Pat Cipollone is making the president happy. But his job is bigger than the president.
Pat cipollone had been working as White House counsel for just two months when his boss issued his first performance review. During a private ceremony in the Oval Office, Donald Trump was walking around the room, shaking hands, when he stopped and greeted Cipollone and his former law partner Tom Yannucci. Cipollone introduced his old friend and told the president that the two had once worked together. “So far, Pat’s doing a great job,” Trump said. “But we’ll know for sure after six years.”
That Trump would brashly predict his own victory in 2020 is no great surprise. What is unusual is that a president who fires top advisers by tweet would signal that Cipollone is here to stay. Perhaps it’s because Trump needs Cipollone more than he needs almost anyone else. The counsel heads a White House legal team that is enmeshed in perhaps the greatest constitutional standoff since Watergate, and he’s now at the center of the administration’s response to a grave new threat to Trump’s chaotic presidency.
According to multiple current and former senior administration officials and Cipollone associates we spoke with for this story, Cipollone is eager to see the White House through this moment, and Trump, at least so far, appears ready to heed his guidance. In his 10 months in the administration, the 53-year-old Cipollone seems to have earned the president’s trust in a way that few aides have done. He is both discreet, and more to the point, clear in his admiration for the president. He is not the sort of lawyer who will refer to the president as “King Kong,” as his predecessor, Don McGahn, once did. Trump has long been tough on his lawyers, demanding loyalists and brawlers in the mold of Roy Cohn, his personal attorney from his time as a real-estate magnate and a former aide to red-baiting Senator Joseph McCarthy. Trump didn’t believe that McGahn would fight for him with the tenacity of a Cohn, and McGahn himself appeared to be more of a guardrail for Trump than a defender. “I don’t have a lawyer,” Trump complained to McGahn and other aides in the Oval Office two months into his tenure, according to a passage in Special Counsel Robert Mueller’s report.
There’s an almost unbearable tension inherent in Cipollone’s job. Trump apparently believes that government lawyers exist to do his bidding, making clear with his cries of “Harassment!” and “Witch hunt!” that he despises the congressional investigations aimed at his presidency. Cipollone—aggressive, dedicated, and at times controlling, according to his colleagues—has helped to frustrate Democratic attempts at oversight, challenging subpoenas and crafting legal arguments to block aides’ testimony before Congress. But while Cipollone’s title may suggest that he’s the president’s lawyer, he’s not: The counsel’s job is to protect the presidency and its enduring institutional interests, not Trump the man. “You can’t say, ‘Whatever [the president] does, I will represent him to the hilt,’” Bernard Nussbaum, the former White House counsel under Bill Clinton, said in a 2002 oral-history interview. How Cipollone views his role in this fraught moment will shape not only his relationship with a president who demands complete loyalty, but what the public is able to learn about Trump’s conduct in office.
House Democrats were already taking steps toward impeachment—pursuing a broad inquiry into Trump’s dealings—when press reports last month opened up a new front in the oversight war and pushed Speaker Nancy Pelosi to endorse an impeachment inquiry. The reports showed that in a private phone call, Trump repeatedly pressed his Ukrainian counterpart, Volodymyr Zelensky, to investigate one of his 2020 Democratic rivals, former Vice President Joe Biden.
A series of revelations since the reports came out has drawn House Democrats’ scrutiny to Cipollone’s office. In a complaint made public one week ago, a whistle-blower alleged that White House lawyers had “directed” officials to move a transcript of the Ukraine call into a special classified system reserved for particularly sensitive material. The White House later said that the attorneys involved were from the National Security Council, a statement that both read as an attempt to shift focus from the White House legal team and obscured the fact that NSC lawyers fall under the authority of the counsel’s office. According to an administration official, who like others we talked with for this story spoke on the condition of anonymity to discuss internal dynamics, the counsel’s office dictated the statement that was released. (White House Press Secretary Stephanie Grisham denied Cipollone’s involvement.) Cipollone also advocated for the White House to publicly release its rough notes from the call, despite Trump’s initial opposition, the administration official told us. Cipollone declined to comment for this story.
But the NSC distinction may be without a difference. One former White House lawyer from a different administration told us that the White House counsel would likely have known in advance how the transcript was going to be handled. “If they’re suggesting [NSC lawyers] made the decision, that’s ridiculous,” this person said.
Alleging that a cover-up took place for Trump’s political protection, some House Democrats want Cipollone or other White House lawyers to answer questions about how the transcript was dealt with. “Clearly, we need to learn more about why it is they would do that, after first confirming that they have,” Representative Denny Heck of Washington, a Democrat on the House Intelligence Committee, told us.
Trump’s conduct during the Ukraine call has touched off “a defining moment for the counsel’s office post-Watergate,” John Dean, the White House counsel under Richard Nixon and himself a whistle-blower in the Watergate scandal, told us.
With the prospect of six more years in office looking more uncertain than ever, Trump finally seems to feel like he has a lawyer. The question now, as the impeachment inquiry deepens, is the degree to which Cipollone thinks of Trump, not the presidency, as his client.
If cipollone has shown he’s up to the task of defending the president, even in such high stakes as impeachment, it may be because he’s personally advised Trump and his inner circle for years.
A low-key figure in Washington’s private legal establishment, Cipollone discreetly offered advice to Trump and his aides as early as the campaign, when the pro-Trump Fox News host Laura Ingraham introduced him to Trump’s team. Cipollone helped Trump prepare for the general-election debates with Hillary Clinton in 2016.
The president’s allies called on Cipollone again less than a year later, when Mueller opened his investigation into Russian interference in the election. Cipollone became a sounding board for Trump’s outside legal team, members of which told us that he had advised them on questions such as whether the president should give a sit-down interview to Mueller. (Cipollone didn’t think he should; Trump agreed.) “I called him counsel to the counsel,” Jay Sekulow, one of the president’s outside lawyers, told us.
Cipollone’s advisory role brought him close to another figure now at the center of the ongoing impeachment inquiry: Rudy Giuliani, whose months-long communication with Ukrainian officials has become a crucial element of Democrats’ investigation into whether Trump attempted to solicit dirt on Biden from a foreign government. Along with Sekulow, Giuliani represented Trump during the Mueller probe, and he told us in an interview last month, before the impeachment inquiry took off, that they “spent a lot of time with Pat.” Beyond the question of whether Trump should testify, they also asked for Cipollone’s advice on their chances of winning in court should Trump refuse to comply with a Democratic subpoena. “It was helpful to have an outside lawyer,” Giuliani said, “because sometimes when you represent someone, you lose a little objectivity.” Of all the lawyers they talked with about the probe, Giuliani added, Cipollone was “the most impressive.”
Sekulow and Giuliani both “strongly urged” the president to have Cipollone succeed McGahn when he stepped down last fall, said Giuliani, who thought that Cipollone’s ability to “explain things well” in “normal language” would be beneficial for Trump.
Cipollone began his career in Washington in the early 1990s with a brief stint as an aide to William Barr, then the attorney general under President George H. W. Bush. His move afterward into private practice was a lucrative one: His latest financial-disclosure form shows that he earned a total of about $6.7 million as a commercial litigator for his former law firm Stein Mitchell Beato & Missner in 2017 and 2018. A devout Catholic, he is also a social conservative who helped found the National Catholic Prayer Breakfast, served as general counsel to the Knights of Columbus, and in 2012 petitioned to overturn the law allowing same-sex marriages in Maryland. Ingraham, who’s been close friends with Cipollone for decades, has referred to him as her “godfather,” and credits him with inspiring her conversion to Catholicism.
When Cipollone took over as White House counsel last year, he found an office bordering on skeletal. The staff was down to fewer than 20 lawyers, the collateral damage of the dysfunction between McGahn and Trump. When McGahn decided to leave the White House in October 2018, a lot of his allies did too. McGahn had never been shy about his feelings toward the president, and he channeled his energy toward deregulation and judicial appointments. Nevertheless, according to the special counsel’s report, McGahn tried to save Trump from himself; in one dramatic episode, he refused Trump’s demand to fire Mueller. That act of defiance surely spared Trump even more legal and political peril. The president in turn, according to the Mueller report, said that McGahn leaked to the media “to make himself look good.”
“It made people very uncomfortable,” a former White House official told us, referring to the Trump-McGahn relationship.
Cipollone has been leading a reset, doubling the size of the office to about 40 lawyers. He’s a regular visitor to the Oval Office, as well as to Trump’s private study off the Oval. “Pat is in the back office with the president a lot, which is a sign of closeness with the president, who trusts and values him,” Alex Azar, the secretary of health and human services and a longtime friend of Cipollone, told us.
Whereas McGahn seemed to reflexively say no to the president’s orders, current and former senior officials said, Cipollone has been eager to bring Trump’s vision to life—he is, as one former official put it, willing to “play ball.” The officials rooted his willingness to cooperate in another quality that sets Cipollone apart from his predecessor: Cipollone, they said, came into office with no personal agenda in mind. “The one thing with Pat is, it’s not about him,” Jared Kushner, the president’s senior adviser and son-in-law, told us. “Things that go well are the president’s accomplishments,” not Cipollone’s. None of the current and former officials we spoke with could name a single issue about which he was particularly passionate.
And Cipollone has broadened the office’s scope by building what is effectively a mini law firm inside the White House and advising on a wide range of policy matters, whether it’s the government shutdown earlier this year or funding of a wall at the U.S.-Mexico border. “In other things, he’s just more involved,” the former official explained. “But he doesn’t have a policy angle. He just says yes more.”
If democrats are to make a convincing case that Trump needs to be impeached, they’ll require the documents and testimony that the administration handles. A dress rehearsal of sorts has been playing out for months since control of the House flipped, with Democrats trying to obtain information on Trump’s tax returns, the profits he makes from his hotel and other properties, and how the White House awards security clearances, among other matters. With many requests, they’ve come out on the losing end.
Now, as Democrats plunge into an impeachment drive centered on the Ukraine call, they are demanding information about how Trump tried to pry loose dirt on Biden, and they’re pressing Cipollone for answers. Yesterday, Representative Elijah Cummings of Maryland, the chairman of the House Oversight Committee, released a letter describing his plan to issue a fresh subpoena for White House documents, writing that committee chairs had gotten no response to earlier requests. Among other materials he is seeking, Cummings wrote, he wants any communications about Trump’s Ukraine call from a range of administration officials, including those inside the counsel’s office.
When we spoke with Barr, now Trump’s attorney general, before the whistle-blower story broke, like the president he described Congress’s oversight requests as a form of harassment, making Cipollone’s job that much tougher. He insisted that Trump’s statement from April about “fighting all the subpoenas” was just “colloquial” phrasing—that the administration is “not automatically resisting all requests for information.”
Barr himself figures into the Ukraine drama. In his phone call with the Ukrainian president, Trump said that Barr would get in touch to talk more about jump-starting an investigation into Biden. (The attorney general’s office issued a statement last week saying that Barr hasn’t spoken with anyone from Ukraine or discussed the matter with Trump.) And new reporting shows that Barr has also been talking with foreign officials as part of a Justice Department investigation of the FBI’s early inquiry into the 2016 Trump campaign’s contacts with Russia.
“This is probably the highest degree of difficulty for counsel in this administration because of the intensity of the oversight and the demands and the pressure that’s brought on the administration,” Barr told us, reflecting on Cipollone’s role. “Things are more partisan. The degree of animosity is much higher in many respects than the last time I was in government.”
Not that Trump has done anything to lower the temperature; much of the time, he’s raising it. In recent days, for example, he’s demanded to know the whistle-blower’s identity—a move that could put the person at risk of harm—and tweeted part of a quote from a Dallas pastor who warned that Trump’s removal from office through impeachment would cause a “Civil War–like fracture” in the country. He’s warned that he’s the target of a coup, or, as he tweeted the other day, a “COUP.” (Impeachment, a legislative prerogative spelled out in the Constitution, is not a coup.)
Working in tandem with Barr’s Justice Department, Cipollone and his team have advanced a series of legal arguments in recent months that has hamstrung Democratic oversight: They’ve said that past and present White House officials are “absolutely immune” from testifying lest they divulge confidential conversations with the president. And they’ve put forward the legal rationale that congressional oversight needs to be tied to a “legislative purpose,”even though, for example, lawmakers aggressively investigated wrongdoing in the Nixon and Clinton White Houses.
Democrats have appealed to the courts in some cases to compel compliance. Should they try to subpoena Cipollone himself about the Ukraine episode, the White House seems likely to strongly resist. “If they say they want to break the [lawyer-client] privilege—and good luck with that—we’ll litigate it for the next year,” Sekulow told us.
Even when the White House hasn’t been able to prevent witnesses from testifying, officials have worked to muzzle them. In one memorable example, from June, the former White House senior aide Hope Hicks spoke to the Judiciary Committee behind closed doors. Cipollone had sent the committee’s chairman, Representative Jerry Nadler of New York, a letter permitting her to testify but not about anything dealing with her stint in the White House. Bound by those terms, and with Cipollone’s deputies hanging on every word, Hicks revealed very little about the White House:
“On your first day of work at the White House, was it a sunny day or a cloudy day?” Democratic Representative Ted Lieu of California asked Hicks.
Michael Purpura, a counsel’s-office lawyer: “You can answer.”
Hicks: “It was a cloudy day.”
Lieu: “And in the White House, where is your office located?”
Pat Philbin, another Cipollone deputy: “We’ll object to that.”
Lieu: “Okay. During your tenure at the White House, where would you normally have lunch?”
Purpura: “You can answer.”
Hicks: “At my desk.”
Lieu: “And would the president ever come in while you’re having lunch?”
Philbin: “Objection.”
The legal principles governing what White House officials reveal about private discussions with the president are complex. Hauling White House officials before Congress could potentially chill the candid internal deliberations a president has a right to expect. Even some Democratic lawyers say that some of the arguments Cipollone and the Justice Department have put forward are legitimate. Under President Barack Obama, the counsel’s office also sought to shield sitting White House officials from testifying before Congress, cautioning that these sorts of requests could trample on constitutional separation of powers.
Still, congressional Democrats argue that the resistance has reached intolerable levels. “It’s patently obvious that our ability under Article I of the Constitution to pursue oversight of the executive branch has been violated over and over again by this administration, and the tools that we have commonly used are ineffective,” Representative Jackie Speier of California, a member of the House Intelligence Committee, told us. To Trump, of course, that sort of complaint is a ringing validation that Cipollone is doing his job just right.
Anyone within trump’s line of sight has a chance to rise fast. Trump cares little about titles and hierarchies. If he likes you, he’ll rely on you—right up until the time when he decides he doesn’t like you, in which case you might as well check Twitter to see if you’ve been canned.
Trump so far has treated Cipollone as a senior adviser with a broad portfolio, past and present White House aides told us. He is discreet almost to a fault, his friend Tom Yannucci told us. “You could hardly talk to him even in an elevator,” Yannucci said, recalling when he and Cipollone were colleagues. “And there’d be no one else on the elevator.” Chuckling, he added: “I’d say it’s endearing, but it’s not. It can also be annoying.”
Few White House officials would deny that Cipollone is showing results, and not just on the oversight front. McGahn was widely credited for helping Trump appoint a significant number of federal judges, and there’s been no slippage under Cipollone. In the first two years of Trump’s presidency, the Senate confirmed 85 federal judges, according to a White House official. So far this year, the Senate has confirmed 67. With more than 50 more nominees in the pipeline—and with no signs that Senate Majority Leader Mitch McConnell will temper his pace in bringing them up for a vote—the White House is on track this year to surpass the combined total in 2017 and 2018.
In another administration, reshaping the federal judiciary would be a substantial legacy. Here, though, compared with the raging impeachment battle, it may be a footnote. As Trump follows the drama obsessively, a key part of Cipollone’s job is supposed to be protecting the presidency and ensuring that Trump doesn’t misuse his powers as he fights for survival. Cipollone has broken into Trump’s inner circle in part because he’s been more willing than his predecessor to find legal paths for carrying out Trump’s agenda. In the coming months, he may need to say no to the president when Trump is accustomed to hearing yes. Is he up to it? Azar, at least, believes so.
“I would hire Pat to be my lawyer,” Azar told us. “And there’s a reason for that. Pat would tell me if I was doing something I shouldn’t be doing or going in the wrong direction. He wouldn’t hesitate to tell me that, and I know he wouldn’t hesitate to tell the president that either.”
It is then up to Trump to dispassionately accept the advice without ostracizing Cipollone—the ultimate test for a president uninterested in dissent. Cipollone’s allies believe that he wants to stay with Trump not just through the current crisis, but through the president’s reelection and the end of a second term.
When we spoke with Barr, we asked him about Cipollone’s future. So many aides come and go. What about Cipollone? Would he be around through the end?
“You mean five years?” Barr said with a chuckle, banking on a reelection victory. “Yes, I think he will.”
Last week, our colleagues Jodi Kantor and Megan Twohey published a book documenting their investigation of Harvey Weinstein. In writing it, they discovered information about two feminist icons — Gloria Allred and her daughter, Lisa Bloom — that raises questions about their legacies and the legal system in which they’ve worked. Today, we look at the role of Ms. Bloom, a lawyer who represented Mr. Weinstein.
Government disclosures show legal clients included Bank of America, Goldman Sachs, Facebook and Walmart
WASHINGTON— Eugene Scalia, President Trump’s nominee to lead the Labor Department, earned more than $6 million since the beginning of last year as a corporate attorney, according to government disclosures.
Mr. Scalia, a partner at the law firm Gibson, Dunn & Crutcher, also said in the disclosures that his legal clients include a range of businesses, from megabanks such as Bank of America and Goldman Sachs GroupInc. to tech giant FacebookInc. and retailer WalmartInc.
The disclosures came in filings released by the Office of Government Ethics late Thursday or early Friday.
The White House formally announced its intent to nominate Mr. Scalia earlier this week to succeed Alexander Acosta as Labor secretary. Mr. Acosta stepped down earlier this summer.
Mr. Scalia, the son of the late Supreme Court Justice Antonin Scalia, could receive a Senate nomination hearing as early as next month.
The ethics disclosures show that Mr. Scalia received $6,232,021 in “partnership share and bonus” between January 2018 and the time he signed the document in late July.
Mr. Scalia’s ties to the financial-services industry and other big businesses could complicate his tenure on high-profile initiatives should he win Senate confirmation to lead the department.
For instance, he is expected to sit out the department’s rewrite of a closely watched investment-advice rule, after successfully leading an industry challenge to the Obama administration’s version of the regulation, The Wall Street Journal reported this month.
In the twilight of the ceaselessly dueling courtroom gods, legacies wobble and crack.
Once, they were unquestioned giants of the legal profession. David Boies, the slayer of Microsoft’s monopoly, the man Al Gore turned to in hopes of salvaging his bid for the presidency. Alan Dershowitz, one of the intellectual bulwarks of the O.J. Simpson defense team, the tactician immortalized on the big screen for reversing the murder conviction of socialite Claus von Bülow.
But now, as they reach an age when other esteemed elder statesmen of the bar might be basking in acclaim for their life’s work, the 78-year-old Boies and the 80-year-old Dershowitz are brutally yoked in a subplot of the Jeffrey Epstein sex trafficking case.Their linkbecame even tighter and more complicated this past weekend when the disgraced multimillionaire was found dead of an apparent suicide at a federal detention center in New York where he was awaiting trial on new sex trafficking charges. Epstein’s death occurred the day after newly unsealed court documents claimed he had a voracious sexual appetite for underage girls and detailed the alleged methods he and his friends used to recruit them.
The clash between Dershowitz and Boies, and its offshoots, have spawned lawsuits, swarms of stinging court documents, ferocious accusations, angry television appearances, a secretly taped call and more. In this long-running melodrama, Boies and his partners at Boies Schiller Flexner represent one of Epstein’s accusers, Virginia Roberts Giuffre— who was a teenage locker-room attendant at President Trump’s Mar-a-Lago resort when she met Epstein. Giuffre has alleged that Epstein demanded that she have sex with him repeatedly when she was underage and lent her for sex to his friends, including Dershowitz.
Dershowitz finds himself labeled as an alleged sex abuser in a personal affidavit by Boies, a claim he has volcanically denied. Dershowitz’s effort to counter the accusations has been made all the more nettlesome because his long-ago representation of Epstein has come under greater scrutiny following Epstein’s arrest last month. Dershowitz, an emeritus Harvard University law professor, is also fending off a defamation suit filed by Giuffre, set for key oral arguments next month, in which Boies has become a vital player.
Because Epstein’s death will end his criminal case, the Giuffre defamation action against Dershowitz could be one of the dwindling number of cases that would allow for the full public airing of numerous accusations against Epstein that his alleged victims have long sought.
As the Boies-Dershowitz conflict has dragged on, Boies, his partners and his allies have tarred Dershowitz in personal affidavits related to a bar complaint and a defamation lawsuit for allegedly bedding Giuffre when she was an underage teenager. In court filings, they portray Dershowitz, who has never been charged with a sex crime, as a liar and a sneak who secretly recorded a call with a fellow lawyer.
“After extensive consideration of everything Mr. Dershowitz told and showed me, I ultimately concluded that his denials were not credible,” Boies wrote in an affidavit included in Giuffre’s defamation suit against Dershowitz. (Giuffre sued Dershowitz because of numerous statements he made in media interviews, including calling her a “certified, complete, total liar” and saying that “she simply made up the entire story for money.”)
Meanwhile, Dershowitz has painted Boies as a corrupt attorney with a long trail of ethical lapses, a cheat and the head of a criminal enterprise.
“I believe the law firm of Boies Schiller is a RICO,” Dershowitz said in a recent interview at his New York apartment, citing the acronym used for Racketeer Influenced and Corrupt Organizations Act, a law frequently used against the mafia. “I believe they are the law firm of extortion, subornation of perjury and other crimes.”
Boies declined repeated interview requests and did not respond to written questions that specifically referenced the RICO allegation, as well as other assertions made by Dershowitz. Giuffre’s attorneys did not respond to requests for comment.
Named in a court filing
The mudslinging between two of America’s most famous and celebrated attorneys tracks to the wee hours of Jan. 22, 2015, when the men were casual acquaintances and occasional confidants. Dershowitz, a ubiquitous TV presence, awoke early that morning at his New York apartment and headed to Rockefeller Center, where he was scheduled to appear on NBC’s “Today” show to discuss the sex allegations made by Giuffre.
On the way, Dershowitz seethed.
Three weeks earlier, his name had surfaced in a court filing by Giuffre, who was then known only as Jane Doe No. 3, asking to join a lawsuit related to the Epstein case. The suit alleged that Epstein’s victims hadn’t been notified in advance of a non-prosecution agreement with federal prosecutors after the wealthy financier was arrested on suspicion of sex trafficking involving minors.
It wasn’t the substance of the complaint about victimnotification that was most important to Dershowitz, though. Instead, he was incensed that the filing asserted that Giuffre had been lent to Britain’s Prince Andrew for sex and to Dershowitz, whom she alleged had sex with her at Epstein’s private island, his Palm Beach estate, his New Mexico ranch, his New York mansion and on his private plane.
Dershowitz and the prince adamantly denied the accusations at the time.Dershowitz and Buckingham Palace, speaking on behalf of Andrew, also issued strongly worded denials last week when the court documents were unsealed.
On “Today” that day in 2015, Dershowitz went nuclear. He accused Giuffre of filing “perjured” court papers and said, “She is categorically lying and making the whole thing up.”
Dershowitz has bolstered his contention that Giuffre cannot be trusted by referencing claims that she has made about having dinner with former president Bill Clinton on Epstein’s island. Dershowitz took it upon himself to investigate the Clinton allegation and to clear his name. He hired a security firm headed by former FBI director Louis Freeh to investigate.
Through Freedom of Information Act requests, the firm determined that Clinton could not have been on Epstein’s island during the time period when Giuffre said she had dinner with him. A summary of findings prepared by the Freeh firm states that the FOIA records “completely undermine [Giuffre’s] credibility.” The firm also said it found no evidence to support the sex allegations against Dershowitz.
Attorney Alan Dershowitz. (Frank Franklin II/AP)
Unsealed records
Last week, Dershowitz also gained what might be a potent weapon in his quest to impeach Giuffre’s credibility in the newly unsealed court documents. The papers relate to a defamation suit filed against Ghislaine Maxwell, whom Giuffre and others have accused of procuring girls and women for Epstein. The suit was settled for an undisclosed amount in 2017. The records were unsealed at the request of several news organizations, including The Washington Post and the Miami Herald, which published a series of articles about Epstein’s alleged abuses prior to his recent arrest.
Among the documents was a 2011 email sent to Giuffre from Sharon Churcher, a journalist for the British tabloid the Mail on Sunday, that Dershowitz contends is proof that Giuffre was being encouraged to lie about him. The email appears to reference a book proposal Giuffre was compiling.
“Don’t forget Alan Dershowitz . . . JE’s buddy and lawyer,” Churcher writes to Giuffre in an apparent reference to Jeffrey Epstein’s initials. “Good name for your pitch as he repped Claus von Bulow and a movie was made about that case . . . title was Reversal of Fortune. We all suspect Alan is a pedo and tho no proof of that, you probably met him when he was hanging put [sic] w JE.”
Churcher did not respond to a request for an interview.
The famed law professor’s campaign to refute Giuffre’s allegations created a pile of legal trouble because of the words he chose. While defending himself, he also cast aspersions on the character and ethics of the two attorneys representing Giuffre in her attempt to join the lawsuit related to notifying Epstein’s victims.
Dershowitz had said in a television interview that the attorneys — Florida-based Brad Edwards and former federal judge Paul Cassell — were “prepared to lie, cheat and steal.” He had described Cassell as “essentially a crook.” (Cassell and Edwards did not respond to interview requests.)
Cassell and Edwards responded in the way lawyers might be expected to — they sued him for defamation.
Despite the lawsuit, Dershowitz continued to vociferously and publicly defend himself.
In Florida, an attorney in Boies’s firm named Carlos Sires was watching “Today” when Dershowitz appeared. He reached out via email to Dershowitz offering to help him with the dispute and later discussed the possibility of representing him. (Dershowitz has said he considered Sires his attorney at that point, a contention that Sires has disputed in an affidavit attached to a bar complaint Dershowitz later filed against Boies.)
Sires also said in the affidavit that he was not aware at the time of his initial contact with Dershowitz that other lawyers in his firm were representing Giuffre in a separate case. That digital note set in motion a cascading series of events that have put Dershowitz and Boies at odds for the past four years. (Sires could not be reached for comment.)
The dispute centered on Dershowitz’s claim that Sires reviewed confidential material about the defamation case filed against Dershowitz by Edwards and Cassell. About a week later, Boies determined that there was a conflict that Sires had not known about and the firm notified Dershowitz that it couldn’t represent him.
Dershowitz was angry, concluding that the firm sneakily got inside information about his defense in order to gain an advantage, according to interviews with Dershowitz. Boies has dismissed that suggestion, saying in a personal affidavit connected to the Florida bar complaint Dershowitz later filed against him that material Sires reviewed was nothing more than a recap of Dershowitz’s public statements.
What Dershowitz didn’t know at the time was that Boies, the man who would become his nemesis, had been in contact with Giuffre for nearly six months. Boies was contacted in June 2014 by Stanley Pottinger, an attorney who was the former head of the Justice Department’s civil rights division, about representing Giuffre, according to an affidavit by Boies included in Giuffre’s ongoing case against Dershowitz.
Although Giuffre had two attorneys, Pottinger thought she needed more legal help because he expected her to “become the target of vicious attacks” by people she accused of sex abuse, according to an affidavit Pottinger wrote that is included in Giuffre’s ongoing case against Dershowitz.
The next month, Boies met with Giuffre in New York, according to his affidavit, and he asked Pottinger to vet Giuffre’s claims. Satisfied that she was credible, Boies agreed that his firm would take her on as a client, although he says the firm did no work related to her until November. Boies said in the affidavit that partner Sigrid McCawley represented Giuffre while she was a witness in the defamation suit filed in January 2015 by Edwards and Cassell.
Eventually, Dershowitz came to allege even darker motives for Sires’s outreach after the “Today” interview. He developed a complicated extortion theory involving Boies after being contacted in April 2015 by one of Giuffre’s friends — a woman named Rebecca Boylan — who’d seen coverage of the scandal and agreed to speak with him in a tape-recorded conversation, Dershowitzsaid in an interview.He played the tape for The Post, but did not let the news organization have a copy,
Boylan, according to Dershowitz’s account of the conversation, told him that Giuffre had never mentioned having sex with him. She added that Giuffre had told her she had been urged by her lawyers to name Dershowitz.
“She felt pressure to do it, she didn’t want to go after you personally,” Boylan said, according to Dershowitz’s tape of the conversation. “She felt pressured by her lawyers.”
But that wasn’t all. Boylan also said that naming Dershowitz was a step in a plan to win an enormous settlement from the founder and CEO of the parent company of Victoria’s Secret, the lingerie giant. Dershowitz knew Boylan was referring to Leslie Wexner, a billionaire who was a close friend and mentor to Epstein.
“They wanted to sue him for at least half his money,” Boylan said, according to Dershowitz’s tape .
Dershowitz also claims that Boies and his firm were attempting to send a message to Wexner, whom Giuffre had not publicly accused at that point of having sex with her at the behest of Epstein, although she later would.The message, according to Dershowitz, was that Wexner would be publicly shamed, in the same way that Dershowitz had been, if he didn’t pay up.
Boies wrote in his response to Dershowitz’s Florida bar complaint that neither he nor McCawley had been involved in the decision to name Dershowitz and has denied attempting to extort Wexner. He also wrote that “no settlement demand was ever made, or even discussed with, Mr. Wexner or his counsel.”
(Wexner declined to be interviewed, and Boylan could not be reached for comment.)
Lawyer David Boies. (Brendan Mcdermid/Reuters)
A secretly taped call
Still, Dershowitz was eager to persuade Boies that he was innocent, according to interviews with Dershowitz and accounts of their interactions included in an affidavit by Boies. The two men began a series of meetings between May and July 2015, according to Boies’s affidavit.
Among the items Dershowitz showed Boies, according to Dershowitz, were detailed calendars that he cited as definitive proof that he could not have been at Epstein’s island, ranch, Palm Beach mansion or on his private plane during the time period when Giuffre said he was having sex with her. (Dershowitz keeps a massive spreadsheet handy at his New York apartment to show the reporters he’s courted to tell his version of events.)
The two lawyers have different memories of those meetings. Dershowitz has asserted in interviews with The Post that Boies told him during those meetings that Giuffre must have mistaken him for someone else. Boies wrote in his affidavit that Dershowitz’s account “is not true.”Among the data points Boies cites in his affidavit is a lie-detector test that he says Giuffre passed. (Results of such tests are seldom deemed admissible in court.)
Later in 2015, Dershowitz took the unusual step of secretly taping a call with Boies. Dershowitz played the tape, which is muffled and cuts off at points, for The Post, but did not allow the newspaper to have a copy. On the tape, Boies appears to say he and one of his partners are convinced Giuffre’s claim of having sex with Dershowitz is “wrong.” Boies said in his affidavit that he never told Dershowitz that Giuffre wasn’t telling the truth.
In Giuffre’s defamation case against Dershowitz, two of Boies’s partners assert that the taping was “a violation of the canons of ethics.” They also say Boies was merely discussing a hypothetical and that he believed all along that Giuffre was telling the truth. Dershowitz has said the taping was entirely legal because at the time he was in New York, which only requires the consent of one of the parties on the call for a legal taping.
Armed with what he thought was a plausible extortion theory and with his taped evidence, Dershowitz went to war.
In 2017, he filed the bar complaint against Boies in Florida. The document lays out his allegations about the Boies firm’s handling of the defamation case filed against him by Edwards and Cassell, and then goes on to read almost like a lengthy Wikipedia article about controversies during what he describes as the Boies firm’s “long and sordid history.” He cites a 2012 case in which a New York judge chided Boies’s firm, saying “a clearer conflict of interest cannot be imagined. A first-year law student on day one of an ethics course should be able to spot it.”
Dershowitz also summarized the controversy over a potential conflict spurred by Boies serving on the board of directors and as a lawyer for Theranos, the scandal-plagued blood-testing start-up.
The bar complaint, which was obtained by The Post, surfaced shortly after Boies was enmeshed in a major conflict-of-interest scandal in 2017 involving the famed movie producer Harvey Weinstein, who was being accused in a series of sexual abuse incidents. At the time, Boies was getting a torrent of bad publicity because of the revelation in media reports that he was representing the New York Times in legal matters without telling the newspaper that he was simultaneously representing Weinstein, who was being investigated by Times reporters. Boies also secretly oversaw an effort to undermine the paper’s reporting by hiring a firm that employed former agents of the Israeli intelligence service, Mossad, to collect information on Times reporters and Weinstein’s alleged victims.
The Times cut ties with Boies and issued a blistering statement.
“We learned today that the law firm of Boies Schiller and Flexner secretly worked to stop our reporting on Harvey Weinstein at the same time as the firm’s lawyers were representing us in other matters. We consider this intolerable conduct, a grave betrayal of trust, and a breach of the basic professional standards that all lawyers are required to observe.” It added: “We never contemplated that the law firm would contract with an intelligence firm to conduct a secret spying operation aimed at our reporting and our reporters. Such an operation is reprehensible.”
Boies had signed the contract with the spy group, but later tried to distance himself from its work.
“I regret having done this,” Boies said in an email sent to his staff that was published by New York magazine. “It was a mistake to contract with, and pay on behalf of a client, investigators who we did not select and did not control. I would never knowingly participate in an effort to intimidate or silence women or anyone else. . . . That is not who I am.”
Dershowitz seized on the Times imbroglio to press his argument in public that Boies is an unethical lawyer.
“No lawyer in modern American history has ever been more credibly accused of more ethical violations than David Boies and his law firm,” Dershowitz said in a recent interview with The Post.
In 2017, Boies’s firm issued a statement in response to Dershowitz’s conflict-of-interest allegations, saying: “Over the years, there have been some bar complaints filed against Mr. Boies. Each of them was filed by an unhappy adverse party; none was filed by a client. No disciplinary action was ever taken.”
The dispute goes on
The feud between Dershowitz and Boies is well known in legal circles, where both men have earned stellar reputations over the years.
“People can have grudges and sometimes things get heated between lawyers, but based on headlines about two people I’ve worked with, who are talented, smart and committed to their clients, we just don’t have enough information to make a judgment,” said Lawrence Fox, a Yale Law professor and former chairman of the American Bar Association Standing Committee on Ethics and Professional Responsibility who has worked alongside both men.
As the months have passed, one by one, Dershowitz’s broadsides against Boies and his allies have cratered. He settled the defamation case filed by Cassell and Edwards, Giuffre’s attorneys, before Boies and his partners came on the scene.
Earlier this year, the Florida bar complaint against Boies got tossed out.
But their dispute continues, with the next field of battle in New York, where Giuffre’s defamation case against Dershowitz — with a potential star plaintiff’s witness named David Boies — trudges on. Boies is a potential witness because he could be called to testify about his interactions with Dershowitz and about Dershowitz’s extortion theory. That means that Dershowitz, the 80-year-old, and Boies, the 78-year-old, will tangle again as the elder party in the grudge matchtries to get the younger one’s law firm barred from representing Giuffre in the defamation suit against Dershowitz.
And so it has gone for years, an endless cycle of enmity playing out on a continuous loop. This clash of the titans is so persistent and many-tentacled that one could imagine it outliving the legal giants it has consumed.
When David Greenwald returned to co-lead Fried, Frank, Harris, Shriver & Jacobson LLP in 2013 after a turn as a top Goldman Sachs in-house lawyer, the Wall Street firm was dragging. Revenue had fallen 17% since 2007 and competitors were picking off its lawyers.
One problem, he noticed, was that partners were notoriously lax about turning in their timesheets, which meant clients weren’t always getting billed. The slips were costing the firm $6 million a year.
Mr. Greenwald realized the firm needed to operate less like a law firm partnership and more like the investment bank he’d just left, if it wanted to survive.
He closed underperforming Asia offices and created a finance committee. All partners had to turn in plans for how to expand their businesses. Partners were paid more on merit than seniority, and could no longer see how much each of their peers made.
And Mr. Greenwald told partners to submit their timesheets every week or risk a fine.
Average profits for equity partners at Fried Frank have doubled since 2013, to more than $3 million last year, according to the firm. Gone is the egalitarianism that marked Mr. Greenwald’s early days at the firm: Fried Frank’s highest-paid partner makes 13 times its lowest-paid.
“We’re all on the path from being small partnerships, in which everyone can get in a room and debate and make a decision, to by necessity having to centralize a lot of the decision-making in a group of people or an individual,” Mr. Greenwald said.
That journey from partnerships to profit machines has made some lawyers very wealthy. At the 15 most-profitable law firms, top partners bill on average $1,655 an hour and their rates are rising faster than inflation, according to legal analytics company Bodhala.
At the nation’s 100 largest firms, average equity-partner profits have doubled since 2004, to $1.88 million last year, according to American Lawyer. Eight firms average more than $4 million.
“We’re making much more than anybody who doesn’t save lives deserves,” said David Boies, the litigator who broke off from Cravath in 1997 to launch his own firm. In his best years, Mr. Boies has paid himself $25 million, a spokeswoman confirmed.
Pity the associate
As firms compete to keep profits rising for those at the top, lawyers further down the ladder are sometimes getting left behind. Promising associates who could once expect to be named a partner within seven or eight years are waiting 10 years or more.
Firms have created new steppingstones along the way to appease them—and keep them grinding.
One newly promoted partner at a big firm said he was shocked to learn he would have to spend a year as counsel, an increasingly popular interim title. The firm told him it was to prepare him for the bigger change of being partner. “I wouldn’t be a cynical lawyer if I didn’t think there were other profit-motive reasons,” he said.
Another popular stop-off is “non-equity partner,” the title held by those 560 Kirkland lawyers not invited to the California retreat. They earn a salary rather than sharing firm profits.
In 2000, 78% of partners held equity in their firms, according to American Lawyer’s ALM Intelligence. Last year, 56% did.
At Kirkland, junior partners compete each year for a few coveted slots in the equity-earning partnership, many billing more than 2,500 hours a year to try to set themselves apart. Given how much of the day’s work isn’t billable, that can require working 80 hours or more a week.
At elite New York firms, a two-tiered system was once unthinkable. Partners were partners. In the past year, however, cracks have emerged at two of them.
Simpson Thacher’s leaders told partners in April that they plan to start naming non-equity partners. It is hard not to see the move as a response to poaching by Kirkland, which has lured away more than a dozen Simpson lawyers since 2016, most of them associates and counsel that Kirkland made into partners.
“If the firm won’t be loyal to you,” said David Lat, a longtime lawyer and legal blogger turned recruiter, “why should you be loyal to the firm?”
Willkie Farr & Gallagher LLP, a 131-year old firm that was home to a future U.S. Supreme Court Justice and two New York governors, made a similar announcement this spring when it rolled out a two-tiered partnership. Its leaders said the move is intended to reward promising young lawyers earlier and make the firm more competitive in recruiting.
“It was getting harder to tell associates, ‘stick around for 10 years and see what happens then,’ ” said Willkie’s chairman, Steven Gartner. “They wanted more certainty and wanted it sooner.”
Making partner doesn’t just take longer. It takes hustle. A few decades ago, partner titles were handed out largely on the basis of being technically proficient. Now, being a business generator is a crucial component.
Janice Mac Avoy, a Fried Frank partner, said when she earned the partner title 23 years ago, the business model was “wait for the phone to ring” and do a good job for the client on the other end.
When a partner suggested a lawyer being considered for promotion had great contacts and could generate new business, she recalls a fellow partner saying, “You know that’s not an appropriate consideration.”
The decision in the census case suggests President Trump can no longer take the court for granted.
A cynic might say that with his two major decisions on the last day of the Supreme Court term a week ago, Chief Justice John Roberts saved both the Republican Party and the court — first by shutting the federal courts’ door to claims of partisan gerrymandering, a practice in which both political parties indulge but that Republicans have perfected to a high art, and then by refusing to swallow the Trump administration’s dishonest rationale for adding a citizenship question to the 2020 census.
President Trump, having placed two justices on the Supreme Court, had taken to treating the court as a wholly owned subsidiary, and not without some justification. It was the court, after all, in an opinion by Chief Justice Roberts, joined by the other four Republican-appointed justices, that saved the president’s Muslim travel ban a year ago. But the chief justice’s opinion in the census case last week blew a hole in what appeared to be a protective firewall that the president can no longer take for granted.
I’m not joining the cynics, especially now that the citizenship question is dead — or so it seemed on Tuesday, based on the Justice Department’s assertion to the federal district judge handling a companion case in Maryland that the census forms were being printed without the citizenship question. On Wednesday, a furious President Trump ordered the Justice Department to reverse course; what followed was a telephone colloquy between that federal judge, George Hazel, and the lawyers for which the word bizarre is a breathtaking understatement. “I can’t possibly predict at this juncture what exactly is going to happen,” Joshua Gardner, a Justice Department lawyer, told the judge, who gave the administration until Friday afternoon to get its story straight.
It would take a heart of stone not to feel sorry for the administration’s lawyers, faced with defending the indefensible. As they recognized 24 hours earlier, the chief justice’s opinion in fact left no wiggle room. Once the behavior of Wilbur Ross, the secretary of commerce, was called out by the Supreme Court of the United States, the president was trapped — and now his lawyers are caught in his net. Maybe they can find a way around the chief justice’s decision, but I don’t think so.
Here’s why: Once the court rejected the administration’s stated rationale as phony — or “contrived,” as Chief Justice Roberts put it more politely in agreeing with Federal District Judge Jesse Furman that improved enforcement of the Voting Rights Act was not Secretary Ross’s real motive — the administration might have tried to come up with some other politically palatable explanation. That would almost certainly have failed, because courts generally will not accept what they call “post hoc rationalizations,” explanations cooked up under pressure and after the fact. But even if such a ploy had succeeded, its very success would have proved Secretary Ross to have been a liar all along.
The citizenship question is now history, fortunately, but this whole episode is too fascinating, too important for the country and the court, to put behind us just yet. So in this column, I want to probe the census decision itself, both for what it tells us about the court and for what it might suggest about the next test of the relationship between the president and the court that he has so recently regarded as his very own. That is the question of the validity of the president’s rescission of the program known as Deferred Action for Childhood Arrivals, or DACA, the Obama-era policy that now protects the “dreamers,” some 700,000 young undocumented people brought to this country as children, from being thrown out of the only country they have ever known. The court will hear that case in its next term, and there are some striking parallels with the census case that just might leave the Trump administration empty-handed again.
But first, the census case. I’ve been obsessed with imagining whatever dark night of the soul preceded the chief justice’s last-minute decision to shift course and reject the administration’s position.
I readily admit that I have no sources for the claim I just made. I have no proof that Chief Justice Roberts initially voted with the administration and talked himself out of that position sometime during the two months that elapsed between the April argument and the June decision. But I’ve been reading Supreme Court decisions for a very long time, and the opinions that provide the holding — the chief justice’s plus the partially concurring opinion of Justice Stephen Breyer for the court’s four liberals — have all the hallmarks of judicial tectonic plates that shifted late in the day to produce an outcome that none of the players anticipated at the start.
To begin with the chief justice’s opinion: The first 22 of its 28 pages are an argument for why the decision by Secretary Ross to add the citizenship question to the census was a reasonable one that fell squarely within his authority. Noting that Mr. Ross rejected the advice of Census Bureau experts and decided to proceed despite the risk of depressing the response rate, Chief Justice Roberts writes, “That decision was reasonable and reasonably explained, particularly in light of the long history of the citizenship question on the census.”
Then suddenly, on page 23, the opinion’s tone changes as the chief justice reviews the finding by Federal District Judge Furman that Secretary Ross’s explanation for why he wanted the citizenship question in the first place was a pretext. The official story was that it would help the Department of Justice — which was said to have requested the addition of the question — to better enforce the Voting Rights Act on behalf of members of minority groups. In fact, as Judge Furman determined from the evidence, it was Secretary Ross who solicited the Justice Department’s request, and whatever the secretary’s motivation, the reason he gave wasn’t the real one.
“We are presented,” Chief Justice Roberts observes dryly, “with an explanation for agency action that is incongruent with what the record reveals about the agency’s priorities and decision making process.” He continues:
“The reasoned explanation requirement of administrative law, after all, is meant to ensure that agencies offer genuine justifications for important decisions, reasons that can be scrutinized by courts and the interested public.Accepting contrived reasons would defeat the purpose of the enterprise. If judicial review is to be more than an empty ritual, it must demand something better than the explanation offered for the action taken in this case.”
Justice Breyer’s opinion, joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan, is almost as long as the chief justice’s. Nearly all of it reads like a dissent, arguing that Secretary Ross’s rejection of his own experts’ advice made the addition of the citizenship question unreasonable as a matter of law, “arbitrary and capricious” in the language of the Administrative Procedure Act. Only in Justice Breyer’s concluding paragraphs is there anything that reads like a concurrence: “I agree that the pretextual nature of the secretary’s decision provides a sufficient basis to affirm the District Court’s decision to send the matter back to the agency.” It’s hard to read these few paragraphs as anything other than a last-minute addition to a carefully crafted dissenting opinion, one that had rather suddenly become superfluous.
There were two other opinions filed in the case, one by Justice Clarence Thomas that was joined by Justices Neil Gorsuch and Brett Kavanaugh, and another by Justice Samuel Alito. Both disagreed vigorously with the chief justice’s bottom line. All four opinions scrupulously avoided any mention of what everybody knew: that documents brought to light in the weeks following the April 23 argument showed that the citizenship question was part of a plan not to help minority groups vote, but the opposite. The plan was to create and entrench Republican majorities in state legislatures by providing data for use if the Supreme Court gives the green light to counting only eligible voters in legislative redistricting. Conservative groups are poised to send such a case to the Supreme Court in the near future, part of a strategy to keep rapidly diversifying red states like Texas from turning blue.
There is no doubt that the justices were aware of this late-breaking development; during the days leading up to the decision, one of the plaintiff groups challenging the citizenship question had filed a brief with the court detailing the findings from the computer files of a recently deceased Republican redistricting specialist. If I’m right about the chief justice’s late-in-the-day change of heart, did these revelations play a part, even a subconscious one? That’s more speculation than even I am willing to engage in. Suffice it to say that it’s hard to imagine the administration’s litigating position undermined in a more devastating fashion.
It’s that observation that brings me to the DACA case. The court will actually hear three DACA cases, consolidated for a single argument and decision. All three are appeals by the administration of rulings that have barred it from carrying out its decision, announced in September 2017, to “unwind” the program. At issue are two Federal District Court opinions and a decision by the United States Court of Appeals for the Ninth Circuit that upheld a ruling by a federal district judge in San Francisco, William Alsup. The opinions differ slightly, but all found that the administration’s termination of DACA for the reason the administration has provided would violate the Administrative Procedure Act.
Here’s where the administration is caught. Its stated reason, as expressed by the acting secretary of homeland security on orders from the attorney general at the time, Jeff Sessions, was that DACA lacked statutory authority and was unconstitutional. At the heart of the administration’s appeal is the assertion that the federal courts lack jurisdiction to interfere with the “Executive Branch’s authority to revoke a discretionary policy of nonenforcement that is sanctioning an ongoing violation of federal immigration law by nearly 700,000 aliens.”
That is a very difficult position for the administration to maintain because it presents to the courts a question not of policy but of law. The administration would have a strong case for judicial deference if it described its rejection of DACA as a matter of enforcement priorities that differ from those of the previous administration. But by claiming that “the law is making us do it,” the administration is serving up the federal judges a question at the heart of their jurisdiction: What does the law require?
As Judge John D. Bates of the Federal District Court in Washington observed in his opinion, the administration provided only a few sentences of legal analysis to back up its claim. “This scant legal reasoning was insufficient to satisfy the department’s obligation to explain its departure from its prior stated view that DACA was lawful,” Judge Bates explained.
So the question is why the administration failed to offer a policy-based explanation, one that might well have persuaded the lower courts and eased its path to the Supreme Court. One reason might have been to protect the president, who declared shortly after his inauguration that “we are not after the dreamers, we are after the criminals” and that “the dreamers should rest easy.” The reason for going after the dreamers had therefore to be based on a claim of pure law, not a change of heart.
A more cynical explanation — and here I’ll indulge in the cynicism from which I refrained at the beginning of this column — is that in claiming that revoking the policy is required by law and not preference, the administration seeks to avoid accountability for a position that, if it were to prevail, would predictably cause economic disruption and public dismay.
Many policy positions predictably affect hundreds of thousands or millions of people; had Republicans succeeded in gutting the Affordable Care Act, for example, millions of people would have been thrown back into the health care jungle. But we don’t know their names. The DACA recipients, by contrast, have names that are known, not only to the Department of Homeland Security but to their schools, their employers, their communities. One dreamer recently received a Rhodes Scholarship and will not be able to return to the United States from Oxford if the administration wins its case. Others with less exalted achievements are simply getting their degrees, holding down jobs, paying their taxes, raising some 200,000 American-born children and going about their lives in the country they regard as their own.
The dreamers will still be here next April, when the census takers come around; the Supreme Court decision will almost certainly not be issued by then. They will be counted along with the rest of us in the grand decennial enumeration that the Constitution’s framers decreed. And a year from now, we’ll know whether the court that could see through one Trump administration strategy is willing and able to do it a second time.
