In the preceding four chapters, we focused primarily on the Justice Department side of White House–Justice Department relations. In this chapter, we reverse the lens and focus on the counsel to the president, or “White House counsel,” as the office is commonly called.
The president has almost ten thousand lawyers in the Justice Department, and tens of thousands more throughout the executive branch, to help him or her exercise constitutional responsibilities and duties, including the duty to “take care that the laws be faithfully executed.” But only one, the White House counsel, is commonly described today as “the president’s lawyer.” The counsel has a suite of offices located in the West Wing of the White House, a floor above the Oval Office. He or she heads what is in effect a small law firm, the Office of White House Counsel, whose members spill over into offices in the adjacent Eisenhower Executive Office Building. The counsel is a member of the president’s senior staff.
The White House counsel’s power over legal issues has been growing steadily for many decades and has been accompanied by a steady stream of criticism and concern. The concerns about the office grew under Trump and now justify, we argue, a major restructuring of the office.
Background
In its current form, the Office of White House Counsel is relatively new. Franklin D. Roosevelt created the office in 1943 to assist him with managing the fast-growing executive branch. The earliest White House counsels were counselors in the widest sense. They advised the president on policy and carried out other chores for the president, such as writing speeches. During this early period, the attorney general, aided after 1953 by the assistant attorney general in charge of the Office of Legal Counsel (OLC), was viewed by the president and the Department of Justice as “the president’s lawyer” who advised the president on constitutional and other legal matters.
Beginning in the Eisenhower administration, the president began to charge the counsel with a handful of strictly legal advisory duties. White House counsels in the Kennedy and Johnson administrations also performed legal services, but they focused primarily, to one degree or another, on policy development, congressional relations, and communications strategies. As DeVier Pierson, counsel to President Lyndon Johnson, stated, the general understanding at the time was that the Justice Department and its OLC remained “the real lawyers of the White House.” [458]
It was during the Nixon administration that the office began to develop more fully into what it has remained through succeeding administrations to the present time: the functional equivalent of a law firm charged with providing legal advice to the president and the senior staff on a discrete range of subjects. A White House counsel to Ronald Reagan defined the role as it came to be in the 1980s: “80 to 85 percent of [the Office of White House Counsel’s] work has to do with pure legal work. We generally are not policy-makers.” [459] Especially influential counsels, and ones who came to the job with pronounced interests in policy, might participate in purely policy matters. However, the basic definition of the job called for systematic, day-to-day attention to legal matters.
The office’s growing legal advice–giving role reflected developments in the 1970s. First there was Watergate, an unprecedented investigation by the Justice Department into the president and the presidency, followed by the first impeachment proceedings against a president in a century. Nixon’s White House counsel, John Dean, became heavily involved in managing the crisis for the president. His services to the president also took a dark turn: He was instrumental in assisting the president and his senior staff in covering up the crimes committed in connection with the break-in at the Democratic National Committee headquarters. He became a critical witness against the president, was convicted of obstruction of justice, and subsequently served prison time. Dean’s involvement in the Watergate affair was rooted in the assumption that the White House counsel should play a leading role as a president’s crisis manager, a role that White House counsels have played ever since.
Then came the post-Watergate reforms that were intended to hold an “imperial presidency” in check. Presidents had to address new obligations under statutes compelling the president, vice president, and senior officials to make personal financial disclosures and comply with other standards of “ethical” official conduct. This period of reaction to the Watergate scandal, some of it building on relatively long-standing reform proposals, included mandatory presidential record-keeping and transparency requirements. The independent counsel statute subjected the president and senior executive branch officials to special procedures for inquiry into allegations of criminal wrongdoing. Watergate effectively placed the Justice Department, Congress, and the press on high alert for potential surreptitious presidential wrongdoing. Presidential scandal became a recurring threat to the standing and governing agenda of presidential administrations. And the White House counsel grew in stature to address and guard against both the threats and the other institutions’ scrutiny.
Much of this growth in power came at the expense, at least formally, of the attorney general’s traditional role as the president’s chief legal adviser. As law and scrutiny enveloped the president like never before, the president needed “more convenient advice closer to home.” [460] Another reason for the growth of the White House counsel’s influence, ironically, was the post-Watergate aim of protecting Justice Department independence from the White House. The demand for more of an arm’s length, detached relationship devolved into the assumption of a legal advisory role for the White House counsel on matters more closely related to “politics.” This new role did not mean counseling on partisan political matters, like directly supporting reelection campaigns. But it did encompass matters that were central to the president’s governing program and were therefore intertwined with questions, in the broadest sense, of popular appeal and political impact.
The White House counsel came to hold a portfolio of responsibilities that has been much the same from administration to administration:
● Screening and recommending candidates for judicial nominations, especially for appellate courts and the Supreme Court.
● “Vetting” major presidential nominees to senior executive appointments and, for those requiring Senate confirmation, engaging with Congress as required to facilitate successful outcomes.
● Advising on the legally enforceable “ethics” requirements for holding official positions, such as ensuring that senior officials complied with the law governing potential conflicts of interest or the limits on political activity by federal employees while on or off duty, or in the workplace.
● Providing the first line of defense for the president in responding to congressional oversight and investigations, and coordinating lawyers across agencies and departments in that effort.
● Managing “scandal” crises that might break out in the media and then move to congressional and criminal investigations of the president or his or her administration.
● Supporting the president with advice on national security matters along with other legal specialists in the National Security Council, departments, and agencies.
● Routinely advising the president on the constitutional issues raised by proposed legislation and addressing them as required with “signing statements” expressing presidential reservations.
● Reviewing executive orders, presidential memoranda, or presidential proclamations for proper form and legality.
● Advising the president on executive clemency.
The White House counsel today typically commands a staff of twenty to thirty lawyers, sometimes exceeding forty in intense periods of oversight or congressional investigation. Beyond the areas of control, the White House counsel exercises influence in another crucial way. The president has the final call on legal decisions for the executive branch on any issue where he chooses to intervene—regardless of whether the advice that informs his judgment comes from the attorney general or OLC. Typically, the White House counsel is the last lawyer in the government to have the president’s ear, and thus to advise him, before he or she decides. This close advisory relationship—often rooted in shared personal and political history, and institutionalized through membership in the White House senior staff and a suite in the West Wing—is the key to the White House counsel’s power.
And the president surely benefits from having such counsel at close quarters. A legal staff within the building can respond quickly and efficiently to demands or questions from the president or senior presidential staff. The president’s appointment of lawyers with whom he or she has prior political or personal associations is not necessarily problematic. These relationships can mean that the president reposes that much more trust and confidence in the counsel. On the strength of this relationship, the counsel may enjoy more credibility and influence within the West Wing and can more effectively ensure that legal questions are promptly identified and resolved. In this sense, the counsel is in a position to bring the law and its imperatives into the heart of the operation of the presidential office.
Yet despite these potential virtues, the role and performance of the White House counsel has been controversial from the start. When Franklin Roosevelt prepared to appoint the first White House counsel, Samuel Rosenman, the attorney general, Francis Biddle, objected. Roosevelt responded by naming Rosenman a “special counsel” and assigning him nonlegal duties. The anxieties triggered by the president’s appointment of his “own” legal staff have never subsided. At the heart of this complaint is the danger that the president may retain a personally chosen legal adviser to give the advice he wants to hear, not honestly rendered, accurate advice. It has long been feared that, in bypassing the corps of more detached lawyers in the Justice Department, the president has more influence over selective legal issues and a better chance at putting politics and preferred policies above the law as reasonably interpreted by less biased lawyers.
As one prominent former head of OLC, Antonin Scalia, framed the issue: “The White House will accept distasteful advice from a lawyer who is unquestionably ‘on the team;’ it will reject it, and indeed not even seek it, from an outsider—when more permissive and congenial advice can be obtained closer to home.” [461] Scalia noted that the White House counsel was one source of “permissive and congenial advice” to whom the president could turn. Just as modern White Houses have expanded the National Security Council to centralize control over foreign policy and national security from the departments in these fields, the White House counsel can become a resource by which the president can expand his or her legal power over the administration—not just vis-à-vis the Justice Department, but in connection with legal policies throughout the government.
This unflattering picture of the White House counsel has acquired considerable plausibility because presidents since Roosevelt have very often selected counsel from the circle of personal friends or intense political supporters. This was often (though somewhat less often) true of the attorney general as well, of course. But unlike the attorney general, the White House counsel is neither vetted nor approved by the Senate, nor surrounded by a huge staff of experienced career officials, nor embedded in a culture of independence that proved relatively though not entirely resilient even to Trump’s unprecedented onslaughts.
The personal or political history behind these appointments, and the imperatives of the office, raise the question of whether the White House counsel can maintain the professional distance necessary to serve as a lead government attorney, rather than personal attorney, for the president. The counsel is paid by the taxpayers to assist the president in his official capacity only. To the extent that the president seeks counsel on matters of personal legal liability, as he might if faced with a criminal inquiry, he would need a personal lawyer retained in a separate attorney-client relationship. But since the White House counsel works in close proximity to the president and the president knows the counsel well and often chooses him or her on the basis of a shared political or personal history, or both, it is natural for the president to seek advice from the White House counsel on questions that should have been referred to personal counsel. This same confusion of role can arise if the counsel so identifies with the president’s political or policy goals that it affects his or her capacity for fully dispassionate legal analysis and judgment.
One of President Ronald Reagan’s White House counsels, Peter Wallison, went so far as to question “the implication … that you can tell the difference [between the institutional president and the person occupying the office].” His view was that “when the going gets rough, you really can’t.” [462]
It is thus inevitable that the counsel on whom presidents rely to stave off or address controversy might end up in the middle of the controversy. One early and disastrous case was that of Nixon’s White House counsel, John Dean, as noted earlier. Other counsel ran into less severe trouble but also had tenures marked by sharp criticism of their performance. President Clinton’s first White House counsel, Bernard Nussbaum, came under attack for playing too much the role of the president’s personal defense lawyer in contending with various high-profile controversies and allegations of wrongdoing leveled at the president. When a deputy White House counsel, Vince Foster, died by suicide, Nussbaum would not allow the FBI access to Foster’s office until he had reviewed its contents and removed files deemed “personal” to the president and first lady. Nussbaum’s view of his role also drew attention when it was discovered that he had met with the official of the regulatory agency at the center of the “Whitewater” scandal, an investigation of the Clintons’ personal financial dealings in Arkansas in the years prior to Bill Clinton’s election.
Nussbaum’s credibility came into question, and he resigned. Yet he insisted that, in critical respects, the distinction between the institutional and personal presidency was illusory. The increasingly routine investigations of the president—and Nussbaum took many of these investigations to be “phony,” motivated by partisanship—could not be addressed apart from their disruptive effect on the president’s capacity to govern. [463] In this respect, the personal and the official did not sort into neat categories. Attacks on the president could not fail to undermine the functioning presidency, and the White House counsel’s defense of the president in this context was also a defense of the presidency as an institution.
Other counsel came under scrutiny for their roles in the issuance of controversial pardons, as in the final year of the Clinton administration, or in politically motivated firings of U.S. attorneys, as in the George W. Bush administration. Numerous counsels have been called upon to testify before Congress, and a number did so after the president waived claims of executive privilege. In defending President Clinton in the course of criminal investigations, White House counsels sought unsuccessfully to rely on the attorney-client privilege to protect presidential communications or the production of “work product” documents. The courts had the opportunity in this context to define the personal-official boundary and found that, as a government and not personal lawyer, a White House counsel has an obligation to give evidence in legal proceedings concerned with allegations of presidential (or other official) wrongdoing.
Outside the sphere of scandal or congressional investigation, counsels were the targets of complaints about the quality of their professional legal advice. Once again, the concern was that the counsel was enabling presidential initiatives by conforming legal advice to the president’s practical and political requirements. One former White House counsel conceded that “[t]here’s hardly ever a time that I can imagine where the Counsel would actually oppose the President’s desire to do something that the President honestly wants to do, even though it doesn’t work for the institution of the Presidency quite as well.” [464] Critics see the counsel as usurping the role of more professionally dispassionate legal advisers elsewhere in the government and doling out permissive advice that happens to match what the president hopes to hear.
This fairly constant critique has, among many examples, been directed at one author of this book (Bauer) for rendering a disputed interpretation of President Obama’s obligations under the War Powers Resolution at the time of a U.S.-led NATO coalition military engagement in Libya in 2011. Lawyers within the government were divided on the key legal question, and the Justice Department’s Office of Legal Counsel did not share the White House counsel’s conclusion. But the president adopted and proceeded on the basis of the latter’s advice (shared by the legal adviser to the State Department). It is fair to note that the other author of this book was critical at the time of the counsel’s advice. Goldsmith wrote, “It is interesting and unusual enough that President Obama, of all people, would take an aggressive view of his war authorities and interpret the WPR [War Powers Resolution] very narrowly. But the lawyers he relied on to reach this conclusion make the situation even more interesting and unusual.” He continued: “I discount the legal input of the White House Counsel; Bob Bauer is a smart man but neither he nor his office is expert in war powers or situated to offer thorough legal advice on the issue.” [465]
The Libya case and others like it underscore the basic concern that the White House counsel operates, on issues the president most cares about, to disrupt the normal processes by which professional government lawyers develop advice squarely on the merits for the president’s eventual consideration. Within the Justice Department, OLC bears the overall responsibility to provide definitive legal interpretations for the executive branch on the widest range of legal issues. It abides by principles and practices that call for reaching its “best understanding of what the law requires,” even as it is committed to developing, where possible, legal positions that facilitate the president’s achievement of his or her objectives. [466] Yet, in Libya and other cases, White House counsel may seek OLC’s views and yet manage the flow of advice to the president and structure the presentation of the various views, including his or her own. The counsel has the last word even if, ultimately, it is the president’s call.
Commentators have come to observe not only tension between OLC and the White House counsel but also shifts of power from the former to the latter, especially during periods when presidents were served by “very powerful, centralizing White House Counsels.” [467] If presidents seek control of their legal advice on the matters most critical to their governing and political agenda, it would not be surprising that they would turn increasingly to “their lawyers.” Also, OLC has confronted legitimacy crises of its own after the discovery of deficiencies of process and legal craftsmanship in many national security–related memoranda after 9/11. OLC is now more routinely under pressure to disclose its opinions, whether by congressional demand or Freedom of Information Act suits, which is a further reason for presidents to pull into the West Wing and protect with broad claims of privilege the legal deliberations of core issues.
Despite its growth in influence, the Office of White House Counsel is not set up to address the range of questions on which OLC and other legal specialists in government have expertise. The office is typically filled with strong lawyers, some of whom have expertise in discrete areas, such as national security law. But the office does not rival in numbers, depth of experience, or command of specific issue areas either OLC or many other executive branch legal departments.
This is one reason why the White House counsel has not supplanted OLC in its day-to-day legal advisory role within the executive branch. Other than those issues of particular importance to the president’s governing agenda, OLC does its work with limited engagement with, much less challenge from, the White House counsel. OLC guides other executive branch agencies on issues large and small. And it possesses the authority that the White House counsel formally lacks to issue opinions binding on executive branch actors.
Moreover, if agency personnel are seeking opinions on issues that involve personal legal liability, and especially criminal liability, OLC or some other Justice Department component is best positioned to provide guidance that can ensure practical immunity from subsequent prosecution. In the George W. Bush administration, CIA lawyers, policymakers, and operatives involved in the agency’s “enhanced interrogation techniques” program viewed OLC opinions approving their actions as a “golden shield” from later prosecution. [468] A similar phenomenon was in play with the Bush-era Stellarwind surveillance program, which was governed by law that contained criminal restrictions. Then–FBI Director Robert Mueller was prepared to resign when President Bush reapproved the program based only on the advice and approval of the White House counsel, without the narrowing changes proposed by the Justice Department, and without the department’s approval. Mueller told the president that the FBI “could not participate in operations that Justice held to be in breach of criminal law.” [469]
Yet on so many issues, especially those near-and-dear to the president and often those that impact the president at the intersection of his or her personal, political, and public roles, the White House counsel retains extraordinary legal power. Long prior to the Trump administration, history had shown that it was reasonable to worry that the legal advice given by the White House counsel was unduly influenced by political judgments. We do not suggest, as some commentators have, that White House counsels have invariably performed poorly under these pressures and have functioned, as their most severe critics allege, much like lackeys or lapdogs. There is no evidence in the day-in to-day outflow of legal advice within the Executive Office of the President that supports this depiction of gross professional responsibility. Routine legal advice is not, however, the issue. The test for the White House counsel is whether he or she renders the best legal advice consistent with the president’s objectives and yet also with high professional standards when the president’s policy and political interests are keenest. In those cases, the public may have reason to believe that the White House counsel is not consistently or reliably meeting this test.
The Trump Era
Donald Trump’s career as a business executive required him to have lawyers at his side. His conceptions of their role and the uses of law are what has set him apart from other prominent executives who must manage legal risk and compliance. For Trump, law has been a weapon, a tool, that he has used with abandon to advance his interests and attack those of others. “I know lots about litigation,” he once declared. On another occasion, he restated the point colorfully: “I’m like a Ph.D. in litigation.” [470] By the time Trump became the presumptive 2016 Republican nominee for the presidency, he had been involved in, by one count, 4,096 lawsuits.
Trump has not been selective in the choice of targets or reluctant to pursue suits of dubious merit. The range of his targets over time is exceptional:
He has sued people over unpaid royalties in licensing deals. He has sued Miss Pennsylvania. He has sued Bill Maher. He has sued the creator of Jeopardy! and Wheel of Fortune. He has sued Scotland. He has sued New Jersey. He has sued New York City, and he has sued New York state. He has sued Palm Beach. He has sued an architecture critic from Chicago. He has sued the secretary of the Interior and the National Indian Gaming Commission. He has sued people for using his surname in businesses…even though it was also their surname .... He has sued and been sued by longtime business partners .... He has threatened to file countless lawsuits he then hasn’t filed. [471]
And this is just the tip of the iceberg. A legal program this vast in scale and pursued with this degree of relentlessness is impossible without willing lawyers. Trump, as client, needed lawyers who were prepared to do what he wanted done, proving themselves loyally committed to his goals and open to rough-and-tumble tactics and strategies.
Trump made no secret of the quality he prized first and foremost in his counsel: “loyalty.” His model, and for years his trusted legal adviser, was Roy Cohn, who acquired notoriety as lead counsel for Senator Joseph McCarthy and throughout his career for questionable professional conduct that culminated in his disbarment. In 1986, Trump testified on behalf of Cohn at the debarment proceeding and singled out the quality he most valued in Cohn as legal professional: “If I summed it up in one word, I think the primary word I’d use is his loyalty.” [472] Later, Trump boasted that while Cohn was “brutal,” and someone who “brutalized” for his client, “he was a very loyal guy.” [473] Trump added: “[H]e’s been vicious to others in his protection of me.” [474]
Trump’s personal lawyer of many years, Michael Cohen, did not join the administration, but his lawyering became a big issue for the president. He was, if nothing else, loyal to Trump, at least until he wasn’t. “I’m the guy who would take a bullet for the president,” Cohen once declared. [475] He lamented that when Trump became president, “high-ranking individuals” made a “concerted effort … to keep out [of the White House] loyalists.” [476]
Cohen was one loyalist disappointed to discover he would not enter the government with his client. And Cohen’s loyalty proved costly to him. On January 12, 2018, the Wall Street Journal reported that he “brokered a $130,000 payment” to Stephanie Clifford (“Stormy Daniels”) in October 2016 in order to prevent her from publicly discussing an alleged affair she had with Trump in 2006. [477] On August 21, 2018, Cohen surrendered to the FBI and pleaded guilty to eight counts, including campaign finance violations involving payments of hush money to Clifford. [478] According to the court filings, Cohen submitted bank statements from Essential Consultants LLC, the shell company he created to mask the payment’s connection to Trump. On December 12, 2018, Cohen was sentenced to three years in prison. At his sentencing, Cohen said that his “weakness” in engaging in this course of criminal conduct “can be characterized as a blind loyalty to Donald Trump.” [479]
Trump’s preoccupation with “loyalty,” as he understood it, drew intense public attention from the beginning of his administration. Most famously, the president pressed FBI Director James Comey for loyalty, and received in return a commitment to “honest loyalty.” In the report on this conversation, Special Counsel Mueller found substantial evidence that, contrary to Trump’s denials, the president had, as Comey related the episode, stressed the premium he placed on loyalty. “‘I need loyalty,’ the president advised Comey, ‘I expect loyalty.’” [480]
Trump expected this brand of loyalty no less from his administration lawyers than from other senior aides. More than once, when expressing deep frustration with his government counsel, including his White House counsel, Trump exclaimed: “Where’s my Roy Cohn?” [481] Trump’s entirely instrumental understanding of that role, shaped by his notion of the personal “loyalty” lawyers owed him, brought out vividly, more so than at any time since Watergate, the problems associated with the small law firm now entrenched in the White House.
White House Counsel Don McGahn
Don McGahn was the Trump presidential campaign’s general counsel and then became the first White House counsel in the Trump administration. Few White House counsels became so prominent so quickly for clashing on major matters with the president. From the beginning of McGahn’s tenure, the president professed dissatisfaction with his performance—and with his loyalty.
The first clash appeared to be over Attorney General Jeff Sessions’s recusal from the Russia investigation after it was disclosed that, during the Trump transition, Sessions had met and discussed the policies of the incoming administration with the Russian ambassador to the United States. Sessions was advised by career officials, and agreed, that Justice Department regulations left him no choice in the matter. Trump was infuriated because he believed that, as attorney general, Sessions was obligated to protect him. Trump directed McGahn to persuade Sessions to reconsider the recusal. McGahn conveyed the president’s views to Sessions, but Sessions refused to unrecuse. According to Mueller, Trump criticized McGahn for failing to persuade Sessions to reverse his position and assailed Sessions as “weak.” At an Oval Office meeting, he complained that “I don’t have a lawyer” and “brought up Roy Cohn, stating that he wished Cohn was his attorney.” In a later meeting with Sessions, according to the former attorney general, the president admonished him: “‘[Y]ou were supposed to protect me,’ or words to that effect.” The president had told his chief of staff, Reince Priebus, that he wanted a “bulldog” for a lawyer, and neither Sessions nor McGahn met the test.
In June 2017, Trump and McGahn struggled once more over the counsel’s response to the president’s instructions for dealing with the special counsel investigation. On June 14, the Washington Post reported that Mueller had come to focus on potential misconduct by the president himself. Three days later, citing what he believed to be Mueller “conflicts of interests,” the president ordered McGahn to arrange with Acting Attorney General Rod Rosenstein to fire Mueller. McGahn declined to comply. He testified to Mueller that he considered the claim of conflicts to be “silly,” and he also thought it inappropriate for the White House counsel to be involved in advancing any argument for Mueller’s dismissal. According to Mueller’s report, McGahn believed that “the President should consult with his personal counsel if he wished to raise conflicts.” But Mueller found that the president, “instead of relying on his personal counsel[,] … sought to use his official powers to remove the Special Counsel.”
The president continued to make demands on McGahn to arrange Mueller’s dismissal. McGahn concluded that he had no choice but to resign and informed Priebus and senior aide Steve Bannon, both of whom urged him to reconsider. McGahn did, and he remained on the job. McGahn apparently did not raise directly with the president his intention to resign.
The conflict between the president and McGahn over the Mueller firing came to public attention in press reports in January 2018. The president denied that he had given any such order. He asked White House Staff Secretary Rob Porter to relay his directive that McGahn publicly deny any order for Mueller’s dismissal. McGahn refused, advising first Porter and subsequently the president, that he clearly recalled the dismissal order. The president insisted that he intended only that McGahn raise the conflict issues with Justice Department officials for their consideration. McGahn disagreed with this version of events.
In the course of this Oval Office discussion, the president and McGahn had a revealing exchange, recounted in the Mueller Report, in which Trump reflected on his expectations of lawyers. Trump challenged McGahn’s practice of taking notes: “What about these notes? Why do you take notes? Lawyers don’t take notes. I never had a lawyer who took notes. ” McGahn replied that he was a “real lawyer” who did, in fact, take notes. The president responded with a reference again to his model of a lawyer: “I have had a lot of great lawyers, like Roy Cohn. He did not take notes.” Apart from a demand for a public denial, the president added an order, relayed through Porter, that McGahn create a “letter to the file” of the counsel’s office affirming that he had not been directed to arrange for the firing of Mueller. According to Porter, the president told him that “[i]f he [McGahn] doesn’t write a letter, then maybe I’ll have to get rid of him.” McGahn also refused this request.
McGahn’s role in these events later made him a key witness in the special counsel’s inquiry. McGahn spent at least thirty hours in interviews with the special counsel’s investigators, with much of the focus on Trump’s attempt to remove Mueller. McGahn’s exceptional level of cooperation stemmed in part from his concern, as reported in the New York Times , that “Mr. Trump was setting up Mr. McGahn to take the blame for any possible illegal acts of obstruction.” [482] McGahn became determined “to do as much as possible to cooperate with Mr. Mueller to demonstrate that Mr. McGahn did nothing wrong.” McGahn’s relationship with Trump was already strained, with Trump questioning McGahn’s loyalty, and McGahn referring to Trump as “King Kong,” a reference to his volcanic temper.
As the extent of McGahn’s cooperation with Mueller became clear, Trump surprised his counsel by announcing on Twitter that McGahn would leave the White House following the Senate’s confirmation of Supreme Court nominee Brett Kavanaugh. Trump tweeted that he was “[n]ever a big fan” of McGahn and implied that he might have been even more frustrated with McGahn than with Mueller. [483]
On occasion, McGahn did placate the president, as he did in agreeing to relay to Attorney General Sessions the president’s unhappiness with his recusal in the Russia investigation and Trump’s wish that he reverse course. And he had lapses on the job as well. He overreached when he unsuccessfully asserted the Office of White House Counsel’s authority to issue authoritative constructions of the controversial “travel ban” executive order that the president issued shortly after taking office. The U.S. Court of Appeals for the Ninth Circuit had choice words in trimming back the White House counsel’s ambitious definition of his role: “The White House Counsel is not the President, and he is not known to be in the chain of command for any of the Executive Departments.” [484] And McGahn failed to anticipate or contain the significant ethics and conflicts of interests problems that characterized the first year of the Trump White House and that were largely his responsibility. [485]
But what most defined McGahn’s years as White House counsel was his resistance to the president’s relentless pressure to have him act like Roy Cohn, especially where Trump’s most intense personal and political interests were at issue.
White House Counsel Pat Cipollone
The tenure of Pat Cipollone, McGahn’s successor as White House counsel, began in October 2018. Less than a year later, in September 2019, Speaker of the House Nancy Pelosi announced that the House would initiate an impeachment inquiry focused on evidence that the president had pressured the government of Ukraine to open a criminal investigation of former Vice President Joe Biden, a potential Democratic nominee to oppose Trump in the 2020 election. Cipollone became the lead defense lawyer for the president, sharing this responsibility with the president’s personal counsel. It is in this very public role that Cipollone had choices to make about how to manage his institutional responsibilities and still maintain “loyalty” to the president in the defense of his reputation and incumbency. It does not minimize the challenge that he faced in addressing these pressures to conclude that some of his choices seriously damaged the institutional standing of the Office of White House Counsel.
A White House counsel’s defense of a president in an impeachment process is not unusual. President Clinton also relied on his White House counsel, Charles Ruff, for advice and public defense in the 1998 House impeachment and 1999 Senate trial. A president may appropriately treat impeachment as a legal challenge requiring both personal and government counsel. Personal misconduct is typically at issue in allegations of impeachable offenses—the charge that the president committed “high Crimes and Misdemeanors”—and a president may face legal consequences upon leaving office. At the same time, Congress’ determination of whether the evidence meets the constitutional standard for removing a president from office fully justifies the White House counsel’s involvement in the defense in his or her institutional role, that is, in defending of the long-term interests of the presidency.
Cipollone and his colleagues did not entirely neglect this institutional defense, but they drew the most attention for the ways that their defense endorsed and in some ways mimicked the president’s incendiary rhetoric. Trump’s incessant attacks on the impeachment process on Twitter included the charge that it was nothing less than a “COUP,” [486] and the “[m]ost unfair and corrupt hearing in Congressional history!” [487] And in a letter to Speaker Pelosi that in tone and content went far beyond anything in modern presidential communications to Congress, Trump referred to Pelosi’s “spiteful actions,” “egregious conduct,” “illegal, partisan attempted coup,” and to impeachment proceedings as “a Star Chamber of partisan persecution,” a “perversion of justice,” and designed to “undo the election of 2016 and steal the election of 2020!” [488]
That was par for the course for Trump. But it was surprising when his White House counsel leveled similar charges in a letter to the House that announced that Trump would refuse all cooperation with the House. Cipollone accused the Democrats of a “naked political strategy” for the same purpose the president identified: “to overturn the results of the 2016 election” and “influence the next election.” [489] In the Senate trial, Cipollone took up the claim that Democrats were “stealing” elections, both the last and the next, and described their aims further as “the most massive interference in an election in American history.” [490] And, as the president did, the White House counsel in its trial memorandum suggested that the Democrats were unable to compete on fair terms with a president who had compiled a supposedly impressive record of achievement in his first three years in office.
It was unusual for the White House counsel to make a legal case structured much like the scorched-earth political one heard from the president, his political supporters, and his personal counsel. A senior government lawyer’s representation of the presidency should call for an argument focused more on the constitutional merits of the claims against the president and not on the imputed partisan motivations of his accusers. This is essential in addressing the larger critique of White House counsels as “lawyers selected for their loyalty to the president.” [491] The counsel assisting in the defense against an impeachment bears the burden of taking the long view, answering the question of how this impeachment stacks up against the constitutional precedent, and arguing the insufficiency of the particular case for ousting a president—any president—from office. The counsel’s choice of tone and language should be appropriate to his or her institutional role, bringing clarity to the constitutional and institutional stakes, and leaving to others reinforcement of the president’s primarily political message. In impeachments, as in all constitutional controversies engulfing a president’s conduct and use of power, there is inevitably and necessarily a political argument, but it is not the one a White House counsel should participate in making.
There is a further and more consequential risk that a White House counsel runs when drawn as a leading actor into high political drama. Acceptance of this role means that fundamental institutional interests may go inadequately represented, sacrificed, or subordinated to the president’s political strategy. It may have worked for Trump’s politics to refuse engagement with the House and to stand by while the process unfolded without his participation. And his lawyers did complain that he was denied “due process,” pitching their case at the most general level. But the heart of their argument was that, because the charges against him were supposedly bogus, he had done nothing wrong, so questions of process were beside the point. It was an “invalid” impeachment, corruptly motivated, and thus he would not engage. So Cipollone and his team aided Donald Trump with the political case he wished to make. But in subordinating constitutional lawyering to this political argument, the counsel left major long-term institutional equities unaddressed. The flat refusal to engage with the House meant that Trump failed to define, not just for himself, but as a matter of precedent for his successors, what core set of procedural protections a president should be provided as a constitutional matter.
This was good enough for Trump, however. After his acquittal, Trump spoke from the East Room of the White House with his personal lawyers and White House counsel Cipollone seated before him in the first row. “You guys stand up, please,” the president commanded. “Great job.” [492] This president, who demands full “loyalty” from his lawyers and was so often disappointed by them, felt that this time it was given.
Another episode in the tenure of Trump White House counsel Pat Cipollone illustrates how lawyers in this job who may have no intention of being embroiled in controversy will be unable to escape it. As a member of the senior staff, a White House counsel attends meetings, participates in discussions, or advises on matters that entangle them in political conflict. The House impeachment managers concluded in the course of the Trump impeachment process that Cipollone was a “material witness” who had “extensive knowledge” of key events and discussions bearing on the president’s conduct at the heart of the inquiry. [493] They contended that under the ethical rules, he could not properly serve as both advocate and witness. The controversy over his role widened after press reports emerged that, along with the White House chief of staff and one of the president’s personal lawyers, Cipollone had attended a meeting at which the president had directed his national security adviser, John Bolton, to advance his efforts to pressure the government of Ukraine to help with a political “hit” on former Vice President Biden. [494]
For our purposes, we would stress that, granting the exceptional circumstances of Cipollone’s involvement in meetings relevant to a presidential impeachment, the White House counsel routinely attends Oval Office meetings and participates in the most sensitive matters involving the president. This daily, intensive engagement with the president and his senior staff is laden with the potential for roping the counsel into at least controversy and, often enough, alleged “scandal.”
Reform
It might seem that Trump and his crudely instrumental view of lawyers is the extreme case and that his experience with Don McGahn, who appeared to resist inappropriate directives, is reassuring. The counsel stood firm on many issues, and the president backed down (or lost interest). We think there is limited comfort to be taken from this episode.
First, the history of the Office of White House Counsel shows that counsels come regularly under pressure to do the president’s bidding—to be the “president’s lawyer” in the narrowest personal rather than the broadest institutional sense. Several counsels before McGahn did not—or did not appear to—hold up as well under that pressure. McGahn’s successor, we have argued, should be included in that category. Second, McGahn had exceptional support from congressional Republican leadership. He was a strong partner in their successful efforts to move hundreds of judicial nominations. They wanted him to stay in place; they were openly sorry to see him go, when he decided after two years to do so. In this respect, McGahn was dealing with Trump from a position of independent political strength that few, if any, White House counsels have enjoyed.
Any consideration of reform of the institution of the White House counsel runs up against clear limitations. A president can get legal advice from whomever he or she wishes, inside or outside the government. And the vesting of the executive power in the president in Article II gives the president significant control over his or her own legal advisory process. There is no legal solution available, or desirable, to meaningfully constrain those choices. But, as we have noted throughout this book, while we focus on statutory reform where feasible, we also argue for reform internal to the executive branch that presidents could adopt to influence the restoration or development of norms. A structural alternative for the provision of legal advice is open for any future president to consider; if one does and it proves to be workable and effective, then others may follow.
In that spirit, we propose one such structural reform: that the White House counsel be bound closer to the Justice Department and not so tightly woven into the West Wing culture. To this end, we suggest that the White House counsel remain a member of the president’s senior staff, with an office in the White House, and with a minimal staff of two or so deputies. But the larger group of lawyers who provide this small Office of White House Counsel its direct support would be located in the Justice Department—primarily in the Office of Legal Counsel, but also, as we explain below, in other Justice Department components. The Justice Department, reorganized as necessary for this purpose, would provide the research and analysis on which the Office of White House Counsel depends.
OLC would be the component most affected by this shift, but the shift would not constitute a dramatic change in its formal mission. At present, OLC understands its charge to include “advice in response to requests from the Counsel to the President,” especially on “legal issues of particular complexity and importance.” [495] OLC cites as examples advice on the “constitutionality of pending legislation” and approval of “the form and legality of executive orders and substantive proclamations issued by the President.” Its overall mission has always been to help “the President [to] fulfill his or her constitutional duties.” [496] Under our proposal, much of the White House counsel’s “small law firm” would be merged into the Office of Legal Counsel. OLC might have to add another political deputy to its cadre of deputies to supervise the new work from the White House, but we expect that the rest of the additional personnel would come at the nonpolitical line attorney level. With this scheme, we see significant benefits and little if any harm done to the basic arrangement through which the president receives prompt attention and support from a dedicated corps of lawyers.
Culture
The reorganization we propose offers advantages for the culture of professionalism in the provision of legal advice to the president. It matters to the culture of the Office of White House Counsel where its lawyers are situated—near the White House Press Office, just a few steps from the senior advisers to the president who are responsible for policy decisions or public communications strategies, or a mile down Pennsylvania Avenue at the Justice Department. The White House counsel and his or her small staff would still be near to the president and available at a moment’s notice to be brought into a matter that requires legal counsel. But the lawyers in this very reduced office would rely for the development of that counsel on Justice Department lawyers.
The Justice Department, of course, is far from immune to political influences from the White House—nor should it be in many contexts. We also recognize the serious questions that have been raised about the erosion in the department’s independence from improper political pressures. Yet it remains the case that the Justice Department, for reasons already given, is typically more detached from political pressures than the Office of White House Counsel. We argued in earlier chapters that the department’s culture and supporting norms of independence require reaffirmation and reinforcement. But the department still serves—and will continue to serve—as a counterweight to a White House consumed daily with political and policy pressures and the related demands of public communication. The lawyers supporting the White House counsel but working from and within the Justice Department would be subject to resilient departmental norms and would benefit in their work from distance from the political hothouse that is the West Wing. And a higher percentage of nonpolitical lawyers in the Justice Department will ultimately work on White House matters than occurred when the bulk of the work was done within the White House.
Our proposal should also be weighed against the alternative possibility that the Office of White House Counsel will continue to grow in influence, jurisdictional ambition, and even size. It is already a small law firm, not really just the “office” of the White House counsel. It has developed that way, for the reasons we have described, as a reflection of the growth in presidential power, the demands on the office, and the complexity of the legal landscape that presidents must navigate. These are all reasons for the president to have accessible legal advice, but no less a cause for concern that the legal advisory functions may come to be commandeered by the West Wing. Further movement in this direction will prove costly to the professional culture of executive branch lawyering.
The White House counsel cannot escape the hothouse and attend meetings each day on the whole range of issues with which the president is concerned. The counsel is immersed in the administration’s policy and political focuses and priorities, and in the environment in which these are discussed. As Lyndon Johnson’s senior aide and presidential press secretary, George Reedy tartly described these working conditions, “the atmosphere of the White House” could be a combination of “sycophancy and a belief in the efficacy of closely held knowledge.” The life of the White House is “the life of a court, … a structure designed for one purpose and one purpose only—to serve the material needs and desires of a single man.” [497]
This may be overstated, but there is more than a grain of truth in it. Yet this need not be the working environment for all the lawyers, typically numbering well over twenty, who staff the Office of White House Counsel. By relying on Justice Department lawyers, who are required to think of themselves as department lawyers, our proposal ensures that the legal counsel given to the president is more clearly within the law dimension of the complex interplay of law, politics, and policy in any administration. The effect may be subtle and yet significant. This arrangement would also, we think, serve the White House counsel in maintaining the balance necessary to resist being too much “on the team.”
Functionality
This proposed reorganization does not present a threat to the efficient delivery of legal services to the president.
First, the president would retain the ability to meet face to face with the White House counsel at any time.
Second, the counsel’s assignment of research or written work product does not require proximity to the staff lawyers. OLC and other Justice Department components can be organized so that specific lawyers assist the White House counsel with continuity and dispatch in the management of the White House legal workload. If staff needs to meet with the counsel, the department is a mile away from the White House. This would not mean constant local travel. Most White House associate counsels meet only as needed with the counsel, for all-staff meetings or as specific projects require, and these lawyers attend meetings with the president even less frequently.
Third, not all current White House counsel legal and legal policy functions would be doled out to the Office of Legal Counsel. OLC would be limited to addressing strictly legal questions related to the counsel’s work. But other tasks could be divided between the White House counsel and other Justice Department components. The task of screening and vetting judicial nominees and major executive branch nominees should be allocated between the Justice Department’s Office of Legal Policy (which has performed this task, at least for judicial nominees, in some administrations) and the White House legislative liaison and communications staffs. The White House counsel or a deputy counsel could also be involved. In administration responses to congressional oversight and investigations, OLC would provide the primary legal advice, as it does today on issues such as executive privilege, though the White House counsel might continue to coordinate lawyers and others across agencies and departments in that effort. Something similar would happen to the White House counsel’s ethics function. The White House counsel and other White House officials would continue to organize and conduct White House briefings, but OLC would provide the legal advice, perhaps with input from other Justice Department components.
Some issues would be more complicated. Consider scandal crises that implicate large media coverage and then possibly congressional and criminal investigations of the president or his or her administration. The White House counsel currently plays a central role in this response. In our proposal, legal support would come from OLC—for example, legal analysis of issues that arise in connection with the administration’s response to congressional oversight or investigations. The White House counsel would be responsible for making sure the legal work was assigned, and he or she would review it and have the final word with the president. The counsel would also support as necessary the senior White House staff on the various elements of crisis management—the integration of legal, political, and communications strategies; assisting with responses to press inquiries; and demands from Capitol Hill for testimony or information. The wider Office of White House Counsel, the bulk of its lawyers located in the Department of Justice and concerned solely with analysis and advice on legal issues, would not be involved in this aspect of the White House response. Once again, it involves too much politics, which risks affecting the quality and integrity of the legal work.
This general allocation of responsibilities would resemble the relationship of the White House counsel to the Justice Department in the development of recommendations to the president for executive clemency. Since the nineteenth century, the department’s pardon attorney has reviewed the vast majority of the petitions for pardons and commutations, and the White House counsel is now the point of contact in receiving and evaluating the department’s proposed grants and denials and making final recommendations to the president. The department’s role has conferred significant credibility and legitimacy on the president’s exercise of the pardon power. As discussed in Chapter Six, the most controversial pardons have involved presidential decisions taken outside the normal process, when the department is excluded from participation and the White House counsel simply assists the president in doing what he wishes. We believe that systematic department support of the White House counsel in other areas, through an enhanced function for OLC, will bolster rule-of-law values.
The concrete suggestions made here are tentative. Working out the details of a large shift of legal capacity from the Office of White House Counsel to the Justice Department would be complicated, and some tasks are more segregable and easier to allocate properly than others. Problems would surely arise in practice that would require adjustment. But the basic move makes sense: Legal interpretation and analysis should be shifted from the Office of White House Counsel to the Justice Department, and the execution of policies should remain in the White House.
Rule-of-Law Commitment
Moving the White House counsel’s supporting lawyers to the Justice Department cannot decisively answer all the concerns about a legal advisory process under the president’s thumb. A president determined to prize loyalty and results-oriented advice can get his way with appointments to all senior legal positions, from the attorney general all the way down (and across, to other agencies). What is different about the White House counsel is the distinctiveness of the role. The counsel is right by the president’s side, building up and managing a group of what appears to critics to be primarily loyalists and only secondarily lawyers. The choice and then performance of White House counsels is now instrumental in setting the tone and standard for the rule of law in the operation of the executive branch. A presidential decision to have the Justice Department support the White House in the ways we propose would, we believe, signal a major change in how the president would approach rule-of-law issues.
One objection certain to be raised is that moving the president’s dedicated corps of lawyers to the Justice Department would worsen the problem of the politicization of law interpretation and enforcement. In the strongest formulation of this concern, the president would simply have dispatched political and personal cronies into the heart of the Justice Department. But we doubt that the problem we are seeking to address would simply be moving down the street. In the end, we are looking to achieve both physical and cultural separation. Even if the White House counsel has a say in who is hired for this White House support function, it matters whether these lawyers are located in the West Wing and their colleagues are White House staff, or they work day-to-day as—and in the company of—Justice Department lawyers.