February 9, 2021

Biden Justice Dept. Hires For-Profit College Lawyer, And He’s Defending Betsy DeVos

Biden Justice Dept. Hires For-Profit College Lawyer, And He's Defending Betsy DeVos

The Biden Justice Department has hired for a key role — chief deputy and acting head of the Civil Division — Brian Boynton, a D.C. power lawyer whose corporate clients have included predatory for-profit colleges seeking to undermine federal rules aimed at protecting students. To compound this wrong, one of Boynton’s first moves was a filing Monday to block lawyers representing former for-profit college students from taking a sworn deposition of Donald Trump’s notoriously anti-student secretary of education, Betsy DeVos.

Justice Department Blocking DeVos Deposition

Boyton’s filing, in federal court in south Florida, comes after a California federal judge in October rejected a settlement of a lawsuit alleging that DeVos had stalled on and wrongly denied applications of former students to have their federal loans discharged over claims they had been scammed by their colleges. After numerous students testified about school abuses, and about DeVos’s delaying and summary rejection of debt relief applications, Judge William Alsup of the U.S. District Court in San Francisco concluded that DeVos’s conduct “hangs borrowers out to dry.” Judge Alsup ruled that lawyers for the students could take depositions of top Department officials. The lawyers have done so, deposing four officials including top Devos aide Diane Auer Jones.

Now they want to question DeVos. But Biden’s Justice Department, via a filing under Brian Boynton’s name as acting division head, wants to block that deposition.

Joining forces with Boynton and DoJ in seeking to block the deposition is a private lawyer for DeVos, Jesse Panuccio of big law firm Boies Schiller Flexner. Panuccio was from 2017 to 2019 the acting associate general — the third highest ranking official — in Donald Trump’s Justice Department. Boies Schiller, led by famed litigator David Boies, is well-known for representing clients including antitrust defendant Microsoft, presidential candidate Al Gore, Amazon founder Jeff Bezos, scam blood test startup Theranos, and vile sexual predator Harvey Weinstein. 

The brief for DeVos filed by Boynton of Biden’s Justice Department, along with Panuccio of Boies Schiller, does not sound like the voice of an administration that has committed itself to justice for scammed students: It calls the effort to depose DeVos “a transparent attempt at harassment — part of a PR campaign that has been central to Plaintiffs’ litigation strategy from the outset.”  

Boynton and Panuccio argue in their motion that courts have rarely ordered the depositions of incumbent cabinet secretaries.  But the lawyers for the ex-students, from Harvard Law School’s Project on Predatory Student Lending and the group Housing & Economic Rights Advocates, did not subpoena DeVos until January 26, after she had resigned and the Trump administration had ended. Judge Alsup had initially barred the students’ lawyers from deposing Secretary DeVos, but after her resignation, he issued an order saying the lawyers could subpoena “Citizen DeVos.”

And given DeVos’s repeatedly-documented, blatant hostility to debt relief for these former for-profit college students, it seems apparent that her testimony is highly relevant to a case seeking to discover and address how her Department handled these borrower claims.

Lawyers for the students have told Judge Alsup they plan to ask the Florida court to transfer the motion to him.

Boynton’s Prior Work for For-Profit Colleges

Unfortunately, Brian Boynton has a background that makes him well-suited to stand with Betsy DeVos, who championed predatory college operators while in office, and to oppose the aggrieved students.

Boynton was until recently a partner at the big D.C. law firm WilmerHale, where he represented corporations, for example working on the recent T-Mobile-Sprint merger alongside powerhouse lawyers Ken Salazar, a former senator and Interior secretary; Alejandro Mayorkas, who is now Biden’s Homeland Security secretary; and Jamie Gorelick, who was deputy attorney general in the Clinton administration. 

Also, Boynton in March 2020 was listed as a co-author of an article with WilmerHale colleagues, published on the firm’s website, advising drug and medical device companies on avoiding liability for COVID-19 lawsuits. At some point since then, Boynton’s name was removed from the posted version of the article. 

Biden Justice Dept. Hires For-Profit College Lawyer, And He's Defending Betsy DeVos

Boynton worked in key roles in the Obama Justice Department from 2014 to 2017, but before that at WilmerHale he worked on multiple matters aimed at undermining the ability of the Obama administration to protect students and taxpayers against predatory practices by for-profit colleges, which for decades have deceived, overcharged, and under-educated veterans, single mothers, immigrants, and others seeking to improve their lives through career education.

Boynton represented the for-profit colleges’ main trade association, APSCU (now called CECU), which at the time included many of the most notorious predatory for-profit college operations, including Corinthian Colleges, EDMC, ITT Tech, Kaplan, Career Education Corporation, DeVry, Bridgepoint , ATI, and FastTrain College — all of which in the past decade been under investigation or taken to court by law enforcement agencies for deceptive practices.

In 2010, Boynton was lead counsel for APSCU in a Supreme Court brief supporting the argument of another predatory for-profit college, the University of Phoenix, to weaken protections for investors who wanted to file class action lawsuits against for-profit colleges for securities fraud. 

Also in 2010, Boynton and other WilmerHale lawyers published a memo arguing that the Department of Education lacked authority to issue, and therefore should abandon, a proposed regulation called “gainful employment,” which would have penalized for-profit and career college programs that consistently left former students with debts they could not afford to repay. APSCU and others in the for-profit college industry relentlessly lobbied and litigated to stop the gainful employment rule, forcing the Obama administration to undertake two long rounds of rulemaking proceedings before a final, relatively weak rule was implemented and upheld by the courts. (In 2019, DeVos cancelled the rule entirely.)

It’s unclear from the memo whether anyone paid WilmerHale to write it, or whether instead the firm released it in hopes of attracting clients, but 2010 comments submitted to the Department of Education by APSCU (then called the Career College Association) on gainful employment borrow a considerable amount of language from the memo.

Represented by Boynton and a full roster of powerful corporate lawyers from WilmerHale and Gibson Dunn, APSCU in a 2011 case sued the Obama administration seeking to block Department of Education “incentive compensation” regulations that made it more difficult for for-profit colleges to pay sales commissions to its admissions representatives, a practice that has led to predatory and deceptive recruiting. This aggressive action by Boynton and the for-profit college industry led to extensive and expensive litigation, delaying the rule and forcing the Department to weaken it

Boynton’s Law Partner Jamie Gorelick and Her Ties to Merrick Garland

But the inappropriateness of putting Brian Boynton in charge of Biden’s civil division cannot be separated from consideration of one of his senior colleagues at Wilmer, Jamie Gorelick.

Gorelick also has worked actively on higher education matters in favor of for-profit special interests and against the interests of students and taxpayers. Gorelick lobbied on behalf of student loan giant Sallie Mae as part of an intense, but ultimately unsuccessful, 2010 effort by that company and big banks to block the Obama administration’s effort to reform the student loan system by eliminating nonsensical, wasteful loan subsidies to private lenders. 

Gorelick also represented the predatory for-profit University of Phoenix, after that company was caught in 2015 engaging in recruiting abuses against U.S. military service members. She successfully pressured the Defense Department, where she once served as general counsel, to let the company off the hook. 

Gorelick is extremely close with Biden’s attorney general nominee Merrick Garland, who would be Boynton’s boss if confirmed. Gorelick and Garland were Harvard College classmates, and Gorelick hired Garland to be her deputy at the Justice Department.

Indeed, in a raw piece of Washington influence peddling, on January 29, WilmerHale touted Gorelick’s “decades-long friendship” with the incoming attorney general on a web page entitled, “Jamie Gorelick Discusses Her Long Ties to Merrick Garland and DOJ’s Future.” On the page, the firm boasts: “Ms. Gorelick was Deputy Attorney General during the Clinton Administration, and Judge Garland served as her top deputy. It was a working relationship and friendship that began at Harvard College, where both worked together as undergraduates to gain equal treatment for women students at the institution….”

[UPDATE 02-10-21: A day after this article was published, that webpage appears to be gone from WilmerHale’s site. Below, though, we had already included a screenshot image, and now also here’s a pdf that preserves the page text.]

Biden Justice Dept. Hires For-Profit College Lawyer, And He's Defending Betsy DeVos

Gorelick’s speciality, it seems, is influence peddling. She took heat early in the Trump administration for serving as ethics counsel for Ivanka Trump and Jared Kushner, providing Democratic cover for her new clients’ evasion of anti-nepotism rules and defending their repeated failures to disclose conflicts of interest. 

Gorelick has lobbied for GoogleJPMorgan ChaseLazard Freres and others. She represented BPpressing to limit Obama administration efforts to hold the energy giant responsible for the massive Gulf of Mexico oil spill. Gorelick also was hired by then-Chicago mayor Rahm Emanuel to defend the Chicago police department from federal investigation after the killing of Laquan McDonald.

Now with Gorelick’s close friend Merrick Garland poised to run the Justice Department, her junior law firm partner Brian Boynton is overseeing the powerful civil division, with authority over a wide range of corporate power and liability issues, as Gorelick continues to represent major corporations with matters before the Justice Department.

Keeping For-Profit College Lobbyists Out of the Biden Administration

But specifically on the issue of for-profit schools: During the 2020 campaign, Joe Biden pledged to protect students and taxpayers against predatory colleges, and Kamala Harris noted in her Democratic convention speech that as California’s attorney general she took strong action against for-profit college abuses. Seeking to hold Biden and Harris to their commitments, on December 1, 32 pro-student organizations, and I, sent a letter to the Biden transition calling on the new administration to refrain from hiring, anywhere in the administration, anyone who has been affiliated with, represented, or lobbied for any predatory colleges. The appointment of Brian Boynton at Justice is, unfortunately, a rejection of our advice and request. (So is the appointment, as a top White House staffer, of Anita Dunn, who long advised predatory Kaplan University.) 

I also wonder who at the U.S. Department of Education signed off on Boynton’s brief attacking lawyers for ripped-off students for seeking to depose Betsy DeVos.

UPDATE 02-12-20 10:00 am: The lawyers representing the students filed in the Florida court a response to the motion by the Justice Department and Betsy DeVos’s lawyer to block her deposition. Excerpt:

Defendants have taken this opportunity to impugn the motives of Plaintiffs, baselessly accusing them of a “transparent attempt at harassment.”… This accusation is inappropriate and plainly inaccurate. The California court made clear in October 2020 that although “class counsel may not yet depose the Secretary,” extraordinary circumstances could justify the deposition at a later date… That later date has arrived — not because of improper motives on the part of 160,000 class members who have been “h[u]ng[] out to dry” by the Department, but because, as Judge Alsup found, “we are faced with a strong showing of agency pretext” and “[w]e need to know what is really going on.” Id. Plaintiffs have determined, as they detailed in their letter to the California court in January, that Ms. DeVos has unique knowledge about the issues at the heart of this case. Seeking her deposition — precisely as the California court contemplated Plaintiffs might have cause to do after deposing other officials— is not only appropriate, but a necessary step to properly advocate for the interests of the class,who have suffered “shared trauma.” While Ms. DeVos seeks to dismiss Plaintiffs’ advocacy as a “PR campaign,” the California court, after eighteen months of litigation, stated plainly that this is “not an attorney driven case. Class members have a genuine interest; they sought opportunity via higher education only to be deceived by for-profit institutions and, at least in some cases, saddled with crushing debt.” 

UPDATE 02-15-20 1:53 pm: The Justice Department also is still defending the position of Betsy DeVos’s Department of Education in withholding information related to the Obama-era gainful employment rule, against a Freedom of Information Act lawsuit filed by the non-profit group Student Defense. The case is being defended by lawyers from the civil division of the U.S. Attorney office in Washington, DC, lawyers ultimately under the direction of Main Justice and Brian Boynton.

In a separate lawsuit filed in the District of Columbia, nineteen state attorneys general sued DeVos over her cancellation of the gainful employment rule; there the Justice Department filed its latest brief in support of dismissing the case on January 21, the day after Biden was inaugurated, but it was dated January 19 and signed by career Justice Department officials. In another lawsuit filed in San Francisco, teachers and students sued DeVos over the cancellation of the gainful employment rule; in that case there have been no court filings since October. 

WilmerHale’s’s 2010 memo, signed by Boynton and other lawyers at the firm, argued that the Department of Education lacked legal authority to issue such a gainful employment rule — a contention subsequently rejected by multiple federal courts. Whether WilmerHale issued that memo for a client or with the aim of attracting clients, a Biden-Garland Justice Department committed to ethics, and to students and taxpayers, would, at the very least, require any lawyer who signed such a memo to recuse from current gainful employment rule litigation. 

UPDATE 05-25-21: Brian Boyton’s March 2021 financial disclosure form shows that his recent clients at WilmerHale included Disney, Google, Walmart, Verizon, T-Mobile, State Farm, drug maker Eli Lilly, weapons maker Northrop Grumman — and deceptive, predatory for-profit college giant the University of Phoenix.