On June 17, 2021, The Federalist Society's Federalism & Separation of Powers Practice Group hosted a teleforum exploring the "Department of Justice: Executive Supervision or Independence?".
With the change in presidential administration, some critics and scholars have argued that a need for independence at agencies like the Department of Justice should be reconsidered. To whom is the Department of Justice accountable? Whose interests does it represent?
When a change in executive leadership occurs, should the policies at agencies like DOJ be subject to change as well? And, if so, how far does that latitude extend—to prosecutorial policies, to enforcement discretion, to the questions of constitutional and statutory and criminal law interpretation delegated for resolution to DOJ? This distinguished panel discussion will address these issues and the core question of which governmental actors our constitutional system has charged with directing the arc of the use of that authority.
- Bob Bauer, Professor of Practice and Distinguished Scholar in Residence, New York University Law School; former White House Counsel
- Steven Engel, Partner, Dechert LLP; former Assistant Attorney General, Office of Legal Counsel, U.S. Department of Justice
- Jamie Gorelick, Partner, WilmerHale; former Deputy Attorney General, U.S. Department of Justice
- Hon. Michael Mukasey, Of Counsel, Debevoise & Plimpton; 81st Attorney General of the United States
- Moderator: Hon. Chad Readler, U.S. Court of Appeals for the Sixth Circuit
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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.
Dean Reuter: Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group teleforum calls, become a Federalist Society member today at fedsoc.org.
Nick Marr: Welcome, everyone to this special Federalist Society virtual event as this afternoon, June 17th, 2021, we’re having a panel discussion on the topic of the “Department of Justice: Executive Supervision or Independence.” I’m Nick Marr, Assistant Director of Practice Groups here at The Federalist Society. As always, please note that expressions of opinion on today’s call are those of our experts.
We have a great panel lined up. I’m just going to introduce our moderator, and he’ll take it from there. Quickly before that for our audience a note: we’ll be looking to you for questions after the beginning portion of this program. So please submit those through the chat function or the Q&A chat function. We’ll take them as we go along. And with that, we’re very pleased to be joined this afternoon as our moderator by Judge Chad Readler. He’s a U.S. Court of Appeals judge for the Sixth Circuit. Thank you very much for being with us today, judge. I’ll give the floor to you.
Hon. Chad Readler: Well, thank you, Nick. Thank you for the introduction and welcome to our audience. So I’m coming to you from our virtual courtroom at the Sixth Circuit, which has been home for the last 14 months. But I’m happy to report that last week we went back to court in person in Cincinnati for the first time, and that was a real thrill. And I hope that The Federalist Society, too, will be getting back to more and more in person programs and we can do this kind of thing together in the coming weeks and months.
I have to say it’d be a privilege to have four lawyers in court of the caliber of the four lawyers participating in today’s program. With the exception of the Solicitor General and perhaps a few others, our speakers have served in the four most significant legal positions in the Executive Branch. And as someone who before taking the bench had the opportunity to work with the senior leadership at the Department of Justice and the White House Counsel’s Office, I have to say what tremendous respect I have for the responsibilities these positions entail.
It’s probably fair to say that Attorney General is the toughest job in Washington. We have a former one on the call who can maybe confirm that. But that’s also true for those who worked closely with the attorney general in senior positions as well as the White House Counsel’s office, just given the continuous stream of legal and political issues that cross those desks every day. And one of the great things about the speakers that we have today is that they represent four different administrations, from the Clinton to Trump administrations, which will give some added perspective to this program. So let me say congratulations to The Federalist Society for putting together such an outstanding panel on a very timely topic. It’s my experience that really few, if any, other organizations can do something like what The Federalist Society has done today with this program.
Our topic is the relationship between the Department of Justice and the White House and the notion or norm of DOJ independence. I use the term “norm” because, at least by law, the Constitution we all know empowers the president to take care that the laws be faithfully executed. And attorney general who we customarily think of as the chief law enforcement officer of the United States is, of course, a member of the president’s cabinet and serves the pleasure of the president. So how DOJ acts independently from the White House is a pretty frequently discussed topic and one that has perhaps varied over time and administrations.
And we really have four terrific speakers with us today to address these topics and more, and I’m going to introduce them now. And since our focus is on the Department primarily and then its relationship with the White House, let me start with our former DOJ officials and then turn to our former White House counsel. Judge Michael Mukasey served as United States Attorney General from 2007 to 2009. From 1988 to 2006, Judge Mukasey served as a judge on the United States District Court for the southern district of New York, including as the court’s chief judge. A graduate of Yale Law School, Judge Mukasey serves as Of Counsel to the law firm Debevoise & Plimpton.
Jamie Gorelick served as Deputy Attorney General at the Department of Justice from 1994 to 1997. Before coming to the Department, Jamie served as general counsel at the Department of Defense. She’s also served as a member of the bipartisan 9/11 commission. A graduate of Harvard Law School, Jamie serves as a partner at the law firm WilmerHale.
Steven Engel served as Assistant Attorney General for the Office of Legal Counsel at the Department of Justice from 2017 to 2021. He served as a Deputy Assistant Attorney General in that same office from 2006 to 2009 and previously clerked for Supreme Court Justice Anthony Kennedy. A graduate of Yale Law School, Steve serves as a partner at the Dechert law firm.
Bob Bauer served as White House Counsel from 2009 to 2011. Before serving in the White House, Bob was general counsel of the 2008 Obama Presidential campaign. He recently published a book, After Trump: Reconstructing the Presidency, with his co-author Jack Goldsmith. A graduate of the University of Virginia Law School, Bob is a professor at the New York University School of Law.
So I’ve prepared a number of questions for our panelists, but as the program moves along I hope you’ll also include -- those of you in the audience will include some questions in the chat that we can share with our panelists at the appropriate time. Let me start with this question, then. What do we mean when we talk of DOJ independence from the president and the White House? How would you characterize that norm, and how was it honored in the administration in which you served in? And why don’t we start in chronological order of service, and so, Jamie, I think that would start with you, given your service in the Clinton administration.
Jamie Gorelick: Thank you very much, judge. I think the prohibition, if you will, is of efforts by the White House or others in the administration to influence enforcement matters. And that is primarily criminal but sometimes civil as well. So I will tell you that we never discussed criminal enforcement matters, except at a policy level — “We would like more cases of this. We don’t care too much about that” — except when I initiated a conversation where there were foreign policy considerations that I thought should be brought to bear in our own decision making.
In civil cases, there were matters in which we gave kind of heads up about what we were doing. And of course, we briefed the White House on important criminal matters like the progress of our investigation into the Oklahoma City bombing. I will note just parenthetically that several members of Congress during my tenure did ask me about pending criminal cases, and I politely said that is not something I can discuss with you. So people -- not everyone understands the importance of having a Justice Department that is independent from political pressure.
Hon. Chad Readler: Great for those members who are watching today so they can get a refresher. Let’s move ahead, then, to the Bush administration and judge and former General Mukasey.
Hon. Michael Mukasey: Thank you, Judge Readler. I think I was living in something of a fool’s paradise when I served because I came in at a time when there were allegations of the politization of the Justice Department. So the White House was pretty wary of any appearance of politization when I was serving. And they were really pretty loose in their contact. I was permitted, for example, to select the deputy and to pass on any senior assistant AGs when I took office, which as far as I know is something that others were not permitted to do.
So far as contact in particular cases, that I agree with Jamie. Obviously, the issue is most fraught in criminal cases. I did have one experience when I got a note in the middle of a meeting. I was told that I was to report to the White House, and I was also told the position that the Department had taken on behalf of the United States in a Supreme Court case— not a criminal case, but a Supreme Court case— was one that we should change. And I said I would talk to the Solicitor about it. I did. We maintained the same position we had before, and we both kept our jobs. So that was as close as I came to any kind of pressure from the White House with respect to a case.
I should add that most of the pressure, in my experience, came not from the White House, which the only example that I could think of was the one that I gave, but rather from Congress and from other departments which were not at all bashful about making their views known. Congress wanted me to say that the treatment of detainees was a criminal violation, and the other departments -- the State Department wanted me to take a certain position on interpretation of treaties and other matters that I politely told them I thought I would stick to the position that OLC had outlined in its opinions. And on one occasion I read about a statement by the legal advisor who said that -- he told a European audience that he would have stern words for the Attorney General about our treatment of detainees when he got back to the United States. And I had some stern words for him and to his boss and to the President about that. But it all calmed down, and now we’re the best of friends.
Hon. Chad Readler: Well, great. Then we’ll now move ahead to the Obama administration and to the perspective from the White House. Turn it over to you, Bob.
Bob Bauer: Well, thank you very much and I appreciate the invitation to participate in this conversation. I’ll start by saying reversing the order essentially of my answers, that I don’t recall a single instance where there was any thought of bringing pressure to bear on the Department of Justice on criminal matters. Jamie correctly distinguishes between criminal and civil litigation, but the norm of restraint in that respect applies typically in both cases. There are complexities of application, but never did I find that our office was under pressure to participate in anything the White House might do to give the Department of Justice the sense that it was infringing upon the norm.
Now, I will add we had a contacts policy —and this is very routine for administrations to publish at the outset—which defined the appropriate contacts that can be made on the appropriate topics in the appropriate ways between the White House and the Department of Justice. And the subject is often more complicated than it’s been made out to be because, of course, the president in fact has the authority to do whatever the president would like to do with the Department of Justice. If a president of the United States were to read the newspaper and be deeply offended by conduct reported on the part of, say, some pharmaceutical company executive and wants to pick up the phone and call the attorney general of the United States and demand that he or she look into it, the president is perfectly entitled to do that.
I think we can agree -- I think all of us here would agree that as a matter of process and outcome that’s problem imprudent, and it would violate the norm in the most dramatic way. And in particular if the president’s acting in a manner of self interest, which is to say to attempt to bring political pressure to bear on the Department to bring about a result that’s, for example, an investigation that’s helpful to a campaign donor, that’s particularly egregious and could raise other legal issues. But by and large, I think everybody has recognized with some exceptions in recent times the importance of a very broad construction of this norm. And there are rigorous procedures within the institution that were followed certainly in the Obama administration to comply with them.
Hon. Chad Readler: Great. Thank you. And then we’ll now move ahead to the Trump administration and hear from Steve.
Steven Engel: Sure. Thanks, judge. Yeah. I think that these norms and these contact policies have been consistent across administrations. And I can say from firsthand experience that certainly folks at the Department of Justice and the White House Counsel’s Office and the like took them very seriously. I think one thing to keep in mind is the extent to which the attorney general and the Department of Justice are primarily responsible for enforcing these norms. And the president’s direct authority to supervise the attorney general at the end is the authority to appoint him with the advice and consent of the Senate and to remove him. But that authority, while important, is not easy and as we’ve seen can be politically costly. And so meanwhile, the president, you know, cannot open an investigation and apart from the pardon power cannot close one. And so it is the attorney general who has responsibility kind of on a daily basis of making sure that the Department’s criminal and civil decisions are made for the right reasons.
And so I think obviously there have been a lot of discussion about this in recent times, and some of that comes from on the front end the investigation into President Trump’s campaign, which was sort of inherited at the beginning of the Trump administration. Others come from, obviously, the President who was speaking about civil and criminal matters prior to being president on Twitter and continued to speak about them publicly and the like. But I think when you look at the delta between the President’s public statements and his opinions -- President Trump and the actions of the Department of Justice throughout the administration, I think what you see is that the norms were taken seriously there, and in terms of actual activity with maybe some exceptions the norms were followed through during the four years of the Trump administration.
Hon. Chad Readler: Great. Well, I want to ask you to each maybe talk about the specific positions you had when you served in government. Our listeners or watchers who have served in government will certainly understand the roles that each of you served. But maybe some of our audience don’t, and so I wonder if you’d each talk about the position -- the high ranking position you held in the Executive Branch and maybe specifically talk about how that role touches on sort of White House-DOJ relations. And why don’t we go in the order that I introduced the speakers. So we’ll start with Judge Mukasey.
Hon. Michael Mukasey: Okay. Broadly the Attorney General oversees the prosecution and defense of cases to which the United States is a party or where the views of the United States have been asked for by the Supreme Court or another court. And although that was the one situation I described in which I had some interaction with the White House, that is, in my experience at least, the easy part.
There are other -- the oversight of federal law enforcement agencies can be kind of a difficult and complex assignment, and the interaction with other departments, as I mentioned, is a constant source of sometimes having to police borders. It was true with regard to the State Department. It was true, as well, with regard to on national security issues with respect to other departments. Having to make sure that they understood their authority and that we understood ours sometimes required sit downs at a higher level, and those were the situations, I think, that were more fraught than any issue of contacts with the White House.
I think that it’s possible to overstate the importance of abstract rules when it comes to issues like this because a lot of it in my experience, at least, depends on the personalities of people involved. And I had, I thought, a very good relationship with Fred Fielding, who was White House Counsel. There was good communication, and even in the situations where he thought I was about to do something that perhaps he thought unwise, I felt no pressure at all with regard to going ahead.
There’s one situation in which I had been asked by Congress to report on whether I thought that waterboarding was torture because I declined to say that during my confirmation hearing since I didn’t have any details on the then classified procedure. When I found out that it was no longer used and that in any event the Detainee Treatment Act and the Military Commissions Act had standards that would require that it be reviewed under those statutes as well, I thought there was no need to tell Congress about it. And then before my first oversight hearing so that they didn’t get all disappointed at the hearing, I wrote them a letter telling them that that was what I was going to do.
White House Counsel said he thought that was a rookie mistake. Since I was a rookie at the time, I didn’t think there was really any harm in committing it, and I went ahead and sent the letter. And it all worked out. But as I said, I was living in a situation where I think the White House was very hands off with respect to the Justice Department. And I feel fortunate in that respect.
Hon. Chad Readler: Great. Jamie, can you talk about the role of the Deputy Attorney General?
Jamie Gorelick: Sure, judge. The Deputy Attorney General, or in the acronym nomenclature of the Department of Justice the DAG, is in essence the COO of the Department of Justice. And different departments have been organized in different ways. The Reno Justice Department really at my behest was organized as a unified AG DAG at the top with everybody reporting to the AG through the Deputy AG. And our staffs were largely unified.
Attorney General Reno had a very small personal staff, so I ran the front office staff with some excellent people, include Merrick Garland and Seth Waxman. And we had just a fabulous group of people in that office. So I supervised all the litigating divisions of the Department of Justice and all the U.S. attorneys, although many U.S. attorneys thought they reported only to god, not to main Justice. But that’s for another day. I also had direct oversight of the FBI, the DEA, the Marshalls, the Bureau of Prisons, and, in those days, the Immigration and Naturalization Service, which I think current leadership of Departments of Justice really are happy that that’s over at the Department of Homeland Security because it took up a disproportionate amount of time with not a particular set of expertise within the Department of Justice.
I had the role also of policy coordination. What Attorney General Reno wanted was for important policy decisions to come to her in a coordinated way. And that meant that I needed to make sure I understood where everyone in the Department was on a particular issue. When you do that, a lot of the issues go away. When you knock heads a little bit at that level, the issues tend to resolve themselves, leaving the most important ones for her served up neatly with the conflicting views identified and an opportunity for her to hear from everyone.
She didn’t love working issues at the White House or within the administration, and that was something she very much wanted me to do. I had weekly meetings with each of the five White House Counsels that were serving in the Clinton administration during my tenure. I regularly attended National Security Council meetings, although she did as well. And I had meetings with the President on key issues, but she joined those as well. So I had a lot of contact with the White House and particularly the White House Counsel’s Office.
And the one thing I would say -- we kind of glided over this, but I want to make it clear. When I said at the outset, judge, that enforcement matters were really in the hands of the Department of Justice and I included civil in those, I did not include civil litigation in the ordinary courts. Judge Mukasey has talked about disagreements with the White House over civil litigation. My view was and is that a position in the Supreme Court or in the courts of appeals on key issues of policy are totally appropriate for the White House to weigh in on.
I don’t know if we have a disagreement there, but I wanted to tease out that issue because I think it is an important prerogative of a president to say, “I don’t think we should be challenging this law,” or “I do,” or “I think we should be weighing in on this legal issue which has these policy implications.” So I would distinguish between the enforcement matters and the other civil cases.
Hon. Chad Readler: I think that’s a fair point. From my perspective when I was at the Department some of the most high-profile cases we litigated in civil division were defending executive orders from the President, and so of course there would be consultation about positions to be taken and how best to do that and whether further work should be done at DOJ or the White House or in the courts or elsewhere. So Steve, why don’t we throw it over to you? The Office of Legal Counsel is a really, really important office in terms of the operation of the Executive Branch, and you just finished up in that job, obviously had a lot of high profile issues. So how would you describe the job, and how does it touch on DOJ-White House relations?
Steven Engel: Sure. And I think we’ve had nice transition here as we start talking about civil matters because one of the functions of the attorney general is obviously controlling criminal prosecution and enforcement matters, also defending the United States. Another statutory function of the attorney general is providing legal advice within the Executive Branch about what the legal position would be. And again, ultimately this is supervised by the president who takes care that the laws are faithfully executed.
In this day and age and for a long time now, the attorney general’s advice giving function has been delegated to the Assistant Attorney General for the Office of Legal Counsel. So in that role OLC both informally and then through formal opinions provides authoritative legal advice about various government actions and other kinds of questions that would emerge mostly outside of court or particular enforcement proceedings. That also includes Executive Orders, which we must review and sign off on before they’re issued, as well as, you know, many other presidential decisions, some of which are in the national security context, some of which in a variety of other contexts.
And so in connection with that advice giving role, OLC in general and certainly my experience works fairly regularly with the White House. And the most important client for OLC was the attorney general, I would say. The second most or equal, 1B, would be the White House Counsel. And we would work with folks in the Counsel’s Office really on a daily basis, and I’d be over there before the pandemic several times a week and the like.
That also includes participating in interagency meetings on National Security Counsel matters or on policy matters, be it immigration, trade, or the like in which the Department of Justice’s legal views are important to the discussions that are going on. And this is all consistent with the norms of independence when we talk about this because this isn’t about independence from particular enforcement matters. This is ultimately about determining the legal views of the Executive Branch. And of course one has to do that job on a principled basis with persuasive reasons and the like, but that’s no difference from working with the White House on those matters and from anywhere else in the Department of Justice or the Executive Branch.
Hon. Chad Readler: Thank you, Steve. So this is a great overview of how the Department operates in its role vis a vis the White House. Bob, maybe we can go to you to talk about the White House Counsel’s Office job which is also very demanding position and how you sort of viewed the DOJ in relation to the work you were doing at the White House.
Bob Bauer: The White House Counsel is a critical point of contact -- really sets the standards for the rest of the White House that seeks to enforce them in the relationship and communication with the Department of Justice. Really the contacts policy, for example, that governs those relationship with the White House between the White House and DOJ and communications with DOJ are put out typically administration to administration over the name of the White House Counsel’s Office. And questions about the application of the contacts policy go to the White House Counsel. The White House Counsel, as Jamie indicates, has ongoing significant communications with the deputy attorney general—really the first point of contact or the most critical one at the senior level of the Department—and as needed but certainly routine with the attorney general, with the head of the Office of Legal Counsel, and also with the solicitor general.
I want to return to a point that Jamie made. There may be some sensitivities around enforcement intervention by the White House in particular civil litigation matters. That’s very fact dependent. But it is certainly true that a line needs to be drawn between the rigor of the norms as its applied to criminal enforcement and how it applies in civil matters that bear, as Jamie correctly says, on the policy preferences and directions of the President. And that’s also true about the constitutional positions that the Executive Branch takes.
Presidents, after all, campaign on particular visions of the Constitution and how in a variety of ways, including their appointments to the Supreme Court of the United States, they expect to influence the direction of the constitutional law in the United States. And so the positions that an administration takes before the Supreme Court on constitutional questions could very well implicate presidential equities very directly -- very significantly. And so I always viewed the White House Counsel as, again, properly socialized in representing the views of the Executive, not the White House Counsel’s own, completely free in reviewing the docket -- for example, the solicitor general’s docket, Supreme Court docket, to have conversations about the positions that the solicitor general was going to be taking out on behalf of the administration on constitutional questions.
These are positions, by the way, the president answers for. The President answers publicly and is accountable for those positions. And so there needs to be communication around those issues between the White House and the Solicitor General’s Office just as there are specific questions that OLC takes up in which the president may have a significant policy related equities.
Just as an example of one particularly sensitive point that came up while I was there was President Obama’s decision to enforce but not to defend the Defense of Marriage Act. And that was a question which required significant communication between the White House and the Department of Justice. The Attorney General and the President had communications on this topic. It was a very significant decision. It had to be handled within a rigorous process that in effect took into account all the relevant views, including the views of the Attorney General and those he depended upon for that kind of advice in the Department of Justice.
So the long and short of it -- and I should start out by saying -- I should have started out by saying the White House Counsel is the senior legal advisor to the president within the White House and does play and advisory and coordinating role. As I certainly had occasion to remind the White House Counsel during the last administration, the White House Counsel doesn’t have any binding authority -- that is to say the authority to issue legal judgements and, for example, to bind the agencies with those legal judgements. And I’ll close by saying we’ve talked about the Department of Justice. I’d be remiss in omitting the relationship the White House Counsel plays in coordinating legal affairs at the senior level throughout the Executive Branch. And when I say coordinating, again understanding how the senior legal advisor to component departments and agencies are proceeding interpreting their jobs, the positions they’re taking, major issues that they see developing -- that also is part of that role.
Hon. Chad Readler: Great. Bob, you’ve mentioned a couple times the contacts policy between the White House and the Department, and maybe it makes sense for -- maybe I’ll start with Steve since he was most recently in government -- but to talk about sort of what that policy is and how it works and what purposes it aims to serve and whether its honored or sometimes breached. But Steve, do you want to talk about the White House contacts policy and its origin and purpose?
Steven Engel: Sure. I mean, I think what we’re talking about here is the primary operational way that DOJ and the White House govern sort of their relationship in criminal and civil enforcement matters principally. And the policies consist of a written set of instructions that restrict communications between DOJ and the White House on these subjects to a very small group of people and particularly people who are sort of sensitive to maintaining the boundaries -- the independence of the Department.
These written policies were first put in place in the Ford administration, and they’ve continued. They’ve been updated, regularly issued or reissued throughout. And actually in the Trump administration the White House Counsel Don McGahn issued one in the first week of the administration. The Trump DOJ actually just kept the Holder policy, which Attorney General Holder had issued in 2009. Before that there was the Mukasey policy and the like.
And basically, operationally, what we’re talking about here is that when there are conversations between the White House and DOJ on these subjects, generally speaking on the criminal side they’re with the attorney general or the deputy attorney general. If civil enforcement is involved, they throw in the associate attorney general as well. And then on the other side is generally the White House Counsel or deputy, although the president and the vice president are also included. Though at least in my experience or recollection it’s much, much less common that there’s direct contact on some of these things with the White House. And this serves basically as a gatekeeping function because a lot of the times when White Houses have gotten in trouble -- or White House staff have gotten in trouble on these matters, it’s relatively junior people or policy people who don’t necessarily understand the boundaries that they’re supposed to be upholding. And so by putting it down in writing and putting it out there, I think that’s very salutary effect and, in my experience, was generally complied with.
Hon. Chad Readler: Does anyone else have a different sense or want to confirm or has anything else that needs to be said?
Jamie Gorelick: Let me jump in. I think we are assuming when we talk about the contacts policy someone picking up the phone or, in the case of Michael Mukasey, summoning the attorney general to the White House to convey a view in secret. But President Trump just announced, tweeted, spoke of his views on issues, and then something would happen at the Department of Justice that seemed quite consistent with those views on enforcement matters.
Hon. Chad Readler: Or occasionally not happen and be inconsistent.
Jamie Gorelick: I’m not saying it happened all the time, and I credit what Steve is saying that, as he said, for the most part it was honored. But I do think that when you have, for example, a reversal on the Flynn case right after the President says Flynn should never have been prosecuted, whether that was because the President said that or because the Attorney General felt that on his own, the public will never know.
And I think at one point, actually, Attorney General Barr said that the presidential tweets and speaking on these issues was making his job much more difficult. And that may be, that he would have done this anyway. But to the outside observer, one would never know.
So I think that the -- obviously -- well, not obviously -- Bill Clinton never communicated publicly or privately what he thought should happen in an enforcement matter. And I think we need to contemplate that a contacts policy which assumes a communication that is private is apt or whether one needs to have a contacts policy that says you will not -- the White House will not communicate publicly or privately with the Department of Justice on an enforcement matter, which is pretty much what the current White House Counsel’s Office’s much lengthier and more detailed memo in line with prior contacts policies does. So I think there’s a new issue here prompted by some of the ways in which President Trump spoke about issues that were pending at the Department.
Hon. Chad Readler: It’s probably fair to say some of these jobs were easier before Twitter and other means of communication. Steve, were you jumping in?
Steven Engel: Yeah. Let me just -- I mean, we’re talking about a few separate issues here, right, because one of them is the contacts policy, which typically is about DOJ providing information to the White House about contemplated or pending matters. Kind of it works both ways. Although, of course, the president is actually -- a presidential communication on these subjects would be consistent with the contacts policy, including all the contacts policies I’ve seen. I mean, if the president is calling the attorney general, the contacts policy may be inappropriate, or it may be unwarranted and certainly may be unwise. But even the contacts policy wouldn’t necessarily speak to that.
The second part which Jamie mentioned, obviously, is the President commenting on these matters, which, again, he did before he was president. He did while he was president, and he did after, just like he also commented upon sporting events and Hollywood celebrities and everything else. I’m not saying whether or not this would be wise. But the President gave his opinion on a whole host of things. But you’re right, including on criminal and civil matters.
Now, I’m fairly confident that if one were to review the President’s Twitter feed and one were to look at actions that DOJ took or did not take consistent with what Judge Mukasey said, you would not see a high correlation. I mean, the broken clock is at 2:00 p.m. every day, you know, twice, and that doesn’t necessarily speak to whether it is influencing the time or accurately reporting it. But as Jamie indicated, it does create complexities. And Attorney Barr has said this publicly, right, because to the extent that the attorney general takes an action which is consistent with what the president has previously said publicly, there is an appearance issue which makes the Department of Justice’s job and everybody at the Department of Justice’s job very difficult in that respect because it opens it to criticism.
I think it would be a mistake to suggest -- and I’m not sure that the empirics would be consistent that the President tweeted once about General Flynn and then all of a sudden the Department jumped. In fact to the contrary, I think he tweeted very often about General Flynn, and Attorney General Barr’s decisions were made at the time that was appropriate for the Department of Justice. But it makes the Attorney General’s job more difficult, and it certainly creates an issue.
So from the standpoint -- and frankly, let me just say one last thing. It may also be counterproductive to any president’s objectives to the extent that if the president is seeking to enable the Department of Justice to go in a certain direction, public statements don’t make that any easier and in fact raise the cost of any action that a department is going to take there. So I’m not speaking about what President Trump’s motives were or weren’t with respect to any of these tweets. But I’m not sure it’s a very effective strategy as well.
Jamie Gorelick: May I just say one other thing? Steve points out something that is the fundamental flaw in the contacts policy, which is it just tells you who can speak to whom. It doesn’t say what you can’t say or what you may say. And I think this is why President Biden was so clear before he nominated Merrick Garland when he was a candidate. He said, “I want a Justice Department that is not influenced in its enforcement decisions by me.” That is -- I think all of us would agree that is the purpose. But because it’s simply a process, it doesn’t -- the contacts policy doesn’t say that or hasn’t for many years.
Steven Engel: In fairness Jamie, I think actually President Biden may have gone even beyond that and suggests that the Department of Justice in fact would be independent of him, not just with respect to limited enforcement matters. When Attorney General Garland has taken some positions -- the Department of Justice has taken position in recent weeks, the White House has sort of -- and not just in enforcement matters but in the institutional positions that the Department is filing in the courts, the White House has been clear to sort of try to distance itself saying, “Oh, this is just DOJ taking the action that DOJ has taken.”
On the other hand, there have been other examples in which when the White House deemed it consistent with the objectives of the President they have weighed in, right? Like the subpoena for media records and the like. And that’s not inappropriate. But I totally agree that from the standpoint when we talk about independence we should be focused on enforcement matters. And all presidents do better if they keep out for all kinds of reasons on that thing. But the pure independence model, at least to the extent that some of what President Biden said suggested that, may not be either desirable or effective.
Hon. Chad Readler: Go ahead, Bob.
Bob Bauer: No, judge. If you had a question, I didn’t want to interrupt. I was just going to --
Hon. Chad Readler: No, go ahead. Go ahead.
Bob Bauer: Those of us— and I think that’s true of everybody here— who have been in law school classrooms on either a regular basis or as guest speakers know that you can play out all sorts of hypotheticals that show the complexities of these issues. When we talk about -- President Trump’s tweets were, I think it’s fair to say, in a class by themselves. And he, after all, did say he didn’t understand why it was he was continually told that the Department of Justice was not under his control. He thought he should be able to do whatever he wanted with it.
That isn’t to say that he didn’t listen periodically on some issues to some of his legal advisors. But it certainly colors the view of the intent behind the tweets because of his frustration with what he thought was, for example, Jeff Sessions’ mistake and former General Sessions’ mistake and recusing himself from the Russia investigation and other circumstances in which he had harsh words for departmental officials who didn’t perform according to his specifications or preferences. And so there was something really unusual about the frontal attack on the norm or the frontal questioning of the norm in the part of former President Trump.
Now, in the normal circumstances where the norm is respected and then the question is one of application, this whole question of what a president can say publicly becomes very complicated because presidents are going to be asked, for example, in the case of civil disorders “What is your response to what is happening in location X?” And a president might say, “I think this conduct is completely inappropriate. It’s the wrong way to express disagreements with, you know, whatever the conditions are in that particular location. And they should all be prosecuted to the full extent of the law, those who were engaged in this activity.”
I mean, is that commenting inappropriately on the matter that’s going to become -- and indeed is an ongoing federal investigative matter? And I suppose so. You can go back and take a look at a number of cases like that where questions have been raised, for example, in commenting on the conduct of enemy combatants who are either being pursued or have been detained where the question is has the president already reached a judgment or led people to believe that he or she has reached a judgement on the conduct that will, again, be the subject of federal investigative and enforcement actions? So in application, this will become tricky.
And of course critics on either side of the aisle will be quick to jump on the president who’s caught in that position and say, “Well, you shouldn’t have said that. That’s completely --” and we can find examples of that as well. But it’s complicated because, again, I want to get back to first principles here.
This norm is extraordinarily important. I took it seriously. I think everybody on this call took it seriously in every way imaginable, and I don’t think— and I’m going to set aside some of the controversy of the Trump administration for a moment—that by and large over the history of White House Counsel-DOJ relationships anyone took that norm likely or didn’t commit themselves to enforcing it. But I do think that all sorts of confusion has been created in the public space by this notion that the Department of Justice is independent, quote/unquote. And that’s how, unfortunately, some of these issues get boiled down in the public dialogue.
It’s not independent. It’s a cabinet agency. The president nominates an attorney general with the expectation that he or she will pursue the policy and enforce the laws in the way the president has pledged to the public he would have his or her department pursue or enforce them. And so I just want to flag that where the president has to account publicly for his positions people may say “Oh, my gosh. You’re trying to influence the Department of Justice,” when in fact the president’s doing what the president actually has to do to fulfill broadly speaking, not in a partisan sense, the public political duties of his or her office.
Hon. Michael Mukasey: I just wanted to point out this is very much of a two way street as well. The pronouncements coming out of the Justice Department can have a very significant effect on the public perception of what the relationship is. I know there was a much more elaborate contacts policy -- in fact at least twice or three times the length of mine that was put in place by my successor. On the other hand, he once described himself in his view of his job as the president’s wingman. Now, that can turn a very elaborate four page memo into confetti. And I was wondering what your view is on how pronouncements coming out of the Justice Department can influence public perception.
Bob Bauer: Judge Mukasey, are you asking me the question? Oh, I think that’s absolutely a question. If the president’s attorney general -- all presidents’ attorneys general are going to be asked -- and we saw this obviously in connection with Garland. We saw it in the case of post-Watergate, Ed Levi’s attorney generalship in the Ford administration. What is your vision of the Department? To what extent do you define your leadership to the Department and understand what its mission is? It is going to be thought to be significant how that attorney general answers that question. I’m thinking at the moment, actually, of a much more distant case -- Bobby Kennedy who was the brother of the President of the United States and his former presidential campaign manager.
Hon. Michael Mukasey: And a statute ended that.
Bob Bauer: Yes, and a statute ended that, which is very, very significant moment in the kind of -- people’s understanding of the dimensions of this particular norm, which in that case, you know, as an appearance matter to say the least was pretty directly challenged. I’m not even quite sure it’s fair to say there was even a norm in place at the time. But I think the statute helped to sort of launch us into the modern understanding of it. But I think you’re quite right. I think if an attorney general were to say -- John Mitchell or Bobby Kennedy were to say at the microphone, “I’m here to make sure that this president is reelected to a second term by doing everything possible, right, to satisfy the constituencies who put him here in the first place,” that would be wholly inappropriate and would put the White House and the president in a very difficult position.
Hon. Chad Readler: Well, I think you’ve all acknowledged that there are times when the Department will -- typically on civil matters, maybe on a criminal enforcement matter -- but the Department will be very well aware of what the White House might prefer on a specific piece of litigation or a policy decision the AG has to make. But setting that aside, the attorney general in her or his own judgement has to make independent evaluation of how they’re going to participate in a certain case or determine some other action.
And I’m just wondering to give the audience some sense, can you each reflect on maybe a decision or two you had to make while you were serving in government where you felt like you really honored and preserved the idea of DOJ independence even if it maybe created some tension with another principle or concern the administration was involved in or a view of the White House? And I don’t know if there’s specific examples that would give the audience a sense of the considerations you have to weigh, and, Bob, you might have a reflection on times when the Department had done something that the White House might have preferred otherwise and how the White House dealt with that.
Bob Bauer: I’m going to come up with a minor example because of not only the confidentiality requirements that everyone leaving the government office observed but all of us sworn to the attorney-client privilege. I’m going to strip the names out of this. But the Department was pursuing an enforcement matter which was appropriately not something that the White House had any involvement in at all. And as a matter of fact the investigation that had led to the prosecution that had been undertaken earlier in a previous administration, but it had continued on into the administration.
It was a high profile matter, not so high profile that it was on the lips of everybody in the country. But it was well-known that this was in the works. It was my thought at the time that it was an extremely ill founded prosecution and that the only reason that it was proceeding is that the administration was essentially sort of cowed into acquiescence because any judgement that it would express on the merits of this pending prosecution would have been in appropriate under the very norm that we’re discussing. So I didn’t say anything about it.
And of course I didn’t. I didn’t suggest anybody else do so, and nobody else did so. And the prosecution went forward. And it was an extremely ill founded prosecution. The government lost badly and embarrassingly and probably, by the way, correctly so.
That’s one of the costs. I mean, I think I did the right thing. I don’t recall even having a debate with myself. I saw the complaint the day it was made public. I read it. I knew right away the government was going to lose in the most sort of nakedly embarrassing possible way. And I just sort of sighed and sad to myself, well, that’s the way it goes.
You know, is it a case where I was under any pressure to do anything? I certainly wouldn’t have done anything. But I also raise it because there’s an example again. This thing doesn’t always work for the better. Somebody was prosecuted ill advisedly in a case that the government couldn’t win and shouldn’t have won, and there was nothing done on the subject because the norm operated in such a way that to have expressed an opinion on the subject, even for the highest of motives, would have been inconsistent with the norm and would have been certainly judged very harshly in the public sphere.
Jamie Gorelick: Bob, if that -- if you had said to the Department at that point “Obviously this decision is yours, but I think you’re going to get killed,” would that have, in your view, violated the norm?
Bob Bauer: Yes, well, it’s a really good questions because to some degree you could say it’s -- the answer is yes, I think it would have. I would have had to go to the president, and I would have had to say to the president -- and again, this would have to be socialized with the building. It wouldn’t have been just private between the president and myself. I would have gone to the Chief of Staff, said, “I think we need to have a meeting. Here are the people who should be in the meeting. By the way, there’s a monumental train wreck that’s going to reflect poorly on your presidency, and it’s in the process of about to -- it’s about to happen.”
I didn’t do this in this case. I didn’t flag it because there was -- from a press perspective, there was a political dimension that they would have read into that intervention that I thought made it just simply impossible to defend publicly. So yes, I could imagine that circumstances where you’d be saying, “Holy mackerel. Who came up with this idea?” But in this case, there was no hope of winning a public argument about the propriety of the intervention.
Hon. Chad Readler: That’s a great example. Anything from DOJ to vindicate DOJ’s perspective on things or maybe DOJ made the right call?
Hon. Michael Mukasey: Well, I’ll rise to defend my own behavior as described before. It was not simply a difference about a policy matter in which obviously the White House has primacy. It was in part a question of what it was that would prevail and what it was that wouldn’t -- what it was that would work and what it was that wouldn’t. And I thought that listening to Paul Clement, who’s experience in the Supreme Court far outweighed either my own or the experience of anybody I was talking to in the White House really ought to govern and that he had by far the better reasoning.
It was not that the view was entirely inconsistent with the White House position. It was simply a question of degree. And so I went with his judgement rather than the judgement I was being asked to apply. And ultimately the government’s position prevailed.
Jamie Gorelick: So Judge Readler, I have three examples. I don’t know how they would cut in your construct, but I’ll give them to you anyway. Number one is I got a fax one day from a not senior person in the White House. It was about a criminal case, and it just had scribbled on the top “Can you take care of this?” I took the fax, and I got in the car. And I drove over -- I didn’t drive. I was driven over to the White House, and I went into this person’s office. And I said, “This is something you cannot do, and here is why you cannot do it. And I never want to see any of these again.” And he was like, “Oh, okay.” So that was sort of teachable moment for somebody who was moving too fast and not thinking clearly about how the Justice Department may be different from some of the other agencies.
Second was the Microsoft case. When we were pretty far down the line in a decision to sue Microsoft for antitrust violations, in a factual setting and in a legal context that was new and innovative given the strong interest in the country in having a robust internet and nurturing that environment, I thought it was really important for the White House to know what we were going to do. And we gave them a heads up. It was an enforcement matter. We didn’t ask their view, but we said, “This is what’s going to be coming.” I thought that was the right thing to do, and I thought the Department’s equities were protected.
I’ll give you a reverse example. So the FBI had an investigation of Chinese efforts to influence our elections, affecting or trying to affect the elections of members of the Senate and the president. The FBI briefed those members of the Senate and said, “This is what -- there are these people. This is what they’re doing. You should be on alert.” I said, “You need to brief the president as well.” And the FBI’s view as no, that could affect the course of an inquiry.
I said I didn’t understand that, “But there must be something that you could tell the White House to alert them without undermining an investigation. And oh, by the way, the Secretary of State is flying to China today, and she needs to know this.” And Director Freeh said no, he did not want to do it. I strongly disagreed with that, and indeed I asked the criminal division and the FBI what could be said that would not affect the investigation. They gave me something that I thought was sufficient to put them on alert that there was this effort by an adversary to affect our democracy.
And Freeh and I disagreed. We took it to the Attorney General, and she deferred to his judgement, which I thought was wrong. This is all public. And that’s really interesting twist. I felt very comfortable that I was protecting the prerogatives of the Department but also taking cognizance of important foreign policy and national security issues as well.
Hon. Chad Readler: Steve, do you have anything you want to add?
Steven Engel: Sure. Well, I mean, I think just speaking at a higher level of generality, to some degree in the day-to-day performance of my job, I had it easier than folks who have discretionary policy-based responsibilities on some of these questions because what we were being asked to do was essentially to sort of pronounce on what can not go and not go from a legal perspective. And at the end of the day, you make your best judgement.
In the context of the administration, there were many, many ideas that are floated around on a regular basis, a number of which are not going to be able to go in one form or fashion. And we wouldn’t do the White House any favors to sign off on something that’s, you know, ultimately going to be an embarrassing loss in the courts and the like. And in this day and age, well, there are somethings that are not challenged in courts that we deal with. A heck of a lot of things are challenged in courts all the time.
And so that being the case, it was not infrequent in which, you know, we would be required to disappoint policymakers in the White House and otherwise with respect to things. And with all of that -- and some of it is just client management. I mean, you need to have credibility and you need to be able to explain your perspective about how and why it’s not going to work. Some of it, of course, is I think I was aided by support from the White House Counsels who I worked with and the Attorneys General as well there. But at the end of the day, you’re only temporary occupants of these offices anyway, and so you make the best judgement that you can. You convey it. And then you take it from there.
Hon. Chad Readler: Well, for those who had to litigate follow up issues after decisions were made, we obviously appreciate all the problems you solved before they ended up in litigation.
Steven Engel: I should mention we often had -- oh, sorry. We often had strong support not only by the Attorney General but by the Solicitor General and the various heads of the civil division in the context of advising. And we would often loop folks in where appropriate on those things as well.
Hon. Chad Readler: That was a really terrific discussion to just put a little meat on the bone of how these issues surfaced in real life and the hard decisions that all of you had to make. And another area that Bob touched on briefly that I would love to hear your views on is the fact that DOJ’s not the only agency in the Executive Branch. There are many others. And while the Department is charged with determining the legal position of the United States in various matters, many of the cases that the Department is litigating or otherwise involved with or advising on will invoke the equities -- a very popular word in Washington and in the Executive Branch -- the equities of other agencies.
It could be the State Department, for example, a matter in the federal courts that has significant foreign policy implications or a matter in a foreign court that impacts that United States. There could be a fiscal issue that the Department’s litigating that Treasury has a strong interest in. Or take immigration issues, which is really a joint effort between DHS and DOJ. Maybe there’s a disagreement on some immigration matter.
So can all of you talk about how DOJ problem solves or works collaboratively with other agencies and, when there’s disagreements, how those are solved and maybe what the White House’s role is there and whether this touches on the norm of independence of the Department?
Hon. Michael Mukasey: Well, I can tell you anecdotally about one experience I had. It took place actually before I was sworn in. After my hearing and before the vote, I was invited to lunch at the State Department. I thought it was awfully nice of them. And I told somebody who had been working with me on the confirmation about the invitation. And he said, “Be careful. They’re going to roll you.”
And sure enough we had barely gotten past the vichyssoise when the subject of who was the authoritative -- who gave the authoritative determination on the meaning of treaties came up. And I was told in no uncertain terms that the State Department bridled, frankly, at the suggestion that OLC was the final arbiter of what treaties meant. And when the State Department had negotiated them, they certainly want to have the authority.
And I listened as politely as I could and moved the food around on my plate and got out of there as quickly as I could. There were other issues that came up as well, and clearly -- I’m wondering whether Steve experienced this. There are some agencies that are more tractable than others when it comes to the authority of OLC to determine what the government’s legal position is.
Steven Engel: Well, certainly this is an issue that recurs. It occurs across administrations. We were fairly empowered, including by the support of the White House in the Trump administration on these issues. And so when push came to shove, like, when there were interagency discussions or disagreement, it was understood that -- including on treaty matters -- but on a whole host of matters that DOJ and OLC was empowered to ultimately decide those issues.
As you know, judge, I was in the Bush administration at OLC. And at a time there you had a Secretary of State who was awfully close to the President and also close with folks in that building who had different views. And so there was continual back and forth on the issue even though there was at least prominently -- and maybe it’s still there at OLC, a letter from Judge Gonzales at the beginning of Bush 43 administration making clear to the Secretary of State at the time and the attorney general that OLC was the final word on treaty matters.
Hon. Michael Mukasey: That was the letter that was sought to be changed at my lunch.
Steven Engel: So one thing certainly in the Trump administration -- but I think it’s probably more broadly is nothing’s ever settled in the bureaucracy. There are no permanent wins or permanent losses. But I think from OLC’s perspective in the recent administration I think the other question is when folks just go it alone in other departments or agencies.
DOJ is not at the table for every meeting, and we’re not sitting there when every cabinet secretary makes every decision. And so OLC’s role is only as strong as their advice is sought by the departments and agencies with -- and this is actually an important role of the White House -- with the White House making sure that DOJ’s brought in when appropriate. And that was generally honored in many important decisions in my experience but not always. There were people who didn’t consult, either because they didn’t think about it or because they thought they’d be better off just going it alone.
But of course one lever that the Department of Justice has is that we’re on the hook of defending in court a lot of these policies. And so folks who do go it alone need to recognize that, you know, it may or may not be that DOJ will be there with them if they don’t have the backing of the Department, including the civil division and/or OLC kind of beforehand. So the breaches existed but were not in regular course, I think.
Jamie Gorelick: But a lot of these things do end up in the lap of the White House Counsel, so Bob should have the last word on this particular subject. But I would say a couple of things. One is that the debate between DOJ and State on the interpretation of treaties is a hardy perennial. I am amazed that they tried to corner you in your vichyssoise, Michael.
Hon. Michael Mukasey: Before I sworn in -- before I was confirmed.
Jamie Gorelick: This is really astounding. I was similarly cornered at the, I want to say, 50th or maybe 100th anniversary of the Legal Advisor’s Office. The Legal Advisor, one of the leading legal advisors, a very active professor, was one of the conveners. And I was on this panel.
I got blindsided. He asked me whose view should prevail when the Justice Department and the State Department disagree on a matter of treaty interpretation. And I, of course, said the Justice Department because this is what the Justice Department does. And I thought he was going to pop out of his chair.
But anyway, this one is -- it just always comes up. And it does have a danger of opinion shopping, that is the White House could go to one or the other and say that it has gotten the opinion that it needs. Indeed, this has happened. So that’s not hypothetical.
Two other comments I would make. One is DOJ is the arbiter of the position of the United States in the courts, as Steve said. It’s DOJ that has to stand there and defend an administrative action, for example. But there are often disagreements among agencies when one agency wants a particular position taken.
And in our administration, our Solicitor General, Seth Waxman, spent a ton of time with those agencies trying to get to a common view. And sometimes that didn’t happen. And in the end, his opinion prevailed. That didn’t mean that people didn’t go to the White House to say, “This is wrong.” So that does happen, and there are occasions, which is why Bob needs to speak last on this, where the White House Counsel does get involved.
The second I would say is about OLC. So Steve rightly points out how important OLC is and that it is the keeper of presidential authorities and advises presidents on what their authorities are. There’s a danger in having that relationship be so tight that other voices aren’t heard. And the example would be John Yoo’s opinion on torture where his boss, the Assistant Attorney General, didn’t know about the opinion when it was given to the White House.
I had a rule that all significant OLC opinions ought to come to the Deputy’s table for plenary discussion with the civil division, with the Solicitor General so that it could get a real airing, not to say -- and I don’t think we ended up ever overruling OLC. But sometimes there were considerations that were brought to bear in that room that affected how OLC proceeded. So I think that if you’re talking about the relationship between the Justice Department and the White House, you really do need to pay special attention to the role of the Office of Legal Counsel because it is the keeper of the flame of presidential authority.
Bob Bauer: Well, I can add a lunch story of my own, except in this instance I was the one who issued the invitation. And it bears directly on this conversation. There are -- for example, in national security matters there may be a requirement that you coordinate the discussion of particular legal positions that the administration will take, either as a matter of policy or an impending court proceeding among the Defense Department, the intelligence community, the Department of DHS, of Homeland Security, the State Department. And the White House works really hard -- and this was certainly true under counterterrorism policy and the development of counterterrorism legal policy -- worked very hard to make sure that you brought all of the component agencies in to be heard on issues in which they had, as you said, judge, in that well worn term, equities.
In one case -- and the White House Counsel plays a very significant role in that and certainly did in the Obama administration. I don’t know to what extent the same organizational structure was adopted in the Trump administration. I suspect something very much like that now is taking place in the Biden administration.
But in one particular case is that we had a lawyer -- the most senior lawyer in the Department who thought that all of the other agencies and departments with equities in the matter were catastrophically wrong and demanded essentially that the White House organize a meeting so that he could make his case more successfully to people who just simply didn’t understand the issue was well as he did and were headed in the wrong direction. And I invited him to lunch at the White House with two messages, which was, number one, I would be happy to broker such a meeting and I thought that sort of discussion particular where views that were held very strong -- I thought that sort of discussion was productive, but, number two, I did not want him to open the conversation by telling everybody in the room, senior lawyers like himself, how ignorant they were. I thought that wasn’t going to be helpful.
And the email traffic was becoming increasingly heated on this subject, so people were beginning to dig their heals in more in opposition to the personal character of the criticism and less because of the merits of the issue itself. And he agreed, and we had a meeting in the White House that I chaired at which he could lay out, essentially, a motion for reconsideration because he was the outlier. He was the one with the what I call a dissenting view.
So I think the White House does its best in that field to make sure that there are component views. And of course there’s been lot of literature about the adoption of the -- the providence of the Yoo memos in the Bush administration and some of the deficiencies of process that have been identified even on the part of people who may have -- do not quarrel as I do with the contents of the memo. They certainly do quarrel with the process.
And the White House counsel attempts to deal with it in areas outside of national security by maintaining an ongoing dialogue with the general counsels of agencies and departments because that’s an area where the White House is continuously on the defensive -- that is to say all of a sudden an agency puts out a notice for a proposed rulemaking or issues a policy or whatever the White House didn’t know. The press is chewing on the members in the Office of Communications in the White House or in the Press Department. “Are you behind this? Did you know it was coming? Why is your government -- your administration doing this?”
And I can tell you of the chiefs of staff I served the one who was likely to react most strongly to being taken by surprise was Rahm Emanuel, so I did an enormous amount of work to try to prevent Rahm from being surprised. But I think that desire not to be surprised and to have everybody with view on the issue of any significance included in the conversation cuts across a whole range of subject matter areas.
Jamie Gorelick: I think that’s great, Bob. One other comment I would make -- and this is apropos of what Steve was saying. There are agencies with independent litigating authority. And so what happens when the Justice Department, for example, disagrees with a position that one of those agencies is taking is pretty interesting. So in the Qualcomm case, the FTC and the DOJ both were involved in the case, taking opposite positions. That doesn’t happen very often, but it can.
Bob Bauer: And to go to the point we were raising earlier, if I just interject, it doesn’t make the president look good. Nobody in the public says, “Oh, well, one of them is an independent litigant. The other one’s --” these things are not ones that are familiar in the public debate, certainly not ones scrupulously followed by the press.
Hon. Chad Readler: Yeah. That’s a great point, and I think this entire conversation proves two things. One, that decision making is pretty difficult throughout the Executive Branch given the number of stakeholders for any decision. And two, I guess this also proves the adage that there is no such thing as a free lunch. You know, I have to say here in the Midwest we just have lunch with people because we like them, but that in Washington works a little bit differently I learned from my time.
So we have 15 minutes left. I have one or two more questions, but if anyone in the audience would like to contribute a question to the chat or Q&A function, please do. I did want to ask the group -- we’ve talked a lot about how the White House can or should or shouldn’t influence decisions made at the Department.
But there are -- to turn the tables a little bit, there are ways in which the Department influences what the White House does, even powers that are typically reserved to the president, for example, nominating judges or U.S. attorneys, granting pardons. Those are formal functions of the White House. But the Department has had a role in those types of decisions and others. And so does anyone want to talk about the ways the Department influences the White House and how that does serve the interest of the two entities or maybe doesn’t?
Bob Bauer: Judge, can I just ask a clarifying question? It influences the White House in --
Hon. Chad Readler: Decision making, I guess, I was thinking -- in the decisions it makes. But if it’s a bad question, it wouldn’t be the first time.
Jamie Gorelick: It’s not a bad -- the relationship between the Justice Department and the White House on judges changes in different administrations. In mine, it was very interactive between DOJ and the White House in the judicial selection process. In the current administration and in others, that authority migrated very clearly to the White House and to the White House Counsel’s Office.
Obviously, the nomination of U.S. attorneys and Marshalls is something that should have a lot of responsibility in the Justice Department because both the Marshalls and the U.S. attorneys are part of the Justice Department. And even those are presidential nominees. And on pardons, again, in my administration there was no pardon given without a -- when I was there without a recommendation from the pardon attorney who reported to me and through me to the White House. But those things change between administrations, so others may have a different experience.
Steven Engel: Yeah. I think a lot of that depends upon the personalities involved, the relationships that folks at DOJ have with the president and then obviously the way the president and the White House Counsel and senior staff want to organize some of these functions. And so definitely judges have changed over time. Pardons certainly in the Trump administration, I think, approached pardons in a different way from other recent administrations.
On personnel, I mean, typically obviously when we’re talking about DOJ personnel who ultimately report to the Attorney General, in my experience DOJ plays a role in that. Obviously, these are presidential decisions, but the president doesn’t make those decisions without consulting the Department of Justice. And obviously in the case of U.S. attorneys and the like, senators play a very significant role in that as well.
Bob Bauer: By the way, I thought -- I didn’t mean to divert from the question you were asking, judge. I was going to say certainly the Office of Legal Counsel has an enormous impact on the White House’s view of issues simply because it’s the Office of Legal Counsel. And has often been remarks frequently after exploring what the Office of Legal Counsel’s opinion on a subject might be, the White House is very anxious not to have it put to paper and provide, shall we say -- I’m sure it’s a little more flexibility in sort of how it wants to proceed.
Whether it may in fact be reasonable, there’s disagreements, but OLC has the upper hand because it’s generally viewed as the, rightly or wrongly -- no offense, Steve. I mean that just in part of the general public debate -- as sort of the honest broker. In any circumstance -- and I was involved in one in the White House in which the White House’s legal position is different than the OLC’s, the general press assumption is that the OLC is correct and the White House is wrong. So OLC’s very powerful in that respect.
The only other thing I wanted to raise— and, judge, we don’t have to discuss this directly in response to your question, but it came up in Steve’s answer— is the extraordinary episode involving the dismissal of U.S. attorneys and the congressional response in the Bush administration because that is a facet of how people have thought about the Department of Justice norms, where the authority over these matters is located. That was a very significant and I would say forgotten -- but it left a mark that the Democrats in the Congress launched an investigation into the grounds for the dismissal of U.S. attorneys.
And then there were a number of assumptions that started to build about what level of accountability Congress -- the presidents had publicly and to Congress for deciding that a U.S. attorney ought to be dismissed and an acting U.S. attorney presumably ultimately a permanent replacement ought to be considered. So it just flashed into my head that in the subject of doing -- in the history that would be written about modern debates in DOJ independence and particularly White House non-interference, the U.S. attorneys’ episode in the Bush administration certainly would merit a chapter.
Steve Engel: It certainly serves as an example of how not to fire U.S. attorneys.
Hon. Michael Mukasey: As you know -- you being Mr. Bauer who wrote about it -- or somebody wrote about it in a book, I appointed Norah Dannehy to take a look at that, and she did a very thorough job, got complete cooperation from the White House, and ultimately concluded that there was no impropriety. There was a lot of bad form. And yes, you don’t fire U.S. attorneys by having somebody several notches down the chain call them up and tell them to clean out their desk. You have somebody -- you have perhaps the attorney general call up and say that on the authority of the president they’re being asked to move on.
Now, as I understand it, the Clinton administration fired all 93 U.S. attorneys as they had the right to do and replaced them. That’s the norm. But then getting into questions about whether somebody was or wasn’t doing their job properly I think is a huge mistake and was in the Bush administration.
Bob Bauer: Yeah. If I could briefly follow up, in the book that I wrote with Jack we talk about that investigation and the report that Norah Dannehy produced. That was ultimately -- by the way, the substance of her conclusions about where the legal lines lay was ultimately adopted by the Obama administration and delivered to Congress in a letter -- a notice to Congress in a letter, “We actually think that ought to become sort of more formal guidance on these issues.” So I’m glad you brought that up.
Hon. Chad Readler: I have one last question for the group. This may take us to the end, so I apologize to those of you who have submitted written questions. But our discussion’s been historical for the most part. We had one or two brief mentions about the current administration. I think Jamie mentioned the contacts policy -- the thorough contacts policy prepared by the Biden White House Counsel’s Office.
But I do want to ask -- but the current administration’s been in place over five months, and now they have their Attorney General in office for a few months. Are there examples that come to mind of ways in which the Department, to your mind, is honoring DOJ independence, is not honoring that norm, or are there questions you see on the table that are to be answered going forward about DOJ independence? And I throw that open to anyone who has a thought.
Jamie Gorelick: Well, perhaps the most prominent example I would give -- it’s true that Joe Biden campaigned on an independent DOJ. I don’t think that he was talking about anything other than enforcement matters at all. And one really good example of it is his reaction to the gag orders and warrants served on media. He said it’s wrong, and I don’t know whether the Justice Department would have come to that same conclusion. But its new policy is that it’s not going to do it. That is consistent, in my view, with the proper roles of the White House and the Justice Department. It’s a matter of policy and, I think, committed clearly to the judgement of the President.
Hon. Michael Mukasey: I should add that reluctantly I agree, although I have to tell you that I would have given my eye teeth to have made a leak case when I was there because I thought that that phenomena in which somebody in the bureaucracy decides that he or she knows better or that his or her agenda deserves to be served rather than the agenda of the people who were there to carry out policy is something that really undermines the function of government. And it can also undermine national security, and that’s a whole separate issue. But it is fundamentally anti-democratic for somebody to do that. And regrettably I was disappointed.
Jamie Gorelick: I mean, I agree. I sought and got leak investigations. I think you’re totally right, Michael, about the corrosive effect on government of people taking matters into their own hands and making their own decisions about classified information. It’s the trade off on the press issues that I think is a decision that the president can and should make.
Steven Engel: I think that those decisions are certainly within the prerogative of the president, and they should be evaluated at the end of the day about whether they’re good policies or not good policies. We’ll see where this one goes. Obviously, it’s inconsistent from a formal claim for independence, but that’s okay because I think as we’ve discussed here the norm that we’re talking about in specific criminal and civil enforcement cases is not the same as the policy judgement and the trade off on press freedoms versus national security or law enforcement investigations.
At the end of the day, if the president wants to make that decision, he can make it. And of course, the attorney general has to -- is the one to carry it out, and so entirely appropriate for the president to honor -- for the attorney general to honor a directive from the president on this policy judgement. But it does require the attorney general to go along.
Jamie Gorelick: Yes, that is absolutely true. I don’t view Candidate Biden’s desire for -- stated desire for an independent Justice Department to be quite as broad as maybe you might. I think it was intended to focus on enforcement matters, and I think that is how they’re doing it. If you look at the [inaudible 01:25:15] version of the contacts policy, that’s what it does.
Bob Bauer: Could I ask -- we do have the time for a brief follow up clarification. Steve, you said that the president could make the kind of judgement we’re talking about, that is a revision of the policy that governs subpoenas and news media organizations and investigations. But it requires an attorney general to go along with it. What did you mean?
Steven Engel: Sure. Well, again, this is -- I think we’re talking about the ways in which the president supervises his cabinet officers, including the attorney general. I mean, the president stands at the top of the pyramid, but at the end of the day Attorney General Garland is the one who has the statutory authorities to seek subpoenas or to cause indictments or grand jury subpoenas or the like to go out. And so it would be appropriate for the president to give a policy directive like this. It’d be appropriate for the attorney general to accept it. If the attorney general said, “No, I’m not going to do it. I’m seeking a subpoena in a media case as a formal matter,” the president’s decisions are to remove him or to back down. That’s all. Go ahead.
Bob Bauer: I’m sorry. Pardon me.
Steven Engel: I mean, the president can’t do it himself.
Bob Bauer: -- too, but what would your review be of an attorney general who said, “Well, I’m actually not interested in your view on the topic in this particular case or overall”? Is your view that that is a defensible position for the attorney general to take?
Steven Engel: I think that they’re -- I think it is often to be a transient position for the attorney general. Look, we could phrase it in a different context. Think of the Bush administration. It’s been reported that President Bush was prepared to rule Jim Comey, his acting Attorney General, with respect to certain surveillance programs; right? And the President had the ability to give the authorization, which he had been doing even if the Office of Legal Counsel and even if the acting Attorney General or Attorney General Ashcroft when he got back disagreed in that case. They all said, “Okay. That’s fine, but if you do that, we are going to resign.”
In that case, the President said, “You know what? I’m not going to lose my attorney general and my FBI director and deputy attorney general over this subject.” And therefore, as has been reported, President Bush backed down on that and went with the legal position of the Department of Justice, not withstanding the fact that as a formal matter the President takes care that the laws are faithfully executed.
So in other words, all this is to say that there are pragmatic judgements that are going to be made here. And likewise, if Attorney General Garland said, “No, thank you, Mr. President. I’m going to continue to pursue this,” once President Biden had said this publicly obviously it becomes more politically costly for them to do it. But if this conversation happened privately and the attorney general said, “I don’t think that that’s right,” the President would have a decision to make.
And so there is a unitary Executive from a certain point of view. But as a practical matter because the president needs to rely upon principal and inferior officers to carry out his will, the powers of the presidency, as I think Dick Neustadt, once said are always involved the power to persuade to some degree as well. Usually, the president is able to get his way. Sorry, go ahead.
Hon. Michael Mukasey: No, I was going to say as a historical matter my understanding is that the accommodation that was made with respect to the surveillance program in the Bush administration was really a very minor one -- it was a minor tweak. And a great deal of drama has been expended over that but that the substantive adjustment was very small.
Steven Engel: Yeah. And judge, I was using it as a case example rather than get into the details.
Jamie Gorelick: Judge Readler, you’ve lost control entirely.
Hon. Chad Readler: Yes. Yeah. I was feeling sort of bad for Bob because I’m sure he’s considering a sequel After Biden, and we didn’t give him much material here to work with. But there’s more time. But perhaps this is good for democracy that we didn’t have much to add for a future book at this point. But let me just say I apologize to the audience we weren’t able to get your questions in.
But this was just a really thorough and, in my mind, very entertaining, thoughtful discussion. I hope maybe this group can do this in person some time because you all had so much to bring to this conversation. It’s a very important one. So let me just thank the audience for listening and also thank our panelists for a really terrific discussion. I enjoyed it and I’m sure the audience did as well. And Nick, back to you maybe for any closing remarks.
Nick Marr: Thanks, judge. And I join -- not to hold anyone up for lunch or anything. Just a quick thanks on behalf of The Federalist Society especially to our panelists and to our moderator, Judge Readler. Thank you very much for the benefit of your valuable time and expertise today. We went a little bit longer than we usually do. We planned for 90 minutes. We are very grateful that you were able to extend the time. We will definitely explore the possibility of doing this event again and in person.
Thank you to our audience, of course, for calling in, your good questions. As a reminder, we welcome your feedback by email at firstname.lastname@example.org. Also, check your emails and our website for announcements of upcoming Zoom events like this one, registration information, and the like. So until that next event, we are adjourned. Thank you very much for joining us.
Dean Reuter: Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.