The Frank J. Guarini Government Lecture on March 9 was a rare opportunity to hear firsthand from not just one, but two former White House counsel about the pressures and rewards of one of the country’s most high-profile legal jobs.
Moderated by Professor Samuel Rascoff, the conversation included both Robert Bauer, professor of practice and distinguished scholar in residence at NYU Law, and Kathryn Ruemmler, a partner in the DC office of Latham & Watkins. Ruemmler served as Bauer’s deputy when he was White House counsel in President Barack Obama's first term, then assumed Bauer’s role upon his departure in June 2011.
In response to Rascoff’s query about who the White House counsel’s client is, Ruemmler replied that the answer was not always clear-cut. She recalled conversations she’d had with Bauer after he stepped down as White House counsel while continuing to serve as Barack Obama’s personal lawyer and general counsel to his reelection campaign. One prominent example involved lawsuits in multiple states challenging Obama’s citizenship and, thus, his eligibility to be on the ballot. In that instance, Ruemmler sought advice from not just Bauer but also the Justice Department.
“Is this something that relates to the officeholder—the president of the United States—or is it more in his capacity as a candidate, or his personal capacity?” said Ruemmler. “Because what they really are challenging is his actual birth certificate, frankly.”
During the lecture, Bauer and Ruemmler also illuminated the delicate balance that White House counsel must strike between the law and political pressures. Ideally, the Justice Department’s Office of Legal Counsel provides the White House counsel with “pure legal advice” that ignores political and policy considerations; the White House counsel’s job is to synthesize all of those factors. “You spend a lot of time trying to reconcile these things to make sure that you have visibility into all aspects,” said Ruemmler.
Bauer added that a White House counsel should not be ruled by the political game. “There’s no point at which sound legal analysis is set to the side for political considerations,” he explained. “But like in any business, no lawyer counsels a client intelligently unless the lawyer thoroughly understands the client’s ‘business,’ the industry, the context in which the client is operating. The White House counsel has to bring to bear an understanding of the policy and political background in talking about the choice among viable legal alternatives.”
The difficult matters Bauer and Ruemmler dealt with as White House counsel included the regulation of contraception coverage under the Affordable Care Act and the debate over the legality of military action in Libya. Bauer spoke to the latter issue. While the Office of Legal Counsel concluded that the action qualified as hostilities under the War Powers Resolution, thus requiring the president to notify Congress and seek its approval, the White House counsel’s office decided otherwise. Neither legal conclusion was necessarily wrong, Bauer said—just different.
“At the very end of the day, there are judgments that are made by the president of the United States, and those are his judgments to make,” he said. “The White House counsel helps the president understand what differences among the agencies are. What is critically important is that the process by which those judgments are elicited is an open process in which there is ample discussion with all components of the government.”
Regarding how and when to push back in policy debates, Bauer suggested it involves the art of knowing what is worth objecting to: “The trick is to navigate between being too much of a lawyer and too little of a lawyer.” Ruemmler concurred. “The president has to believe at all times that, when you are giving your best legal judgment about things like litigation risk or something else, you’re not bringing your own policy views to the table, or you haven’t been coopted by one of the other groups,” she said. “This president is very shrewd in picking up on that…. If you lose that and the president just starts to think of you as one other of those players who are trying to get stuff done and push stuff through, then you really lose a lot of your authority and your power in the position.”
Watch the full video of the lecture (1 hr, 1 min):
Posted March 30, 2015