Meet the President’s new lawyers—and their new laywers
No one was a more tireless lawyer for the president during the Clinton administration than Elena Kagan ’86. One night, when she worked in the office of the White House Counsel, she stayed on the phone until 2 a.m. trying to persuade Walter Dellinger—then the head of the Department of Justice’s Office of Legal Counsel, and later the acting solicitor general of the United States—to change his mind about a legal issue. Dellinger—who was a visiting professor at Harvard Law School this year—recalls that when he told Kagan that he wasn’t persuaded, she replied: “I thought that would be your conclusion, but the president deserved the best shot.”
The anecdote lays bare the kind of advocacy that can occur between executive-branch lawyers—including the White House counsel, the attorneys in the Office of Legal Counsel in DOJ and the solicitor general—to prevail in shaping an administration’s positions on important legal issues. Although the lawyers who hold these offices serve very different functions, there are times when all of them weigh in on the formulation of the administration’s positions on questions of statutory and constitutional interpretation. How disagreements are resolved can make or break the executive’s effectiveness in dealing with critical questions of legal policy—as was seen in the last administration when fissures between executive-branch lawyers erupted over the legality of antiterrorism measures.
Last year, Dellinger and Kagan recounted that long-ago phone call while sitting together on a panel at the American Constitution Society’s annual convention in Washington, D.C., when Kagan was dean of Harvard Law School. Now, Kagan has returned to the executive branch, this time as solicitor general herself. And the next time she finds herself on a late-night phone call with a White House lawyer, it might be her HLS colleague Daniel J. Meltzer ’75 on the other end of the line. President Barack Obama ’91 tapped Meltzer to be the second in command of the White House counsel’s office. And occupying the number two spot in the Office of Legal Counsel is another faculty colleague, David Barron ’94.
Their pre-existing relationships could now prove extremely valuable as they venture into the tricky terrain in which their predecessors sometimes found themselves at odds over legal opinions or recommended courses of action. “It is a striking constellation of professors from the law school going into these key slots in the administration,” said Lincoln Caplan ’76, whose 1987 book, “The Tenth Justice,” detailed the history of the solicitor general’s office. “They begin with goodwill, a close working knowledge of each other and the intellectual capacity to make the argument about why something should be the prerogative” of their office.
President Franklin D. Roosevelt is as responsible as anyone for there being competing centers of legal advice within the executive branch. It was Roosevelt who issued the executive order creating the predecessor of today’s Office of Legal Counsel. As the Justice Department grew, attorneys general began delegating their legal advisory function to the OLC.
Roosevelt also appointed Samuel Rosenman, his friend and longtime adviser, as the first “counsel to the president.” Rosenman, like most of the men who initially followed him in the job, stuck mostly to writing speeches and offering political counsel rather than serving as a formal legal adviser.
But like most White House offices, the Counsel’s size and responsibilities grew with time as presidents sought greater control over legal policy. That trend only accelerated during the Watergate scandal and the years that followed.
Today, the White House counsel’s lawyers do everything from overseeing presidential nominations and appointments and teaching White House staff about ethics rules to responding to congressional investigations and advising on presidential power.
President Obama has stocked his White House counsel’s office with an unusually large number of lawyers—many of them Harvard-trained. In addition to Meltzer, there are three other deputies, each charged with specific policy areas. The deputy counsel for ethics and government reform is Norman L. Eisen ’91. Among the 18 or so other lawyers in the office are two other alumni: Danielle Gray ’03 and Blake Roberts ’06.
The size of the office has prompted questions about whether the new administration plans a broader role for the White House counsel. Meltzer said rumors of empire building are “greatly exaggerated” and suggested that the role of the office will not be substantially different from what it has been in previous administrations. A big part of that role, he said, is vetting prospective appointees to ensure that they comply with the administration’s ethical standards. Another major part of the job now involves answering legal questions surrounding counterterrorism, he added.
For the most part, the White House counsel has had a symbiotic relationship with the Justice Department’s Office of Legal Counsel—never more so than at the start of new administrations. New White House lawyers literally find themselves starting from scratch, as Meltzer learned his first day there in January. “There are no files, no manual, no records, no people with institutional memory,” he said.
Jennifer Brosnahan McIntyre ’98, an associate White House counsel under President George W. Bush, said her office often sought legal advice from OLC, where some of the lawyers stay through the changeover in administrations. “We were new to many issues we encountered, while OLC had subject-matter experts and institutional knowledge that we could draw upon.”
Nelson Lund, who served in both the OLC and the Office of the White House Counsel under President George H.W. Bush, described the relationship this way: “Think of the president as the CEO, and the White House counsel as his in-house counsel. The Office of Legal Counsel is the outside counsel they call upon for help with legal questions.” Just as a law firm hired by a company is expected to exercise independent judgment, so too should OLC, Lund said.
In fact, OLC lawyers have historically prided themselves on their independence. Not that they view themselves as existing independent of the executive branch or the president’s ultimate authority. Rather, they see their function as providing detached and apolitical legal advice, said HLS Professor Jack Goldsmith, who headed the OLC for 10 months during the second Bush administration. In his book “The Terror Presidency,” he wrote: “Legal advice to the President from the Department of Justice is neither like advice from a private attorney nor like a politically neutral ruling from a court. It is something inevitably, and uncomfortably, in between.”
Ideally, lawyers at the OLC feel free to inform the administration if its plans don’t comport with the law. “They will respect you more in the morning if you tell them no,” Dellinger told the American Constitution Society last year. That isn’t necessarily the end of the conversation, though, said Randolph Moss, who headed the OLC during the Clinton administration. After saying no, OLC lawyers must be willing to work with the White House to achieve its goals in a manner consistent with the law.
But that healthy interplay broke down during the last administration when it came to some of the most sensitive questions related to the war on terror.
In “The Terror Presidency,” Goldsmith detailed how, before he took over the top job, some OLC lawyers had sacrificed the quality of legal reasoning in order to reach results desired by the White House. If there’s a single symbol of the consequences, it is an August 2002 OLC memo—written before Goldsmith took the helm—on enhanced interrogation techniques and the legal definition of torture. (Goldsmith directed that the memo be withdrawn.)
Partly in reaction to that memo, in December 2004, 19 former OLC attorneys issued a set of 10 principles which, they suggested, should guide the office. Rather than “simply provide an advocate’s best defense of contemplated action,” the authors recommended, “OLC should provide an accurate and honest appraisal of applicable law even if that advice will constrain the administration’s pursuit of desired policies.”
The principles’ signatories included Barron (left), who had worked at OLC as an attorney adviser between 1996 and 1999.
Recently, President Obama ordered the public release of Bush-era OLC memos on interrogation techniques. The decision indicated the new administration’s determination to restore accountability through more transparency. It also signaled the administration’s view of what can go wrong when OLC lawyers abandon their ethos of independence.
Conferring on the Importance of Independence
Like the OLC, the solicitor general’s office—the executive branch’s principal advocate in front of the Supreme Court—has historically had its own ethos of independence, one that is most famously summed up by Francis Biddle LL.B. 1911, who, after holding the job, declared, “The solicitor general has no master to serve except his country.”
But HLS Professor Charles Fried, who was solicitor general under President Reagan, said that despite this ethos, “there’s no question the attorney general is the solicitor general’s boss.” Usually, he said, the attorney general will “find it best to rely on the solicitor general’s judgment, and to cede to that judgment, but he absolutely does not have to.”
The challenge for all solicitors general is complying with the wishes of the administration in which they serve while maintaining their credibility before the Supreme Court, said Jamie Gorelick ’75, who served as deputy attorney general under President Clinton.
Kagan took note of that challenge in May when she gave the keynote address at a Georgetown University Law Center conference. According to The Washington Post, she said the solicitor general is obviously part of the executive branch, and the president has an appropriate role in the office’s decision-making. But she added that she also has an obligation to defend the work of Congress, even if the administration disagrees with it, as well as to be “scrupulous in every representation to the Court.”
“It’s not that there are no masters, but that there are many,” Kagan said. “And the job of the solicitor general is to balance those masters and to accommodate them all, each in their proper places, wisely and well and in so doing to represent the people of the United States.”
Moss worked regularly with Kagan when she served in the White House, and predicts she will have no trouble maintaining the right balance between those various roles. “The fact that Elena has been in the White House and seen it from that side will put her in a good position for dealing with the White House,” he said.
Gorelick said her position as deputy attorney general made her the traffic cop between the Justice Department lawyers and White House counsel. The forum was usually a weekly meeting between senior officials. (In the new administration, the “DAG” post is held by David W. Ogden ’81, who, like Gorelick, was until recently a partner at WilmerHale.) Such meetings provided an opportunity for White House and DOJ lawyers (including OLC lawyers and the solicitor general) to discuss and argue policy—much the way Kagan lobbied Dellinger in that late-night phone call when she worked in the White House and he was at OLC.
“It’s a veritable seminar weekly between the White House and Justice Department,” Gorelick said. “Just think of all the brain power.” During the Reagan years, recalled Fried, there was a similar senior staff meeting “with the attorney general, DAG and the AAGs [assistant attorneys general] which the solicitor general attended, and all sorts of things were discussed,” but it was held daily, not weekly.
In addition to working out the rules of the road for shaping policy, every new administration must also define how the Justice Department and White House counsel’s office will interact in other situations. An important early step is the formulation of a memorandum of understanding that guides who can contact whom, particularly regarding criminal investigations. Most administrations usually try to limit who at the White House can contact the Justice Department, in order to avoid the appearance of political interference, Gorelick said. (A number of observers in Congress have pointed to the firing of nine U.S. attorneys during the last administration—allegedly for political reasons—as an example of why such rules are needed, and must be followed.)
In March, Meltzer said the new administration’s version of that agreement was being finalized and that “our office and the attorney general and deputy attorney general see eye to eye about the importance of this policy.”
“When there are matters of great consequence about which the law is anything but clear, the White House may have an entirely appropriate role in the formulation of the position of the United States that the department will advocate,” said Meltzer. “But it is vital to avoid the possibility or even the appearance of inappropriate interference by White House officials in matters before the department.”
No matter what’s written down or on the agenda of weekly meetings, much remains undefined by any structure, formal or informal, and is “ad hoc,” said Rachel Brand ’98, who served as an associate White House counsel under President George W. Bush and later in a senior position in the Justice Department.
Similarly, Goldsmith added: “A lot of these relationships are built on trust or lack of trust. If people know each other as colleagues from a prior life, they’re more likely to get along in this capacity.”
Meltzer said he’s been on the phone with Barron almost every day since the new administration took office. He had his first telephone call with Kagan in her official capacity as solicitor general one day after she was confirmed in March and met with her in person a week later.
Meltzer was also in the audience at her February confirmation hearing along with Fried, Goldsmith and other faculty members, whom Kagan identified for the committee as her “little bit of family from Cambridge.”
Said Meltzer later: “Anyone in the counsel’s office would be thrilled to have them as colleagues, but it is an added benefit for me that both are close friends.”