Vail Law: What’s the job of the attorney who’s the White House Counsel? (column)

This column has been corrected regarding the location of Widener Law Commonwealth.

His name has come up more than once. In Sally Yates’ testimony before the Senate Judiciary Committee last May, it did. When there were whispers of the president contemplating canning Robert Mueller, it sprouted again. And then yet again last week in the context of the Nunes memo.

Usually a largely obscure figure — a lever-puller behind the scenes — in this unprecedented presidency, the White House Counsel’s name has popped up like in a game of Whack-a-Mole.

All right, then. Who is the White House Counsel, how does one become one and what, exactly, does the White House Counsel do?

First the who.

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The present occupant of the White House Counsel’s seat is Don McGahn, Donald F. McGahn II, to be more precise, (born June 16, 1968) is the White House Counsel and Assistant to the president. He has served since Trump’s inauguration on Jan. 20, 2017. He is a campaign finance lawyer, political operative, and a former Commissioner of the United States Federal Election Commission (FEC). McGahn grew up in Atlantic City, New Jersey, attended Our Lady Star of the Sea School in Atlantic City and Holy Spirit High School in nearby Absecon. He attended the United States Naval Academy, and then received a BA in history and computer applications from the University of Notre Dame in 1991. He obtained his JD from Widener Law Commonwealth (Pennsylvania) in 1994 followed by a Master of Laws from Georgetown University Law Center.

Prior to his gig as White House Counsel, McGahn served in private practice, then served as chief counsel for the National Republican Congressional Committee for nine years, was named by George W. Bush as FEC Commissioner where he served for five years, and went back into private practice before serving as Trump’s campaign counsel during 2016 campaign.

Shortly after Trump won the election, he named McGahn General Counsel of the Presidential Transition Team. On Nov. 25, 2016, McGahn was named White House Counsel for the president-elect’s new administration.

Now the how

The way one gets named as White House Counsel is the that the president picks you. The White House Counsel is a staff appointee of the president.

Under the Appointments Clause of the United States Constitution (Article II, Section 2, Clause 2) and law of the United States, certain federal positions appointed by the president of the United States require confirmation (“advice and consent”) of the United States Senate.

Approximately 1,200 to 1,400 positions require Senate confirmation. The White House Counsel — as a staff position — does not.

What, then, does the White House Counsel do?

The White House Counsel’s Office sits at the intersection of law, politics and policy. It is charged with reconciling these three without sacrificing too much of any one. The White House Counsel advises on the exercise of presidential powers and actions, defends presidential prerogatives, oversees executive and judicial appointments, educates and monitors White House staff adherence to federal ethics and records management law, and handles White House departmental and agency contracts with the Department of Justice.

The most important contribution the White House Counsel makes may be in telling the President “no.” To do so effectively, the Counsel must understand the limits of the advocacy provided by the office. In addition to protecting presidential powers and constitutional prerogatives and providing legal counsel to the office of the presidency, he must understand that his loyalty is to the office of the presidency and not to the individual president himself.

In simple terms the Counsel preforms five basic categories of functions: 1) advising on the exercise of presidential powers and defending the president’s constitutional prerogatives; 2) overseeing presidential nominations and appointments to the executive and judicial branches; 3) advising on presidential actions relating to the legislative process; 4) educating White House staffers about ethics rules and records management and monitoring adherence; and 5) handling department, agency, and White House staff contacts with the Department of Justice.

The office as client

In undertaking these responsibilities, the Counsel regularly interacts with the president, the chief of staff, the vice president’s office, the White House Office of Personnel, the press secretary, the White House Office of Legislative Affairs, the Attorney General and others.

The Office of Counsel to the President was created in 1943. Some of the more well-known former Counsels include: Clark Clifford (Truman); Ted Sorensen (Kennedy); and John Ehrlichman, Charles Colson, and John Dean (Nixon). Of the 38 persons who have served as White House Counsel, only three have been women: Beth Nolan (Clinton); Harriet Miers (George W. Bush); and Kathryn Ruemmler (Obama).

The White House Counsel is the protector of presidential privilege but must also be prepared to stand between the president, saying “No, you shouldn’t do that.” As such, he/or she is the protector not only of the president, but of the Constitution and the people. Although his office is to advise the president that advice must include turning the president away from going down a wrong or dark path.

One thing the president must clearly understand and zealously adopt is that the Counsel’s loyalty is to the office of the presidency and that he is not the president’s personal or private legal counsel with superseding loyalty to the person of the president himself.

Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices Of Counsel in the Vail Valley with the Law Firm of Stevens, Littman, Biddison, Tharp & Weinberg, LLC. His practice areas include: business & commercial transactions, real estate & development, family law, custody, & divorce and civil litigation. Robbins may be reached at 970-926-4461 or at Robbins@SLBLaw.com.