Legal Decision-Making in the Bush White House: Enron, the War on Terror, and Homeland Security

Date June 30, 2004
Speaker Bradford A. BERENSON(Partner, Sidley Austin Brown & Wood, LLP)
Moderator Robert DUJARRIC(Visiting Scholar, RIETI)


I should make it clear at the outset that I am not speaking on behalf of the U.S. government nor the Bush administration; I am speaking strictly for myself. I wanted to talk to you about a part of the U.S. government that most people know little about - the White House staff. One of the reasons that very little is known about it is that the White House staff has as its central mission to directly serving the President in a private capacity and for that reason, staff cannot be compelled to testify before Congress and generally it tries to stay out of the public eye. There are exceptions - there are certain members of the White House staff, whose role is so significant that they are well known. For example, the National Security Advisor, Condoleezza Rice; the Chief of Staff, Andrew Card; and the Senior Advisor to the President, Karl Rove.

I will explain in general terms the role and responsibilities of the White House staff as a whole, talk a little bit about the structure of the White House staff and then focus in more specifically on the piece that I was a part of for two years at the beginning of the Bush administration - the White House Counsel's Office - and go into greater depth on its roles and responsibilities and provide some concrete examples.

In the United States, the President is the sole head of the Executive Branch and has the power and the responsibility to ensure that all the laws of the United States are faithfully executed and to supervise and direct the activities of all parts of the U.S. government. The President does this through a layer of political appointees that serve as the link between him and a larger group of career civil servants that staff the U.S. government. It would not be practical for the President to try to interact and communicate with all of those people personally and directly.

The White House staff serves principally as his eyes, ears, mouth, hands and arms in dealing with political appointees throughout the rest of the government. The staff helps to coordinate the policymaking where it requires input from more than one department or agency. They bring the necessary people together from the different parts of government and help to air the views, identify options, evaluate the advantages and disadvantages, and help the inter-agency group within the government to formulate recommendations for the President. So policy coordination is one very important role of White House staff.

A second important role of the White House staff is to receive input. Within the Executive Branch, the White House Counsel's Office is in close touch with the legal leadership of all of the departments and agencies of government and tries to stay in regular touch with them to learn what is happening and what the big issues are so that the President can be advised and informed. Other parts of the White House staff act as the eyes and ears outside the Executive Branch of government, including the Office of Legislative Affairs, the administration's liaison to the Congress; the Office of Intergovernmental Affairs, which interacts with non-Federal governments; and the Office of Public Liaison, which maintains contact with the interest groups in the country.

The third and perhaps most important general role of the White House staff is to transmit the President's wishes to the rest of the world. It is the staff's job to communicate with other constituencies and to determine when the President himself needs to communicate with one or another of those groups.

The White House staff has virtually no formal power. Its role is strictly to advise and assist the President in exercising his power, but that role in itself creates considerable informal power. The White House staff is the people who see him and work with him most closely as a general rule and on a daily basis. That proximity alone creates quite a bit of power and authority. As a White House staffer, you need to be careful about speaking for the President. If that happens and if it turns out that what you said was not the President's wishes, you are having a bad day at the office. So the informal power is subject to constraint and has to be exercised carefully.

The final role of the White House staff is to assist the President in making decisions by structuring and managing the process by which he makes decisions, preparing the briefing papers on an issue and presenting the choices and options to him by briefing him personally, and getting additional information if he needs it.

The White House staff is comprised of two basic classes: commissioned officers and then everyone else who is not a commissioned officer. There are about 100 to 120 commissioned officers who are generally the most senior people in the White House staff and all of whom have been appointed directly by the President and serve at the President's pleasure. Everybody else in the White House staff is hired by the commissioned officers and serves the commissioned officers. Among the commissioned officers, there are three formal ranks. The highest rank is called Assistant to the President and there are about a dozen of those and they lead all of the other components of the White House office, and most are physically located in the West Wing with the President. The second level is Deputy Assistant to the President and then the most numerous category is called Special Assistant to the President. The joke at the White House is that the shorter your title, the more important you are.

The staff itself is a complicated organism and the Executive Office of the President includes a number of components that are permanent with career civil servants. The National Security Council (NSC) is part of that permanent Executive Office of the President bureaucracy, even though it has a layer of political leadership. Other examples include the U.S. Trade Representative, the Council on Environmental Quality and the Office of Science and Technology Policy. President Clinton created the Office of National AIDS Policy, which may or may not be a permanent feature of the Executive Office of the President as time goes on.

The components of the White House Office are numerous including Communications, the White House Press Secretary, Speechwriting, the Office of Counsel to the President, the Office of Policy Development, the National Economic Council, the Office of Legislative Affairs, Public Liaison, Intergovernmental Relations, and then the Office of Political Affairs, which looks after the President's political interests. There are others and an important one is the Office of Presidential Personnel, which helps the President decide who to appoint throughout the executive branch of government. One very significant exception is federal judges and justices of the U.S. Supreme Court, where the White House Counsel's Office serves that personnel role. There is one book that really gives a comprehensive view of the White House staff called The White House Staff by Bradley Patterson.

But there are other small components that do interesting things that are completely invisible to the public at large. For example, the Staff Secretary is one of the few individuals who spends the most time with the President on a daily basis. The Staff Secretary is responsible for the flow of paper to and from the President. Historically, the Staff Secretary is a lawyer and exerts an important quality control function by making sure the paper is worthy of being shown to the president and decides who else within the White House should see the paper before the President.

The White House Counsel's Office is generally is quite small with 10 or 12 people. It consists of the Counsel to the President who is the President's principal legal advisor. Today that person is Judge Alberto Gonzales, who was a justice of the Texas Supreme Court and had served as the counsel to Governor Bush in Texas prior to being appointed to the Texas Supreme Court. The rest of the White House Counsel's Office consists of one deputy and eight associate counsels. The deputy is the Deputy Assistant to the President, and the associate counsels, which is the job I held, are the Special Assistants.

There are probably ten things that fall into the White House Counsel's Office's area of responsibility. The first is helping to develop the administration's legal policy, working with other departments and agencies of the government on important legal questions requiring presidential judgment. Second, the Counsel helps advice the President on who to appoint as a federal judge or justice in the Supreme Court. This is an important decision as the appointments are lifetime and are part of the President's legacy to the country. Third, the Counsel makes sure that executive orders are lawful and say what they need to say. Likewise, the Counsel will look over all speeches by the President that have been prepared in advance. The Counsel also shepherds presidential pardons. It works on lobbying and policy developments in certain law-intensive areas and can be heavily involved in working with Congress to draft and pass legislation. It is also the job of the Counsel to keep the President and staff out of trouble with the Ethics Program. In the vetting of nominees, the Counsel's Office looks at confidential files prepared by the Federal Bureau of Investigation (FBI) to determine whether people are fit for appointment.

The last two are in many ways the most important. The first is defending the President against legal attacks of various kinds. The classic example of this was the defense of President Clinton against the impeachment proceedings. The White House Counsel's Office does not represent the President personally; it represents the President as President - the institution of the Presidency. As a White House lawyer, you do not enjoy an attorney-client privilege with the President. If the President confesses to something unlawful, your obligation as White House Counsel is not to protect him, but actually to report the unlawful conduct to the Department of Justice. The last and probably most important function is defending the institution of the President and the Presidency for the long-term against challenges from other sources, most especially the Congress. It is an important role in the scheme of separation of powers. The White House Counsel's Office is the President's central shield against the efforts of the legislative branch to "steal" power. So the Counsel works to safeguard the office and its powers.

The examples of some these things include responding to the collapse of Enron. When Enron collapsed and went bankrupt, Democrats in the Senate, started an investigation on Capitol Hill and demanded various kinds of information from the White House about Ken Lay's relationship with the President. It was the Counsel's Office's job to figure out how to respond to those demands. A second example is the antiterrorism executive orders that the President issued in the wake of 9/11 to block the flow of money to terrorist groups and individuals and to establish military commissions to try suspected terrorists that the government captured. The White House Counsel's Office was heavily involved in assuring that the President had the authority to issue them and ensuring that he was using that authority as appropriately and as wisely as he could and then drafting them. Third was the creation of the Department of Homeland Security and the reorganization of the Federal government. Finally on enemy combatant policy and detainee policy, the issues that the Supreme Court decided against the administration yesterday, the Counsel's Office would be heavily involved in advising the President what policy to chart.

Questions and Answers

Q: How are people recruited at the lower levels of Assistant to the President? Are there any qualification examinations or is it by personal acquaintance? What kind of factors influence the recruitment process?

A: In my case, I had worked on the President's campaign in 2000 on a steering committee of lawyers in Washington DC to help with legal issues, but not full time; I was a lawyer at Sidley Austin during the whole campaign. After Election Day, when the recount occurred, the same group of lawyers I had been a part of played an important role in dealing with then-Governor Bush's litigation issues. Shortly after the Supreme Court confirmed his election, the President announced Judge Gonzales to be his Counsel. It was then up to Judge Gonzales to decide the nine other members of the office and rather than bring people he knew from Texas, he opted for people who were experts in the United States Supreme Court, experts in the Executive Branch law in dealing with Congress and experts in the functioning of executive agencies. So he reached out to the Washington legal community and I was called to interview. I met and talked to Judge Gonzales and got a call saying that I would start a few days before the Inauguration. So it was really through networking. I do not know how other parts of the White House staff did it or how other Assistants to the President found the people that were going to work for them. But it is an informal, personal process rather than a formal or bureaucratic one.

Q: First, let me confirm that White House staff needs approval by Congress. For example, I think the Special Trade Negotiation Office was created in exchange of giving authorization for trade negotiations to the President and so Congress has a special relation with the Trade Representative, so do you need some pre-negotiations with Congress? Second, you said you have a political appointee for other departments, what is the relationship between the secretary and undersecretary? Does the President again need some pre-negotiations for the appointment of the undersecretary?

A: The first question gets to the difference I mentioned between the Executive Office of the President, which includes some permanent bureaucracies like the U.S. Trade Representative and the core White House Staff of 100 or 120. In the Executive Office, there are a number of components where Congress does have a say over who is appointed because the office is created by statute. So where Congress has created a statutory office within the Executive Office, Congress exerts a little more control, which can be a sensitive issue. This was an important issue in the case of the creation of the Office of Homeland Security, which was created by the President by executive order within the Executive Office of the President. Some in Congress called for creating a statutory office within the Executive Office of the President, which would have given Congress more control of the homeland security function inside the White House. Because the Counsel's job is to protect the institution of Presidency, we did not want much more interference within the Executive Office. So that was an important concern in deciding a policy for a new security environment.

The second question is how do people below the cabinet secretary level get appointed? The short answer is that it is something of a negotiation between the cabinet secretary and the White House. There is no general rule for how this happens. There are some times where the President simply dictates to the cabinet secretary and there are other times when the secretary can choose his or her own undersecretaries and the President can decide whether that is acceptable. More often, it is just an ugly, messy fight where the Office of Presidential Personnel butts head with the cabinet secretary. Sometimes it is friendly, sometimes it gets very unfriendly, but there is no general rule.

Q: In the White House Staff, especially if you look at the National Security Council, you have individuals who are permanent civilian or military officials. I believe in other areas of the White House staff you have people who are actually career bureaucrats. Now, do these individuals spend most of their time defending the interest of the bureaucracy they come from or do they serve to impose the will of the White House on the bureaucracy from which they came, or is it a mixture of both?

A: The layer of political leadership is very much there to impose the will of the President on the bureaucracy. Although there are exceptions, professional civil servants are generally hardworking, intelligent people who understand that they serve the political leadership. Within the White House staff and the NSC in particular, it is a little more mixed. Someone detailed by the CIA to the NSC may benefit more by representing his or her home agency. But it gets muddier as when they are working for the NSC, they are working for political appointees who may not appreciate a vigorous representation of the views of the agencies. However, there are formal meetings where the CIA, the State Department and the Defense Department can have the opportunity to make their case openly and transparently, so there is a mixture.

Q: Would you please advise if we should spend more time talking with the White House staff on trade negotiations and not the government agencies? When a problem happens, which is the best way to inform our stance to the President? Which is the best way to negotiate?

A: As a practical matter, you would ordinarily deal with the Trade Representative's Office and Department of Commerce and not the White House staff. Only on significant issues that require presidential attention would White House staffers become involved but this would ordinarily occur if something happened inside the Executive Branch rather than at your instigation. You could ask the White House staff to be involved but it is unusual for that to be honored because White House staff have no operational authority and only to oversee that people who do, do so in accordance with the general wishes of the President. As an example from the legal side, if there is an important business case with powerful business interests on both sides, they will first work with the Department of Justice, trying to convince the department to take a side but sometimes it will go to the White House if it is an important issue with political and policy questions involved. Most typically they will be asked to send some papers but not meet with the White House staff. That is the ordinary course, but there are exceptions. You may try to present your views to the White House, but that would probably be resisted by the Trade Representative and Department of Commerce.

Q: I have an impression that the Geneva Convention does not apply to the prisoners in Guantanamo Bay. Can you talk us through the logic of that and why it does not apply, and if the U.S. is still a signatory to the Geneva Convention, then what protection do the commanders have when they contravene the Convention while still following the orders and direction of the President and Department of Defense?

A: The President had to make a decision early on about the extent to which the Geneva Convention would apply to al-Qaeda and the Taliban, particularly at Guantanamo Bay, but more generally in Afghanistan. Ultimately, the President concluded the Convention did not apply to al-Qaeda and to Taliban prisoners. He said that we would treat them generally in accordance to the Convention but not as a formal matter and instead apply the International Law of Armed Conflict. There are several reasons why the Geneva Convention does not apply to al-Qaeda and the Taliban. First, the Geneva Convention is a treaty between signatory powers and is based on reciprocity. Stateless, fanatical terrorists are not themselves bound to treat our people with Geneva rules. So that cannot apply to al-Qaeda. The other reason is that the Convention applies to lawful combatants who meet the standards for lawful belligerency and require them to obey the laws of war. Al-Qaeda has nothing of the kind. The Taliban is a slightly closer case and although Afghanistan was a signatory state in Geneva, the Taliban regime was not recognized by us or by most of the world. So again you have a problem of no reciprocity. Although the Taliban was more organized and resembled more a conventional military force, it did not really come close to complying with the requirements for lawful belligerency. There are also some requirements under the Geneva Convention that, I think we will agree, do not apply to terrorists, such as providing ordinary military pay and providing knives for the option of preparing their own food. That is the basic rationale.

Q: What do you think is the necessary elements for political appointees to work successfully or effectively in terms of policy coordination?

A: I think the number of political appointees and the system by which they are appointed is important. Many people in the White House staff, including myself, had no preexisting relationship with the President but got to know him over the course of two years. At my level, it was not necessary to have a relationship from the start but it might be helpful for senior staff who work with him on a daily basis. But generally, the most important thing is that there be enough political appointees to keep track of what is going on in the government and that those people be selected by the President at his sole discretion and that they serve at his pleasure so that they owe their jobs completely to him. It is in his interest to hire the right people who are accountable to him and can be used by him to do what he wants done.

Q: What are the legal restraints on what the Political Advisor can do in getting the President reelected and what is the role of the White House Counsel in deciding what he can do?

A: The role of the White House Counsel is important in election years in policing the lines not just in respect to the Political Advisor, but also the President himself. All of his activities have to be categorized as political or official and the costs have to be portioned accordingly so that public money is not used for a political endeavor. The Counsel makes sure that this is identified and appropriate funds are used. The President is never just a candidate and never just a President so they are not completely separate universes where it is black and white. Karl Rove is not just a political consultant but also involved in advising the President on wise considerations of policy.

Q: What functions does an appointment secretary perform in the White House? Does he or she have the authority to decide whom the President should or should not see, including ambassadors? Secondly, do you think that the style of politics affects diplomacy?

A: With respect to both questions, I should say that I was not so much involved in foreign relations and core national security concerns. As far as who decides who the President meets with, one of the assistants to the President is in charge of nothing but the President's schedule and anyone who wants to see the President, with a few exceptions, would have to submit a request in writing to the person in charge to explain the reasons and time required, and a decision would then be made on how to allocate the President's time. There is a scheduling meeting every morning where upcoming events are discussed, scheduling requests are gone through and evaluated and the tentative schedule for the President is established. On the diplomatic side, recommendations are made by the State Department and the NSC. There is a process of credentialing ambassadors and Don Ensenat, the Chief of Protocol, plays an important role in dealing visits from heads of state, ambassadors and senior diplomats. So the protocol could be different, but as a general rule, there is a very careful, rational process for deciding who the President meets and somebody on the senior staff has to recommend a meeting.

Your second question is on style, and President Bush has a very different style from President Clinton. I think of it as the difference between the law school training of President Clinton and business school training of President Bush. President Bush is more action-oriented and interested in quickly assessing critical pieces of information needed to make a decision and acting without reexamining or going back. President Clinton liked to talk at length about every issue and examine it multiple times. The Bush White House is very businesslike. So there can be great differences in presidential style and the way they prepare and exercise the duties of their office.

Q: When you were in the White House, how many people that needed to speak to the President could pick up the phone and basically expect to be seen pretty soon? How many people have that kind of direct access?

A: Less than five; a very small number. Obviously the Chief of Staff is at the President's side the most and he does not need to ask anyone's permission to see the President because he is the person other people ask. Within the White House, there would be no more than three or four others who could expect to be seen fairly quickly upon simply making a request. Any of the members of the President's senior staff, if they call up the Chief of Staff outside the normal scheduling process and say that there is something truly urgent, the Chief of Staff will evaluate that and always would have the discretion to have them come down. So it is not totally rigid, but walk-in privileges as they are called or an autonomous ability to see the President are very rare. But again, that is done differently administration to administration.

*This summary was compiled by RIETI Editorial staff.