Last week, lawyers from Covington joined the University of California in a lawsuit challenging the Trump administration’s decision to rescind the Deferred Action for Childhood Arrivals program on what the university called “nothing more than an unreasoned executive whim.”
In an interview with Big Law Business, Covington vice chair Lanny Breuer said the case “goes to the core” of his identity as a first-generation American.
“My parents had to flee Nazi Europe to come to America,” he said. “They finally got to America, but it wasn’t easy.” The parents of the DREAMers, he said, did the same thing.
The lawsuit with the University of California isn’t the firm’s first move against Trump administration policies. In August, the firm joined the ACLU to challenge the ban on transgender military service members, and earlier in the year, the firm joined the City of Los Angeles to challenge Department of Justice guidelines that would block federal criminal justice funds from sanctuary cities. The California legislature has had former Attorney General Eric Holder on retainer since President Trump took office.
But Breuer cautioned against viewing Covington as taking a larger, political stance, noting that the firm’s bench is full of former Republican government officials.
“We’re a big firm and a big tent,” he said. “We’re not pro-Trump and we’re not anti-Trump.”
The following interview has been edited for length and clarity.
Big Law Business: Why did Covington decide to join as co-counsel to the University of California’s lawsuit?
Lanny Breuer: We feel very strongly that the rights of the DREAMers goes to the heart of our country. I had the honor of working with Secretary Napolitano when I was AAG. I hold her in the highest regard. On a personal level, I thought her initiation of the DACA program [in 2012] represented all that’s wonderful and great about our nation, and so when Secretary Napolitano and the University of California spoke with us about representing the university system, given my and my colleagues relationship with the secretary, the university, and the personal histories of those like myself, I consider it a profound privilege to be involved in this matter.
BLB: So far we have seen numerous state attorneys general challenge President Trump’s decision to rescind DACA, as well as some individual lawsuits. Now, you’ve joined a university system. Do you expect to see other challenges?
Breuer: I really don’t know. I don’t consider myself an expert, but I do think the administration’s decision to rescind DACA affects so many of our great institutions in so many ways. It affects companies where DREAMers work, it affects universities where DREAMers teach and go to school. Ending the program goes contrary to the core values of this nation, so I wouldn’t be surprised if other parties try to get involved.
Some of the suits, candidly, bring broader claims than our suit. Some of the suits bring equal protection claims. We bring the [Administrative Procedure Act] claims and the constitutional challenge under the due process clause of the 5th Amendment, but other lawsuits will bring other claims.
BLB: Some GCs who signed the petition to defend DACA told Big Law Business that it’s unusual for corporate lawyers to speak openly about politics in this way. What’s different about this policy or this administration that’s making more corporate lawyers speak up?
Breuer: It’s hard for me to talk about other law firms. What I can say about Covington is that in our 100 year history, we have always had a very active pro bono practice, and we have always challenged the actions of the government and administrations. I had the honor of serving in the Clinton administration in the second term, yet I sued the administration in the first term on behalf of the first openly gay marine in the United States, in challenge of what was then the Don’t Ask Don’t Tell policy. We sued the administration on behalf of a policy that was discriminatory.
In the Obama Administration, Covington sued with respect to asylum seekers. Today, we’re suing on behalf of transgender individuals, we’re suing over the travel ban, and we’re suing over DACA.
From my perspective, our law firm hasn’t changed.
Whether this administration is more activist and more lawyers are bringing suits, that may be the case. From my perspective, our law firm hasn’t changed. I look at it as the role our law firm has played since the beginning and will always play. Sometimes it may be that some of the suits we bring are of less public interest or news interest. I bet if you look at the Obama administration or Clinton administration or Bush administration, you’d find our law firm challenging many actions of the administration. It’s not clear to me there’s more now, it’s clear there is more interest and press attention.
BLB: It does seem as though Big Law firms are joining lawsuits against this administration at a much greater rate than before.
Breuer: I don’t know if there are more suits than ever before, there certainly are more high profile suits than ever before, and that goes to the core of what lawyers are focusing on.
I’m a first-generation American, my parents had to flee Nazi Europe to come to America. They finally got to America, but it wasn’t easy. They built a life here and I benefited from public schools in New York and was able to build the career I have. Obviously for me, representing the DREAMers, whose parents did what my parents did, they came to America to avoid violence, have a safer life, goes to the core of my own identity, and as a result it is extraordinarily meaningful and important for me to be involved in this case. And I suspect I’m not the only one.
Representing the DREAMers… goes to the core of my own identity.
I think many lawyers in Big Law have looked at the administration’s policies here and decided they can make a difference and they ought to make a difference. What we’re doing is we’re playing the role of lawyers. It’s not a political statement. It’s the role of lawyers in defending and vindicating the rights of people who need legal assistance. I think that there are probably lawyers out there who feel right now that they have as great of a responsibility as ever to challenge policies that they believe are unconstitutional or trample on the rights of individuals. What I can’t tell you is how prevalent that is.
BLB: Has Covington heard from its corporate clients about DACA?
Breuer: Our clients are very concerned about the administration’s announced rescission of the program and how that will affect their employees. The question [for clients] is what does it mean for the soul of our nation, and what does it mean for the future of companies when we want to attract the very best. I think you’ll see multi-pronged strategies [to challenge the policy change]. You might find strategies that involve the courts, you might find strategies that involve the legislature, you might find strategies that involve more of a public campaign. We and other firms are speaking with clients to figure out what’s the best strategy to challenge the rescission of DACA and to get the administration to change its views.
We’re not pro-Trump and we’re not anti-Trump.
BLB: Covington has a deep bench of former Obama administration lawyers. Does the firm see itself as taking a political stance against the Trump administration?
Breuer: I really feel very strongly that we’re not doing that. We’re a large firm of what I like to think are extremely talented and committed lawyers, and we’re taking on the issues of the day. Right now there’s a lot of attention on my partner and my former boss Eric Holder. Eric is acting as a lawyer for California. But we’re the same firm of John Kyl, [who retired from Congress in January 2013 as the second-highest ranking Republican senator], and Mike Chertoff, [who served as Homeland Security secretary under George W. Bush], and Tom Barnett, who was Assistant Attorney General for antitrust in the Bush years. We’re a big firm and a big tent. We’re not pro-Trump and we’re not anti-Trump. What we are are lawyers who get involved day in and day out on the most vital issue of the country.
We’re representing General [Michael] Flynn, the former head of the National Security Council. We were probably one of the first firms in the nation to represent a [Trump] administration official. It wasn’t about whether we agreed or disagreed with the administration, it was about General Flynn needing excellent counsel. We’re the opposite of a firm that’s distancing itself. Early on, someone in the administration needed counsel, and early on we took on the assignment.
BLB: Is there anything that you wouldn’t take on?
Breuer: It’s hard to say. I’m the vice chair of a firm with 1,100 lawyers. There are always cases you don’t take on, but it’s not really because of politics. Sitting here right this minute, I’m not thinking of something. It wouldn’t be because of the Trump administration. Those types of discussions could occur at any time and it would depend on the issues and what’s at stake. Here, you have the same law firm representing General Flynn, representing California, and challenging [the administration over] DACA. We’re a law firm with a vast array of interests and a vast array of clients from the most powerful companies to vulnerable, indigent individuals.
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