Robert Bauer, professor of practice and distinguished scholar in residence, is one of the relatively few lawyers with the specialized skill set to provide legal counsel to the leader of the free world, facing issues more complex than most Americans could begin to imagine. A former White House counsel whose expertise in election and campaign finance law has earned the respect of many on both sides of the aisle, Bauer returned to his partner position at the DC firm Perkins Coie after leaving the White House in 2011. Since then, he has also taken up teaching, served as general counsel to Barack Obama’s 2012 reelection campaign and the Democratic National Committee, and continued in his capacity as the president’s personal lawyer.
The classes Bauer has created at NYU Law mine his rich experience in public interest and politics, allowing students a glimpse into the way Washington works that few other professors could facilitate. As co-directors of the DC-based Legislative and Regulatory Process Clinic, he and former Office of Information and Regulatory Affairs administrator Sally Katzen conduct a seminar analyzing the work of political institutions and the part that attorneys play in the process, and also guide the students into fieldwork at a federal agency or congressional office. Meanwhile, students in New York can take either Bauer’s highly topical seminar After 2014, Looking Ahead to 2016: The State and Future of Political Reform (co-taught with Richard Pildes) or his class The Role of the Lawyer in Public Life.
The latter course, which counts for the professional responsibility credit, draws on what Bauer has learned through his multiple high-profile roles in the political sphere to illuminate the unique ethical challenges and obligations that fall to lawyers—both government and private—who represent clients in public life.
“The lawyer in government who issues or helps to craft a national security directive that affects privacy will have represented the client and the government, but obviously the privacy interest is widely shared across the entire public,” Bauer explains. “And the question is, what are the special challenges that lawyers face in thinking about their roles when they can’t think about it in this entirely insular relationship, if you will, between ‘the lawyer’ and ‘the client’?”
The class’s springboard comes from the preamble to the American Bar Association’s Model Rules of Professional Conduct, which states: “Within the framework of these Rules…many difficult issues of professional discretion can arise. Such issues must be resolved through the exercise of sensitive professional and moral judgment guided by the basic principles underlying the Rules.”
The ambiguous matter of “sensitive professional and moral judgment” becomes a focal point for Bauer and his students. Together, they explore issues such as defining who the client is (a question many professional responsibility courses take for granted), addressing conflicts of interest, protecting confidential information, considering criminal justice matters, maintaining professional competence, managing the media, and playing the counselor role.
The recent American past is rife with discussion fodder related to those topics. Among the examples the class considers: the notorious “Torture Memos” drafted by John Yoo in 2002, the unprecedented midterm dismissal of seven US attorneys in 2006, and Obama’s 2011 assertion that the air war in Libya did not require congressional authorization. Students also examine the Office of the Independent Counsel, specifically the investigations of Lawrence Walsh into the Iran-Contra affair and of Kenneth Starr into various allegations leveled at Bill and Hillary Clinton, as well as Special Prosecutor Patrick Fitzgerald’s handling of the Valerie Plame affair. The Federal Election Commission, public corruption, and surveillance cases also figure largely in the syllabus.
In addition to the insider view that Bauer provides, students hear from several prominent guest speakers. So far this semester, the class has engaged with John Rizzo, who was the Central Intelligence Agency’s acting general counsel during the internal deliberations over enhanced interrogation techniques, and Kathryn Ruemmler, who succeeded Bauer as White House counsel.
Although Claire Glenn ’16 doesn’t necessarily want to work in government or politics, she sees important applications for the lessons she’s learning. “In my case, I want to work with nonprofits and people who have political goals and political agendas, but not necessarily politicians,” she says. “But I think those concerns still come into play—balancing the desire to get something done politically with the legal issues that might stand in your way.”
While Bauer makes sure to cover the theoretical bases, in the end he strives to place real-world scenarios before the students and let them attack the problems he has already lived. "You have the policy team staring at the lawyers,” he says, "rubbing their hands together, asking you when you’re going to produce the opinion that they believe is urgently needed to support the policy—to make the best case for it or even just a respectable case. How does a lawyer think about the professional obligation here? Who's the client, and what are the various interests involved that have to be taken into account?"
Posted April 7, 2015