Bracing for an adversarial relationship with President-elect Donald Trump, the California Legislature has selected former U.S. Atty. Gen. Eric H. Holder Jr. to serve as outside counsel to advise on the state's legal strategy against the incoming administration.
The unusual arrangement was announced as the Legislature returned to session on Wednesday, underscoring the extent to which the action in Sacramento in the coming months will be shaped by Trump's presidency.
The agreement will give Holder, leading a team of attorneys from the firm Covington & Burling, a broad portfolio covering potential conflicts between California and the federal government. Former Los Angeles Rep. Howard Berman, a Democrat who is now a senior advisor to the firm, will also be part of the effort.
"[Holder] will be our lead litigator, and he will have a legal team of expert lawyers on the issues of climate change, women and civil rights, the environment, immigration, voting rights — to name just a few," Senate leader Kevin de León (D-Los Angeles) said in an interview.
Such a task typically falls to the state attorney general. On Tuesday, Gov. Jerry Brown formally nominated Democratic Rep. Xavier Becerra to replace former Atty. Gen. Kamala Harris, who now serves in the U.S. Senate. Becerra, whose nomination hearings in the Legislature begin next week, is expected to be easily confirmed.
A spokesman for Brown declined to weigh in on Holder's hiring on Wednesday. Becerra could not be reached for comment.
De León and Assembly Speaker Anthony Rendon began contemplating hiring outside legal counsel for the Legislature almost immediately after Trump's election, in hopes of protecting existing state policies that are at odds with the president-elect's stated positions. Legislators have already signaled an emphasis on protecting people in the country illegally, proposing legal aid in anticipation of stepped-up deportation action by Trump. They have also indicated that fights are on the horizon over expanded healthcare coverage through the Affordable Care Act and policies to combat climate change, two issues that mark a major departure from Trump's positions.
"While we don't yet know the harmful proposals the next administration will put forward, thanks to Donald Trump's campaign, cabinet appointments and Twitter feed, we do have an idea of what we will be dealing with," Rendon said in a statement.
"The Covington team will be an important resource as we work with the governor and the attorney general to protect Californians," he added.
The two legislative leaders have taken an unabashedly combative posture against Trump in a state that voted for Hillary Clinton by a wide margin. Rendon, in remarks last month at a swearing-in ceremony for lawmakers, described the incoming administration as a "major existential threat" and asserted that "Californians do not need healing. We need to fight."
The incoming Trump administration did not respond to a request for comment.
Republicans, who are outnumbered by Democratic supermajorities in both houses of the Legislature, chafed at the announcement. Assembly GOP leader Chad Mayes of Yucca Valley dismissed the hiring as a stunt.
"This is a distraction from the very real problems facing everyday Californians. Donald Trump did not cause California's transportation crisis, nor did he play a role in our state's sky-high housing costs. Democrats should focus on solving these real-world problems instead of wasting tax-payer money to score political points before the president-elect even takes office," Mayes said in a statement.
He noted that Becerra, "the state's incoming Attorney General[,] has spent decades in Washington working on federal policies. It's not clear why legislative Democrats needed to hire a DC insider to litigate the exact same issues."
De León said the additional counsel would offer "more legal firepower" that would complement and bring additional heft to the state attorney general's efforts.
Bringing on outside counsel is not unprecedented for the Legislature. The state Senate hired special counsel for a select committee investigating price manipulation in the wholesale energy market by Enron in the early 2000s. The Senate also sought outside counsel to sort through the federal investigation of former Democratic state Sen. Ron Calderon, who later pleaded guilty to corruption charges.
But it is far more unorthodox for both houses to join together in retaining counsel in a preemptive bid to prepare for as-yet-unknown litigation and policymaking at the federal level. Much of the arrangement remains murky, including how Holder's efforts will differ from or align with Becerra's.
Also unclear: the ultimate cost to the state. The initial contract, according to an engagement letter between the firm and the Legislature, totals $75,000 for three months, with the tab to be split between the two chambers' operating budgets. The agreement is capped at a maximum of 40 attorney hours per month.
A protracted legal battle would likely require far more manpower and resources, raising questions as to how the arrangement would proceed in the event of lengthy litigation.
The cost of additional attorneys can quickly add up under an aggressive legal strategy. In Texas, former state Atty. Gen. Greg Abbott — now governor — sued the Obama administration at a relentless pace, racking up nearly $2.6 million in costs to the state in less than three years, according to the Associated Press. Of that, $1 million went to outside counsel and expert witnesses.
Holder, who was a partner at Covington from 2001 to 2009 before rejoining the firm in 2015, will direct the efforts from the firm's Washington, D.C., office. The firm, which has a long-established presence in the nation's capital, has in recent years expanded its footprint in California. Covington's Los Angeles office, which will play a major role in working with the Legislature, was launched in part by former federal prosecutor Dan Shallman, whose brother, John Shallman, is a prominent Democratic strategist whose clients include De León.
"I am honored that the legislature chose Covington to serve as its legal advisor as it considers how to respond to potential changes in federal law that could impact California's residents and policy priorities," Holder said in a statement provided by De León's office.
"I am confident that our expertise across a wide array of federal legal and regulatory issues will be a great resource for the legislature."
Holder, a close friend of President Obama and one of the most liberal figures in the Obama administration, left the Justice Department in 2015. His tenure was defined by a focus on civil rights and criminal justice reform and was marked by a tumultuous relationship with Congress and scandal stemming from the failed gun-trafficking operation known as Fast and Furious.
Representing California lawmakers against Trump won't be Holder's sole involvement in politics in the coming years. He is also overseeing a Democratic campaign focused on redistricting, the process of redrawing political maps that, in recent years, has tilted state legislative and congressional landscapes in the Republicans' favor.
California Democrats hoped hiring the nationally known figure would provide an extra dose of credibility to their anti-Trump stance.
"Hiring the former attorney general, the nation's top lawyer — it shows that we're very serious in protecting the values of the people of California against any attempt to undermine the policies that have made us the fifth-largest economy in the world," De León said.
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3:35 p.m.: This article was updated with additional details about the contract between the California Legislature and former U.S. Atty. Gen. Eric Holder's law firm, and with comments from Republican legislative leader Chad Mayes.