Covington & Burling partner James Garland (right) talks about Microsoft Corp.'s fight over a search warrant. (Photo: ALM)

In the early months of the novel coronavirus outbreak, Covington & Burling partner James Garland strove to maintain the appearance of an orderly law office in his basement—at least for the purposes of virtual conference calls.

Lately, he has begun to drop the charade. Slowly but surely, the "pandemonium"—the boxes, wrapping paper and "all the stuff that you would see in a basement"—has crept into the frame, he said. The family dog occasionally makes a cameo appearance. "There's definitely a ping pong table in the background of many a conference call," he said. "It is definitely not the finished law library look at the Garland homestead."

In a recent interview, Garland, a white-collar partner and a former top aide to then-U.S. Attorney General Eric Holder Jr., addressed concerns about the politicization of the Justice Department and reflected on crisis management in the Trump era.

Garland, who serves on Covington's eight-partner management committee, also addressed his experience navigating the pandemic, in a period that has proven both challenging and delicious, thanks in no small part to a smoker gifted to him on Father's Day. "It is awesome," said the pitmaster-in-training.

The interview that follows was edited for length and clarity.

NLJ: It's been four months now since offices in D.C. largely closed down. How have you adjusted to working from home and the "new normal" ushered in by the pandemic?

Garland: Fortunately, our practices have remained busy, even into the pandemic. So we've got a lot of matters still chugging along, but it's definitely been different kinds of work. Everybody's working remotely now, and that includes both Covington lawyers and also all of our clients, and all of the government. The prosecutors, for the most part, are not going into the office, they're not able to convene grand juries, and the agents are not able to go out and knock on doors and do the things that agents do. So the usual toolkit of both the investigation and prosecution of white-collar cases, and the defense of white-collar cases—all of it has shifted.

Within the defense bar, many lawyers are making tough calculations about witness interviews and insisting on being physically present with clients during their questioning. How have you approached that?

The witness interviews that we're doing remotely are almost all for internal investigations and not government-facing. It's my personal preference, and I think I probably am in the mainstream of white-collar lawyers, that I really don't like doing government-facing witness interviews without sitting next to the person and being able to sit in a room and prepare with the person face-to-face. My view is that I'll push back pretty hard on that, if it comes to that, because I think it's just so important to be able to have that face-to-face interaction for the witness interviews. At the same time, document work has in many respects accelerated. You know, one thing that prosecutors and case agents and DOJ paralegals can still do is sit at home and review the documentary evidence that our clients are producing, and they're digging in and making progress faster, I think, than we've seen in the past. And they're coming back to us with additional requests. So that piece of the practice is still busy, maybe even busier in some ways.

To what extent have you seen prosecutors push for remote interviews?

I am not aware of prosecutors taking a really hard line on this, honestly, because I think, frankly, they get it. To their credit, I think they know that they're going to be better able to assess the witness's credibility and body language and read the room better—the whole dynamic between the witness and the case agent and the witness and their own lawyers. Prosecutors benefit from in-person interviews, too. In some cases, they may be willing to trade that for expediency, but in most cases, I think they want the in-person experience as well. I've not heard of prosecutors really pounding the table and saying, 'No, we're going to do your interview and that's just the way it's going to be.'

U.S. Department of Justice in Washington, D.C. (Photo: Diego M. Radzinschi / ALM)

Do you think there will come a time when DOJ pushes harder?

There definitely will come a time. The time has come in civil cases already. Many judges are requiring depositions to go forward remotely. In civil litigation, judges are saying, 'Yeah I get it that Zoom is bad, but we're going to go forward.' I suspect the DOJ will push harder for remote witness interactions, and for all I know they're doing it already in certain cases that really are pressed, bumping up against statute-of-limitation periods. You may see socially distanced witness interviews. At Covington, we've got a few conference rooms that are big, and we've already been thinking about whether we could do a witness interview where everybody in the room is sitting 6 feet apart from each other.

What kind of work have you been involved in stemming from claims of COVID-19 fraud?

We've seen a lot of activity and outreach from the government for financial institution clients and government contractor clients, not in the nature of investigations of our clients, but from the angle of: 'if you are detecting fraud through customers, or borrowers whom you're rejecting because you think that loan applications are fraudulent,' just for example, 'can you tell us or can you let us in on that?' So that's more of a collaborative attitude in the outreach. But we're seeing a lot of that. The kind of COVID fraud that I think DOJ is focused on right now is—I'll call it sort of consumer-type fraud. It's not the big ticket Enron-type investigations but rather the smaller cases where bad guys are trying to illegally feed from the government trough.

What considerations go into responding to those requests from the government?

The federal government shows up and says, 'Don't worry, we're here to help.' But there are a lot of limitations and restrictions on the ability of our corporate and financial institution clients to share information. Most companies want to do the right thing and, in fact, do the right thing. But they want to do it in a way that doesn't create exposure and problems for themselves. You always have to protect your interests and make sure that you're doing things by the book—not just because you want to be helpful.

Twitter headquarters. (Photo: Jason Doiy/ ALM)

At the beginning of the Trump administration, we spoke about the risk companies perceived in the president's Twitter presence. How have you seen the thinking around crisis management evolve under the Trump presidency?

In January 2017, if Trump tweets about your company, it's a big deal. You convene the board of directors and maybe you issue an 8k, because the president is tweeting about your product or about your decision to move manufacturing or whatever. Now, it's kind of like, 'Whatever, the president's just spouting off again.' It's less significant now because he does it so much.

Having said that, there's a more strategic aspect to the way companies respond to the Trump administration now. There has been a steady stream of fundamental shocks to the systems of international trade and regulation and finance that used to be taken for granted by global corporations. Trump has called so many givens into question. I think companies, in the near term after Trump's election, were really focused on the small ball of, 'How do we deal with this tweet?', but have evolved their response mechanisms to be more strategic. 'What are we going to do if we're really going to be decoupling our economy from China? What are we going to do if we no longer rely on established policies and practices of the executive branch?' Those are big-picture questions, and they're not born of a single tweet. They're fundamental shifts in government policy and practice that companies are responding to.

You were a top aide to former Attorney General Eric Holder. How have you digested some of the recent assertions that William Barr has politicized the Justice Department?

In the white-collar bar there was, for a time, an understanding that the political apparatus within DOJ was going to do its thing, but the vast majority of cases that the department handles never get too close to a political appointee. A view that the career people of the department were hunkered down, keeping their head down, doing the important work of the department and were impervious or largely impervious to political influence. And that understanding has played out, largely I think, over the last three and a half years. But, as time has passed, there is a perception that that wall has broken down. And that affects the way our clients perceive the fairness with which they're being treated by the government. They worry that investigations or prosecutions are being pursued for political reasons because they see it happening in high-profile cases. That makes it incumbent upon defense counsel to try to explain and read the tea leaves about why, in any particular case, perhaps, it's not what it seems. To help them understand that in their case, it's not necessarily politically motivated.

On a lighter note, many people have discovered great books or hobbies with more time at home. Have you gotten into anything new lately?

My wife and kids for Father's Day got me a smoker—a barbecue smoker, this Weber smoker grill, where you smoke brisket, and ribs and pulled pork and all that delicious stuff. And so I've been learning, teaching myself how to do that. And it is awesome. It is so much fun. I've signed up for this online class to teach me how to do it, and it's very enjoyable time. That's my major weekend recreation right now, and it has the benefit of feeding my crew. I call it the COVID-15. It is real, in large part because of the barbecue.

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