How a law firm for big businesses started a political revolution.
The untold story of how Jones Day tried to move the government and courts of the United States to the right.
On a warm Saturday night in June, Traci Lovitt threw a party for her husband Ara’s 50th birthday at their Westchester mansion, which is 9,800 square feet and looks out over Long Island Sound. Ara worked for Sandra Day O’Connor, and Traci worked for Antonin Scalia, both on the Supreme Court. Ara worked in finance these days. Traci was a top partner at the international law firm Jones Day, which is best known for representing Donald Trump’s presidential campaigns. She was also in the running to be the firm’s leader one day. The Lovitts flew in Richard Blade, a veteran DJ Ara listened to when he was growing up in Southern California, to be the event’s master of ceremonies. But Blade wasn’t the most important person at the party. Justice Amy Coney Barrett was the one who got that honor.
Barrett and four other Supreme Court justices overturned Roe v. Wade the day before. This took away the constitutional right to have an abortion. Now she was wearing a pink dress and sitting at a table with flowers on the Lovitts’ green lawn under a tent. Barrett worked as a clerk for Scalia at the same time as Ara in 1998 and 1999. He also became friends with Traci and they went jogging around the National Mall together after work. (When Trump nominated Barrett for the Supreme Court in 2020, Traci sent a letter to senators praising the judge’s fairness and dedication to the rule of law.) But there was more to the link to the court than that. Scalia worked at Jones Day for a long time in the 1960s. And Traci was in charge of an elite practice within the firm, which included arguing cases in front of Barrett and her colleagues.
Guests at the Lovitts’ mansion danced until 1 a.m. to Blade’s music. At one point, an attendee saw Barrett talking to another Jones Day partner, Noel Francisco, who had also worked as a clerk for Scalia the year before Lovitt and Barrett did. Francisco left the firm in 2017 to become Trump’s solicitor general and represent the government in front of the Supreme Court. He came back in 2020 and eventually took over the huge Washington office of Jones Day.
Now, his and Lovitt’s subordinates were going to court all the time. In a recent case brought by Jones Day, the court ended the ban on home evictions put in place by the Biden administration during the pandemic. Less than a week after the Lovitts’ party, Jones Day worked on another case in which the court severely limited the EPA’s ability to regulate power plant emissions.
Jones Day was a giant in the field of corporate litigation for a lot of its history. It was a global giant with more than 40 offices and about 2,500 lawyers. It made billions of dollars a year in fees from tobacco, opioid, gun, and oil companies, as well as many other big businesses that needed a cutting-edge defense. More than most of its competitors, the firm had an army of litigators who were experts at taking advantage of small legal loopholes and burying weak opponents in paperwork, venue changes, and other small procedural details. But over the last 20 years, Jones Day has built a different kind of law firm, one that helps Republicans not only win elections but also reach their political goals once they are in office. One of the main goals was to get rid of what Don McGahn, a partner at Jones Day who helped run Trump’s campaign and later became his White House counsel, called the “administrative state.” In order to do this, the firm brought the ruthlessness and creativity of corporate law into the political world.
Jones Day got a lot of young Supreme Court clerks, mostly from conservative justices, by offering them six-figure signing bonuses and the chance to work on causes they cared about, like challenging gun control and Obamacare in court. The company spent a lot of free time helping people in need, as well as helping wealthy right-wing groups fight against early voting and a federal corporate-oversight body.
Jones Day worked on Trump’s 2016 campaign and helped him get Republican support by saying he would choose federal judges from a list that the law firm and the Federalist Society had already looked over. When Trump won the election, a large fleet of Jones Day lawyers sailed into the White House, the Justice Department, and other parts of his administration. But the most important effect was on the court system. Trump gave McGahn the job of choosing federal judges. Working closely with Senate Majority Leader Mitch McConnell, McGahn put more than 100 conservatives on the federal courts, including a few who had recently worked at Jones Day. Even after he went back to work at Jones Day in 2019, McGahn still gave Senate Republicans advice on how to handle legal issues.
Partners at corporate law firms often try their hands at politics. It’s also not unusual for a company to support causes on the left or right. One of the richest companies in the country, Paul, Weiss, has taken liberal stands on public issues for a long time (even as it rakes in fees from companies that undercut those ideals). Jones Day is different because of how deep it went into the federal government under Trump and how it is now using a judicial revolution that it helped start.
The power of that revolution, which is spreading to courtrooms and statehouses all over the country, is now very clear. Even though the White House and Congress are both run by Democrats, the Supreme Court has been moving to the right. In the court’s most recent term, Trump’s three appointees—the first two were chosen by McGahn, and the third, Barrett, was taken from academia to serve on the federal bench—helped get rid of the constitutional right to abortion, weaken the separation of church and state, make it harder for states to regulate guns, and limit the power of federal regulators. Jones Day was involved in some of these cases, and the firm has made it clear that it wants to take on more legal cases that are in line with the beliefs of its leaders.
Jones Day’s power seems to be on the rise. This year, it has taken money from a wide range of prominent Republicans, including a Trump political action committee, moderates like Senator Susan Collins, Trump supporters like Dr. Mehmet Oz, and hard-liners like Representative Kevin McCarthy of California, the House minority leader, and Senator Ron Johnson of Wisconsin. It has also taken money from a number of super PACs that support outsider candidates like Herschel Walker, a former NFL player who is running for a seat in the Senate. Francisco recently stood up for former Attorney General Bill Barr in front of a House committee looking into the attack on the Capitol on January 6. McGahn is now representing Senator Lindsey Graham as he fights a grand jury subpoena to testify about Trump’s efforts to change the election results in Georgia. The chief of staff for Florida Governor Ron DeSantis is a recent graduate of the law firm Jones Day. Most likely, Jones Day lawyers will be in the next Republican presidential administration, whether it is led by Trump, DeSantis, or someone else.
Jones Day was one of the first law firms to open in Cleveland in 1893. At the time, the legal field was growing quickly. It was one of the first law firms to open multiple offices in the United States and then overseas in the 1970s and 1980s. It worked hard and was very successful at defending some of the worst companies in America. The company helped R.J. Reynolds spread doubts about how dangerous smoking is. It kept regulators away from Charles Keating’s savings and loan association, which was full of fraud. It helped Purdue Pharma keep its OxyContin patents safe. But it didn’t become a machine for conservatives until 2003, when Stephen Brogan became the managing partner.
Brogan, who is the son of a New York City police officer, started working at Jones Day right after he graduated from law school at the University of Notre Dame in 1977. He has worked there ever since, except for a two-year stint in the Reagan Justice Department. Several of Brogan’s friends said that his faith was the best way to understand him and his politics. One of his Jones Day friends told me, “Brogan is a very conservative, strict Catholic, and that is the core of who he is.” Brogan hired a number of well-known Federalist Society members, such as top lawyers in the Reagan and Bush administrations like Michael Carvin and Noel Francisco, to work in the firm’s issues-and-appeals practice, which became a kind of conservative think tank. Jones Day took on a growing number of ideologically charged cases and causes, such as the ultraconservative Buckeye Institute’s attempts to stop the expansion of early voting in Ohio and to challenge the legitimacy of the Obama administration’s newly created Consumer Financial Protection Bureau. Most of the firm’s lawyers still did regular work for big companies.
By 2014, three Republican lawyers at the Washington law firm Patton Boggs, which was having money problems, were looking for a new place to work. Jones Day was a natural choice. It was very big, had a busy office in Washington, and was run by conservatives. Also, the Patton Boggs crew—McGahn, Ben Ginsberg, and William McGinley—would fill a need. Jones Day had a strong reputation for helping businesses figure out how to work with the federal government. However, the firm didn’t have much experience helping politicians figure out how to work with election and campaign finance laws. Jones Day would have had less power on Capitol Hill and in the White House if he hadn’t helped people get elected. This was because helping people get elected gave him connections with other people.
Ginsberg, who was the top lawyer for George W. Bush and Mitt Romney’s presidential campaigns, knew Francisco and Carvin for a long time. During the interview, Ginsberg told Francisco that he knew that Jones Day, even though it had a reputation for being conservative, probably had a lot of Democrats working there. Would it be a problem to bring in a team of Republicans who are often at odds with each other? Francisco told him it wouldn’t happen. In fact, the company was starting to market itself by promoting conservative ideas. In a 2015 promotional video for Jones Day, Francisco said, “The government’s tentacles reach into almost every part of what our clients do.” “The job of a lawyer and the job of the courts is to make sure that the federal government stays within the lines that our Constitution sets, and I love making sure that those lines are followed.”
Ginsberg and McGahn were well-known in the Republican establishment. Soon, governors Scott Walker of Wisconsin, Rick Perry of Texas, and Chris Christie of New Jersey, all of whom wanted to be president, went to them for advice. McGahn had just left the Federal Election Commission, where he had weakened campaign finance rules and slowed down the agency’s decision-making in an effort, he said, to make it more responsive to the people and groups it regulated. He also represented the Republican National Committee, the National Rifle Association, and the billionaire Koch brothers, all of whom are major players in the Republican Party.
At least one other important client was Citizens United. Dave Bossie, a well-known right-wing activist, was in charge of the group. It is best known for successfully challenging limits on campaign spending in the Supreme Court. Bossie and McGahn were talking on the phone one day in late 2014 about which presidential campaigns the Jones Day lawyers should work for.
Bossie asked, “What about Trump?”
“How about Donald Trump?” McGahn replied with doubt.
“No, he really is planning to run.”
“Every four years, he says this. Isn’t he a New York Democrat?”
Bossie replied, “He’s gotten older and more conservative.” “I think you would get along well.” In a 2020 speech at Widener University in Pennsylvania, McGahn talked about how he trusted Bossie and soon after that met Trump in New York. At the end of their conversation, Trump wrote “You have a wonderful father” in a book for McGahn’s son. McGahn was very happy.
Trump was criticizing free trade and the establishment at the time, and a lot of what he said made sense to McGahn. McGahn told me, “He and I had the same idea about what would be important in 2016, and it wasn’t what the D.C. consultants thought would be important.” Trump was looking for a well-known lawyer to show the world that he was serious about his new campaign. McGahn said he would work with him.
McGahn was driven by what he later called “a dislike of concentrated power” even when he was young. When he was in college, he watched Robert Bork’s confirmation hearings for the Supreme Court. This gut feeling turned into conservatism. McGahn was angered by how the Democrats treated a respected conservative judge. He thought it was a shameful thing for the Democrats to do. By the time McGahn joined the Trump campaign in 2015, his views on liberal courts and the administrative state had turned into a simmering obsession. He thought that unelected judges often sided with unelected bureaucrats, who were trampling the rights of private people and businesses.
McGahn was working for a candidate with a small chance of winning, but he had his sights set on a very big prize. Trump didn’t have strong feelings about many of the most important issues of the time. The courts were one thing that was missing. Here was a rare chance for a lawyer to put his own ideas on the agenda of a presidential candidate. He liked conservative judges who would keep federal agencies in line and stick closely to the Constitution as it was written.
Early in 2016, McGahn was in Iowa with the Trump campaign for the caucuses when he heard that Jonathan Bunch, who was the head of external relations at the Federalist Society at the time, wanted to talk to someone on the campaign. The Federalist Society may have been more influential than any other interest group in Washington’s conservative circles. It fed the federal courts and kept out would-be Republican politicians. McGahn called Bunch from his hotel room with a view of downtown Des Moines. He was president of the local chapter of the society when he was in law school. Bunch said that the group was looking into the major candidates and wanted to know if the Trump camp had given much thought to the kinds of judges he might pick if he is elected. “You don’t have to worry about anything with us,” McGahn said to him.
In March of that year, about two dozen Republicans, including senators, House members, lobbyists, and Leonard Leo of the Federalist Society, met for lunch at the neoclassical building of Jones Day on Capitol Hill. McGahn set up the meeting to help the conservative establishment get used to the unconventional front-runner of the Republican Party. The plan was for Trump to say a few short things and then answer questions. Antonin Scalia had died suddenly only a few weeks before. Mitch McConnell had made it clear that anyone President Barack Obama chose to replace him would not be put to a vote. So, the next president would have a spot on the Supreme Court to fill right away. McGahn and Trump had talked about how to use this unexpected turn of events to make conservatives more likely to vote for Trump. Today, they would start a very important part of their plan.
Leo asked Trump about judges after he had talked for a few minutes. “Why don’t I make a public list of people who might be the kind of people I would put on the Supreme Court?” McGahn later remembered what Trump said. Everyone in the room was happy. He and Leo have sometimes told different stories about the fateful meeting. For example, Leo says that McGahn asked him to bring a list of names. If Trump said publicly that he would choose Scalia’s replacement from a list, that would make conservatives feel a lot better about a guy who used to support abortion rights. The final list of possible Supreme Court picks would take months to put together. McGahn and Leo led a team that looked at the candidates’ court decisions, and the list would be a turning point for Trump’s campaign. “The list gave a lot of Republicans peace of mind,” McConnell said at a Federalist Society meeting with McGahn in Kentucky in 2019. Making the list “became the single most important thing that brought our side together behind him.”
About a week after Trump won the 2016 election, McConnell called McGahn to talk strategy. There were more than 100 federal judicial vacancies, mostly because McConnell had been refusing to hold votes on Obama’s nominees. (When Obama took office, there were about half as many judgeships that needed to be filled.) Many people thought that Trump would hire McGahn as his White House counsel. Now, the Senate majority leader told McGahn to insist that the president give him and him alone the power to choose judges. This is different from what used to happen in previous administrations, when a group of experts would debate the merits, both in terms of their qualifications and their political fit, of different candidates. McConnell said, “Just do it yourself.” McGahn told Trump about the idea. Trump said sure.
McGahn and his firm were about to have a lot of power. It seems that Jones Day’s involvement with the Trump campaign and McGahn’s planned promotion to White House counsel led to the firm’s lawyers being in charge of finding and vetting candidates for many White House and Justice Department jobs. The work was done for free. (Some Jones Day lawyers told me they didn’t agree with giving free time to help Trump get ready for office, but they were overruled.) Jones Day was willing to do it because of what? It seemed like part of the reason was that it gave the company a rare chance to put its own people in a new government.
McGahn surrounded himself with his old friends in the White House Counsel’s Office. Greg Katsas, who was a partner at Jones Day and helped plan the changeover at the Justice Department, would be his deputy. Annie Donaldson, who worked for Patton Boggs before McGahn and now works for him, will be his chief of staff. At least three more people from Jones Day would also be going there. William McGinley got the job of cabinet secretary at the White House. Jones Day lawyers were at the top of the Justice Department and near the top of the Commerce and Agriculture Departments. Jones Day would put people in charge of regulating energy markets and making sure consumer goods are safe. Trump chose Noel Francisco to be solicitor general. Before McGahn, he was the Jones Day lawyer who was most likely to get the highest-ranking government job. That meant that two of the most powerful legal jobs in the U.S. government would be filled by the firm’s recent partners.
Most of a new president’s administration is made up of lawyers from big law firms. Jones Day lawyers had worked for Obama and other presidents (and would serve under President Biden). But at the beginning of the Trump administration, a lot of talent moved from a single law firm to the new government. Jones Day seemed to be even more political than before. In the spring of 2017, partners got an email saying they had to sign a public letter supporting Francisco. Some Jones Day lawyers were appalled by the first two months of the Trump administration, which included a ban on travelers from several Muslim-majority countries. This was too much for them. One of my ex-partners said that this is when she started looking for a new job. She said, “I felt like I was being forced to support a government I didn’t believe in.”
Soon, it was hard to tell where the interests of Jones Day stopped and those of the Trump administration began. Cases that the firm had argued on the outside of the government could now be decided on the inside. In 2012, when Obama was running for re-election, Jones Day began to attack the Affordable Care Act in many different ways. One part of the plan was to get dozens of Catholic groups to file lawsuits against Obamacare’s rule that employer insurance plans have to cover the cost of birth control. Now that Trump’s government is full of people who used to work at Jones Day, the suits were pointless. The Justice Department and McGahn’s office worked together to make a rule in October 2017 that said employers with religious objections to birth control could keep contraceptives out of their health plans.
All of the people involved got a lot out of it. Jones Day and the Justice Department came to an agreement in court. The lawsuit would end, and the government would not force the plaintiffs to pay for contraceptive coverage. Jones Day said it was helping the Catholic groups for free, but as part of the settlement, the government agreed to pay Jones Day $3 million to cover some of the costs it had to pay. The settlement agreement was signed by five people, including four lawyers from Jones Day and one person from the U.S. government. Brett Shumate was his name. He worked as a deputy assistant attorney general in the civil division of the Justice Department. His boss had just moved to the company from Jones Day. Less than two years later, Shumate left the Justice Department and joined the firm’s Washington office as a partner. (Matthew Kairis, a partner at Jones Day who helped negotiate the settlement, told me he didn’t know Shumate was involved in the talks and that it was “silly” to think this had anything to do with his hiring.)
Jones Day quickly built a strong network inside the government bureaucracy that McGahn and his colleagues hated so much. When the 2020 census was coming up, Trump advisers like Steve Bannon and Reince Priebus came up with the idea of asking people if they were citizens. The goal seemed to be to scare immigrants away so they wouldn’t fill out the census. That would lower the number of people living in parts of the country that tend to vote Democratic, which would take away their congressional seats. James Uthmeier, who had just moved to the Commerce Department from Jones Day and was in charge of the Census Bureau, did a lot of the legal work to explain why the citizenship question should be added. The key was for another government agency to formally ask that the question be added for reasons that had nothing to do with politics.