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In the days after Joe Biden won the election, many in legal circles were appalled to see a high-profile law firm assisting President Trump’s far-fetched attempts to challenge the results: Jones Day, a venerable 127-year-old firm that boasts the likes of Walmart and General Motors among its clients.
As criticism mounted in the press and social media, Jones Day shot back with a fiery blog post defending its actions. But that appears to have done little to quell the anger and mockery directed at the firm from inside and outside the legal community. On Thursday, constitutional lawyer and Democratic Party supporter John Bonifaz shared details of a planned Friday protest outside Jones Day’s offices in Manhattan.
The source of critics’ frustration is that President Trump’s legal challenges are not expected to produce any meaningful legal victories, but instead appear to be part of a strategy on the part of the President to undermine public confidence in the electoral process—according to several of Jones Day’s own lawyers who spoke anonymously to the New York Times. Meanwhile, judges across the country have been tossing out cases on the grounds that the Trump campaign’s claims of fraud or voter intimidation are hearsay or simply baseless.
Jones Day, which has made more than $20 million in fees from Trump-affiliated groups since 2015, has responded to criticism over its role in the election litigation by saying it is not representing the President or his campaign. Instead, the firm says, its client is the Pennsylvania Republican Party—which may be a distinction without a difference if the allegations about the collective lawsuits being part of a coordinated strategy to sow doubt about the electoral process are true.
Jones Day’s claim not to represent the President came in a blog post on its website, which briefly crashed after a flood of visits on Tuesday. And in a seeming echo of President Trump’s favored tactic of decrying “fake news,” the post concluded by saying, “Jones Day expects that the media will correct the numerous false reports.”
Jones Day’s statement also pushed back against the notion that the litigation it has filed is frivolous—noting that four Justices of the Supreme Court have expressed support for the Pennsylvania GOP’s position that the state’s decision to count ballots received after Election Day is unconstitutional.
Indeed, the firm’s defenders may cite the legal weight given to the case (which is still being decided) by a faction of the Supreme Court, along with the core principle that litigants have the right to a lawyer, in arguing that Jones Day is behaving in a perfectly professional and ethical fashion. But not everyone is buying it.
Randall Eliason, a law professor at George Washington University who specializes in white-collar criminal law, says the constitutional principle of everyone having a right to a lawyer isn’t at play in this case.
“The distinction here is this is not a criminal defendant who is being prosecuted by the government,” he said. “[The Trump campaign] is playing offense by affirmatively bringing these cases, and the firm is not obligated to represent them.” Eliason added that Jones Day is not a small civil rights firm but a corporate behemoth that should not expect to be exempt from public criticism over the clients it represents.
Other lawyers share this view. A New York City attorney, who has spent more than 15 years at two white-shoe firms, acknowledged the Pennsylvania case involved a genuine legal dispute but questioned why Jones Day had chosen to press the claims.
“No self-respecting, dignified lawyers should be representing them,” said the lawyer, who spoke on condition of anonymity because he feared antagonizing Jones Day. He then suggested that it would be more appropriate for a prominent personal injury law firm: “Let Jacoby & Meyers do it,” he said.
There appears to be little urgency for Jones Day’s client to pursue the Pennsylvania case given that the number of ballots subject to the deadline dispute—about 10,000—would not affect the election outcome. President-elect Biden’s margin of victory in the state currently stands at over 50,000 votes. Congressman Ted Lieu (D-Calif.) made this point on Twitter on Wednesday, noting other law firms have walked away from apparently fruitless legal challenges.
The futility of the legal challenges has also become more apparent as the week has gone on, with GOP party heavyweight Karl Rove stating plainly in a Wall Street Journal editorial that the election results will stand.
The Lincoln Project has also encouraged people to write to their Jones Day contacts on LinkedIn and share their missives on social media, which some people have done.
The controversy over Jones Day and a second big law firm, Porter Wright, helping Trump challenge the election results has also produced a flurry of coverage in the legal press, with one veteran reporter saying he has never seen a firm receive this level of scrutiny in the past.
Nonetheless, it’s unclear if the flap over the firms’ role in undercutting faith in the electoral process will produce lasting reputational harm—or if, like so many contretemps on social media, it will quickly be forgotten.
According to the veteran New York City lawyer, it’s unlikely Jones Day lawyers will quit over the controversy—especially as it would mean giving up a big salary in a shaky economy—but that working at the firm might lead to them being shunned in Manhattan’s clubby and overwhelmingly Democratic legal community. He added that Jones Day’s actions may hurt the firm’s ability to hire prominent attorneys and top law students.
Eliason, the law professor, also predicted that some students from elite law schools might refuse offers from the firm, recalling how students in the past balked at working for firms that represented Big Tobacco.
A spokesperson for Jones Day declined to comment on whether the controversy would impair the firm’s ability to recruit. Porter Wright provided the following statement:
“Porter Wright is bound by our legal ethical obligations to keep relationships and work with both current and former clients confidential. Porter Wright has a long history of election law work during which we have represented Democratic, Republican, and independent campaigns and issues. At times, this calls for us to take on controversial cases. We expect criticism in such instances, and we affirm the right of all individuals to express concern and disagreement.”
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