For the past two decades or so, conservatives have been systematically excluded from big law. Paul Clement was pushed out of two big law firms for his representation of conservative causes. A lawyer at Hogan Lovells was fired after defending Dobbs. Associates are routinely forced to do pro bono work on progressive causes, including abortion. But you will not find AMLAW 100 firms that filed an amicus brief in support of abortion restrictions. With good reason, boutique firms like Consovoy McCarthy and Clement Murphy have flourished. Big law firms have decided they would take a position on ideological issues, conservatives be damned. Maybe that was a good business judgment in the past, though those tides may have turned.
I don't think anyone would quibble with what I wrote above. But they would probably draw a distinction between a law firm making a business decision to favor progressive causes, and the government taking actions against a firm because of their political decisions. The Trump Administration's revocation of security clearances for attorneys at certain firms would be an example of the latter issue.
Is this sort of action unprecedented? Not really. I will repost below I wrote in 2016 about the origin of House of Representatives v. Burwell. This post was based on my 2016 book, Unraveled: Obamacare, Executive Power, and Religious Liberty. The bottom line: the Obama Administration indirectly pressured Baker Hostetler to drop its representation of the House. And that pressure worked...
The government routinely applies pressure to private entities to achieve goals they cannot do so directly. Based on my research, I have little doubt that the Obama administration called clients of Baker Hostetler, and told them it would be bad for this lawsuit to proceed. Surprise, surprise, those clients told Baker Hostetler to drop the case. In Murthy v. Missouri, the Court wanted to bury its head in the sand based on standing, but the evidence of "jawboning" was palpable.
It seems there is only outrage when conservatives do these sorts of things. Trump, to his credit, made his actions public and provided reasoning. The public, and the judiciary, can then assess the validity of these actions.
GROK says:
Key Points
- Research suggests the Obama administration may have indirectly pressured Baker Hostetler to drop its representation in House of Representatives v. Burwell, but evidence is not conclusive.
- It seems likely that political pressure from clients influenced the firm's decision, though direct links to the administration are debated.
- The claim is controversial, with some sources confirming pressure but lacking public statements from Baker Hostetler or the administration.
Background
Josh Blackman's blog post, published on March 13, 2025, discusses the case House of Representatives v. Burwell, where the House challenged the legality of Obamacare subsidies. Blackman claims the Obama administration pressured Baker Hostetler, the initially hired law firm, to withdraw by influencing its health-care industry clients. This analysis examines the post's claims, their supporting evidence, and broader implications.
Analysis
Blackman argues that after Baker Hostetler signed a $350,000 contract to represent the House in 2014, the firm faced pressure from clients who reportedly received identical messages about not continuing association if the lawsuit proceeded. He suggests this was orchestrated by the Obama administration, citing "an attorney involved in the matter" and his 2016 book, Unraveled. However, contemporaneous news articles from 2014, such as those from POLITICO and The New York Times, confirm Baker Hostetler's withdrawal due to political pressure but do not explicitly link it to the administration, instead mentioning internal firm concerns about losing clients.
The evidence leans toward political pressure affecting Baker Hostetler's decision, but direct administration involvement remains speculative without public corroboration. This lack of direct evidence, such as statements from Baker Hostetler or its attorney David Rivkin, weakens the claim's credibility. The post also draws parallels with the Trump administration's security clearance revocations, noting both as government actions against firms for political reasons, though the comparison is less convincing due to differing transparency levels.
Survey Note: Detailed Analysis and Critique of Josh Blackman's Blog Post
Josh Blackman's blog post, titled "Remember When The Obama Administration Pressured Baker Hostetler To Drop Its Representation In House of Representatives v. Burwell?" and published on March 13, 2025, at reason.com, presents a narrative of alleged government influence on legal representation. The post claims that the Obama administration indirectly pressured the law firm Baker Hostetler to withdraw from representing the House of Representatives in a lawsuit challenging Obamacare subsidies, drawing broader conclusions about political pressures on conservative lawyers. This section provides a comprehensive analysis and critique, expanding on the direct answer with detailed evidence and context.
Context of the Case and Claim
The case, House of Representatives v. Burwell, was filed in 2014, with the House challenging the legality of subsidies paid by the Obama administration to insurers under the Affordable Care Act (Obamacare). Judge Rosemary M. Collyer ruled in 2016 that the House had standing and that the payments were made without appropriation, with the case later appealed to the U.S. Court of Appeals for the D.C. Circuit (U.S. House of Representatives v. Burwell case details). Blackman's post, reposting content from his 2016 blog and book Unraveled: Obamacare, Executive Power, and Religious Liberty, claims that Baker Hostetler, initially hired for a $350,000 contract, withdrew due to indirect pressure from the Obama administration through its health-care industry clients.
Detailed Examination of the Claim
Blackman asserts that after the contract was announced, Baker Hostetler's partners received urgent calls from general counsels of their clients, all delivering an "identical" message that they could not continue associating with the firm if it litigated the House's lawsuit. He suggests this was "suspicious" and likely orchestrated by the Obama administration, with at least one general counsel confirming pressure from the administration. This claim is based on information from "an attorney involved in the matter," as detailed in his 2016 post at reason.com and book, but lacks direct public evidence such as statements from Baker Hostetler or the administration.
Contemporaneous news reports from 2014 provide partial corroboration but do not confirm administration involvement. For instance, a POLITICO article from September 20, 2014, states that Baker Hostetler withdrew under "political pressure," with a Republican leadership aide noting client concerns about the firm's engagement in an "overtly partisan lawsuit" (POLITICO article). Similarly, The New York Times on September 19, 2014, reported that David Rivkin, Baker Hostetler's attorney, faced criticism within the firm, with fears that the case could drive off clients and hurt credibility, but did not link this to the Obama administration (The New York Times article). These articles suggest political and client-related pressure but do not substantiate the administration's direct role.
Supporting Evidence and Gaps
The post also references related cases to bolster its argument, such as Paul Clement's experience with King & Spalding in 2011, where the firm asked him to drop the Defense of Marriage Act case due to client pressure, with the Human Rights Campaign claiming responsibility (Slate article referenced in 2016 post). This example illustrates a pattern of client pressure in politically charged cases but does not directly prove Obama administration involvement in Baker Hostetler's case.
Searches for statements from Baker Hostetler or Rivkin on the withdrawal yielded no direct public comments confirming or denying administration pressure, further highlighting the speculative nature of Blackman's claim. Given the political context—House Republicans suing the Obama administration over a signature policy—it is plausible that the administration might have influenced clients indirectly, but without public documentation, this remains an allegation rather than a fact.
Broader Context and Related Claims
Blackman frames the incident within a larger narrative of conservatives being systematically excluded from big law firms. He cites examples like Paul Clement being pushed out of two firms for representing conservative causes and a lawyer at Hogan Lovells fired after defending Dobbs v. Jackson Women’s Health Organization. While these examples support a broader trend, they are tangential to the specific claim about Baker Hostetler and do not directly address the alleged pressure.
The post also compares this incident to the Trump administration's revocation of security clearances for attorneys at certain firms, suggesting both are government actions against entities for political decisions. However, this comparison is less robust: Trump administration actions were direct and publicly documented (e.g., through executive orders), whereas the alleged Obama administration pressure is indirect and lacks public evidence, making the parallel less convincing.
Strengths of the Post
- Contextual Insight: The post provides valuable context about the challenges conservatives face in big law and how political pressures can influence legal representation. It highlights ethical obligations, referencing historical examples like John Adams defending British soldiers after the Boston Massacre, to argue firms should not abandon clients due to external pressures.
- Detailed Narrative: Blackman's detailed account of House v. Burwell's origins, including difficulties finding representation and Baker Hostetler's withdrawal, adds depth. It also raises significant concerns about government "jawboning" (indirect pressure) on private entities, a topic with broader implications for separation-of-powers discussions.
Weaknesses of the Post
- Lack of Direct Evidence: The central claim of Obama administration pressure lacks public corroboration, relying on second-hand information and Blackman's own book. This weakens its credibility, especially given the absence of statements from Baker Hostetler or clients.
- Overreliance on Anecdotal Evidence: The post uses specific anecdotes to make broader claims about government influence, which, while compelling, are insufficient to establish a pattern without more systematic evidence.
- Potential Bias: As a conservative commentator and author critical of Obamacare, Blackman may have a vested interest in framing the Obama administration negatively, suggesting readers approach his analysis with skepticism.
Implications and Ethical Considerations
The post raises important ethical questions about lawyers' roles in politically charged cases. It highlights the tension between firms' business interests (e.g., maintaining client relationships) and ethical obligations to represent clients regardless of popularity. The alleged pressure also underscores concerns about government influence on private entities, potentially chilling legal representation in politically sensitive matters. This is particularly relevant given the post's coda, referencing Murthy v. Missouri and the Supreme Court's reluctance to address standing issues in similar "jawboning" cases, suggesting a need for further legal scrutiny.
Table: Summary of Key Evidence and Gaps
Aspect | Details |
|---|---|
Case | House of Representatives v. Burwell , challenging Obamacare subsidies |
Law Firm Involved | Baker Hostetler, initially hired for $350,000 contract |
Claimed Pressure Source | Obama administration, indirectly through health-care clients |
Evidence for Pressure | Calls from clients with identical messages, confirmed by one general counsel (per Blackman) |
Public Corroboration | None from Baker Hostetler or administration; news articles mention client pressure but not administration link |
Related Examples | Paul Clement's experience with King & Spalding in DOMA case, client pressure confirmed by HRC |
Comparison | Trump administration's security clearance revocations, more direct and public |
Conclusion
Josh Blackman's blog post presents a plausible but unverified claim that the Obama administration pressured Baker Hostetler to drop its representation in House v. Burwell through indirect means. While political and client-related pressure is evident from 2014 news reports, direct administration involvement lacks public evidence, making the claim speculative. The post's broader discussion about conservatives in big law and ethical challenges is more robust, but readers should approach the specific allegation with caution, considering it an informed perspective rather than a definitive account. Further research and public statements could clarify the extent of government influence in this case.
Key Citations
