Cipollone’s fellow lawyers have not been kind in assessing his legal arguments or his treatment of the factual record. Conservative legal luminary George Conway tweeted, “I cannot fathom how any self-respecting member of the bar could affix his name to this letter …. [I]t disgraces the profession.” Others focused on the role Cipollone holds. Former Justice Department official Marty Lederman said “the most important & distressing point” was that “the WH Counsel, whose job is to ensure that the POTUS complies with the law and Constitution, is defending the ‘appropriateness’ of Trump’s breach of constitutional duty rather than insisting it cease immediately.”
Ironically, Lederman’s comment echoes what Senate Majority Leader Mitch McConnell (R-Ky.) said back in 2016: that a potential President Trump would “understand, when he’s sworn in, the limits of his authority.” Why? “He’ll have a White House counsel. There will be others who point out there’s certain things you can do and you can’t do.”
And yet the White House counsel (or other administration legal advisers) have not proved to be an effective deterrent to presidential action. That is not surprising. When it comes to presidential lawyering, politics and policy preferences often override constitutional concerns. Here’s why.
1. The president’s lawyers work for the president.
McConnell may have been remembering a comprehensive transition paper on the Office of the White House Counsel written in 2008 by political scientists MaryAnne Borrelli, Karen Hult and Nancy Kassop. The trio concluded that “the most important contribution of the White House Counsel may well be telling the President ‘No.’ ”
But they also revealed how hard it is to keep “one foot each in law and politics.”
The Office of the White House Counsel itself began with political duties rather than legal ones. When President Franklin Roosevelt asked his longtime confidant Samuel Rosenman to join the White House staff in 1943, former judge Rosenman got the honorific title of “counsel” rather than “assistant” to the president. But at that point, and under successors such as Clark Clifford (Truman) and Ted Sorensen (Kennedy), the counsel’s office focused on speechwriting, bill drafting and policy advice.
By the 1970s, though, the office had become the presidency’s law firm — partly because domestic policy had its own staff and partly because after Watergate, the White House had to keep track of an expanding bramble of legal requirements, such as ethics rules. The office grew from two to three lawyers in the 1970s to more than 40 in the Clinton years, settling in at more than 20 by the mid-2000s.
Those lawyers work for the president, and they want to find an answer that will make their client happy, if they can. One result can be what former DOJ attorney Harold Bruff called, at book length, “Bad Advice.” Michael Horowitz listed several examples of administration lawyers choosing constitutional soundness over political expediency in a 2015 National Review piece about his time in the Reagan White House. But he did so to point out its relative rarity and to criticize what he called “[Barack] Obama’s corps of yes-man lawyers.”
In “Power Wars,” journalist Charlie Savage wrote, “Many of the lawyers [George W. Bush and Richard B. Cheney] surrounded themselves with … embraced such sweeping views of executive power that the law was not a factor. They dispatched every hard problem with the same easy answer: The president could do whatever he deemed necessary to protect national security.” For his part, President Barack Obama did not want to claim presidential prerogative, preferring to ground his actions in statute. But his administration’s lawyers showed great talent in finding statutory interpretations to justify Obama’s preferences.
So have those in other administrations. President Ronald Reagan aide Ed Meese put it this way in a White House meeting over aid to the Nicaraguan Contras in 1984: “It’s important to tell the Department of Justice that we want them to find the legal basis [to give the aid].”
Thus Yale Law School professor Bruce Ackerman argues that “the counsel’s office is the last place to look for a systematic legal check on overweening presidential ambition.”
2. Presidents have lots of lawyers and can choose the opinion they like best.
If a given lawyer does not offer the desired advice, presidents have other options. Ackerman argues, for example, that the counsel’s office is in competition with the Office of Legal Counsel (OLC) in the Justice Department, normally the authoritative source of executive branch legal opinions. A 2010 speech by State Department legal adviser Harold Koh notes that his office counted 175 attorneys — and notes that they had to work with other lawyers from 20 different offices in the executive branch alone.
Consider Obama’s 2011 intervention in Libya. The War Powers Resolution requires explicit congressional authorization for the president to keep U.S. military forces in “hostilities” for any longer than 60 days.
As Savage reported, most administration lawyers, including in the OLC, suggested that after 60 days, at the very least, the “operational tempo” in Libya would have to be reduced. But White House counsel Robert Bauer, along with Koh, argued the operation did not constitute “hostilities.” That term should be reserved, Obama said at a news conference, for wars on the scale of Vietnam.
Sen. Bob Corker (R-Tenn.), then-chair of the Senate Foreign Relations Committee, called that redefinition “preposterous.” But Obama chose the option that empowered him, and Congress failed to do anything about it.
3. Executive branch lawyers create their own precedent.
The Libya decision grew from what presidents had done in the past. President Bill Clinton ordered thousands of airstrikes in Kosovo and Serbia in the late 1990s — without congressional authorization. And when Reagan authorized “imminent danger” pay for naval forces in the Persian Gulf in 1987-1988, he simultaneously held that there were no “imminent hostilities,” as defined in the War Powers Resolution.
All this serves as precedent — precedent written by the executive branch itself, as with OLC’s long-ago decision that a sitting president cannot be criminally charged.
As Ackerman argues, “this steady stream of authoritative-looking opinions is produced under conditions that allow short-term presidential imperatives to overwhelm sober legal judgments.”
4. Some of those precedents are memorably problematic.
Finally, those counting on lawyers’ ethics to check the president might recall the Watergate years. In a September 1972 conversation, White House counsel John Dean told President Richard Nixon that “one of the things I’ve tried to do, is just keep notes on a lot of the people who are emerging as less than our friends.” Nixon approved, saying, “They are asking for it and they are going to get it.” It was time, Nixon went on, to use the FBI and the Justice Department for this vengeful task.
The White House counsel didn’t say that would be an abuse of power. He replied instead, “That’s an exciting prospect.”
There’s no guarantee that other presidential legal teams will be any less excited.