Our Unelected Legal Elite and their Threat to Constitutional Democracy
How The Swamp's Law Firms Have Accrued Power—and Eroded Self-Government
For the past two months, as Restoration News has reported several times, the main conflict in America has been between the Executive, which is passing a flurry of orders to enact the agenda Americans elected President Trump to fulfill; and the Judiciary, which is overturning or narrowing them. Now the conflict has broadened into a reckoning with the source of the Judiciary’s power: A powerful legal elite based in the hundred American law firms which quietly run much of our politics.
The reckoning started when the White House barred 14 law firms which had a hand in investigations or prosecutions against President Trump since 2016 from doing business with the government: “Signing executive orders that directed them to lose government contracts and their employees to be blocked from government buildings or jobs.” Some of these firms responded by negotiating quick settlements with the White House: Agreeing to undertake specific pro-bono work requested by the White House and rescind DEI practices in exchange for access. Some stayed quiet. Four firms—WilmerHale, Perkins Coie, Jenner & Block, Susman Godfrey—sued the government, and received written support from many others. Their rationale is that President Trump’s order is “a plainly unlawful attack on the bedrock principles of our nation’s legal system — our clients’ right to counsel and the First Amendment.”
But this is not what’s really going on. Unlike what the firms’ statement implies, their main clients are not citizens who have rights. Their main clients are interests: White collar government dependents like Boeing, General Dynamics, J.P. Morgan, and Google which have also made government dependent on them. Nor are any of these firms in any real danger from government, since they have seeded the judges who will decide the Executive-Legal reckoning—creating a circular politics of kangaroo courts controlled, from beginning to end, by sympathetic lawyers.
As with so many other aspects of American politics, President Trump’s run, election, presidency, and re-election were the catalysts that brought these firms from the background to the fore. By seeding the partisan operators who turned the power of Washington against Trump’s movements, this legal elite made its influence plain. Digging into the background of some of these firms, and some of their major players in private practice and the judiciary, shows the roots of their influence and how deep and wide those roots have spread—as well as suggesting ways to combat them.
The Slow Growth of the Legal Elite…
America’s legal elite came into being with a divide between the two lawyers responsible for drafting and publicizing our founding legal document, the Constitution. James Madison thought that lawyers’ political role was to promote limits on arbitrary power. Alexander Hamilton thought that lawyers should use the new national government to create a virtuous elite. Madison’s view dominated politics, but Hamilton gained wealthy followers in Boston and New York, who consolidated their power in universities and philanthropies.
With the post-Civil War era initiating a boom based on government-backed growth, this legal elite entered Washington politics. Their vehicle for influence was the new national banking system, created in 1862 to spur growth, and the industrial conglomerates that grew up around it. According to Lawyer Monthly:
It is no coincidence that the rise of larger law firms coincided with . . . the . . . boom period of US commerce, wherein names like Rockefeller, Carnegie and Vanderbilt emerged as pioneers and monopolists. This period marked the transition of lawyers from pure courtroom advocates to business advisors, with a corresponding focus on professionalism and speed of service.
The depth and breadth of this transition is hard to overstate. According to Lawyer Monthly, in 1871, “15 firms [were] recognized in the US with four or more lawyers”; there were 210 in 1903; and “the number had grown to more than 1,000 by 1924.” This growth and their connection to corporate expansion backed by Washington already made the firms politically prominent. But it was after World War II that elite law firms assumed political command: Creating and then applying the laws for America’s new national security state (the Pentagon, the NSA, the CIA); and negotiating contracts for American corporations exporting to the non-Soviet world.
…and its Sudden Lock on Political Power
What this need created was a university-to-law firm-to-corporate-to-government pipeline. According to several scholars,
at the time of the so-called golden age of corporate law in the 1950s and 60s, most graduates of elite schools sought the coveted position of partner in an elite corporate law firm . . . The[se] law firms also succeeded in persuading businesses run by people like themselves that only this elite level of law could provide high-quality legal services. Corporate partners were also considered naturals for governmental service and held board positions in corporations and nonprofits . . . At the national level, they dominated leading positions in the government, moving back and forth between corporate law firms and positions such as Secretary of State.
This perceived need for lawyers only increased in the 1980s, with the slackening of antitrust regulations and an ensuing corporate merger boom shepherded by in-house counsels and lawyers from outside law firms. Beginning in the 1990s, post-Cold War corporate expansion abroad and the wars on domestic and international terror kept these firms in clover. In 2013, the term “big law” was coined by a consulting firm to describe them.
As legal work off national security and corporate expansions increased, so did the need for judges to adjudicate disputes over congressional legislation, executive orders, outside challenges to legislation and orders, mergers, and challenges to mergers. The measure of this need for judges was twofold. One was a massive expansion in the number of federal district and appellate judges in the 1970s. The other was the rise of judicial clerks, whose numbers mushroomed—from one clerk per Supreme Court justice in the 1950s to four clerks per Supreme Court and federal appellate court judge and three clerks per federal district court judge today.
And where did these clerks make their careers after their service; and where did the judges come from? Elite law firms, the obvious places to get highly educated legal thinkers to adjudicate esoteric disputes. Not only, then, did law firms have a lock on national security and corporate politics; they had a lock on the Courts that oversaw them. These Courts’ judges might disagree on points of the law—but they were loyal to the source of their power: The power of Washington D.C.
The Creation of Legal-Political-Corporate Behemoths…
The most famous of these firms, one linked directly to the Executive-Legal fight playing out today, is Cravath, Swain, and Moore. Founded in 1819 by well-connected New Yorkers, the firm made its name representing financial firms based in Britain: The equivalent or worse of law firms representing Chinese firms today, considering the British had burned Washington D.C. in 1814. It also represented the Second National Bank of the United States: The “too-big-to-fail” financier of its day that Andrew Jackson successfully killed.
After the Civil War, Cravath jumped on government-backed corporate expansion across America. Cravath lawyers represented a who’s who of American monopolists and translated their economic influence into politics, via a Secretary of State, a Supreme Court Justice, and a solicitor general. Cravath also pioneered what’s now called the “Cravath System,” which, in Lawyer Monthly’s words is “a loosely pyramid-shaped hierarchy of advancement where partners are served by several partnership-track associates below them to ensure profit maximization.”
This was the model used by firms like Perkins Coie and Jenner & Block, both founded in the early twentieth century to service major industrial or weapons contracting interests in Seattle and Chicago. Cravath’s was also the model used by the two law firms whose merger eventually created WilmerHale, one of which was founded in the 1960s in Washington, D.C. by Cravath partners who left the firm.
Increasingly, weapons contractors and financial players were the special province of these firms. Perkins Coie solidified its practice with its early capture of Boeing as a client, which continues to this day, and it has represented Microsoft, Starbucks, Amazon, and Google. Jenner & Block’s success has been based especially on its relationship to General Dynamics, today the fifth largest defense contractor in the United States and also the world; another client is Viacom, a beneficiary of the stream of 1990s and 2000s mergers. WilmerHale represents J.P. Morgan Chase, a “too-big-to-fail” financial firm off government backing and mergers in the 2000s. Susman Godfrey lists clients as including General Electric, Walmart, Chevron, Uber, and NBCUniversal.
…their Politicization…
Considering the close ties between major contractors, corporations and government after the Second World War, it isn’t a surprise that their lawyers became powerful political figures—with mixed results for America. Lloyd Cutler, one of the Cravath partners who founded what became WilmerHale, participated in government reforms in the wake of Watergate that nominally made government less corrupt but paved the way for all sorts of power grabs. One of WilmerHale’s current all-stars, Jamie Gorelick, the Deputy Attorney General during the first Clinton Administration, has been called the “Forrest Gump of American Misfortune”: She set new rules for national security coordination that helped lead to 9/11 and led Fannie Mae in the years before its policies helped cause the 2008 financial crisis.
Albert E. Jenner, Jr., of Jenner & Block, “participated in the impeachment inquiry of President Nixon and the investigation into the assassination of President John F. Kennedy”—the former a scapegoating exercise by Washington institutionalists and the latter, as Restoration News has noted, a notorious coverup job. Jenner & Block also moved closer to political power thanks to its relationship with General Dynamics. It boasted among its lawyers a future associate counsel at General Dynamics who went on to be the Defense Department’s longest serving Chief Counsel, and whose stint there encompassed the first seven years of the War on Terror.
Perkins Coie went straight to the practicality of politics, establishing a political arm that catered to politicians, particularly Democrats—including, crucially, by 2016, Hillary Clinton’s presidential campaign.
It was President Trump’s run for president against a complacent establishment, and the ensuing resistance to him by that establishment, made these insider connections plain to the public. These law firms either made the careers of or continued to have as partners those players most responsible for driving or facilitating Washington’s moves on Trump.
…and their Weaponization against Donald Trump
WilmerHale’s Jamie Gorelick seeded government with a primary antagonist of the 2024 Trump Campaign. As Deputy Attorney General, Gorelick appointed her former Harvard classmate Merrick Garland to lead the prosecution of Timothy McVeigh for the Oklahoma City bombing. This launched Garland’s career into the federal judiciary from 1999 to 2021—and it was Garland whose Justice Department pursued cases against Trump.
WilmerHale’s Alejandro Mayorkas was the Secretary of Homeland Security for the Biden Administration, under whose tenure (as measured in September 2024) more than 10 million migrants crossed into the United States from Mexico. (Border arrests have fallen from 250,000 a month in Mayorkas’s tenure to 7,000 today.)
WilmerHale’s Robert Mueller, the longtime director of the FBI (2001-2013), returned to government for a non-victorious victory lap investigating since-debunked Russian collusion claims against President Trump. As FBI director, Mueller’s main deputy was Lisa Monaco, later the Deputy Attorney General in Merrick Garland’s Justice Department which investigated President Trump and slow-tracked antitrust actions against large conglomerates.
Perkins Coie’s Marc Elias (chair of its political law group until 2021) is a specialist in election law who litigated on behalf of President Biden in 2020 and Vice President Harris in 2024. Tellingly, Elias’s tactics, both legal strategy and public bullying, have been criticized by legal scholars and journalists with the same political loyalties as him.
Perkins Coie’s Michael Sussmann was at the heart of the catalyzing investigation leading to “Russiagate”—for which he and Marc Elias billed the Clinton Campaign team in 2016.
Perkins Coie’s Bob Bauer, a founder of its political practice, was Barack Obama’s and Joe Biden’s personal lawyer; and, along with his wife Anita Dunn, the Biden Administration’s in-house consigliere on matters related to Hunter Biden. Dunn and Bauer, in their roles, were crucial in keeping the President’s diminished conditions away from the public.
Jenner and Block’s Andrew Weissmann was Robert Mueller’s primary deputy in his investigation against Trump. In 2023 and 2024 he became a key player in the centrist Washington legal collaboration against Donald Trump led by ex-Republican William Kristol and Obama White House Counsel Norm Eisen.
Jenner & Block’s Jill Wine-Banks, a veteran of the Nixon impeachment proceedings, was one of the most prominent media backers of impeaching and prosecuting President Trump from 2017 to 2024 on various pretexts later shown to be unsubstantiated.
Susman Godfrey’s Stephen Shackelford, a former clerk of Supreme Court Justice Stephen Breyer, led lawsuits against a series of organizations and individuals who called the 2020 election rigged against President Trump. There was no actual “dirty dealing” in this case—but it was, without question, an example of weaponizing the legal system to chill speech. And, as shown by the firings and bankruptcies of many of the people Shackelford targeted, from Tucker Carlson to Rudy Giuliani, it had an effect.
The moves of all of these players had a simple function, one opposed to the principles of anyone who believes in American democracy: To take voters’ choices out of their hands and put presidencies and elections under the explicit control of the legal elite.
Law Firms Defend Themselves with Help from Superstar Lawyers and Federal Judges…
Now that the Trump Administration is using its authority to limit these firms’ participation in politics, lawyers are rallying around them. Paul Clement and Donald Verrilli, the solicitors general under Presidents George W. Bush and Barack Obama respectively, are representing, respectively, WilmerHale and Susman Godfrey. Not surprisingly, both Clement and Verrilli made their careers at elite law firms—Verrilli at Jenner & Block.
But it’s not only or mainly the lawyers in the law firms’ pockets. Thanks to law firms’ seeding of the judiciary since the 1950s, these lawyers are making their cases in front of sympathetic judges. Each of the four judges hearing the cases brought against the government by the four law firms (Loren AliKhan, John Bates, Beryl Howell, Richard Leon) was an associate or partner at one of firms classified as “big law” or else at elite boutique firms.
It is not a coincidence, then, that each of the judges—two of them appointed by George W. Bush, one by Obama and one by Biden—has so far ruled against the government in not just definitive but hyperbolic terms (one said Trump’s orders against the firms “sent chills down my spine.”) This circling-the-wagons is typical of elite legal life in and near the corridors of power in Washington, D.C—the tip of a legal iceberg constructed of circular inside plays.
…and Offer an Opening for Advocates for Constitutional Democracy
Over the past four years, both the Right and the Left, constitutional populists and social democrats, have spoken out against the power of America’s legal elite in different ways. Most of their arguments revolve around the judiciary. Constitutional populists want judges to push Courts to move away from intervening too much in legislative and executive decisions. Social democrats want congress to pass laws limiting the jurisdiction of Supreme Court decisions or requiring a supermajority of justices to overturn congressional legislation.
When it comes to raising awareness of the broader issue of legal supremacy, Left and Right can cooperate just as Democratic and Republican insider lawyers and judges do every day. The Trump campaign and White House has brought the issue to the fore in unprecedented ways—now is the time to take advantage of the attention.
Certainly, there are bipartisan arguments to make in favor of the actions President Trump is taking against law firms now. For example: Shouldn’t President Obama, in his initial efforts to get beyond the legalistic excesses of the War on Terror, have been allowed to bar law firms whose lawyers carried out President Bush’s directives from doing business with his government? Doesn’t that mean President Trump should be allowed to do the same thing with law firms who participated in another political fiction—this time not the “smoking gun-mushroom cloud” of Iraq but the lies of Russia-gate and the post-2021 political prosecutions? Aren’t moves like these by elected leaders the obvious way to disincentivize law firms from becoming tools of arbitrary power and self-politicizing across a wide range of issues? And, if elected leaders don’t use this power, aren’t they allowing these law firms to become, in effect, a shadow government—what the Founders called a state within a state?
In the longer term, there’s another solution to legal supremacy, one that James Madison would have approved: To stop promoting the endless wars and corporate conglomerations that are honeycombs for a legal elite—people loyal to money and power, not to our Constitution and the people it’s supposed to serve. What this means, in the short term, is unwinding the foreign entanglements which America has been involved in every year since 1995; and the corporate conglomerations which have defined American business since the 1980s. These are projects that the Trump White House is already pursuing, via peace treaties and antitrust cases, and they are key to reducing the power of the state within a state Trump ran against.