U.S. Department of Justice building in Washington, D.C. Credit: Diego M. Radzinschi/ALM
James Burnham, a top lawyer in the U.S. Justice Department’s civil division who previously worked in the Trump White House counsel’s office, is assuming a new role that will make him a more visible defender of Trump administration policies in court, according to people familiar with the move.
Burnham, a former Jones Day associate who is currently overseeing the civil division’s consumer protection branch, was named Friday as the new deputy assistant attorney in charge of the federal programs section, which is tasked with representing the administration in trial courts across the United States.
A Justice Department spokeswoman confirmed that Burnham will lead the civil division’s federal programs branch beginning next week.
A former clerk for retired U.S. Judge Alexander Kozinski of the U.S. Court of Appeals for the Ninth Circuit, Burnham will replace Brett Shumate, who is stepping down from the role after two years crisscrossing the country in some of the most high-profile court challenges to Trump administration moves. Shumate was a lead Trump defender in disputes involving immigration policy, conflicts of interest and the Commerce secretary's decision to add a citizenship question to the 2020 census.
Shumate was also on the Justice Department team that recently abandoned the defense of the Affordable Care Act in the U.S. Court of Appeals for the Fifth Circuit, endorsing a lower court’s decision to void the Obama administration’s signature health care law in its entirety. The former Wiley Rein partner has not announced his post-DOJ plans.
In Burnham, the Justice Department selected a lawyer close to U.S. Solicitor General Noel Francisco, the department's top appellate lawyer defending the Trump administration. Burnham was in the wave of Jones Day lawyers, a group of more than a dozen former partners and associates at the firm, who jumped to the Trump administration in 2017.
Burnham has already made a high-profile court appearance on behalf of the Trump administration, leading the defense of the White House’s decision last year to revoke the press credentials of CNN reporter Jim Acosta.
A Trump-appointed federal judge ordered the White House to restore Acosta’s press credentials after finding that administration officials had denied him an adequate opportunity to contest the process. U.S. District Judge Tim Kelly based his ruling largely on a 1977 decision in which the U.S. Court of Appeals for the D.C. Circuit ruled that the White House must provide due process when revoking a reporter’s press credentials. “I simply have no choice but to apply that precedent,” he said.
More recently, Burnham helped Attorney General William Barr through his Senate confirmation process. Burnham had previously aided the efforts to confirm Trump’s two nominees to the U.S. Supreme Court, Justices Neil Gorsuch and Brett Kavanaugh.
At Jones Day, where Burnham reported earning $810,000, he was on the team that defended former Virginia Gov. Bob McDonnell against federal corruption charges. Burnham remained on the case as Jones Day appealed the conviction to the U.S. Supreme Court. The Supreme Court reversed the conviction and sent the case back to the trial court, prompting federal prosecutors to drop all charges against McDonnell and his wife.
Dechert partner Michael McGinley, a former Trump White House lawyer, described Burnham as a deft litigator and strategist who can plot cases from the trial court to the Supreme Court. Those skills, he said, would serve Burnham well in a role requiring coordination between the federal programs branch and civil appellate lawyers, along with the solicitor general’s office.
“James is a brilliant and versatile litigator who will thrive in his new role,” McGinley said.
DOJ's Brett Shumate, Key Civil Division Lawyer, Just Announced He's Leaving
Where Have All the Jones Day Trump Lawyers Gone?
Barr Eyes Ex-White House Lawyer for Top Justice Department Post
Jeff Rosen Says His Kirkland Leadership Role Will Help Him as DOJ's No. 2
William Barr Fills Front Office With Trump White House Lawyers