President Donald Trump (Shealah Craighead)
Brett Shumate, a top lawyer in the U.S. Justice Department’s civil division, has crisscrossed the country as the Trump administration’s first line of defense in some of the most visible cases brought so far against the White House.
Immigration. Voting rights. Sanctuary cities. Regulatory rollbacks. President Donald Trump and conflicts of interest. Shumate has been the point man in court in all of these cases for Main Justice, where he’s worked for six months as a deputy assistant attorney general. Shumate was a telecom partner at Wiley Rein, in Washington, before leaving the firm.
Shumate’s latest court appearance came Wednesday in New York federal district court, where he argued against claims that Trump’s vast business ties violate the Constitution’s “emoluments” clause, an anti-corruption provision that’s never before been tested in court.
Less than three weeks earlier, Shumate faced an angry federal judge in Brooklyn over the Trump administration’s decision to keep an Oct. 5 deadline for certain young immigrants to renew their status under the Deferred Action for Childhood Arrivals program. Shumate was in San Francisco in July to argue against a challenge to Trump’s plans to cut funding from so-called sanctuary cities that limit cooperation with U.S. immigration authorities.
“I spoke with him recently and his cup runneth over,” Wiley Rein partner Megan Brown said. “He is traveling all of the time, and he has four small kids, including a tiny baby, all under age 8.”
Brown had the office next to Shumate for five years at Wiley Rein and worked with him on telecommunications cases. She described Shumate as a “careful lawyer, earnest and extraordinarily hardworking—no prima donna.” Shumate, she said, is “a really good, grind-it-out lawyer who happens to be very, very sharp. And he prepares like a crazy person.”
Shumate declined to comment about his work at the Justice Department. He works under the direction of Chad Readler, the civil division’s acting assistant attorney general and a former Jones Day partner.
Bennett Ross, Shumate’s mentor at Wiley Rein, said the young lawyer—Shumate is 36—”gets not just knee-deep, but neck-deep” into the issues. Ross has known Shumate nearly 10 years.
“I have seen him evolve from really a very junior lawyer to a seasoned veteran of sorts,” Ross said.
What’s there to know about a key Justice Department lawyer? Here’s a snapshot of Shumate’s career in the law.
‘In the foxhole’
Williams & Connolly’s Kannon Shanmugam worked with Shumate on a big telecom case in the D.C. Circuit—Neustar v. FCC—about the portability of phone numbers from one carrier to another. Shumate has “outstanding litigation judgment,” Shanmugam said. “He’s the sort of lawyer you’d want to have in the foxhole with you.” Brown put it another way: While there are lawyers in D.C. with whom you’d not want to grab a beer, “he is not one of those guys. He’s a really regular guy.”
A formidable clerkship
Shumate clerked for Chief Judge Edith Jones of the Fifth Circuit in 2006-07 after his graduation from Wake Forest University School of Law. Jones is widely recognized as a conservative voice on the bench on such issues as reproductive rights, firearms and the death penalty. Jones was President George H.W. Bush’s reported second choice for the U.S. Supreme Court for the vacancy filled by Justice David Souter.
William Consovoy of Washington’s Consovoy McCarthy Park, a fellow Jones clerk who worked with Shumate earlier at Wiley Rein, had this to say: “The thing that most impressed me about Brett was just how cool he was under fire—took it all in stride. A terrific attorney and one of the nicest guys in town.”
Federalist Society speaker and podcaster
A past financial supporter of the conservative legal organization, Shumate has spoken at functions on telecommunications and other issues while in private practice. In May 2016, he recorded a podcast on President Barack Obama’s judicial legacy, with a focus on the D.C. Circuit.
The appellate court, he said, had “really changed” in the last seven to eight years but its reputation for rigorous review of executive action was still true. “But I think some of the president’s appointments, combined with some judges’ transitions to senior status, suggest the court may be taking a different approach in the future,” Shumate said. “Some of the judges may be less inclined to strike down agency actions and may be more inclined to defer to executive branch action than some of their predecessors.”
Shumate in 2015 donated to U.S. Sen. Marco Rubio’s presidential campaign. Earlier, Shumate made contributions to Mitt Romney’s run for the White House.
National security scholar
Shumate turned an eye toward national security, specifically the Patriot Act, in law review articles. In one 2006 article for the Regent University Law Review, Shumate dug into a section of the law known as the “sneak and peek” provision. The provision authorized law enforcement to delay notice of the execution of search warrants. Critics said the provision expanded government authority and lowered the standards to obtain search warrants. But Shumate argued that courts had allowed such searches for more than a decade—they just weren’t officially in the criminal code. “Far from creating radical new power, section 213 actually codifies majority practice regarding surreptitious searches and provides uniform statutory standards,” he wrote.
In another article, for the Gonzaga Law Review in 2005, Shumate focused on administrative subpoenas used by national security investigators typically to gather telecommunications records. They’re served in secret, with gag orders, preventing the recipients from disclosing the contents of the letter. The letters are controversial and have been the subject of lawsuits from tech companies. Shumate said courts that evaluate the legality of the nondisclosure provision under the First Amendment should use intermediate scrutiny, and not strict scrutiny.
“Although the nondisclosure provision may act as both a prior restraint on speech and a content restriction, intermediate scrutiny is appropriate because the Supreme Court has indicated that it will allow greater regulation in this context,” Shumate wrote.
Net neutrality challenged
In 2015, Shumate argued in the D.C. Circuit against the Federal Communications Commission’s net neutrality rules. “If the FCC can regulate the Internet, they can regulate the dominant form of communication in the 21st century, and their tentacles can touch everything,” he told Law360 in an interview. “By contrast, if the court cuts back on the FCC’s authority to regulate in this area, the FCC is going to be struggling to find its relevance in today’s age, because all forms of media are really converging on the Internet today in ways that they weren’t in the ’90s and early 2000s.”
Ross worked with Shumate on the case. Shumate, he said, led the charge on the argument that it’s unconstitutional for the government to restrict the editorial discretion of internet service providers. “He’s very creative,” Ross said. “He would always bring a fresh perspective and come up with an angle or an issue or a theory that others had not thought of.”
Shumate spoke about the FCC last October on a panel hosted by the Washington Legal Foundation. Shumate argued the FCC’s push to expand its regulatory authority was a fight for the agency’s relevance in the digital age. “The FCC wants to be the cop on the beat so it can stay relevant in the 21st century,” he said. Watch the video here or below.
Son of a lawyer
Shumate’s father, Charles L. Shumate, is county attorney for Stafford County, Virginia. In private practice, his work included land use and real estate development matters, commercial and business transactions and local government law. He served as a captain in the U.S. Army in the Office of the Staff Judge Advocate, Headquarters, 1st Logistical Command, and was awarded the Bronze Star for his service in Vietnam.