Thoughts on the Proper Role of the White House Counsel

Jack Goldsmith is among those who have expressed concerns about Don McGahn’s performance as White House Counsel. He has focused on the questions raised by the Executive Order on immigration, the Flynn investigation, and the new administration’s ethics posture. As Goldsmith has been careful to say, it may turn out that in certain cases, McGahn was hobbled by the conditions in which he is working, perhaps lacking the requisite access or influence. But on the facts known, the series of missteps in these last weeks inevitably turn attention to the Counsel’s role.

A large issue woven into these questions is how we ought to understand the position of White House Counsel. The subject has inspired impassioned judgments. Professor Bruce Ackerman of Yale Law has argued for a simple conclusion: he thinks that the Counsel to the President is a world-class enabler, the President’s yes-man or -woman, and that the position should be abolished. This view follows naturally from a jaundiced view of what a lawyer does for “a client,” which is to say, whatever the client may need.

The lawyer serving as White House Counsel is not, of course, a president’s personal counsel but is charged with providing legal support to the Office of the Presidency. The President is the “client,” but so are the individual members of the White House staff, and the obligation extends to the public. It is naturally hard, and some imagine it to be impossible, for the Counsel to the President to separate obligations to the institution from the demands of loyal service to the flesh-and-blood individual holding the office.

Moreover, from a president’s perspective, the choice of counsel is necessarily somewhat “personal.” Those choices throughout various presidencies have varied in kind—litigators, corporate lawyers, lawyers with a no government experience and others with plenty, and lawyers with a political background. But all presidents naturally view the counsel chosen as “theirs.” The lawyer selected is, after all, the Counsel to the President.

So critics like Ackerman worry that there is no way of keeping honest—in the sense of preserving professional independence—the very person who is supposed to keep the White House honest. White House Counsels over time have come under particular suspicion and some have come to grief. One has gone to jail, while others have been accused of obstruction of justice. In the Watergate scandal, John Dean testified before the Congress that the presidential cover-up was “a cancer on the presidency.” Twenty years later, the columnist William Safire declared with dramatic flourish that the “cancer” he was worried about in the presidency of the time had “its locus in the office of the White House Counsel.” White House Counsels have served for as long as eight consecutive years but also, in troubled circumstances, for much shorter stints.

But there are a few guidelines, working principles, which have emerged from this tumultuous experience and help clarify the proper role of the White House Counsel.

First is the one already noted: the counsel in any situation must be clear about the “client” interest she is serving when giving advice. It may often be that good advice serves all the relevant interests—the particular president’s, the Office’s, and the public’s. But this can be a more complex and demanding judgment than it seems.

Second, the White House Counsel is the lawyer and not the client, an agent and not a principal. It is one of the reasons that White House Counsels do well, as a general matter, to refrain from weighing in on the substance of policy questions. It is usually a mistake for the Counsel to attempt to be both lawyer and a constituent member of the “client,” because if engaged in policy, the lawyer may be inclined toward a legal position helpful to her policy preference, and others in the policy debate may suspect bias (even if there is none) and lose confidence in the Counsel’s professional objectivity.

Third, the lawyer has special responsibility for legal and ethics compliance within the West Wing. She may have to advise on a wide range of areas, increasingly including national security, but a bedrock responsibility is ensuring the adherence to law and ethics standards by the President and the staff.

Fourth, the White House Counsel has to be an honest broker in matters of process in which she is involved. The resolution of legal issues that concern the president may be the primary responsibility, or require the participation, of the legal staffs of other Departments or agencies. The Counsel has a role in assuring that whenever she will be the one fashioning and delivering the advice, all informed views of affected agencies considered. There are other instances in which she is not the appropriate legal decision-maker or adviser, but coordinates the development and delivery of the advice.

Finally, the Counsel must determine how all of these responsibilities are most effectively performed in the particular presidency, taking into consideration the specific tone set, the policies emphasized, and the political challenges faced by the occupant of the office. This is not to suggest that the White House Counsel is just the president’s lawyer and must keep closely attuned to what that president wants. It means that the lawyer cannot represent all the relevant interests without a thoroughgoing appreciation of the political and policy environment within which she is working.

It is in the light of these considerations that it is useful to examine the early returns on McGahn’s performance, addressing each of Jack Goldsmith’s areas of concern and adding one more: the President’s call to DOJ to direct an investigation into leaks.

Ethics

On this front, McGahn faces an extraordinary challenge. The President has concluded with the advice of other, private counsel that he can retain an interest in his global and national business interests, turning it over during his presidency to the management of his own children. Other lawyers have been recruited to act as ethics and compliance advisers to the business, but the White House Counsel is responsible for seeing that the arrangement set up to meet ethics standards holds together within the White House. McGahn apparently has concluded that he can function as Counsel within this controversial structure.

If he does, however, then the standards for addressing ethics issues are necessarily heightened, with implications for the steps that McGahn takes to enforce compliance. Compliance is a key White House Counsel function, still more so on these issues in this administration. Moreover, government ethics rules are meant in significant measure to reassure the public that the government is running for its benefit, not for the officeholders or their friends and family, with the result that the “appearance” of compliance, while tricky to interpret and administer, is also of high importance.

When Kellyanne Conway urged TV viewers to buy Ivanka Trump’s wares, the White House responded to inquiries about this commercial promotion by saying she had been “counseled” and refusing further comment. McGahn or members of his office, we must assume, were those who “counseled” her. In light of the unprecedented arrangement for the maintenance and stewardship of the President’s business interests, this public accounting seems plainly insufficient. In what way and, in substance, how was Ms. Conway counseled? This is a legitimate subject of public inquiry, and on full answers—transparency—rest any hope that the administration might have of demonstrating that it takes these questions seriously

Perhaps McGahn pushed for this transparency, perhaps not. The decision here is the senior staff’s. The result—no meaningful information provided—has made it hard to judge how the White House Counsel is approaching his responsibility. It is clear, however, that McGahn and his office were not well served by this outcome. The degree of transparency on these issues is something to be watched in the future, and it is a reasonable ground on which to evaluate the quality of ethics compliance during Trump’s tenure.

Executive Order on Immigration

The ill-fated executive order on immigration is open to criticism on three distinct grounds. The first is the tightness and clarity with which the Order was written. The second is the manner in which it was rolled out. The last concerns the remedial steps the administration undertook at the last minute to save the Order from key objections, in particular the criticism that the Order covered green card holders or was not clear on this question.

Press reports indicate that the Office of Legal Counsel reviewed and approved this Order for legality and form. The White House Counsel would certainly have reviewed it, but he is new to the job and he may well have reasonably deferred to other lawyers within the executive branch on the fundamental question of whether it was properly drawn. Here, unlike in the case of ethics compliance, he is not so much the leading adviser or the last word. He certainly must play the key role in coordinating legal advice within the executive branch on form and legality, and one of the functions of coordination is a thorough “vet,” which should, if properly conducted, detect errors of form and legality. It is not clear that most of the time, the White House Counsel is primarily responsible for the competence of the Order’s drafting in the first instance.

McGahn may also share but not bear the brunt of the blame for the botched rollout. Again, in his advisory role, he presumably would have asked questions relevant to the rollout’s planning and execution, and he certainly should have. A White House Counsel involved with legal initiatives has to look ahead and advise on their implementation. How well McGahn did this is a fair question, and the question is all the more urgent when all goes awry. At the same time, the Chief of Staff and senior policy advisers like Stephen Miller must take more than an equal share of the criticism for the slipshod manner in which the Order was issued.

It is in the remedial steps taken to address the green card-holder question that McGahn most clearly erred. The authoritative guidance memo, in which McGahn states that he wished to "clarify” that the Order did not apply to this category of travelers, rightly did not sit well with the Ninth Circuit. The White House Counsel does not have the delegated authority of the president to amend an executive order, on the pretense of clarifying it; he is not, as the Court said, in the "chain of command." By appearing to have inserted himself into this chain, McGahn shifted away from an advisory or coordinating role.

McGahn may have come under pressure to do this, because the president might well have wanted at all cost to avoid the embarrassment of having to amend the Order. It is pressure of this kind—to assume an operational role under political pressure—which a White House Counsel should avoid.

Flynn Resignation

White Houses wind up in the middle of politically sensitive messes, some of them rising to the level of full-blown scandal, and these are ones that tax the Counsels’ very best judgment. They must be sensitive to the political dimensions of the task without losing themselves in the political moment and failing to keep the distance that sound legal judgment and counseling require. Their advice, however, is generally useless if it is not informed by the complex politics surrounding major legal issues.

There is no definitive record of what happened in the days leading to the Flynn resignation. Press reports suggest that McGahn brought the matter immediately to the President and Chief of Staff's attention and that they spoke on more than one occasion with the Acting Deputy Attorney General. At some point, according to the White House Press Secretary, McGahn “determined” that the issue was not a legal violation but a breach of trust. According to Mr. Spicer, the President’s action to ask for or accept the resignation of Mr. Flynn was “based” on the trust problem and not a legal issue. That is, Flynn’s resignation was sought because he had misled the Vice President and the White House, not because a possible violation of law arising from the calls to the Russian Ambassador or his account of them to the FBI.

This raises the question: What were the grounds for this legal “determination” and was it appropriately one for the White House to make? The answer depends on the function that McGahn was purporting to perform: Was he acting to resolve the issues raised by General Flynn’s conduct, or was he advising the President as necessary, and under pressure, on a major personnel decision?

In the first case, McGahn would be making a legal judgment—in Spicer’s word, a “determination”—in circumstances in which it would appear that the White House Counsel was getting ahead of an investigation in progress and rendering a judgment it is for other officials (in DOJ) to make. This would not be within the scope of his proper advisory function. Moreover, as has happened to White House Counsels in the past, he would open to the charge that this “determination” prejudiced the ordinary course of DOJ’s decision-making process.

The other possibility is that the President had to make a decision about whether to keep Flynn, and he needed a rough-and-ready understanding of whether the matter before him involved a serious legal question. It would have been inappropriate for the president to ask the Deputy Attorney General for this legal conclusion, because the White House should generally avoid discussing what may be an active investigation with the Department of Justice and potentially creating the impression that it is applying pressure toward a particular conclusion, or otherwise inappropriately interfering in the Department’s work.

Moreover, as pressure mounted, the President and his staff may have concluded that they could not wait until an investigation had concluded to resolve Flynn’s status. It is conceivable that they wanted, in a sense, a "feel" for the range of issues, including the legal issues, which Flynn's conduct presented. It would have been appropriate under those circumstances for McGahn to offer the President a private judgment, in no way constituting pressure on DOJ, which would have facilitated the president’s decision on a matter requiring immediate action.

If that’s what happened, however, it was certainly not appropriate to communicate McGahn’s legal view to the public in a briefing by the White House Press Secretary. It would have been far better for Mr. Spicer to have simply said that the White House would not comment on anything other than the grounds on which the President reached his decision to ask for the Flynn resignation. By relaying the substance of McGahn's legal judgment, Spicer removed it from the private legal advisory domain and set up the impression that the White House was preemptively pronouncing on a legal matter properly left to DOJ.

To be sure, McGahn himself did not make the statement; Spicer did. But a White House has to exercise great care about the public communication of private legal advice to the president. There are cases where the public communication of the advice might be defensible, but this does not appear to be one of them. Once the Deputy Attorney General brought this matter to McGahn’s attention, it was more prudent to keep within the West Wing any legal advice the president needed in deciding whether to retain Flynn. If the dismissal flowed from an issue of “trust,” that is all that needed to be said.

The President’s Call to DOJ to Direct an Investigation into Leaks

The President has said he called the DOJ to direct an investigation into leaks. This is extraordinarily imprudent. While one step removed from ordering an investigation of a specific party, it is only that one step, and it is fairly standard protocol that a president refrains from direct discussion with DOJ about specific investigations. There is no information yet about whether the President sought or received advice from his Counsel prior to making the call, or discussed the advisability of it afterward. So the question necessarily arises whether the President takes such contacts to be standard operating procedure.

Here, however, is another case where the stance of the particular administration subjects the Counsel to special demands in monitoring this sort of contact. One of Mr. Trump’s closest advisers, Steve Bannon, has referred to the Attorney General as the Administration’s “clearinghouse … for policy and philosophy,“ and instrumental to “the birth of a new political order.” This remarkable statement suggests that the White House Counsel should pay the closest attention to the DOJ-White House relationship, and it is the institutional and public interests—not the President’s policy or political interests—that are controlling here.

The question of the White House’s interaction with DOJ is one on which they should be pressed for answers. Those answers would supply a crucial basis for judging the White House Counsel’s performance.

And so….

These tests of the White House Counsel in the first weeks of the Administration are not all easily graded, pass or fail, in the absence of all the facts. But there is enough in this experience to shed light on reasonable expectations of a White House Counsel in general, and of this Counsel, in this administration, in particular.

It is not too early to define those expectations and to insist on answers to the question of whether they are being met: President Trump has made these questions an imperative.