White House Counsel Research Articles

The President's Two Bodies

The President has “two bodies.” One body is personal, temporary, and singular. The other is impersonal, continuous, and composite. American public law reveals different perspectives on how to manage—but cannot escape—this central paradox. Our major disagreements and confusions about presidential power track what we might think of as the fault lines between these two bodies. An array of seemingly disparate debates on topics ranging from presidential impeachment, to the ownership of presidential papers, to the availability of executive privilege, to a presidential duty to defend statutes in court, to the legal status of presidential tweets, to the role of the White House counsel, to the nature of presidential intent, to the legal remedies available for presidential misconduct reflect this longstanding, ongoing ambivalence about the nature of the presidential office. The goal of this article is to make the President’s two bodies central to American public law. Recognizing the two bodies provides analytical coherence to the structure of presidential power. It illuminates both our contestations over, and the constituted reality of the constitutional presidency. The President’s duality brings into view traces of a personal, charismatic authority simultaneously in deep tension with and fundamentally constitutive of the institutional presidency. It reconstructs seemingly far-flung aspects of American public law (ranging in form from Founding-era debates, to judicial decisions, to statutory enactments, to presidential norms) as a shared effort to negotiate the President’s two bodies. And it illuminates what is at stake—for presidential legitimacy, for governmental capacity, for checks and balances, and for our substantive constitutional commitments—in how public law handles this defining ambiguity. Ultimately, the legal lines connecting the two bodies cannot emerge from the duality itself. Rather, it is a normative project of public law to construct them—and to do so in furtherance of articulated substantive commitments. Even as the two-bodies prism reveals a crucial role for public law in constituting the office of the President, it shows as well the limits of law and legal methods in managing its central tension. Presidential charisma is both inseparable from American constitutionalism and itself governed—incompletely and provisionally—by choices that lawyers and jurists make about how to construct the President’s duality.

Two Years Of Judicial Selection In The Trump Administration

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How Much is an Ambassadorship? And the Tale of How Watergate Led to a Strong Foreign Corrupt Practices Act and a Weak Federal Election Campaign Act

When White House Counsel John Dean infamously told President Richard Milhous Nixon that there was a “cancer on the presidency,” and that more hush money would be needed to keep the cover-up of the Watergate break-in secret, Nixon responded without much hesitation that he knew where he could get a million dollars in cash. The President was used to having vast resources at his fingertips because of the millions flowing through his campaign committees. Historians now know that much of the money flowing through those committees was from illegal sources. This essay is a synopsis that illegal money and two of the reforms it inspired: the Federal Election Campaign Act and the Foreign Corrupt Practices Act. This piece will argue that the scale of post-Watergate reforms were justified by the magnitude of quid pro quo corruption in the Nixon White House. This essay will also argue that in 2012, in this post-Citizens United environment, Congress should take a similar approach and embrace both campaign finance reforms as well securities law reforms to ensure the integrity of our democratic processes.

The Law: Military Operations in Libya: No War? No Hostilities?

The Obama administration produced two remarkable legal opinions about the use of military force against Libya. A memo by the Office of Legal Counsel reasoned that the operations did not amount to “war.” Later, after military actions exceeded the 90‐day limit of the War Powers Resolution (WPR), President Obama was advised by White House Counsel Robert Bauer and State Department Legal Advisor Harold Koh that the operations did not even constitute “hostilities” within the meaning of the WPR. This article examines those interpretations and other legal arguments by the executive branch, including the claim that the military actions in Libya had been “authorized” by the UN Security Council and North Atlantic Treaty Organization allies.

The Law: Who Was John Yoo's Client? The Torture Memos and Professional Misconduct

From 2001 to 2003, law professor John served as deputy assistant attorney general the Office of Legal Counsel (OLC) the Justice Department of President George W. Bush. In that brief time, he wrote or helped write key memos pertaining to the president's authority fighting terrorism, which included assertions that the Geneva Conventions did not apply to al-Qaeda or Taliban fighters, that Americans' international communications could be subject to National Security Agency surveillance without warrant, and that domestic and international antitorture laws only applied to very small class of interrogation practices and adequate legal defenses existed cases which did, fact, occur. This last series of opinions--commonly referred to as the torture memos-created firestorm of opposition when public, and triggered four-year investigation by the Office of Professional Responsibility (OPR) the Justice Department. The OPR examined whether John and his boss, Jay Bybee, who had signed off on the 2002 memos, violated professional norms and standards. In their final report, OPR investigators found guilty of professional misconduct, basing their conclusion on evidence that Yoo knowingly provided incomplete advice to the and that he had failed his obligation to inform his client that his analysis was novel and untested (OPR 2009, 253, 252). Consistent with the department's practice, his case would then be referred to the disciplinary bodies of his bar associations Washington, D.C., and Pennsylvania. But the final decision rested with Associate Deputy Attorney General David Margolis, and he disagreed with the OPR. A high-ranking career attorney at Justice, Margolis criticized the standards used by the OPR, and he concluded that the Justice Department would not refer either or Bybee to their state bar associations (Margolis 2010, 67, 68-69). characterized the Margolis decision as a victory for the people fighting the on terror, including himself, who had written the legal opinions in good faith. This refrain was picked up by partisans, who called the Margolis report vindication. An editorial the Wall Street Journal, for example, said Margolis had found that and Bybee made legal errors but did so good faith ... the ethical service of their clients the executive branch at time of war (Frisby 2010). The editorial ignores Margolis's strong criticism of and Bybee, but it reflects the attitude of those who saw an exoneration of John Yoo. One result appears to be the continuing credibility accorded Yoo's theory of presidential power, despite the fact that it contradicts the vast body of scholarship on the presidency and constitutional law. (1) publishes monthly column called Closing Arguments the Philadelphia Inquirer and continues to be published on the editorial pages of the Wall Street Journal, Washington Post, and New York Times, as well as numerous law reviews. (2) For example, his views on executive power and the nomination of Elena Kagan to the U.S. Supreme Court were published by the New York Times two weeks after her nomination (Yoo 2010b). This study will argue that the OPR's higher standard was the correct one to apply Yoo's case, and that the Justice Department should have referred him to his bar associations to consider for disciplinary action. To advance this argument, the context and language of the 2002 and 2003 interrogation memoranda will be examined, followed by review of the findings of the OPR and David Margolis. The study will then argue that Margolis applied criteria appropriate to the private lawyer model, but that are not adequate when evaluating the actions of law officer the Department of Justice. The Torture Memos of John On August 1, 2002, an OLC memorandum drafted by John was signed and sent by Assistant Attorney General Jay Bybee to the White House counsel, Alberto Gonzales (OLC 2002a). …

Review: The Dark Side

THE DARK SIDE The Inside Story of How the War on Terror Turned into a War on American Ideals Jane Mayer New York: Doubleday, 2008. 400pp, $18.95 paper (ISBN 978-0385526395)The attacks of September nth created a culture of fear and revenge in America, which led to a flouting of the laws and morals underpinning the country's conduct towards its enemies. This is the central theme of New Yorker writer Jane Mayer's The Dark Side. The book, which began as a series of articles for the magazine, chronicles the practice of torturing suspected under the Bush administration.At the centre of the story are Vice President Dick Cheney and a cast of other administration officials. From the immediate aftermath of 9/ n onwards, Cheney was in favour of authorizing the CIA to use a wide range of violent practices against foreign prisoners. We'll have to work sort ofthe dark side, if you will, he stated in an interview a few days after the attacks (9). He later told the US Chamber of Commerce that terrorists do 'deserve to be treated as prisoners of war* (79). Thereafter, an array of Bush administration lawyers worked to cloak these practices with a veil of legal legitimacy. Prominent among them was John Yoo, a conservative lawyer in the Justice Department's office of legal counsel.The US military and intelligence abuses at the military prisons of Guantanamo and Abu Ghraib are now well known. Mayer's book serves to flesh out the details of how these practices came to be authorized, and how, exactly, they were carried out. Not for the weak of stomach, Mayer's narrative relates many haunting stories of torture. She describes slapping, shackling, forced standing, sleep deprivation, constant white noise, nudity and humiliation, the use of dogs and leashes, hooding, forced anal suppositories, constant darkness, and the much -discussed practice of waterboarding. (After reading the book, I watched a short video of author Christopher Hitchens's experimental submission to waterboarding. Even knowing that his experience was voluntary and controlled - and that he escaped alive - I found the sequence terrifying.) Mayer also notes the extensive list of euphemisms that Bush and his subordinates used to legitimize these practices, including enhanced interrogations, robust interrogations, and special interrogations.She draws from an exhaustive list of sources, many of them anonymous, to trace her story. Included in her account are the lawyers, and one outspoken FBI agent, who sought to expose and challenge the Bush administration policies.At the root of the political issue are the Geneva conventions, the treaties signed after World War II that sought to regulate, among other things, the treatment of prisoners of war. The United States, she notes, was not just a signatory but also the custodian of these agreements (9). Bush and Cheney and their lawyers blatantly disregarded them, arguing that suspected were illegal enemy combatants who did deserve or require such protections. White House Counsel Alberto Gonzales paved the way for Bush to receive authorization to round up (and torture) suspected abroad as well (44).While the book does an excellent job of detailing the policy process surrounding the authorization of torture, readers looking for a broader political or philosophical analysis may be disappointed. …

Explaining the Selection and Rejection of Harriet Miers: George W. Bush, Political Symbolism, and the Highpoint of Conservatism

Following the retirement of Justice Sandra Day O’Connor and the death of Chief Justice William Rehnquist in the summer of 2005, President George W. Bush appeared to be in alliance with conservatives in his desire to fill the two vacancies with strong ideologues who would push the Supreme Court to the right. However, after pleasing conservatives with his selection of John Roberts for one of the vacancies, President Bush angered many of his ideological brethren by choosing White House counsel Harriet Miers for the other. This article considers why the president decided on Miers and why her selection upset so many conservatives. It concludes by suggesting that Miers’s forced withdrawal represented a highpoint in the conservative effort to transform the Court.

True Believers at Law: National Security Agendas, the Regulation of Lawyers, and the Separation of Powers

Post-September 11 legal events have demonstrated that ideological agendas distort the deliberation required for sound advice about national security. Legal issue entrepreneurs who market a theory without context exalt short-term interests and encourage executive unilateralism. These perils have emerged in a number of recent developments, including the torture memos drafted by the Justice Department's Office of Legal Counsel (OLC) and the destruction of CIA interrogation tapes. In the post-September 11 legal climate, issue entrepreneurs saw legal constraints as against American interests. The lawfare critics extolled parsimony as a virtue - advancing the lawfare construct to explain as many complex events as possible. However, the lawfare critics failed to recognize that legal constraints can also empower decisionmakers, by checking the executive's tendency to discount reputational and other long-term values. Unfortunately, existing remedies are not a good fit for the problems caused by issue entrepreneurship. Tort litigation, such as the recent suit by Jose Padilla against John Yoo, risks personalizing the problem and neglecting systemic issues. The informal norms approach suggested by a number of OLC alumni, while offering a number of excellent proposals such as citing and distinguishing adverse authority, has not attracted stakeholders across the political spectrum. A structural reform approach that replaces OLC with an adjudicative entity may produce an inquisitorial tribunal that lacks sharp adversarial inputs and loses influence to more pliable players such as White House counsel. To transcend these difficulties, lawyers should turn to a model of dialogic equipoise relying on two values: transparency and tailoring. Dialogic equipoise allows the president to take action that is inconsistent with the most accurate reading of sources of authority. However, action must be both interstitial - with a clear exit strategy - and publicly disclosed. To implement the dialogic equipoise model, the Article recommends a blended approach, including a safe harbor for publicly disclosed legal opinions, consideration of institutional consequences, assertion of the least drastic rationale for executive power, and an ex ante role for Inspectors General and OLC in document preservation. This blended regime can reinforce deliberation when exigencies obscure the teachings of prudence.

The Fax about History

Social studies and history have taken a back seat to other subjects in recent years, but Mr. Bryant argues that there is far too much at stake to allow these important fields to become irrelevant. To drive home the point, he shares a story that made headlines in 2004. THE POWERFUL lawyer in the immaculate, pinstriped suit could not do it. Former senators, influential and comfortable within the halls of power, could not do it. A former high-ranking official of the United States Justice Department could not do it. It took the tools and the skills of a historian to make it happen -- to hold accountable the executive branch of the federal government in front of the entire nation. For weeks the independent commission investigating the horrific 9/11 terrorist attacks on New York City and Washington, D.C., had been asking that National Security Advisor Condoleezza Rice testify before the commission, in public and under oath. The Administration of President George W. Bush had steadfastly denied the request on the grounds that if Rice were to be compelled to testify under such conditions, it would set a dangerous precedent that could damage the ability of future Presidents to get unvarnished advice from their advisors. defense seemed to be working, until the fax arrived. Newsweek's Michael Isikoff described it like this: The grainy photograph rolled off the fax machine at the White House counsel's office last Monday morning, along with a scribbled note that smacked of blackmail. If the White House didn't allow national security advisor Condoleezza Rice to testify in public, . . . it read, This will be all over Washington in 24 hours.1 The photograph was of Admiral William D. Leahy, who had been chief of staff to Presidents Franklin D. Roosevelt and Harry S Truman. It had been taken on 22 November 1945, as Leahy testified before a congressional panel investigating the attack on Pearl Harbor, and had run on the front page of the New York Times. The Administration's claims of establishing a potentially dangerous precedent fell apart at once. Condoleezza Rice was sent before the commission, and she did, indeed, testify. Finding the photograph was the work of a historian from the University of Virginia named Philip Zelikow. The executive director of the 9/11 Commission, Zelikow had spent months poring over records of the Pearl Harbor inquiries.2 Speaking of the successful efforts to secure Rice's testimony, Thomas Kean, who chaired the commission, said, This is what happens when you hire historians.3 That is exactly the point. is a story every social studies teacher in America should commit to memory, for it offers evidence of the immense power and practicality of studying history. The social studies are under attack these days, having become the redheaded stepchild of our school's curriculum. Teachers often tell me that they teach social studies when time permits, in between the more serious pursuits of math, science, and, more recently, literacy. With the ascendance of each new curricular focus, the social studies receive less and less attention. Several elementary school teachers have admitted to me that social studies is taught in their classrooms only around certain holidays, such as Thanksgiving and Martin Luther King Day. The implication -- one that is certainly not lost on students -- is that the social studies are not important. The danger is that these same students will grow up ignorant of their heritage, their rights, and their responsibilities. In a democracy, we cannot tolerate a populace that is ignorant of such weighty matters. The need for social studies should be apparent to anyone who even briefly considers the power the American people wield when they enter an election booth. We, the people, select the men and women who chart the economic courses that will affect the lives and prosperity of our grandchildren. Through our vote, we place within the grasp of an individual the power to destroy the planet many times over. …

Empowering the White House: Governance under Nixon, Ford, and Carter

Empowering the White House: Governance under Nixon, Ford, and Carter. By Karen M. Hult and Charles E. Walcott. Lawrence: University Press of Kansas, 2003. 264p. 19.95 paper.This is the sequel to the authors' previous study, Governing the White House, which examined White House organization and process in the Hoover through Johnson administrations. Drawing on scores of White House documents from the presidential libraries, Karen Hult and Charles Walcott assess the development of the chief of staff and staff secretariat positions, as well as several other institutional components of the White House, such as the Office of Public Liaison, the White House Counsel's office, the Office of Communications, the Office of Congressional Relations, and the Office of Speechwriting and Research.

Public Support for Press Access Declines as Personal Privacy Concerns Increase

Government officials are increasingly closing public records because of citizen concern about invasion,1 and the increased secrecy inhibits the press's ability to monitor government and shed light on societal problems. This exploratory study investigates the relationship between public attitudes toward invasion and access.The threat of easy access to information by cyber-stalkers, identity thieves, marketers and others has increased political pressure for government records closures, such as Congress's approval in 1994 of the DriversPrivacy Protection Act, which restricted driver's license information.2 Privacy is the most-cited reason government officials use to deny access to public records. One study of 13 federal agencies showed that 80 percent of public records requests denials from 1998 to 2002 were because of privacy. Only 1 percent of denials were for national security reasons, even after the Sept. 11,2001, terrorist attacks.3 A similar study sponsored by the Reporters Committee for Freedom of the Press found a six-fold increase from 1998 to 2002 in the use of exemptions in the Freedom of Information Act by 25 federal agencies. In 2002 the agencies used exemptions to deny 380,000 public records requests.4The courts have given more weight toward concerns in recent years.5 For example, the U.S. Supreme Court limited access to electronic government records because of concerns in its 1989 ruling Department of Justice v. Reporters Committee.6 More recently, on March 30, 2004, the Supreme Court extended protections to surviving family members of the deceased. In Office of Independent Counsel v. Favish the court determined that the concerns of family members overshadowed the need for public access to autopsy photos of Vincent Foster, former deputy White House counsel for President Bill Clinton. Foster had been found dead in a park in what officials concluded was a shooting suicide. The photos were sought in order to independently investigate whether Foster's death was suicide or government-sanctioned murder.7Even journalists seem to be more sensitive to privacy.8 Surveys of newspaper editors in 1993 and 1999 showed a 12.2 percent drop, from 71 percent to 58.8 percent, in support of reporting private matters-such as extramarital affairs-of public officials.9Achieving protection by closing government records, however, comes at a price. Access to government information is considered a critical function in a self-governing democracy.' As a result of the records closures, journalists say they are unable to monitor government adequately or to expose societal problems as effectively as they had in the mid-1990s.11Literature ReviewRarely have the two conceptsconcern for invasion and support for press rights-been studied together.12 Driscoll, Splichal, Salwen and Garrison conducted a nationwide survey in 1998 of 403 adults regarding access to public records, finding that support varied depending on the nature of the record and who sought the information.13 For example, 85 percent of those surveyed agreed police need access to government records for their jobs, but only 49 percent agreed the media need open records to do their jobs. Study participants also reported that open records could be a threat to their personal privacy.A similar study the same year found that people were concerned about their and that they were actually more supportive of marketers' access to records than they were for journalists' access.14These studies have beenbuilt upon decades of research regarding public support for free expression.15 Studies have demonstrated that increased fear is related to decreased public support for civil liberties.16 One specific type of fear is concern for invasion. Need for privacy has been defined as the need for people to control how information about themselves is communicated . …

High-Level White House Advisor Describes Struggle With Depression

High-Level White House Advisor Describes Struggle With Depression

Ronald Reagan: the power of conviction and the success of his presidency

An icon of the twentieth century, Ronald Reagan has earned a place among the most popular and successful U.S. presidents. In this compelling firsthand account of Reagan's presidency, Peter J. Wallison, former White House Counsel to President Reagan, argues that Reagan took office with a fully developed public philosophy and strategy for governing that was unique among modern presidents. I am not a great man, Reagan once said, just committed to great ideas. Wallison shows how Reagan's unyielding attachment to certain key ideas-communicated through his speeches-created a cohesive administration and revived the spirit of the nation. In Ronald Reagan, Wallison describes what it was like to be on Reagan's White House staff and how Reagan's attachment to principle produced both the best and worst days of his presidency. Updated with a new epilogue.

The White House Counsel's Office

The Office of White House Counsel sits at the intersection of law, politics, and policy. Its distinctive challenge is to advise the president to take actions that are both legally sound and politically astute. Often called “the president's lawyer,” the counsel's office serves, more accurately, as the “presidency's lawyer,” with tasks that extend well beyond the exclusively legal. Drawing on interviews with previous occupants of the office, the authors examine the unit's numerous activities, its place in the larger White House and executive branch, and the experiences of those who have served as counsel.

Looking for a needle in a haystack: Developing closer relationships between law enforcement specialists and archaeology

In the early evening of 20 July 1993, the body of Deputy White House Counsel Vincent W. Foster, Jr. was found in Fort Marcy Park in Fairfax County, Virginia. The United States Park Police investigated the death and concluded that it was a suicide. Since that time, questions have been raised concerning the circumstances surrounding Mr. Foster’s death. Following continued speculation, two separate investigations were conducted by Special Counsel Robert B. Fiske and Independent Counsel Kenneth W. Starr. Each investigation included a search of the area where Mr. Foster’s body was found in an attempt to locate the bullet which caused Mr. Foster’s death, bone fragments from his skull, gun powder residue, and other evidence relevant to Mr. Foster’s death.

The Law: The Clinton Impeachment: Untangling the Web of Conflicting Considerations

The process of impeaching and removing a president is an insurance policy that was bequeathed to us by Constitution's framers--in hope that we would rarely have to use it. In mere two attempts to date that reached a Senate trial, only conclusion one can draw is that odds of getting a conviction are not high and have never been met.(1) Does this mean that impeachment is an impossible tool, incapable of ever serving its ultimate end? Or, alternatively, did framers know only too well what they had designed? Did they intentionally leave us with a process that, by its very nature--much like democracy itself would be messy, complicated, and vexing? Indeed, they wanted us to struggle with our choices and to think long and hard before firing up machinery of presidential impeachment, precisely because of grave consequences it could produce for To ensure against quick, easy judgments, framers made presidential impeachment unique among all governmental functions: a complex hybrid of four separate elements--legal, political, constitutional, and institutional all poised with potential to work at cross-purposes with each other. No other official act of government is fraught with such a combination of conflicting factors, and it is this inherently mixed, interwoven nature of process that may help to explain why no presidential impeachment effort has ever run its full course to conviction and removal from It also makes clear how Senator Robert Byrd (D-WV) could publicly state at Senate trial that although he was certain that president had committed perjury and obstruction of justice, his vote in Senate would be based on what was in the best interest of nation. Legal answers alone did not wholly determine his ultimate decision on how to vote. Similarly, White House Counsel Charles Ruff, in his closing argument to Senate, appealed to broader sense of duty of senators; urged them not to lose sight of constitutional forest for some of analytical trees; and asked them to consider larger question, one of fact, law and constitutional theory, of whether the liberties of people would be put at risk if president were to be retained in office. These comments by both Byrd and Ruff illustrate that a mix of considerations were at work here, just as framers intended. More than a year has passed since impeachment and Senate trial of President Clinton. There has been no shortage of analyses about president's behavior and effort to remove him that it spawned, and one hesitates to add to mountain of paper already produced on this subject (Spitzer 1999; Symposium 1999; Pious 1998; Pious 1999-2000; Posner 1999; Toobin 1999). But tangle of elements, and uncanny way in which calculations made to promote one tended to undermine another, is a variant of this story that has not yet been told. There are rich ironies to be observed, as well as sober reflections on past and lessons for future to be noted. Miscalculations were made on both sides. All parties in this process faced choices at critical junctures, and all made decisions that advanced their respective interest in one forum at expense of an equally important one in another. Second-guessing, a posteriori, is not purpose here (although it is an inescapable feature); rather, objective is to gain an understanding of why decision making during an impeachment process is such a zero-sum game, where an anticipated gain from one strategic choice is canceled out by equivalent loss from another that was rejected in a different sphere. Recognizing that constitutional, legal, political, and institutional factors play equally crucial, competing, and often irreconcilable roles here, and examining some examples of how this worked in practice, adds a fuller context in which to comprehend enigma of impeachment. …

Right‐wing opposition to Bill Clinton and his presidency: an annotated bibliography

President Bill Clinton has had many opponents and enemies, most of whom come from the political right wing. Clinton supporters contend that these opponents, throughout the Clinton presidency, systematically have sought to undermine this president with the goal of bringing down his presidency and running him out of office; and that they have sought non‐electoral means to remove him from office, including Travelgate, the death of Deputy White House Counsel Vincent Foster, the Filegate controversy, and the Monica Lewinsky matter. This bibliography identifies these and other means by presenting citations about these individuals and organizations that have opposed Clinton. The bibliography is divided into five sections: General; “The conspiracy stream of conspiracy commerce”, a White House‐produced “report” presenting its view of a right‐wing conspiracy against the Clinton presidency; Funding; Conservative organizations; and Publishing/media. Many of the annotations note the links among these key players.

High-Level, "Tenured" Lawyers

Government lawyers can be broadly categorized as either political or civil service appointees. The political appointees constitute a thin layer at or near the top the hierarchy government lawyers. They include, most prominently, presidential appointees-Officers the United States who must be nominated and confirmed by the Senate prior to their appointment.1 They also include a variety lesser lawyers who are exempt from most the civil service laws.2 Such exempt inferior Officers include, for example, the lawyers in the White House Counsel's office and so-called Schedule C lawyers who hold positions of a confidential or policy-determining nature scattered throughout the bureaucracy.3 The civil service lawyers form the much larger base the hierarchy below the thin top layer. They shall be referred to here as lawyers, because, as in the case tenured academics, they have an expectation continued government employment unless and until they are terminated for cause following cumbersome due process formalities.4 These tenure rights, which are created by the civil service laws and regulations,5 do not confer the right to continue in any particular job or function. Tenured lawyers can be removed from their position if their agency is abolished or is subject to a reduction in force.6 Generally speaking, however, they cannot be fired, demoted, or have their pay reduced unless they have been proven guilty some dereliction duty.7

The Battle That Never Was: Congress, the White House, and Agency Litigation Authority

Who should speak the government’s voice in court? Specifically, are the interests of the United States better represented by generalist litigators in the Department of Justice (“DOJ”) or agency lawyers with subject matter expertise? For DOJ and agency lawyers, this question is of monumental importance. For members of Congress and their staff, however, this question is almost always a nonstarter. Witness, for example, our experience in conducting a study for the Administrative Conference of the United States (“ACUS”) on DOJ control of government litigation. Before the study was approved, C. Boyden Gray, President Bush’s White House Counsel and a member of ACUS’s board, insisted that the project be blessed by Clinton Justice Department officials. Once approved, the project provoked dramatically different responses from agency and DOJ officials as well as congressional overseers. For agency lawyers, our project was a breath of fresh air—a chance to extol their underutilized litigation skills and vent frustration at DOJ. For some DOJ officials, our project was an invitation to disaster. Indeed, our inquiries about the distribution of litigation authority prompted one high-ranking DOJ official to lobby ACUS to kill the project. In the halls of Congress, however, staffers on the Senate Judiciary and House Energy and Commerce committees wondered why two law professors would invest so much energy in a project that held so little interest.

At the President's Side: The Role of the White House Counsel in Constitutional Policy

Counsel's Office was at center of brief uproar that arose when press discovered that presidential aides had manipulated FBI to put White House patronage maneuvers (replacing career officials in White House travel office with friends or relatives of President Clinton) in a better light.l The apparent suicide of Deputy Counsel, Vincent Foster, amidst mysterious circumstances, focused new attention on Counsel's Office, all more so as Counsel's Office was accused of mismanaging and manipulating investigation of Foster's death in peculiar ways.2 Counsel Bernard Nussbaum ultimately achieved distinction of being first White House Counsel whose activities were visible enough-and controversial enough-for respectable editorialists to condemn his personal performance and demand his removal from office.3 If Counsel's Office achieved more notoriety in Clinton Administration, its operations did not become easier to follow. But role of Counsel has never been easy to define or to assess. The White House Counsel is often described as the President's lawyer. By constitutional tradition and statutory provision, however, president already has an official lawyer: Attorney General of United States. The Attorney General has had a place in president's Cabinet-and an official role in providing legal advice to executive officials-from time of President Washington. The Counsel is an innovation of recent decades. The Attorney General (along with other top officers in Justice Department) must be confirmed by Senate and remain available for frequent congressional appearances, while Counsel and his aides are