The Corporate Revolving Door at the Department of Justice

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Former Attorney General Eric Holder recently caused a bit of a stir when he returned to his former law firm, Covington & Burling, as a high-paid partner. Some critics suggested that Holder’s return – and the fact that it was planned throughout his tenure as AG – is troubling in the context of the Justice Department’s failure to prosecute financial firms in the wake of the 2008 financial crisis.

I’ve got nothing against Eric Holder. His focus on civil rights at the Justice Department was admirable, and is his major legacy there. Holder was actually our opposing counsel before he became AG – he represented Chiquita when we sued the banana company for financing Colombian paramilitaries – but he was a reasonable opposing counsel, not prone to the egregious behavior that marks some defense lawyers in human rights cases.

But Holder’s path does illustrate concerns with the fact that the top lawyers in the Justice Department have almost universally been drawn from the ranks of big corporate law firms. I previously blogged about the need for more diversity in judicial appointments, because most of Obama’s judges have come from private-sector backgrounds (which typically means large, corporate law firms), contributing to a corporatist bent in the courts. But there’s even more of a need when it comes to DOJ.

The top four positions at DOJ – the Attorney General, Deputy and Associate Attorneys General, and Solicitor General – have been filled by a total of nine confirmed appointees during the Obama administration. Of these, all but two spent much of their careers at large corporate law firms. That includes current Attorney General Loretta Lynch; although Lynch was a highly respected U.S. Attorney immediately before becoming Attorney General, prior to that she was a partner at Hogan Lovells for 10 years.

Six of these appointees have now left DOJ. Four of them, including Holder, have gone back to major corporate law firms, and another one – former Associate AG Tony West – became General Counsel for Pepsico. The last one is current Supreme Court Justice Elena Kagan.

There isn’t necessarily anything wrong with the path that any of these individuals has taken; going back to a law firm after government service is not that unusual. But overall, the fact that almost all the top leadership of DOJ has come from, and is likely to return to, corporate law firms raises concerns about the government’s inclination to take tough measures for corporate accountability.

It wasn’t always this way. Looking at the same four leadership positions under President Clinton – who had himself worked for a large corporate law firm – there were ten appointees. Of those, four were either career government servants or mixed public service with law school teaching. (One was Eric Holder himself, who had been a career government lawyer and judge until he went to Covington after serving as Clinton’s last Deputy Attorney General.) Four came from large corporate law firms – although several of those also had significant government service – and two more came from a small D.C. litigation boutique.

While Clinton’s picks were still biased toward defense firms, they showed more diversity of background and outlook. As huge corporations control increasingly larger portions of our economy and capture more and more of the political process, we need this kind of diversity in the top levels of the Justice Department.

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