearance, intended or not: The law firm was using its web of federal connections to trawl for clients. One legal scribe derided the promotional campaign as “tacky, tasteless, bush league.”18
The ads ran almost exactly forty years after the Supreme Court’s decision in Bates v. State Bar of Arizona.