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Friday, Dec. 22, 2000

President-elect Bush has announced that former Texas Supreme Court Justice Alberto R. "Al" Gonzales will be his White House counsel. Without question, Gonzales has landed one of the best jobs in Washington. It is a job for which he is well-qualified — a Harvard Law School graduate, Gonzales has broad legal experience not only from his recent stint on the Texas Supreme Court, but also from his days in private practice at Vinson & Elkins and as general counsel to Governor Bush. He has also acted as Texas' Secretary of State. Nevertheless, one thing is certain: Nothing Justice Gonzales has done has fully prepared him for his new job.

Little has been written about the day-to-day work of the White House counsel's office, and the counsel is seldom a focus of public attention. When the counsel is the object of scrutiny, however, it's often because there's serious trouble, such as when I had to testify about criminal activities in Richard Nixon's White House during Watergate, or when Charlie Ruff represented Bill Clinton on Capitol Hill during the impeachment proceedings. Needless to say, we all hope the new White House counsel is spared any similar experiences.

The White House Counsel's Job

G. Boyden Gray, who served as counsel to the president-elect's father, will surely give Justice Gonzalez a terrific heads-up about the job. He will explain the dual aspects of the work; the White House counsel must both represent the president's own official legal interests, and protect the constitutional prerogatives of the office itself. Thus, the Counsel serves both the man and the office.

The counsel's office is involved in everything, from checking presidential speeches and statements, to reviewing enrolled bills for presidential signature, to analyzing veto situations, to following the Supreme Court in order to alert the president or the White House staff of important decisions, to drafting proclamations and executive orders, to reviewing judicial appointments, to treaties and pardons, to vetting presidential appointees and ethics officers for the White House staff — to mention just a few areas. To this list must be added what might be called fire fighting — that is, preventing some potentially troubling conflagration from reaching the White House or the president.

The setting for new White House Counsel Gonzales will be a favorable one, since the Congress is controlled by the Republicans, and the Independent Counsel law has expired, and is unlikely to be renewed. (It is difficult to imagine either Democrats or Republicans seeking to revive a law that wounded both, when it is not necessary). Accordingly, the new White House counsel should not have to face some of the problems that dogged his predecessors, such as litigation over the assertion of "executive privilege," and White House staff being called to testify on the Hill. Congressmen like Dan Burton, who served endless subpoenas on the Clinton White House, will find it more difficult to attract attention.

The Counsel's Relationship with the Attorney General

I've traced the history of the post of White House Counsel back to 1941; there have not been that many. Each counsel develops his or her (at last, thanks to President Clinton) own relationship with the Department of Justice and the Attorney General.

The Attorney General is no longer the president's lawyer. Presidents have learned that their Attorney General is busy administering the Justice Department, too busy to provide the day-to-day legal assistance the White House needs. Accordingly, the post of White House Counsel was created, and has grown. President Kennedy had one lawyer. In my time we had five lawyers. Today, there are 40.

There need be no conflict between the Attorney General and White House counsel, if the two offices are properly coordinated. The only true problem area has been judicial selections.

During my tenure as counsel, all judicial appointees were handled by the Attorney General. This worked until Attorney General John Mitchell made several disastrous choices for the Supreme Court: Clement Haynsworth and Harold Carswell. After that, the Nixon White House became involved in both the selection and processing of Supreme Court nominees. And the counsel's office was right in the middle of it.

During the Carter presidency, the counsel's office became actively involved in all judicial appointments — a practice that Attorney General Griffin Bell later termed "such an outrageous intrusion into the prerogatives of the attorney general and such a politicization of the process of selection that I thought of resigning." Yet the practice has continued, and now seems a standard procedure.

While the attorney general is no longer the president's lawyer, the White House counsel does rely on the Justice Department, and particularly on its Office of Legal Counsel (OLC) — which is staffed by attorneys who are among the Executive Branch's best and brightest constitutional scholars, who regularly prepare opinions and analysis for the White House.

The White House counsel's office has no institutional memory, since every president empties the files of his presidency before a successor arrives. But OLC does provide some institutional stability to the work of the White House counsel. When I was counsel, William Rehnquist was the Assistant Attorney General in charge of the Office of Legal Counsel. Because of our working relationship, he ended up on the Supreme Court. But that's another story.

Suffice it to say, the lawyers of the Office of Legal Counsel are not only important to any given president, but to the presidency.

The White House Counsel's Role in Vetting Presidential Appointees

Presumably, Justice Gonzales will get started on his new work vetting presidential appointees during the transition. No work of the counsel's office is more important, nor demanding. When I was counsel, my office developed a detailed questionnaire for appointees, which I understand has been used, and refined, by all my successors.

This checklist is, unfortunately, onerous for the potential appointee to complete. But it makes certain appointees will not embarrass the president, or themselves. It flushes out problems. And if the appointment requires Senate confirmation, it helps prepare the person for that process.

Many presidential appointees have substantial wealth, and their appointment may raise potential or actual conflicts of interest. Reviewing financial holdings is time-consuming, but essential. It is often done with the assistance of a career civil servant attorney in the general counsel's office of the department or agency in which the appointee would serve, because no White House counsel can understand the details of every cabinet post and job. What the White House counsel often must do is find a solution that resolves the conflict problem, but does not create a financial hardship (by, for example, forcing the appointee to sell securities and suffer adverse tax or other consequences). When the president wants someone in his cabinet, the White House counsel has to find such answers to any potential obstacles.

Needless to say, vetting is confidential. The counsel acquires a lot of private information about colleagues and presidential appointees that has been provided, or produced by the FBI, for the benefit of the president. In many years of observing this process, I am unaware of sensitive (or derogatory) information ever leaking from the files of the White House counsel. I wish I could say the same about the United States Senate, when information has been provided to them for confirmation proceedings.

As a result of the vetting process, the White House counsel develops a unique relationship with the appointee. When you examine someone's life, and finances, you get very well acquainted. So it is not surprising that the White House counsel is often the first person who gets a call from a cabinet officer when he or she is having problems with others on the White House staff. This provides a unique opportunity for a bit of quiet dispute resolution, to make sure such problems do not require the president's attention. This can be a unique service that White House counsel can provide, to keep the machinery moving smoothly.

Justice Gonzales' background does not include Washington experience. What wisdom, I wondered, might I share that could help him? I remembered the experience of my former deputy, Fred Fielding, who became President Reagan's counsel.

Fred, who was uniquely qualified for the job, had planned to prepare an emergency book for the White House staff and cabinet, but had not gotten around to doing so by March 30, 1981, just two months into President Reagan's first term, when the president was shot by John Hinckley. Who can forget the potentially dangerous chaos that followed?

Secretary of State Alexander Haig went to the White House Situation Room to assure the world that all was well, by informing our ambassadors. Haig was also watching Deputy Press Secretary Larry Speakes, upstairs in the Press Room, responding to questions from an anxious media. All anyone knew was that the president, and his Press Secretary James Brady, had been shot leaving a Washington, D.C. hotel.

Speakes was asked if the President was in surgery. He said, "I can't say." Had the U.S. military been placed on a higher level of readiness? Speakes evasively answered, "Not that I'm aware of." He was finally asked by an overwrought reporter, "Who is running the government right now?" Speakes said, "I cannot answer that question at this time."

With this, Haig flew out of the Situation Room, and headed down the hall and up the stairs to the Press Room. Out of breath, red-faced, and trembling, he took the podium from Speakes. Haig, voice filled with angst, reported the President had been wounded in his left lung and was in surgery. No military alert was necessary and none had been called. "Who is making decisions for the government right now?" the Secretary of State Haig was asked. Oblivious of his constitutional ignorance, he announced, in essence, that he was.

More specifically, Haig — described by those watching him as looking like he might collapse — nervously proclaimed:

Constitutionally, gentlemen, you have the President, the Vice President and the Secretary of State, in that order, and should the President decide he wants to transfer the helm, he will do so. He has not done that. As of now, I am in control here, in the White House, pending the return of the Vice President and in close touch with him. If something came up, I would check with him, of course.

To say that Haig made matters worse is an understatement. The Secretary of State was not in charge, or even remotely close to it — for he follows the Vice President, the Speaker of the House, and the President Pro Tempore of the Senate in the line of succession. Given Haig's manner, and words, many television viewers thought some sort of coup d' etat was in progress.

Al Haig has left a legacy for every White House counsel. The senior White House staff and cabinet must understand presidential succession — particularly given the fact Vice President-elect Cheney has a palpably weak heart. The Speaker of the House, Denny Hastert, should be informed as to the proper order of succession, as well. And I'd also take a look at the succession situation that could involve the 98-year old President Pro Tempore of the Senate, Strom Thurmond (R — S.C.), who can only make it in and out of the Senate Chamber with the assistance of an aide. Following the ordeal of our election imbroglio, prudence calls for planning for worse case scenarios.

John Dean, a FindLaw columnist, is a former Counsel to the President of the United States.

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