Josh Russ grew up in tiny Robertson County, halfway between Dallas and Houston. His grandfather was a longtime prosecutor; his portrait still hangs in the county courthouse in the farming town of Franklin. Russ’s father, a judge, would adjudicate sibling spats by holding “court” in his home office.1 Russ was raised to have faith that honest lawyers and courts and juries—the American justice system, in short—could make the world a better, fairer place.
When Russ was a kid, his dad would tell him how he’d look forward to facing off against lawyers from big-city firms who’d occasionally show up in Franklin. These hotshots tended to overestimate themselves—and to underestimate him. Yes, they got paid big bucks and wore nice suits and had prestigious clients, but they didn’t have the faintest notion of how to work a Robertson County courtroom. They would calibrate wrong, and they would lose. Russ loved hearing those stories, and he decided that he, too, wanted to be a Texas lawyer. It was something he could feel good about. “I like to be able to sleep well at night,” he would tell the Texas Lawbook.2
After getting his law degree from Berkeley in 2010, and following an unsatisfying job at a large firm, Russ joined a smaller outfit, Reese Marketos, in Dallas. He worked on fraud and contracts cases. Then came his big break. The United States attorney for the Eastern District of Texas was hiring. Part of the Justice Department, the ninety-three U.S. attorney’s offices nationwide serve as the primary investigators and prosecutors of federal crimes on a local level. In 2015, Russ, thirty years old, got the job. “I liked that Josh had East Texas values,” his boss explained.3
This particular U.S. attorney’s office had a half-dozen outposts around East Texas; Russ worked out of one in a boxy, black-glass tower in Plano. It had both criminal and civil prosecutors. Russ worked mostly on the civil side, suing companies and individuals for misdeeds like fraud and false advertising. Russ was built like a basketball player, tall and fit, and he kept his light brown hair cut short, gelled, and combed back from his high forehead. He was good at his job, and after three years he was promoted to run East Texas’s civil division. Sometimes he couldn’t quite believe that he’d managed to land this dream gig at such a young age.
Not long after Russ had arrived in the U.S. attorney’s office, its criminal side teamed up with the federal Drug Enforcement Administration to investigate the illegal prescriptions and sales of opioids. Opioid addiction and overdoses had become one of the country’s most pressing public-health crises, thanks in large part to the successful sales and marketing of Purdue Pharma’s OxyContin painkillers. As the prosecutors and DEA agents chased down leads involving doctors who were churning out thousands of bogus prescriptions, they were led to a Walmart in McKinney, fifteen miles north of the U.S. attorney’s office in Plano. The pharmacy inside the sprawling Supercenter had become an opioid dispensary of choice for local pill pushers.
The more the investigators dug, the more they concluded that this particular Supercenter wasn’t the problem. Or, to be more precise, it was only a small part of a big problem: Walmart pharmacies in numerous states had for years been filling opioid prescriptions that didn’t appear to have any legitimate medical purpose.
The prosecutors soon discovered that Walmart’s legions of local pharmacists had repeatedly warned corporate brass about doctors who individually wrote tens of thousands of OxyContin prescriptions—a sign of being part of a “pill mill.”4 The response from headquarters was always the same: The pharmacists could refuse to fill particular prescriptions, but they were not permitted to cut off doctors altogether. In fact, they were pressured to keep dispensing drugs as quickly as possible. At one point, a Walmart compliance manager told colleagues that they should focus on “driving sales” rather than policing doctors. Meanwhile, the compliance unit didn’t alert pharmacists to evidence it had collected pointing to doctors who were writing preposterous numbers of opioid prescriptions. And so thousands upon thousands of scripts for dangerous narcotics kept getting filled at Walmart stores nationwide, long after other pharmacy chains had cut off the offending doctors.*
To the prosecutors, the evidence was clear: One of the country’s largest pharmacy chains was fueling the opioid epidemic by, at best, turning a blind eye to illegal activity. What’s more, the DEA had repeatedly reprimanded Walmart for this kind of stuff in the past, and the government’s sundry wrist-slaps had had approximately zero discernible impact on the company’s behavior.
Walmart executives and their lawyers soon realized the feds were onto them. The company had long been represented by Jones Day. The partner in charge of the Walmart account was Karen Hewitt. Among other recent feats, she had defused a years-long federal investigation into the company’s alleged violation of anti-bribery laws in countries like Mexico.
In May 2017, Hewitt asked the Texas prosecutors to meet with her and other lawyers for Walmart. They told the prosecutors that Walmart’s pharmacists couldn’t just refuse to fill prescriptions; that would hurt patients with legitimate needs. It was up to the DEA, they argued, to go after the prescribing doctors and the drug dealers who were taking advantage of Walmart. There was no criminal wrongdoing, they asserted; if anything, this was a civil matter, to be resolved with a financial settlement.
The prosecutors in the room didn’t buy that this wasn’t criminal. Their view was that Walmart was acting like a giant drug dealer. There was no question how prosecutors would treat a drug kingpin: They’d aggressively build and prosecute a criminal case against him. That was the approach they should use with Walmart.
Even so, Walmart’s argument that this was a civil matter led Russ to open a parallel investigation of his own—one that had the potential to culminate in the U.S. government suing Walmart, creating a public record of the company’s alleged wrongdoing, and collecting damages.
Not long after, Russ came across a book that shaped his perspective on being a federal prosecutor. It was Jesse Eisinger’s The Chickenshit Club, an exposé of how Justice Department honchos had lost the nerve to criminally charge powerful corporations and their senior executives. Eisinger, a Pulitzer Prize–winning journalist for ProPublica, argued that many federal prosecutors were so scared of losing high-profile cases that they took the easy route: reaching monetary settlements in which companies didn’t admit wrongdoing. (Even penalties in the hundreds of millions of dollars barely dented large companies’ quarterly profits.)
The book, which Russ checked out from a local library, enraged him. Why was it okay for a giant company to skate when normal people’s lives got ruined for lesser crimes? He had not been brought up to believe in a system of unequal justice. The Walmart case represented an opportunity to challenge and hopefully overcome the Justice Department’s timidity.
The U.S. attorney for East Texas—this was Russ’s boss—was a former county prosecutor named Joe Brown, whom Trump had appointed. In the spring of 2018, Brown instructed his prosecutors to inform Walmart that they were preparing to indict the company for violating the federal Controlled Substances Act.5
Hewitt responded by seeking another meeting with the prosecutors. The marathon gathering, which took place over two days in May 2018, was in a large conference room in the U.S. attorney’s office. Legal volumes and Texas-themed artwork adorned the walls. The prosecutors made coffee for the Walmart team, hoping to impart a little civility before things got combative.
Russ and his civil team by then were well on their way toward assembling a lawsuit. Walmart hoped to resolve the two cases, criminal and civil, at once.6 Hewitt and the Walmart lawyers spent six hours outlining the results of an internal investigation Jones Day had conducted into Walmart’s opioid-dispensing practices. Hewitt acknowledged that the company could have done more to combat this crisis, but there was no evidence, she insisted again, of any crimes. Her team floated the idea of Walmart shelling out a settlement in the low nine figures, on the condition that no lawsuit ever be filed and that most of the evidence of the company’s alleged misconduct stay out of the public domain
This was a nonstarter for Russ and his colleagues—especially the stipulation that the evidence would be swept under the rug. On the second day of the meeting, the prosecutors said they wouldn’t accept anything less than $1 billion to resolve the civil investigation. A Walmart lawyer shot back that this was an unethical attempt to use the threat of an indictment to strong-arm Walmart into a massive settlement. Offended, Russ stomped out of the room.
A Jones Day lawyer, Jason Varnado, followed him into the hallway. Varnado had spent a decade in the U.S. attorney’s office for the Southern District of Texas. The same year that Russ joined the Eastern District, Varnado had taken a job at Jones Day.7 Now, outside the conference room, Varnado tried to patch things up. “Josh, look, you’ve got a record settlement on the table,” Varnado urged. “You can put your name on it. Come on!” It struck Russ as a clumsy and patronizing effort to butter him up. The two-day meeting ended with no resolution.
Russ, however, soon started getting the feeling that Jones Day’s involvement might pose problems. A couple of months after the meeting with Hewitt and Varnado, he flew to Columbia, South Carolina, for a conference at the National Advocacy Center, a training facility the Justice Department runs for its prosecutors. A top DOJ official, Jesse Panuccio, gave a speech in which he said that attacking opioids was a priority for the department. Russ, pumped that folks in Washington shared his enthusiasm, approached Panuccio outside the lecture hall afterward. Russ mentioned that his office was preparing to sue Walmart. Panuccio asked him who was representing the company. Russ replied: Jones Day.
Panuccio arched his eyebrows. “Well, there goes half the department leadership,” he said. “They’re going to have to recuse themselves.” As it turned out, that would not be happening.
Before joining Jones Day in 2010, Karen Hewitt had spent eighteen years at the Justice Department, including as the U.S. attorney for Southern California. She liked to boast about Jones Day’s bare-knuckled strategy when it came to fighting the government. “We are not about self-protection,” she crowed in 2015.8 “We will go adversarial.”
After the unsuccessful settlement talks in Plano, Hewitt wrote a letter to the deputy U.S. attorney general, Rod Rosenstein.9 She claimed the Texas prosecutors had said they wanted to “embarrass” and inflict gratuitous pain on Walmart—in other words, they were acting unethically. “Walmart is a responsible corporate citizen and stands ready to engage in a principled and reasoned dialogue concerning any potential conduct of its employees that merits a civil penalty,” Hewitt sweet-talked in a subsequent letter to DOJ.10 She asserted again that the prosecutors were unethically threatening indictment to coerce Walmart into paying an outrageously large penalty.
Russ took it personally. It was normal for defense lawyers to cast aspersions on prosecutors. That was part of the game, and sometimes it was even legitimate; there was such a thing as a prosecutor who abused his power. But Russ perceived Hewitt as taking things to a new level. She was making false allegations to a Justice Department led in part by her recent Jones Day colleagues. In a normal investigation in normal times, Russ might have laughed this off. But in the Trump era, when the president was fanning outlandish conspiracy theories about federal prosecutors, it wasn’t remotely funny.
Hewitt’s offensive worked. Rosenstein instructed his deputies to look into the matter; they concluded that the Texans didn’t have the goods to justify an indictment. Officials in Washington called Joe Brown, the U.S. attorney, and instructed him to halt the criminal investigation.11
While the Texans were irate, the edict didn’t apply to Russ’s civil investigation. By August 2018, a lawsuit was ready. The U.S. attorney’s office organized a press conference to unveil the complaint. And Russ held meetings with the families of people who had died of overdoses from opioids they procured from Walmart. At one point, a widower sobbed as he described having to raise his daughters alone. “We can never repair your loss,” Russ told the families, but he promised that he and his colleagues would hold accountable those responsible for their loved ones’ deaths.
On a Friday in late August, a couple of days before the suit was to be filed, Russ got a phone call from Gus Eyler, a Justice Department official in Washington. Eyler had bad news: He’d been instructed to tell Russ not to file the complaint. Eyler sounded apologetic; Russ’s takeaway was that higher-ups at Main Justice, as DOJ headquarters is known, had directed Eyler to run interference on Walmart’s behalf.
Eyler, as it turned out, had recently gotten a new boss: James Burnham. Burnham was the former Jones Day associate who had received an extra year’s salary on his way to the White House. From there, he’d jumped to Justice, and in the summer of 2018 he was named deputy assistant attorney general with responsibility for Eyler’s consumer-protection group. Now the division that Burnham oversaw was helping an important Jones Day client.*
Nor was Burnham the only Jones Day alum in the vicinity. The man right above him on the department’s org chart was Chad Readler.12 Readler had remained in touch with his Jones Day colleagues. For example, he helped the firm line up a senior DOJ official to speak at a conference Jones Day was hosting.13 (That official was Rachel Brand, who months later would decamp for a top job at Walmart, where she, too, would try to thwart the Texans’ investigation.) Readler was also working with Mike Carvin and other Jones Day lawyers on defending Trump in a lawsuit filed by protesters who’d been roughed up at a Trump rally.14 Given that ongoing contact, it was hard to imagine Readler turning a deaf ear to Jones Day’s pleas for help with Walmart.
In any case, to Russ’s fury, his hands were tied by political appointees in Washington. The civil investigation was still alive, with Gus Eyler now riding shotgun. But month after month, word came from Washington not to file the lawsuit.
Jones Day was well acquainted with opioids. The firm was one of many working for Purdue Pharma. Jones Day’s role was narrow but important: It was responsible for protecting Purdue’s patents on its blockbuster painkiller, OxyContin. Over the years, more than a dozen Jones Day lawyers had helped Purdue either sue rivals for alleged patent infringement or fend off intellectual property claims filed by others.15
Reasonable people might disagree about whether lawyers can ever ethically represent a company as sinister as Purdue—one that ignited a public health crisis for the sake of its founding family’s fortune. “Not that there isn’t room to represent corporations; that’s worthy work,” the Massachusetts attorney general, Maura Healey, told Patrick Radden Keefe, the author of Empire of Pain, about the Sackler family that owned Purdue.16 “But this corporation? These people? It’s no different from representing a drug cartel, in my mind.”
Jones Day was proud of its representation. Purdue was one of the clients that the firm boasted about as it sought jobs with prospective customers.17 The online bios of quite a few of the firm’s lawyers—including John Normile, the partner who’d been involved in Christian Meister’s firing years earlier—mentioned their roles protecting OxyContin. In some cases, these lawyers told themselves a feel-good story to justify their well-paid work. Some of the firm’s recent assignments involved defending patents for a version of Oxy that was supposed to be tamper-proof. In theory, such a product couldn’t be easily ground into powder and would be harder for people to snort or inject. Purdue even provided placebo pills to Jones Day lawyers so they could see for themselves that the newfangled product was indestructible. The lawyers viewed this as something akin to God’s work. After all, absent patent protections, what incentive would Purdue have to produce a safer pill?
Not surprisingly, this turned out to be a distorted version of reality. The new patents allowed Purdue to market its pills as “abuse deterrents,” but regulators would later conclude that there was no evidence that they deterred abuse. Arguably these tamper-proof pills were more dangerous, not less. Researchers found that they lulled users into a false sense of security, even though they were just as addictive as ever. Indeed, a study later found that the reformulated pills increased overdose rates.18 And, researchers discovered, already-hooked users who wanted to snort or inject opioids now turned instead to black-market drugs like heroin.19 There was not much for Jones Day to feel good about here.
The order from Washington to halt the criminal investigation into Walmart didn’t preclude charges being filed against Walmart employees. Joe Brown’s crew had someone in its sights: the compliance manager who had seemed to urge a focus on sales over safety.
When Jones Day got wind of this, Hewitt shifted her focus to protecting the manager—and to using him as a cudgel to bash the Texas prosecutors. In September 2019, she wrote a twenty-three-page letter to Gus Eyler. She asserted that the Texas prosecutors had threatened the manager and had falsely told him that Walmart was trying to make him a scapegoat, apparently in an attempt to get him to turn against the company. As a result, Hewitt concluded, Walmart had decided to stop complying with the Justice Department’s subpoena for the company’s records.20
Copies of Hewitt’s letter also went to thirteen other DOJ officials. The highest-ranking was David Morrell. Morrell had replaced James Burnham, who had moved on to another role in the Justice Department. So now Morrell was Eyler’s boss. Morrell, too, came from Jones Day. After clerking for Clarence Thomas in 2013, he’d been recruited to the firm, hitched himself to Don McGahn, migrated to the White House, and then hopped over to Justice, where he’d nabbed the career-making title of deputy assistant attorney general. Now his recent colleague, Hewitt, was seeking his help protecting one of the biggest clients of his once-and-future employer.
Russ wasn’t the only DOJ lawyer taken aback by Walmart’s aggression; some officials at Main Justice were, too. They saw it as part of a worrisome recent pattern of corporate defense lawyers leveling flimsy ethical allegations to advance their clients’ interests. “These are like brushback pitches that cause a lot of folks to pull back from pursuing matters aggressively,” one senior DOJ lawyer in Washington told me. He said the attacks have become increasingly common from national law firms, whose lawyers typically aren’t all that worried about damaging relationships with outside-of-Washington prosecutors, who they’re unlikely to encounter again. Even by those standards, he said, Jones Day’s actions on behalf of Walmart stood out as extreme.
The Trump appointees at Main Justice summoned the warring parties to Washington. This was itself a minor victory for Walmart. The senior DOJ official told me that all the Jones Day lawyers at Justice and the White House, plus the arrival of Rachel Brand at Walmart, were a potent combination—and that Karen Hewitt and her team played it to perfection. “There was a lot of sensitivity to not treating Walmart unfairly,” the official said, and not all of it was grounded in the facts and law of the case.
At Justice, Morrell attended at least one meeting between the Texas prosecutors and Hewitt and her Walmart colleagues. So did Burnham. (Burnham’s colleagues on occasion saw him in the hallway exchanging warm greetings with his former Jones Day coworkers.) Russ recalled Panuccio’s comment in South Carolina about how half the department would have to recuse itself because of Jones Day’s involvement. Now here he was, locked in what felt like existential battle with Walmart, which not only was leveling career-damaging personal allegations but was also flaunting its refusal to comply with a lawful subpoena. And the guys who were supposed to be on Russ’s side were sitting across the large wooden table from their former colleague.*
Russ told his superiors that he thought they should go to court to force Walmart to comply with their subpoena. What else were they supposed to do when a company refused to do what it was legally bound to do? The response came back: no. Russ asked again: no. He pleaded. He was told to stand down.21
The nasty surprises kept coming, like Russ was stuck in a nightmare that wouldn’t end. At one point, Ivanka Trump visited a Walmart near Plano to showcase the company’s efforts to train workers.22 It was a vivid and perhaps intentional reminder of Walmart’s cozy ties to the Trump administration.
Another time, a lawyer in a different U.S. attorney’s office alerted Russ that Walmart had invited federal prosecutors from all over the country to come to its headquarters in Arkansas to hear about the great things the company was doing to alleviate the scourge of opioids—an apparent effort to curry favor with the Justice Department and pit prosecutors against each other. Russ raised such a stink that the gathering got canceled, but the fact that it almost happened without his or Joe Brown’s knowledge left him feeling like he’d narrowly survived a lethal backstabbing.
Russ remembered how his father used to say that he loved when big-city lawyers came to small-town Texas. It might have been true, as his dad had always said, that these hotshots generally weren’t all that good at lawyering. But Russ was beginning to realize that lawyering wasn’t all that mattered. In fact, that’s not even what Walmart’s gunslingers were really attempting. They were playing a different game, whose essence was politics and connections and power. Russ didn’t begrudge lawyers who zealously represented clients, but he resented what felt to him like Jones Day’s underhanded tactics.
What was most infuriating was that the politicos at Main Justice seemed to keep falling for it, pressing Russ to negotiate with Jones Day to resolve the civil investigation. (Some of those officials told me they viewed Russ and his Texas colleagues as well-intentioned but overeager.) They set deadlines for Walmart to come to the table with a productive offer. The deadlines passed. And yet Washington kept giving Walmart more time.
This was too much for Russ. For the past year, he had been working around the clock. He was frequently traveling to Washington, taking him away from his wife and two young sons. He hadn’t even told his wife what he was so busy working on—it was supposed to be confidential. Now, though, he had reached his limit. He told her what he needed to do. She agreed.
On a cold, stormy Thursday in October 2019, Russ drove an hour through a downpour. He had hardly slept the night before; he faced the most gut-wrenching decision of his life. He walked into the U.S. attorney’s outpost in Sherman, in a squat brick building with tinted windows. Brown was there, and Russ delivered the news: He was resigning.
The next day, Russ sent his colleagues a farewell letter.23 Walmart, he wrote, “has abused the department’s fairness, largely ignored our subpoena, and scoffed at our larger work on behalf of all Americans.” Russ recounted how, at that tearful meeting with those who had lost family members to Walmart’s opioids, he had vowed justice. “I failed to make good on that promise, and I will carry that with me always. Now, cognizant of the many deaths it has caused, [Walmart] redefines shamefulness by claiming it is a victim.” He went on: “Corporations cannot poison Americans with impunity. Good sense dictates stern and swift action when Americans die.”
Russ also FedExed a complaint to the Justice Department’s inspector general.24 It said DOJ’s political appointees had improperly interfered in the investigation on Walmart’s behalf. (Some DEA investigators on the case soon quit, too, furious that their years of work were flicked away by Walmart’s lawyers and their sympathizers in D.C.)
In March 2020, Eisinger, the Chickenshit Club author, cowrote an article for ProPublica that revealed how the Texas investigation had been thwarted.25 Joe Brown went on the record to defend his office’s work: “Walmart chooses now to attack the investigators, a tried and true method to avoid oversight. We are confident that once all of the facts in this matter are public, the hollowness of this criticism will be apparent.” Two months later, Brown was out as U.S. attorney.
As he left, Brown issued a public statement, which alluded to his frustration with not being able to indict or sue Walmart.26 “We must win the fight against opioid abuse in order to save our country,” he said. “But in order to be effective, we must be willing to prosecute all facets of the expansive network that feeds these destructive drugs into our communities. Players both big and small must meet equal justice under the law.”
By the fall of 2020, many of the Jones Day lawyers that had populated the Justice Department had moved on to other jobs. Walmart’s clout inside the agency was diminished.
Even Karen Hewitt had thrown up her hands. That October, a bunch of former U.S. attorneys who had been appointed by Republican presidents began talking. They decided to band together to write an open letter denouncing Trump’s politicization of the Justice Department and endorsing Joe Biden for president. A couple of drafts circulated, and about twenty former federal prosecutors added their signatures. Hewitt’s name was on at least three drafts, including one dated October 23. Other signatories were surprised to see her on there. Not only was Jones Day representing the Trump campaign, not only had the administration been filled with Jones Day veterans, but Hewitt had only recently been tapping those connections inside the administration.
The letter was publicly released in late October. “The President has clearly conveyed that he expects his Justice Department appointees and prosecutors to serve his personal and political interests,” the former prosecutors wrote.27 By then, Hewitt’s name had been deleted.*
Hewitt at that point knew the threat from the Justice Department had intensified. Gus Eyler and his colleagues at Main Justice were putting the finishing touches on a version of the lawsuit that Russ’s crew had crafted two years earlier. It was hard to avoid the impression that Russ’s noisy resignation—which had sparked not only media coverage but also angry letters from lawmakers about political meddling in a federal investigation—had forced the department’s hand.
That October, the deputy attorney general, Jeffrey Rosen, convened a conference call with DOJ and Walmart lawyers. He urged the company to make a “serious” settlement offer to forestall the filing of the lawsuit; senior Justice Department officials were looking for something in the billions. A couple of weeks later, Hewitt delivered a lowball offer in the tens of millions of dollars, roughly half of what Varnado had previously pushed Russ to accept. Justice Department officials told Walmart to forget about settlement talks; they planned to sue. Now it was Jones Day’s turn to be alarmed. Mike Carvin happened to know Rosen, and he arranged to come to Main Justice in a last-ditch effort to broker a compromise.
Carvin failed. When the Jones Day lawyers and their client realized there would be no deal, they resorted to a desperate tactic, one that showed they had run out of cards to play inside the Trump administration. In late October, Walmart sued the Justice Department and the DEA, asking a federal judge to preemptively find that the company hadn’t done anything wrong.28 “Congress entrusted DEA—not pharmacists and pharmacies—with the responsibility, tools, and legal authority to strip unscrupulous doctors of their prescribing privileges,” the suit maintained. “DOJ and DEA should not be allowed to outsource to pharmacists and pharmacies the job DEA has failed to do.” (The suit was dismissed. Jones Day appealed.)
Then, three days before Christmas, the Justice Department filed its civil lawsuit against Walmart.29 “As a nationwide dispenser and distributor of opioids, and given the sheer number of pharmacies it operates, Walmart was uniquely well positioned to prevent the illegal diversion of opioids,” the 160-page suit stated. “Yet, for years, as the prescription drug abuse epidemic ravaged the country, Walmart abdicated those responsibilities.”
The lawsuit was teeming with the evidence that the Texas prosecutors had hoped, years earlier, to use to criminally charge the company. Thanks to Jones Day, that wouldn’t be happening. The civil litigation, already delayed, was likely to spend years drifting through the judicial system, awaiting a trial or settlement. In the meantime, Walmart could continue to operate as usual.