Welcome to the Roundtable, a forum for incisive commentary and analysis
on cases and developments in law and the legal system.
on cases and developments in law and the legal system.
By Habib Olapade
Habib Olapade is a senior at Stanford University studying political science.
The White House Counsel is often described as the President’s lawyer. This appellation is misleading, however, because the Attorney General, with a few irrelevant exceptions, is the sole individual possessing statutory authorization to advise the executive on constitutional and legal matters. Since the creation of the Counsel’s office in 1941, it has been difficult to definitively describe the Counsel’s duties because each advisor has played a different role in every administration. At various points in time, the President’s Counsel has been charged with reviewing legislation and signing statements, overseeing Presidential appointments, handling pardons, writing speeches, drafting legislation, developing programs, or rendering advice on foreign policy matters.
Some things are clear about the Counsel’s office, however. First, it has become securely institutionalized in the White House’s structure primarily because of statutory requirements imposing onerous record-keeping burdens on the executive. Second, the White Counsel has taken over some of the Justice Department’s advisory functions.
Congress enacted several pieces of reform legislation after Watergate. In particular, the Ethics in Government Act of 1978 (EGA) increased the White House Counsel’s importance within the executive branch. Prior to Nixon’s resignation, his in-house counsel, John Dean III, had already invested substantial resources in coaxing government officials to comply with conflict of interest rules contained in an Executive Order issued by Lyndon Johnson. The EGA expanded on the Johnson Order by laying down an elaborate set of public disclosure requirements for the financial assets and income sources of government officials. These disclosure requirements made it easier for distrustful journalists to detect conflicts of interest and blow the whistle on potential scandals. The White House Counsel’s office responded to the EGA’s requirements by expanding its staff, providing senior executive officials with precise guidelines on disclosure requirements, and supplementing agency nominee screening with independent review. While certain portions of the EGA such as the infamous independent counsel provision have been repealed, the law has created a niche for the White House Counsel in the executive branch.
The struggle for power within government agencies is often a zero-sum game, though. Unfortunately for the Department of Justice (DOJ), the White House Counsel’s expansion came at the Department’s expense. Indeed, the DOJ’s predicament is confirmed by a short examination of changes in the partisan climate within the DOJ throughout the twentieth century that were prompted in part by a seminal Supreme Court decision: Myers v. United States (1926). In Myers the Supreme Court held that Congress could not restrict the President’s ability to remove purely executive officers such as cabinet officials from their posts. One of the many corollaries of the Myers decision was that Attorney General was subject to removal by the President without cause. The government’s chief law officer was, therefore, expected to fully cooperate with the President’s political efforts. Past Presidents were not only cognizant of this situation but also, appointed individuals who they anticipated would be responsive to their needs. Indeed, Eisenhower, Kennedy, and Nixon all appointed their campaign managers to be Attorney General. Wilson, Truman, and both Roosevelts named political party chairmen and active campaigners to the position.
After John Mitchell and Richard Kleindienst, Nixon’s two Attorneys General, were sentenced to prison for obstructing Congress’ investigation of Watergate, government reformers began to argue that the Attorney General should be a neutral official above the hurly-burly of regular politics. In response to this climate of public suspicion Ford and Carter both selected political outsiders to head their Justice Departments. The upshot of this approach was that the Attorney General was kept at an arm’s length from the oval office, and was disconnected from politically charged policy debates. The downside of this approach was that the Attorney General was unable to advise the President because he was kept at an arm’s length from the oval office, and disconnected from politically charged policy debates. Nature abhors a vacuum – and the White House Counsel filled the void by becoming an important source of independent guidance and information for the President, and even serving as an intermediary for communication between DOJ and the President on some occasions. For better or worse, the White House Counsel has taken over some of the DOJ’s advising functions through a process of adverse possession.
The White House Counsel’s Office operates in the shadows of the public eye despite the important functions in carries out. The Counsel’s office has no statutorily defined duties, is not recognized explicitly or implicitly by any federal statute, produces virtually no public documentation, and is immune from congressional scrutiny. Given that the advent of public choice theory and renewed scholarly interest in The Federalist following the Constitution’s bicentennial have provided administrative law scholars with more accurate models to describe intra-agency behavior, the real wonder is not that the White House Counsel’s Office has risen to such a prominent position in the post-Watergate era, but rather, that academics have continued to ignore its presence.
The opinions and views expressed through this publication are the opinions of the designated authors and do not reflect the opinions or views of the Penn Undergraduate Law Journal, our staff, or our clients.
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