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

Remember when Trump is back at nine capitulating Biglaw firms who sold the rule of law to escape him vindictive, constitutionally questionable executive orders? Yeah, well, now we have more details on what’s behind this decision.

Quick recap for anyone just catching up: The DOJ hit nine third-party firms with subpoenas seeking their communications with Trump’s personal attorney Boris Epstein, plus deposition notices for the firm executives who actually signed those agreements — all as a side effect of its legal tussle with ABA, which sued the administration on the legal blacklisting campaign by executive order.

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

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

Whoa, dog. I have some thoughts on this.

Okay, it’s really weird that the DOJ is divulging its litigation strategy to a reporter in the middle of a live discovery war. Lawyers aren’t exactly known for offering “why” after a subpoena while the ink is still wet… usually that’s the kind of thing you save for a short time, not a press investigation. It’s also worth remembering that since the nine firms have yet to formally contest the subpoenas, still too worried that fighting back will get them another executive order for their trouble, the DOJ might have kept this card closer to their chest, at least for now.

It is also worth noting that the theory does not stand on its own terms. Of course, the nine firms that cut deals count $940 million in pro bono pay there may be several responsive documents. But even if they do, “some” is not “the whole universe”. The ABA isn’t just asking about the firms’ side of the nine deals, it’s asking specifically about the role of the White House and Epstein in orchestrating it all. Law firms would not be cc’d for this.

And isn’t this just acceptance of the reaction of Epstein communications? These 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 acknowledged that whatever Epshteyn said about EOs is relevant to the ABA case. Now, arguably, the administration is making a privilege claim over the materials, as the spokesman said, “The DOJ’s motion to quash (the ABA’s subpoena for Epstein-related materials) is consistent with longstanding practice to protect the ability of any president to receive confidential advice from his closest advisers.” It seems like an unforced error to accept feedback when you shouldn’t.

So that ABA Discovery War I just received a gift, courtesy of the department’s own subpoenas and its press office.

Earlier: Trump starts capitulating Biglaw firms HAHAHAHAHA
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