By Dan Eggen
Washington Post Staff Writer
Friday, January 30, 2009
Washington lawyer Norman L. Eisen made his name in politics as a regular Democratic contributor and co-founder of Citizens for Ethics and Responsibility in Washington, a liberal-leaning watchdog group that, among other things, sued then-President George W. Bush over missing White House e-mails.
Now Eisen is part of the White House, named by President Obama this week as his special counsel for ethics and government reform.
Eisen is one of several dozen prominent lawyers who will help formulate and interpret legal policy in the new administration, signaling a dramatic departure from the legal approach and policies of Bush and his aides. The list includes heavy-hitters educated at some of the nation's most prestigious law schools, and many who were sharply critical of Bush administration policies on detention, prisoner treatment, surveillance and other issues.
Democrats have praised the appointments as necessary to roll back the legal policies of Bush and his vice president, Richard B. Cheney, who largely relied on a relatively small group of conservative lawyers to formulate an expansive view of executive branch and presidential powers.
"It's fair to say that a Democratic White House has a lot of Democratic lawyers," said Walter Dellinger, a senior Justice Department official in the Clinton administration who teaches law at Duke University. "But this is a group of people who have distinguished themselves in practice and with really solid scholarship. . . . Everyone understands that the importance of trying to get the law right has taken on a greater significance than it has in previous transitions."
On the other hand, some Republicans argue that the list shows that Obama is more partisan than advertised. Several top new lawyers at the White House, for example, served as senior advisers during Obama's presidential campaign, while another, Susan Davies, served as general counsel under the Democratic Senate Judiciary chairman, Patrick J. Leahy (Vt.).
"It's clearly a very different direction," said David B. Rivkin, who served in the White House counsel's office under President George H.W. Bush and was a strong supporter of the aggressive legal positions staked out by his son. "They are politically simpatico with the president, which is as it should be, but I imagine they are preparing to do a lot of heavy lifting" in a direction conservatives will not like, he added.
Obama's nominee for attorney general, Eric H. Holder Jr., also ran into strong criticism from Republicans over some of his decisions as a Justice Department official during the Clinton administration. The Senate Judiciary Committee, however, overwhelmingly voted in favor of his appointment this week after several Republicans dropped their objections.
Many attorneys from both parties also marvel at the sheer number of lawyers Obama has appointed or nominated so far, particularly at the White House counsel's office, which will have at least 22 attorneys working under counsel Greg Craig. That's more than twice as large as the office was under Bush, with three deputy counsels, the special ethics counsel and 18 associate and deputy associate counsels.
The deputies include Daniel Meltzer, a Harvard University law professor who will serve in a principal deputy slot; Mary DeRosa, also of Harvard, who will focus on national security issues; and Neal Wolin, a former insurance executive and national security official who will focus on economic policy. One associate counsel will focus on issues related to first lady Michelle Obama, while the office also will employ a research director who previously conducted opposition research for Barack Obama's presidential campaign.
Many conservatives complain that Wolin faces a conflict-of-interest problem because his recent employer, Hartford Financial Services Group, is one of the insurers requesting federal rescue funds from the Treasury Department. The White House says he will steer clear of any issues involving Hartford.
Jack M. Balkin, who teaches law at Yale University, said Obama's appointments probably stem in part from his own background as a lawyer and a former constitutional law professor. While many of the appointees are obviously Democrats, he added: "Obama seems to be sending a message of relative moderation and professional competence."
"These are people with very strong résumés who are very, very strong lawyers, but I don't think of them in terms of their ideology or political beliefs," Balkin said, adding that Obama "is a very good lawyer, so he has an eye for talent."
Veterans of the White House counsel's office said the selections suggest that critical policies will be made at 1600 Pennsylvania Avenue and not from agencies with direct responsibility for them. The risk, one GOP lawyer said, is that there could be confusion and infighting over who is in charge, as strong-willed and experienced lawyers in the White House seek to control issues across the Cabinet.
Lawyers in both parties also warned Obama against allowing the White House counsel's office to become too large and influential, arguing that most important legal decisions should remain in the hands of Justice Department lawyers, many of whom are career employees.
The Justice Department's Office of Legal Counsel is responsible for rendering objective opinions on legal questions, but Bush was heavily criticized for allegedly compromising that role. That office will now be headed by Dawn Johnsen, a well-regarded Clinton administration lawyer who teaches law at Indiana University.
"It is important for there to be a good working relationship between OLC and the White House counsel, but OLC must retain the ability to take issue even with the judgments of the White House counsel when necessary," said Douglas Kmiec, a Pepperdine University law professor who backed Obama's presidential bid despite being a Republican. "Professor Johnsen's academic training hypothetically could be tested by the practical litigation skills of Greg Craig, and I assume both will be sensitive to that prospect."
Staff writer Carrie Johnson contributed to this report.