The DOJ’s Biglaw Subpoena Explanation Raises More Questions Than It Answers

Remember when Trump turned on the nine capitulating Biglaw firms that sold out the rule of law to escape his retaliatory, constitutionally dubious executive orders? Yeah, well, now we’ve got more details on what’s behind that decision.

Quick recap for anyone just catching up: DOJ hit the nine firms with third-party subpoenas demanding their communications with Trump’s personal lawyer Boris Epshteyn, plus deposition notices for the firm leaders who actually signed those deals — all as a side effect of its legal tussle with the ABA, which sued the administration over the legal-blacklist-by-executive-order campaign.

Bloomberg Law reports that when asked for comment on the subpoenas, an unnamed DOJ spokesperson actually answered:

“We sent the subpoenas to the law firms to reinforce our argument that the ABA should obtain this information from its own members, rather than a close presidential advisor.”

Whoa, doggie. I have some thoughts about that.

Okay, it is genuinely strange that DOJ is narrating its own litigation strategy to a reporter in the middle of a live discovery fight. Attorneys are not exactly known for offering up the “why” behind a subpoena while the ink is still wet… that’s usually the kind of thing you save for a brief, not a press inquiry. Worth remembering, too, that since the nine firms haven’t formally opposed these subpoenas yet, still too worried that fighting back will earn them another executive order for their trouble, the DOJ could have kept this card closer to their chest, at least for the moment.

Also it is worth noting the theory doesn’t hold up on its own terms. Sure, the nine firms that cut deals worth $940 million in pro bono payola may have some responsive documents. But, even if they do, “some” is not “the entire universe.” The ABA isn’t just asking about the firms’ side of nine deals, it’s specifically asking about the White House’s and Epshteyn’s role in orchestrating all of them. The law firms wouldn’t have been cc’d on that.

And isn’t this just conceding the responsiveness of the Epshteyn communications? Those are the exact materials the administration is fighting to keep out of the hands of the ABA! But, by subpoenaing the firms for their Epshteyn communications, the DOJ just admitted that whatever Epshteyn said about the EOs is relevant to the ABA case. Now, admittedly, the administration is making a privilege claim over the materials, as the spokesperson said, “DOJ’s motion to quash [the ABA’s subpoena of materials related to Epshteyn] is consistent with longstanding practice to protect any president’s ability to obtain confidential advice from his closest advisors.” It seems an unforced error to concede responsiveness when they didn’t have to.

So the ABA’s discovery fight just got a gift, courtesy of the department’s own subpoenas, and its own press office.

Earlier: Trump Turns On Capitulating Biglaw Firms HAHAHAHAHA
The ABA Wants The White House’s Receipts On The Biglaw Executive Orders
The Trump Administration’s Best Argument For Its Biglaw EOs Is That You Just Have To Trust The President
DOJ’s Defense Of Trump’s Biglaw Executive Orders: Look How Many Firms We Scared Into Compliance!
DOJ Drops Defense Of Biglaw Executive Orders, Leaving Capitulating Firms Holding $940 Million Bag
There’s No Absolution For Biglaw Firms Suing The Administration After Bending A Knee To Trump
‘Pray I Don’t Alter It Any Further’: What Darth Vader Should Teach Law Firms About Settling With Trump

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Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter @Kathryn1 or Bluesky @Kathryn1