THE WHITE HOUSE TRANSITION PROJECT 1997-2021 Smoothing the Peaceful Transfer of Democratic Power REPORT 2021—28 THE WHITE HOUSE COUNSEL MaryAnne Borrelli, Connecticut College Karen Hult, Virginia Polytechnic Institute Nancy Kassop, State University of New York–New Paltz Kathryn Dunn Tenpas, Brookings Institution Smoothing the Peaceful Transfer of Democratic Power WHO WE ARE & WHAT WE DO The White House Transition Project. Begun in 1998, the White House Transition Project provides information about individual offices for staff coming into the White House to help streamline the process of transition from one administration to the next. A nonpartisan, nonprofit group, the WHTP brings together political science scholars who study the presidency and White House operations to write analytical pieces on relevant topics about presidential transitions, presidential appointments, and crisis management. Since its creation, it has participated in the 2001, 2005, 2009, 2013, 2017, and now the 2021. WHTP coordinates with government agencies and other non-profit groups, e.g., the US National Archives or the Partnership for Public Service. It also consults with foreign governments and organizations interested in improving governmental transitions, worldwide. See the project at http://whitehousetransitionproject.org The White House Transition Project produces a number of materials, including: • WHITE HOUSE OFFICE ESSAYS: Based on interviews with key personnel who have borne these unique responsibilities, including former White House Chiefs of Staff; Staff Secretaries; Counsels; Press Secretaries, etc. , WHTP produces briefing books for each of the critical White House offices. These briefs compile the best practices suggested by those who have carried out the duties of these office. With the permission of the interviewees, interviews are available on the National Archives website page dedicated to this project: • *WHITE HOUSE ORGANIZATION CHARTS. The charts cover administrations from Ronald Reagan to Barack Obama and help new White House staff understand what to expect when they arrive and how their offices changed over time or stayed the same. • *TRANSITION ESSAYS. These reports cover a number of topics suggested by White House staff, including analyses of the patterns of presidential appointments and the Senate confirmation process, White House and presidential working routine, and the patterns of presidential travel and crisis management. It also maintains ongoing reports on the patterns of interactions with reporters and the press in general as well as White House staffing. • *INTERNATIONAL COMPONENT. The WHTP consults with international governments and groups interested in transitions in their governments. In 2017 in conjunction with the Baker Institute, the WHTP hosted a conference with emerging Latin American leaders and in 2018 cosponsored a government transitions conference with the National Democratic Institute held in November 2018 in Montreal, Canada . Earlier White House Transition Project funding has included grants from the Pew Charitable Trusts of Philadelphia, Pennsylvania and The Moody Foundation of Galveston, Texas. The Kinder Institute on Constitutional Democracy. A central element of the University of Missouri’s main campus in Columbia, Missouri, the Kinder Institute on Constitutional Democracy prepares students for lives of thoughtful and engaged citizenship by equipping them with knowledge of the ideas and events that have shaped our nation’s history. https://democracy.missouri.edu . © White House Transition Project 1997-2021 For the White House Transition Project ii For the Kinder Institute on Constitutional Democracy http://whitehousetransitionproject.org https://democracy.missouri.edu/ Martha Joynt Kumar, Director (202) 285-3537 Justin Dyer, Director (416) 832-2121 Terry Sullivan, Exec. Director (919) 593-2124 Smoothing the Peaceful Transfer of Democratic Power TABLE OF CONTENTS WHO WE ARE & WHAT WE DO ........................................................................................................II EXECUTIVE SUMMARY ......................................................................................................................... V INTRODUCTION .................................................................................................................................... 1 OVERVIEW ............................................................................................................................................. 2 Roles and Responsibilities, the Presidential Term, and Saying “No” 3 Law, Politics, and Policy 5 Justification for the Continued Existence of the Counsel’s Office 6 FUNCTIONS OF THE WHITE HOUSE COUNSEL’S OFFICE ............................................................... 8 1. Advising on the exercise of presidential powers and defending the president’s constitutional prerogatives 8 Advising on Executive Privilege 9 Advising on War Powers 9 Advising on Presidential Disability and Succession 11 The Limits of Advocacy 12 2. Overseeing Presidential Nominations and Appointments to the Executive and Judicial Branches 13 Participating in the Selection of Presidential Nominees and Appointees to the Executive Branch 13 Participating in the Selection of Presidential Nominees to the Judicial Branch 13 Supervising the Vetting and Clearance Process 15 Preparing the Nominee for the Confirmation Hearing 16 3. Advising on Presidential Actions Relating to the Legislative Process 16 4. Educating White House Staffers about Ethics Rules and Records Management and Monitoring for Adherence 17 Orienting New White House Staff and Executive Branch Officers 18 Monitoring and Educating Staffers during Campaigns 18 Reviewing Investigations and Associated Proceedings 19 5. Handling Department, Agency, and White House Staff Contacts with the Department of Justice 19 Monitoring Contacts with the Department of Justice 20 Requesting OLC Legal Opinions 20 PRINCIPAL RELATIONSHIPS IN THE EXECUTIVE BRANCH ........................................................... 23 The White House 23 The President 23 The White House Counsel and Presidential Privileges 24 The Chief of Staff 31 The White House Staff 31 The Office of the Vice President 32 Departments and Agencies 34 The Department of Justice 34 3 Smoothing the Peaceful Transfer of Democratic Power Other Executive Branch Departments and Agencies 37 ORGANIZATION AND OPERATIONS ................................................................................................ 38 Internal Division of Labor 39 Deputy Counsels 39 Immediate Support Staff 40 Special Counsels 40 Other Work 41 Rhythms of Quadrennial Governance 41 First Year 42 Annual Cycles 42 Electoral Cycles 42 Final Year 43 More Regular Tasks 43 Crises / Scandals / Unexpected Events 44 The Counsel’s Daily Schedule 45 Turnover: Counsel and Deputy Counsel 47 APPENDICES ........................................................................................................................................ 48 Appendix 1. Functions of the Office of White House Counsel 48 Appendix 2. Counsels & Deputy Counsels, 1969–2016 50 REFERENCES ....................................................................................................................................... 51 ADDITIONAL READING ..................................................................................................................... 54 For the White House Transition Project For the Baker Institute Martha Joynt Kumar, Director Terry Sullivan, Exec. Director Mark P. Jones, Senior Fellow (202) 285-3537 (919) 593-2124 (713) 348-2107 http://whitehousetransitionproject.org http://BakerInstitute.org THE WHITE HOUSE TRANSITION PROJECT 1997-2021 Smoothing the Peaceful Transfer of Democratic Power REPORT 2021—28 THE WHITE HOUSE COUNSEL MaryAnne Borrelli, Connecticut College Karen Hult, Virginia Polytechnic Institute Nancy Kassop, State University of New York–New Paltz Kathryn Dunn Tenpas, Brookings Institution EXECUTIVE SUMMARY As the burdens of the presidency have grown, so have the responsibilities of what is often called “the president’s lawyer” but is more accurately described as the “lawyer for the office of the presidency.” The myriad tasks of this complex office include: monitoring ethics matters; coordinating the president’s message and agenda within the executive branch units; negotiating on the president’s behalf with Congress and other vectors; recommending actions to the president; protecting the constitutional prerogatives of the presidency; and translating or interpreting the law in its broadest context to the president and throughout the executive branch. The Counsel’s Office is the channel through which most paper and people must pass on the way to the president, and, equally, through which all outputs from the Oval Office must be monitored and evaluated. The pace of the work is incessant, and the pressure to ensure against errors of substance or judgment, unrelenting. The Office exists in a fishbowl, is subject to searing public criticism when it makes the slightest misstep, and yet prompts intense loyalty among those who have been privileged to serve in it. Observations and thoughtful insights gained from interviews with former Counsels have yielded the following advice and suggestions: 1. UNDERSTAND THE ROLE OF THE COUNSEL AS THE LAWYER FOR THE OFFICE OF THE PRESIDENCY, NOT AS THE PRESIDENT’S PERSONAL LAWYER So if I had any advice for a president choosing a counsel, I would not choose an ordinary lawyer, no matter how smart