How would you react if you saw Jack Smith, the former special counsel who prosecuted Donald Trump, at Costco?
It might just happen. Last week, Jack Smith launched his own litigation boutique, along with three other former federal prosecutors: Timothy Heaphy, David Harbach, and Thomas Windom. A new law firm is like a startup, where the founders have to do many things themselves—so on Tuesday of last week, Tim Heaphy and two of his partners went to Costco to buy paper towels. Jack Smith didn’t join them—he was busy preparing for his testimony before the House Judiciary Committee, taking place tomorrow—but according to Heaphy, Smith’s on deck for the next Costco run.
This was one of several fun tidbits that Tim Heaphy (pronounced HAY-fee) shared with me in the latest episode of the OJ podcast. We covered a number of interesting subjects, including Heaphy’s service as both a U.S. attorney (W.D. Va.) and as chief investigative counsel to the House Select Committee to Investigate the January 6th Attack; what Heaphy, a former partner at Willkie Farr, thought about the firm’s settlement with the Trump administration; and what the mysterious Jack Smith is like as a person.
This is an episode you won’t want to miss—especially if you’re interested in the intersection of law and politics during the second Trump administration.
Show Notes:
Timothy J. Heaphy bio, Heaphy, Smith, Harbach & Windom LLP
Jack Smith’s New Venture Shuns Label as Anti-Trump Attack Dog, by Justin Henry for Bloomberg Law
Jack Smith’s New Law Firm Opens Its Doors, by Abigail Adcox for Law.com
Prefer reading to listening? For paid subscribers, a transcript of the entire episode appears below.
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NexFirm helps Biglaw attorneys become founding partners. To learn more about how NexFirm can help you launch your firm, call 212-292-1000 or email careerdevelopment@nexfirm.com.
Three quick notes about this transcript. First, it has been cleaned up from the audio in ways that don’t alter substance—e.g., by deleting verbal filler or adding a word here or there to clarify meaning. Second, my interviewee has not reviewed this transcript, and any errors are mine. Third, because of length constraints, this newsletter may be truncated in email; to view the entire post, simply click on “View entire message” in your email app.
David Lat: Welcome to the Original Jurisdiction podcast. I’m your host, David Lat, author of a Substack newsletter about law and the legal profession also named Original Jurisdiction, which you can read and subscribe to at davidlat.substack.com. You’re listening to the eighty-ninth episode of this podcast, recorded on Wednesday, January 14.
Thanks to this podcast’s sponsor, NexFirm. NexFirm helps Biglaw attorneys become founding partners. To learn more about how NexFirm can help you launch your firm, call 212-292-1000 or email careerdevelopment@nexfirm.com. Want to know who the guest will be for the next Original Jurisdiction podcast? Follow NexFirm on LinkedIn for a preview.
Tomorrow, former special counsel Jack Smith will testify publicly before the House Judiciary Committee. Although he sat for a deposition back in December, that took place behind closed doors—so in terms of his public comments, tomorrow will represent Smith’s most detailed defense to date of his investigation and prosecution of Donald Trump.
Jack Smith is a busy man. Last week, he was not only preparing for his testimony, but launching his own boutique law firm: Heaphy, Smith, Harbach & Windom.
What will be the focus of the new firm? What types of clients and matters will Smith and his partners take on? And are they worried that Donald Trump and his administration might come after them in some way?
As mentioned, Jack Smith had other things to do last week. But I did get the chance to interview one of his new law partners, Timothy Heaphy—who has had his own high-profile legal career. Before launching the new firm, Heaphy was a partner at Willkie Farr, where he co-chaired the investigations and enforcement practice. He’s also spent many years in government, including service as the U.S. Attorney for the Western District of Virginia and, most recently, as Chief Investigative Counsel to the House Select Committee Investigating January 6. Without further ado, here’s my conversation with Tim Heaphy.
Tim, thank you so much for joining me.
Tim Heaphy: It’s my pleasure, David. Thanks so much for the invitation.
DL: Congratulations on the launch. But before we go into all of that, tell us about your background and your upbringing. Where did you grow up?
TH: I was born in New Haven, Connecticut. My father worked in law enforcement and my mother was a teacher, so I come from a public service tradition. I moved to the D.C. area when I was a kid and went to high school in suburban Maryland, just outside of D.C. I went to UVA, both for college and law school. I went to UVA as a student athlete to play football, took a couple of years off after college, taught high school and worked for then-Senator Biden on the Hill, and then went back to UVA for law school. I’m happy to talk about my various jobs, but most of my career was spent in the criminal justice system working at the Department of Justice.
DL: So you mentioned your father was in law enforcement and your mother was in education. Did you have any lawyers in the family or any early exposure to law?
TH: My mother’s brother, Joe Terraciano, was a lawyer at Morrison Foerster in San Francisco. Joe moved to California from Connecticut, and he was my mom’s younger brother who I really looked up to, and he was definitely an influence on me growing up.
DL: When you went to UVA Law School, did you have a good sense of what kind of legal career you wanted for yourself at the time?
TH: I knew I wanted to do something in public service, and I knew that I wanted to be on my feet in front of judges and juries, so that led me to the criminal justice system. But David, I wasn’t sure if I was cut out to be a prosecutor or a defense lawyer. My initial impressions of prosecutors fit the stereotype of conservative white men—and I was a white man, but not a conservative. It wasn’t until I got into law school and met people… and then it really was Eric Holder who changed my view of that. Eric was the U.S. attorney in D.C. who hired me. And I realized, fortunately, working for him, that prosecutors actually have to leaven their judgment with mercy, have to do justice, and that isn’t always the most prosecutorial thing. So he’s been one of the real seminal influences on my life and career. And I’m really glad I went into the prosecution side out of law school because I learned so much as a young AUSA.
DL: What was your first job out of law school?
TH: I was a law clerk; I clerked on the D.C. Court of Appeals. And then I went to a big law firm. I didn’t care for it; I felt I was kind of a cog in a machine. I didn’t feel like my legal skills were really impacting the world. My wife was in graduate school in California, so while she was in grad school, I worked at a firm. But then when she was finished, I was very anxious to finally try cases and get into the criminal justice system. And that’s when I became an assistant U.S. attorney in Washington, D.C. That was in 1994.
DL: You mentioned Eric Holder. Did he hire you? Was he the U.S. attorney at the time?
TH: He was. He hired me, yes. And I worked under Eric for his whole tenure as U.S. attorney. I was one of the first people that he was able to hire when he first started as U.S. attorney.
DL: What were some of the highlights of your time as an AUSA? One thing many people probably know—at least the ones who listen to my podcast—is that the D.C. U.S. Attorney’s Office, because it’s dealing with the District of Columbia, which is a federal jurisdiction, has a wider range of crimes that get prosecuted compared to a district in some other part of the country.
TH: Exactly right, David. So Eric’s big idea when he was U.S. attorney was community prosecution. He wanted to reorganize the office away from substantive sections—a homicide section here, a narcotics section there—and reorganize it around communities, around police districts. He created a pilot project in the Fifth Police District in Washington called the Community Prosecution Section, and I was fortunate to be part of that.
I had a neighborhood—Lincoln Park in Northeast Washington, straight out from the Capitol along East Capitol Street—and I was their community prosecutor. I had a chance to screen and, potentially, to personally handle every case that arose in that neighborhood, whether it was a car theft to a homicide. I went to their neighborhood meetings—so I got to know Diane Groomes, who was the patrol service area sergeant for that area—and I got to know some of the people that lived in the neighborhood by going to those meetings. The idea was that law enforcement ought to be responsive to community concerns, and that was invaluable experience. It informed some of what I did when I became a U.S. attorney in Virginia later.
DL: How long were you in the U.S. Attorney’s Office, in total?
TH: I was in D.C. about nine and a half years, until 2003, when I moved to Charlottesville to be an assistant U.S. attorney in the Western District of Virginia.
DL: And what led you to make that move? I guess you had spent time in Charlottesville as an undergraduate and a law student, and I’m a big fan of the area, but what did lead you to make that move?
TH: I was in a trial in D.C. at the very end of my time as an AUSA that lasted 13 months. It was a RICO case, a death penalty case. We had charged 31 murders against this violent drug gang. It was an incredible experience, but it was very all-consuming. And I felt like I was not sufficiently available to my wife and my two young kids, who are now 24 and 23.
And John Brownlee, who was the U.S. attorney, the Bush-appointed U.S. attorney in the Western District of Virginia, called me and said, “Hey, we have an opening. We’re looking for an experienced AUSA in Charlottesville, and I know you went to school there.” And I was very happy in D.C. in the middle of that trial, but my wife was very excited about the prospect of, frankly, some work-life balance.
It was hard for me when I was in that trial to have any semblance of balance, and working in a smaller district like Charlottesville offered that work-life balance, and I could teach a class at the law school at UVA. So I could still do important work as an AUSA, but in a more family-friendly environment. And it was the best decision I ever made because it did prove to provide more balance. I’ve had a lot of jobs since then, but I wasn’t smart enough to go out and seek that kind of opportunity; I was really fortunate that it came to me.
DL: I have a few follow-up questions. First, how did that trial turn out, by the way? Did you get some convictions out of that 13-month trial?
TH: All the defendants were convicted of multiple murders. The lead defendant, Kevin Gray, was convicted of around 22 homicides that he either committed or commissioned. Rodney Moore, the other lead defendant, was convicted of around 12 murders. The jury hung on the capital sentence. I think that was the last death penalty trial that occurred in the District of Columbia; it was in federal court, not D.C. Superior Court. And even though there were multiple murder convictions for these two defendants, the jury could not reach a verdict on the death penalties. So all the defendants were sentenced to multiple life terms.
DL: Wow. Well, that’s a great outcome, and I’m glad to see justice done there.
My other follow-up question is, how did John Brownlee know you? You had worked in Democratic politics for then-Senator Biden. You were hired by Eric Holder, who of course is a very prominent Democratic lawyer. How did a Republican appointee out in the Western District of Virginia become aware of you?
TH: John worked in the D.C. U.S. Attorney’s Office; before he was U.S. attorney, he was a colleague of mine in D.C. And I think the reason he called me was because of my UVA connection, because I had lived in Charlottesville, had gone to school there, and he wanted this new AUSA to be seated in Charlottesville. So John and I were friendly in the D.C. office, even though we were from different political parties. That’s the tradition of the Justice Department: it’s nonpartisan. It didn’t matter what your politics were; you followed the facts and the law, regardless of your political party. That’s the way John approached the job, and that’s the way I always approached the job.
DL: Tell us about your time once you moved out to Charlottesville. What were some of the highlights of your time in the Western District of Virginia?
TH: I was an AUSA for three years, and I did a big RICO case there as well. I’d been largely a violent crime prosecutor in Washington, so I put together a similar case against a drug gang that was charged with multiple acts of violence in Charlottesville. But the benefit of a small district, David, is that you do a little bit of everything. I was involved in a public corruption investigation. I had some child exploitation matters. I did some white-collar work. In D.C., you’re sort of pigeonholed into doing one sort of thing again and again, whereas in a small district, your docket is quite varied. So I was fortunate enough to do things that I had never done as a prosecutor in D.C. because of that small size in Charlottesville.
DL: And then where did you go after that experience?
TH: I had a third child and, practically speaking, my wife’s a filmmaker—we just needed a change, financially. So I went to private practice. I worked at McGuireWoods, a big law firm, and Richard Cullen, a former U.S. attorney, was a partner there. He hired me, and I worked closely with Richard as a criminal defense lawyer for several years and had a great experience.
I had two trials as a defense lawyer, so very different than standing up on behalf of the United States. I had people standing next to me whose liberty or whose business was at stake, and that was a tremendously formative and satisfying experience. Both of those trials were acquittals, verdicts of not guilty—because my clients were not guilty.
But I missed public service. And when President Obama was elected and my old boss, Eric Holder, became attorney general, I was interested in going back in. And I was so fortunate that I was nominated by President Obama and confirmed by the Senate to go back to my old district, the Western District of Virginia, as U.S. attorney.
DL: There has been quite a bit of litigation over the appointments of U.S. attorneys lately. What was your process like, from nomination to confirmation?
TH: So it starts with the senators. At the time, Jim Webb and Mark Warner were the senators, and I had people on my behalf contact them, write them letters, vouching for me as someone who had the credentials to do that job. They then put forth a short list of people that were acceptable to them, which they sent to the White House, to the Obama White House. And then I was selected from that list—in part because, frankly, the attorney general, Eric Holder, was a mentor and a friend of mine. He would not reach into the senate process—he felt strongly that he needed to be deferential to the Webb-Warner process—but once I was on their list, he could weigh in with the White House.
So it’s weird, David, that the process is political, but the job is not. You go through this process of getting nominated by politicians, by elected officials, and then you turn that off when you’re in the job. I remember when I was confirmed, I went to the White House with a number of my colleagues from around the country. We met President Obama, and he said to us—I’ll never forget this—he said, “You’re not my lawyers. I don’t want you for a minute to think about what’s best for Obama, what’s best for the administration. You should make decisions that are informed by your view of what’s best for the people of your district.” And I really appreciated that, and I didn’t think of that as unusual. That wasn’t a Democratic thing or a Republican thing; that was a DOJ thing, and that’s how I approached the job.
Never once did anyone try to interfere with or direct my decisions, my actions. I had independence to do what President Obama instructed, which was serve the people of my district. So I loved it; I loved being U.S. attorney. I had a great experience, but it was limited by the political calendar.
DL: What were you most proud of as U.S. attorney for your district? It could be a case your office handled; it could be something you did in terms of leadership of the office. What would you say you’re most proud of from that very important position?
TH: Two things. One, when I was U.S. attorney, I created a new position in the office called our community outreach coordinator. This was based on my experience as a community prosecutor in Washington. I really believe that if you are going to truly pursue public safety in communities, you have to look at it as a three-legged stool. In order for the community to be safe, you need the strong federal enforcement to ensure that people who commit persistent crimes are removed from communities. But the other two legs are crime prevention and ex-offender reentry—and unless you’re focused on all three of those legs, then the stool is wobbly, and you’re not as safe.
We created a position to focus on the other two legs of the stool. The job of the community outreach coordinator, who was not a lawyer, was literally to identify ongoing prevention and reentry efforts and try to bring them federal funding, connect them with others doing similar work, ring them information about best practices, and couple that with the enforcement activity that we were doing in particular communities.
So in a neighborhood in Roanoke called Hurt Park, there were open-air drug sales and lots of gang activity. We did a targeted federal prosecution there, but we also invested in Hurt Park by identifying some of the organizations that did afterschool programs for kids, as well as another group that was bringing services and resources to people that were returning from periods of incarceration. It was that holistic approach that we brought, not just to Hurt Park, but to other communities. And I still feel like that is the best way to obtain public safety. So that’s number one.
The second is just the hiring that I did. I hired a lot of people, some of whom went on to succeed me as U.S. attorney. I hired Thomas Cullen, who became President Trump’s U.S. attorney, who’s now a federal judge in Roanoke. He was our deputy criminal chief. I hired Chris Kavanaugh, who became the Biden U.S. attorney after serving as a line AUSA in Charlottesville. Much like me, Chris came out of the D.C. U.S. Attorney’s Office. So I’m immensely proud of all of the good men and women that I was able to hire into that office. That’s the long-term legacy of any U.S. attorney: the people that stay behind, the career people that I had a chance to hire.
DL: That’s so true. And a lot of the people that I’ve had on this podcast who have accomplished a great deal will often say that one of the things they’re most proud of is their mentoring and developing of younger lawyers and even law students. But returning to your career, where did you go after serving as U.S. attorney?
TH: I went out to private practice again. I went to Hunton & Williams, and I led the firm’s white-collar investigations group. And it was in that job that I was hired to do an independent review of the Unite the Right racist rally in Charlottesville, where I lived—a horrific day for our community, which clearly was not properly handled by the city. So the city hired me and other lawyers at Hunton to do an independent review of what happened, and that was absolutely fascinating. It led me down the path of investigating mass demonstrations, kind of a reluctant expertise that I’ve developed.
So I was fortunate. I had a great experience at Hunton. The biggest thing I did during that period of time was the review of Charlottesville. And then a good friend of mine from law school became president of UVA, and he approached me about joining his leadership team as general counsel. So I became university counsel, the chief legal officer of the University of Virginia, in 2018.
DL: When Tim Heaphy and his partners were preparing to launch Heaphy, Smith, Harbach & Windom, they turned to NexFirm for guidance. Are you thinking of founding your own firm, but don’t know where to begin—or even whether it’s a good idea? Ask NexFirm to create a customized launch plan for you, so you can make an informed decision—and if you do decide to go ahead, NexFirm can help with that, too. To set up a free career consultation, please call NexFirm at 212-292-1000 or email careerdevelopment@nexfirm.com.
Your work on the Unite the Right investigation ties into something we’ll talk about in just a moment, in terms of another form of public service that you did. And it’s interesting, I have had two lawyers who worked on some of the civil litigation arising out of the Unite the Right rally, Robbie Kaplan and Karen Dunn, as prior guests on this podcast.
But let me ask you about your time as a lawyer at UVA. I’ve always thought that being the general counsel of a major university would be a really interesting and fulfilling job. What did you think of your time there?
TH: I totally agree, David. You’re right. I had never been a general counsel before; I was a criminal justice specialist. GCs can’t be specialists. At UVA, we had an academic medical center—so all of the issues that arise with healthcare, such as flow of federal research funds to patient care, were brand-new for me. All the employment issues were fascinating and new. Real estate transactions. There was a corporate side of the office. So I learned a lot. I had a great staff of 10 lawyers.
The other part of the job I really enjoyed was the strategic advice and counseling. I was part of the president’s cabinet, so I could get involved in broader issues. What should a great public university be? What should our aspirations be, and how should we manifest those aspirations? So the sort of advice that is legal, but beyond legal—kind of strategic and aspirational—that part of the job, I really liked.
And there were just great people across the board. President Jim Ryan, my friend and my former classmate, was my primary client, because he was president. But Carla Williams, the athletic director, and J.J. Davis, the COO, and Liz Magill, the provost—I just worked with really high-quality people. And look, they all wanted to do the right thing. It was great as a lawyer to have clients that just say to me, “What do we have to do to get this right?” There was never any desire to cut corners or to get away with stuff—quite the opposite. So I felt like the ethics of the organization were something that I firmly supported, and it was a really satisfying job.
DL: Do you have any thoughts on what happened at UVA last year, vis-à-vis the federal government?
TH: Jim Ryan was a great president, and it was very disappointing to me that he was pushed to resign. I have a lot of thoughts about that. Unfortunately, the way the university is governed, Jim had really no natural allies. The board of visitors was appointed almost exclusively by then-Governor Youngkin, and they basically agreed with the Department of Justice that UVA, and higher education generally, was too progressive or “woke.”
I don’t think that that’s accurate. But Jim Ryan lost the support of his board, and he didn’t have a lawyer who was independent. When I was university general counsel, I was an employee of the attorney general’s office—so Mark Herring, the Virginia attorney general who hired me, deferred to Jim. But then when I was on leave—and we can talk about my January 6th service—a new attorney general came in and replaced me with a lawyer who was primarily loyal to him, the attorney general, and to the administration in Richmond, not primarily loyal to the university. And that’s an inherent conflict of interest that needs to be changed. I don’t think that Jim was well-served by his in-house lawyers through the process of the resignation and the DOJ resolution. So he didn’t have any sort of support. And as a result, he was kind of isolated—but it’s a real loss for the university, and it’s a real loss for higher education.
DL: You mentioned your service on the House Select Committee that investigated January 6, and it makes sense to me that you were retained for that role because you did have that expertise concerning demonstrations, having investigated what happened in Charlottesville with Unite the Right. So let’s talk about that. How did you come to have that role as counsel to the committee?
TH: On January 6th, I was in my office at UVA—and along with the rest of America, I was watching what unfolded. I saw immediate parallels to Charlottesville—bike racks as the primary barrier between law enforcement and violence, law enforcement overwhelmed—and I immediately wanted to do something.
This has happened routinely throughout my career. When I see something horrific like that, my natural instinct is, “Well, what can I do to help?” And I felt the need to try to help the learning and the recovery. So I reached out to another good friend from law school, Sean Patrick Maloney, who was the head of the DCCC as a congressman from New York to the north of New York City, and he connected me with Speaker Pelosi’s team, who was putting together the staff of the Select Committee.
The Select Committee was formed in the summer of 2021. When they were hiring staff, Sean connected me to the Speaker’s people. As you just said, I had done this review of a similar event in Charlottesville, and thankfully they hired me to be the chief investigative counsel, essentially supervising the day-to-day operation of the investigation.
DL: That was a very challenging matter in a lot of ways. You were operating under this political spotlight. It was quite complex. What would you say were the most challenging—or the most fulfilling—aspects of that role?
TH: In terms of the most challenging, Congress really isn’t set up to do long-term fact-gathering. We had a lot of problems with witnesses who made privilege assertions that we thought were flatly incredible, but we had an inability to litigate that and force them to cooperate. We had subpoena power, and we exercised that. But if a witness said, “I’m not going to come in” or “I’m not going to answer your question, because it’s covered by an executive privilege,” the only way to resolve that was to litigate that civilly. That takes a long time, and we were on a very short timeframe.
And it’s also very difficult to conduct an investigation in a fishbowl. There were reporters right outside the conference room where we were doing interviews, because the rules of Congress mandate that media has to have access. So every time we talked to someone, it was immediately on CNN and MSNBC and Fox News—“such-and-such was interviewed by the Select Committee”—and that was challenging. So just the way in which Congress operates was very different from my experience in the Department of Justice, where you have a secret grand jury process. That said, I’m immensely proud of the work that we did and the credibility of our findings. I think the story that we told in our televised hearings and in our final report is the truth.
And we were able to put together a pretty compelling body of evidence that demonstrated this was an intentional, multi-part plan, perpetrated by the president and his co-conspirator, to disrupt the joint session and prevent the transfer of power. That’s essentially the case that the special counsel subsequently brought—and no one in my view, David, has seriously challenged or rebutted those facts. So I think those findings, the body of work of the Select Committee, will stand the test of time, and it has become the definitive narrative of the forces that were at play and finally culminated in the attack on the Capitol.
DL: And a lot of the work that the committee did wound up informing federal enforcement and prosecution efforts against the folks who committed crimes at the Capitol on that day.
So I guess I can hazard a couple of adjectives here, but how do you feel in terms of the pardons and clemency that were extended to some of the people who engaged in these criminal actions on January 6?
TH: It’s outrageous. Look, if you believe, as I do, that criminal consequences deter bad behavior, then the forgiveness of criminal conduct encourages bad behavior. So I worry that taking people who were convicted by juries of very serious crimes, crimes of violence, crimes of seditious conspiracy, all the way down to trespassers, to treat them all the same and essentially pardon them—or not even just pardon them, but sort of laud them as patriots—sets a very dangerous precedent. It makes people feel as if there’s a get-out-of-jail-free card or some sort of a backstop that will protect them and enable them to do bad things. So I was very, very disappointed in the pardons that were issued, as you know, on the first day of President Trump’s term.
DL: Where did you go after your service to the House Select Committee?
TH: I went back to private practice. I was a partner at Willkie Farr & Gallagher in Washington, D.C. I co-led the investigations and enforcement section and had a very good experience at Willkie. I was able to work on a wide variety of investigations and white-collar matters.
I ended up doing a lot of work for colleges, universities, and K-12 school districts. A lot of my experience at UVA has become the most pertinent to what’s going on in the marketplace now. Great people, a great atmosphere—so I had a good experience at Willkie.
DL: Congratulations on the launch of Heaphy, Smith, Harbach & Windom. What led you and your partners to start the firm?
TH: As I said, I was happy at Willkie; I wasn’t looking to make a move. But I reached out to Jack Smith. I had never worked with Jack and I didn’t know Jack, but through a mutual friend, I took him to lunch. I had worked on the same facts that he had, and I just wanted to thank him, and I just wanted to meet him and talk. And we had a great first lunch, and we started talking not just about the investigations, but about, aspirationally, what we might do going forward. And that launched the talk of potentially going into practice together, creating a law firm.
He then brought in Dave Harbach because Dave had worked with Jack at Public Integrity years ago on a tribunal in The Hague and then at the Special Counsel’s office. I had been independently talking to Thomas Windom, who was also part of Jack’s team at the Special Counsel’s office. Thomas had been a student of mine in a class I taught at UVA Law when he was a third-year law student back in 2005 or 2006, and I was talking to him about his thoughts about next steps.
So the four of us then came together, and the more we talked, the more it was obvious that we shared a vision of what a law firm could and should do. We got along really well personally. We had very similar taste and vision. And over the course of the summer and fall of last year, we made the decision, “Let’s do this. Let’s hang a shingle. Let’s start a law firm.” It’s something I’ve always toyed with doing, but to be clear, I was really running toward this, not away from something else. And after two and a half days, we’re very, very excited about how it’s going.
DL: You talked about running toward an opportunity rather than away from something. Since you were at Willkie, I would not be doing my job as a legal journalist if I didn’t ask you this: what are or were your thoughts on Willkie’s decision to reach a settlement with the Trump administration? As I’m sure you’re aware, Willkie and the eight other firms that did reach these settlements were highly criticized, and it was reported that there were some Willkie partners who left, in part, over dissatisfaction over this deal. What are your thoughts on it?
TH: Without disclosing internal deliberations at the firm, there were people on both sides of this: “Yes, we should cut a deal. No, we should not.” I personally didn’t think that we should, but I understand the business decision as to why the firm did. The firm has lots and lots of clients—particularly on the transactional side, who need regulatory approvals—and the calculus, which was probably the right calculus in terms of the business of the firm, was a deal was better for the firm and for its clients. But to be clear, that is not why I decided to leave.
If you look at the firms that did resist and did not sign deals, they’re primarily litigation firms, and their brands as litigators sort of require them to defend themselves much like they defend their clients. So if you look across the industry, the firms that cut deals are largely transactional, and the firms that did not are largely litigation firms. They were all business decisions. I don’t look at any one firm as more virtuous than any other. So Willkie made the business decision that it felt was best. And I think this is a decision that was going to result in negative results regardless, but the calculus was there’d be more negative results if we fought than if we made a deal.
DL: And I have to say—I have written critically of these deals, but it’s overly simplistic for people to say that these people were smoking crack or something. If you just think about it from their role as stewards of these institutions, where there are people who earn a living and who have jobs—and not just these partners making gazillions of dollars, it’s the support staff, and everyone from the administrative assistants to the janitors—I think you have to be a little naive to say, “Oh, this was really, completely idiotic.”
TH: Yeah. And there’s a misimpression that the deal means that you’re under the thumb of the administration, or you’re doing work directed by the administration. I don’t believe that Willkie has done anything other than what it would’ve otherwise done. There has been no work that the firm took on as a result of the deal.
The other thing I should point out is that I represented, as a partner at Willkie, two school districts in Northern Virginia that brought affirmative litigation against the Department of Education over their restroom and locker-room access policy. The firm blessed my representation of the school districts who sued the Trump administration. So this notion that the firms that settled are somehow compliant with or under the thumb of the administration is just not accurate. We, Willkie, continued to do matters that were in the best interests of our clients, regardless of whether they did or didn’t oppose the administration. The representation of the school districts is a matter that I’ve brought with me to the new firm, but to Willkie’s credit, I was not limited in my ability to represent that client because of the deal with the administration.
DL: That’s a fair point. I will also point out, for example, that Neal Katyal is representing challengers of Trump’s tariffs, which you could view as a signature initiative of his. And Neal, as of February or so of last year, works at Milbank, which also reached an agreement. So I do think your point is well-taken.
Shifting back to your new firm, how would you describe your vision for it? I know that in some of the interviews you’ve given in the past couple of days since your launch, you’ve tried to stress that this is not some sort of #resistance law firm because, look, you could imagine that narrative: “Here’s a partner who left Willkie, and he’s joining forces with the former special counsel who prosecuted Trump.” So you could imagine your firm becoming almost like Abbe Lowell & Associates. You could imagine a firm that’s going to go to market and say, “Look, if you want to take on the administration, we’re here for you.”
TH: Exactly right, David. We are not an anti-Trump firm; that is not the animating force that brought us together. You could look at our backgrounds and say, “Hey, they’re just here to finish the work that they started in government.” And look, to be clear, we will take on matters adverse to the administration. I have the matter I just mentioned with these school districts suing the administration. We’ll represent unfairly maligned or terminated federal employees. But that is not the animating force. We aspire to be a full-service boutique that will do investigations and litigation, well beyond the stuff that’s against the current administration.
What I really have had the most satisfaction doing is crisis management, when there is some very difficult problem or incident—whether it’s in a company, at a university, with a local government, an industrial accident, a mass shooting, or bad behavior that comes through the compliance program—and lawyers are hired to get the facts, to navigate external investigations, and to learn from and make the organization better as a result. That type of credible, independent investigative capability is something we will bring to market.
And we’ve all tried lots and lots of cases. Jack, Dave, Thomas, and I have been in courtrooms around the country—state and federal, criminal and civil—and we have a lot and lot of experience on our feet. And we aspire to try cases. This is a boutique, and the cost structure allows us to take things to court that would be really, really expensive to take to trial at a big firm.
So those are the two components of it. It’s investigations and fact-gathering, and then it’s active litigation, including written and oral advocacy, that we want to do, well beyond things political.
DL: What do you view as both, the advantages and the limitations of being at a boutique? Because on the one hand, being at a boutique that focuses on litigation and doesn’t have a transactional practice allows you to be independent, and you wouldn’t have to worry about getting targeted by an executive order. But on the other hand, you mentioned investigations. As you know from having worked on these matters at large law firms, they’re often very resource-intensive, and you’re a boutique. So what do you see as both the pluses and minuses of the boutique model, since this is your first time at a boutique, having worked at several large law firms?
TH: It’s a really good question. And I’m three days into this, so I’ll give you my initial impressions.
The benefits are the independence, the lack of conflicts, and the rate flexibility. I will be able to say to my clients, “What do you think is reasonable in terms of a fee—hourly, or a fixed fee, or a blended rate, or value billing, or a success fee?” I have complete freedom to ensure that we’re getting compensated, but in a way that’s affordable. In big firms, it’s a lot harder to do.
We also have no conflicts. We literally can do almost anything that we choose to do. You’re going to get a lot of personal service at a boutique. Some big firms are hierarchical, and sometimes clients are disappointed that the partner that they thought they were hiring is pushing a lot of work down to more junior partners or associates. That’s not going to be a problem here. So there are a lot of advantages.
The downsides are, I have to do a lot of things as a small-business owner that I didn’t have to worry about at Willkie. We went to Costco yesterday to buy paper towels. I didn’t have to do that at Willkie. I don’t have a Keurig coffee machine down the hall that has espresso available at all times. There are just certain things that you do in a startup. Dave Harbach painted the wall in our entryway here because we didn’t want to hire somebody to do it. And look, there are some matters that we’ll be too small to do, or we’ll have to partner with another firm or a consulting group to bring in those services—the kind of thing we would’ve done in-house at Willkie or Hunton or the other firms where I’ve worked.
So there are trade-offs. Overall for me, the benefits outweigh the risks. And some of that comes down to the people that are part of this effort. I have immense respect for Jack, for Dave, and for Thomas. We share very similar backgrounds and similar values, and taking this leap into the unknown with the three of them just feels really exciting because of the caliber of lawyers and people that they are.
DL: I love the paper towel story. At a large law firm, everything is taken care of. It’s white-glove service in some ways, and large law firms have amazing support professionals. Was it daunting to you when you were thinking about the logistics and the legwork involved in starting a small firm?
TH: Yes, absolutely. I had no idea of how to approach this. We used NexFirm, the sponsor of your show, as our consultant, and thankfully we were able to work with people there that had done this before, who had led other people to start small law firms. And that was tremendously helpful—going through, with our consultants at NexFirm, sort of a checklist of what you need: insurance, and this is the kind of banking setup that you need, and here are some considerations for cybersecurity—issue-spotting that it would have been difficult for me to do on my own. So we had a lot of help. But a lot of it was just stuff that the four of us had to carve up and decide and do. So there’s a real sense of pride and ownership, because we really created something organically that didn’t exist before.
DL: So this is very random, but this Costco trip—did Jack Smith go to Costco? Or was he not part of that particular expedition?
TH: Jack is currently preparing for his public hearing that takes place next week, so was unable to join the Costco run. But he’s up next; his turn will be next.
DL: Okay. I would do a double take if I was at Costco and I saw Jack Smith.
Let me ask you about personnel. I don’t see any associates or counsel on your firm website yet, but I have seen in other media interviews you’ve given that you might be joined by some associates from Willkie. Can you talk about your hiring? Because look, I understand you have a lean team at your firm, but you’re going to need more than four people.
TH: Yes. So we do have two associates who are starting with the firm next week. They’re coming with me from Willkie. They have been involved in some of the cases that I’m bringing with me from Willkie. By the time this airs, they will be on the website and in our office, but it’s just six upfront. [Ed. note: The two associates, Fiona Carroll and Lindsay Hemminger, are now on the firm’s website.]
We’ve been cautious about cost and about committing too much to hire lawyers before we had more work. Our vision is that as we develop business, we’re going to need help, and we will hire people as we go. We’ve gotten a lot of interest from really talented people, both lawyers and support staff, and having this sort of army of people that are available for us to consider hiring—my guess is we will go to that well and take advantage of that as our business grows. But we made an affirmative decision to chase clients first, and then to chase associates and staff once we have the business.
DL: That makes perfect sense. And I will point out that I’ve had a number of founding partners of boutiques on this podcast, and some of their boutiques have grown dramatically since I interviewed them. I had Karen Dunn and Jeannie Rhee from Dunn Isaacson Rhee. I had David Elsberg, whose boutique has grown tremendously. But it sounds like, for now, you don’t have some number in mind, in terms of how big you want your firm to get in terms of lawyers.
TH: That’s right. I will say that Karen and others were very helpful to us, just in our diligence phase, and giving us their thoughts about things to keep in mind when creating a law firm. And they reinforced that the work will come and there will be good people interested, but grow at a careful pace.
So we don’t have a number in mind. It’s not like we’re trying to get to 15 lawyers or 25 lawyers. We’ll never be a Willkie and have 1,200 lawyers, but we’ll be bigger than six, I think, as we go. So where in between will be a function of the kind of work we do and the capacity that we need to create. We’ll always be on the boutique side, but we’ll certainly grow, David, beyond our initial footprint.
DL: So your vision is not to become, say, a Quinn Emanuel or a Boies Schiller? Because you can be a litigation-focused firm and still have hundreds of lawyers.
TH: Yes, and those two good examples of firms that started small that have grown and do try cases—exactly. But no, we’re not doing this to build an empire or a large firm. We’re doing this because we want to do work that matters with people that we like and respect. And the scale of it can grow some, but part of it is culture and the interconnectedness that we feel with each other, and that’s just harder to maintain the more you grow.
DL: You talked about how you’re not trying to become an anti-Trump firm, but you also talked about how you’re willing to take on the administration as needed. So you, of course, worked as chief investigative counsel to the House Select Committee. Jack Smith, of course, famously prosecuted Donald Trump, and another one of your partners, David Harbach, was a part of Jack’s team. Are you concerned about whether having worked on these matters might affect your business development efforts at the firm?
TH: Yes, potentially. Look, Jack has already said this. He testified in a closed-door hearing recently and he said, on the record, that he believes that the president is personally retributive and is doing things to diminish his opportunity and his reputation. There’s no question that because we have done our jobs in the past, and developed evidence adverse to the former president, that puts us at some risk. That doesn’t in any way though slow us down or intimidate us. If anything, for me, it makes me want to do this more. We will vigorously defend ourselves, just as we will defend our clients. It can be distracting and time-consuming. Jack is preparing for his now-open hearing next week, instead of sitting down the hall, returning the dozens of calls that we’re getting from well-wishers.
But I’m not worried about anything substantively that any one of us has done. There’s no substance to create any real exposure. But there could be distracting investigations or focus on us, or there’ll be clients who will say, “Ah, they’re too radioactive.” That’s fine. But there’ll be a lot of other clients who are drawn to us, will want to help, and will want to use lawyers that have been the subject of that scrutiny and have been tried by fire. We’re battle-tested because of that, and that’ll be attractive to some other clients.
DL: I think you’re absolutely right. And having shown that you’re willing to go toe to toe with the administration could be quite attractive.
Let me ask you this; this is a little random, but I am curious. Jack Smith is a figure who is fascinating to so many people, and because he kept his cards very close to his vest—properly so, during the Trump matters—we don’t have a great sense of him as a person. And I talked to one person who knows him and said he’s a surprisingly normal person. How would you describe Jack, now that you’ve gotten to know him personally?
TH: The normal description is accurate. Jack laughs. Jack exercises. Jack enjoys a good meal. Jack’s a normal guy. Look, he’s trained in the tradition of the department: you do your talking in court, you do it through your pleadings, and you do it through your advocacy. He’s not in this to be famous. He’s not in this to draw attention to himself. He’s in it for the right reasons. So to the extent he has this public image of being guarded, that’s not a function of personality; that’s a function of the tradition of the department. But yes, he’s a great guy. Part of my attraction to practicing with him is not just his legal skills, but our personal relationship, which is very warm and will only get better over time.
DL: Yes. Again, this other person I was talking to said, “Look, he laughs. He smiles.” Now, I think you can go through Getty Images and try to find a photo of him laughing or smiling, and good luck to you….
Let me ask you one last question before we go to the speed round. What do you find most exciting or inspiring about the launch of your new firm? Or put another way, what are you most looking forward to doing?
TH: It’s a chance to do important work with good people. I’m very excited about the opportunity to be part of the guardrails that lawyers are providing in the current moment. Look, lawyers have been bringing consistently—and often succeeding in—challenges to executive overreach, to things that this administration is doing that are just not based on fact or law. I feel like we have an obligation as lawyers to do that, and this platform will provide that opportunity. Again, it’s not just that; we’re a business, and we aspire to be full-service. But if we have a chance to get involved in some things that help maintain those guardrails, David, then that will be very satisfying.
And then there’s one other thing. It’s ironic, but a big firm can be a little bit impersonal. A small firm can be very intimate. And the day-to-day work here, in a very small space, with five other lawyers whom I really like—that, just on a day-to-day basis, is just really going to be fun. So I just think not only will the work be important, but it’ll be in an atmosphere that will bring a lot of joy and levity.
DL: Well, congrats and good luck, again.
So let’s turn to my speed round. These are four questions and they’re the same for all my guests. My first question is, what do you like the least about the law? And this can either be the practice of law or law as an abstract system.
TH: My wife would say that I am way too time-focused. And it’s hard not to pay attention to the clock a lot when your time as a lawyer is sort of monetized; it bleeds over a little bit into your personal life. So there are times where I’ve got to be mindful to unplug, or not worry about what time it is, and just go with the flow a little bit better. As lawyers we’re trained to do that, and it’s hard to unwire that.
DL: Maybe at your new firm you’ll be more on alternative fee arrangements and less on the billable hour, so you can try to get better about that. My second question is, what would you be if you were not a lawyer?
TH: Oh, that’s a good question. You know, I’ve always thought I would’ve been a pretty good coach. My first job out of college was teaching high school English and coaching football and baseball, and if I weren’t a lawyer, being a teacher and a coach would’ve been really satisfying. It’s similar to what a lawyer does: standing in front of people, trying to get their attention, shaping the future of sorts by helping plant seeds in young people. I would’ve been really happy as a teacher and a coach.
DL: A very true response. My third question is, how much sleep do you get each night?
TH: Aspirationally, I try to get seven-ish; realistically, it’s more like six. I tend to be a night owl and have a hard time going to sleep too early. Sometimes late at night is the only time that’s kind of quiet, when I don’t have emails to respond to or things to do. And I enjoy that time to unwind a little bit; you can’t go right to sleep. Six-ish is probably the average.
DL: As a fellow night owl who can get work done after the kids go to bed, I totally identify. My last question is, any final words of wisdom, such as career advice or life advice, for my listeners?
TH: I teach a class at the law school at UVA. It’s called Law and Riots, and it lies at the intersection of free speech and public safety. And I always tell my students, that captive audience that I’m fortunate to have, to choose what you want to be—and don’t let it choose you.
I know a lot of lawyers who are my age who went to a firm, and they started doing a couple of cases in one area, and before they know it, they’re an expert in that. They’re an antitrust lawyer or they’re an ERISA lawyer or they’re… whatever it is, it chose them. So young lawyers need to be affirmative about choosing what they want to do and making sure that they are pursuing that area of law, that kind of practice. You can make a good living if it chooses you, but the more satisfying path is if it’s intentional as opposed to accidental. So think about what makes your heart sing, and go get that to the extent possible.
DL: Well, you’ve certainly lived your own career and life that way. Tim, thank you so much for joining me.
TH: David, I really appreciated this. It was a great conversation. So many of these interviews are strictly on the business side, but I appreciated your personal interest and the chance to talk about some of the things we talked about. Thanks a lot for the invitation.
DL: Thanks so much to Tim for joining me. I suspect we’ll be hearing much more about him and his firm in the years ahead.
Thanks to NexFirm for sponsoring the Original Jurisdiction podcast. Just as it helped Tim Heaphy, NexFirm has helped many attorneys to leave Biglaw and launch firms of their own. To explore this opportunity, please contact NexFirm at 212-292-1000 or email careerdevelopment@nexfirm.com to learn more.
Thanks to Tommy Harron, my sound engineer here at Original Jurisdiction, and thanks to you, my listeners and readers. To connect with me, please email me at davidlat@substack.com, or find me on Twitter, Facebook, and LinkedIn, at davidlat, and on Instagram and Threads at davidbenjaminlat.
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