Welcome to our audience. Im coming to you from our virtual courtroom of the sixth circuit thats been home for 14 font happy to report last week we went back to court in prison for the first time gaza through and i hope federal society will get back tomorrow in prison so we can do this together in the coming weeks and months. A privilege to have for lawyers in court participating in todays program. The exception of general and perhaps a few others, our speakers have served in the most significant legal positions in the executive branch and as someone before taking the bench had the opportunity to work the department of justice white House Counsels office. Tremendous respect i have for Response Release these positions entail. Its fair to say Attorney General the toughest job in washington, we have one on the call who can maybe confirm that but its also true for those who work closely with Attorney General in senior positions as well in the white House Counsels office given the continuous stream of legal positions that cross that everyday. One of the great things today, they represent four different administrations from the Trump Administration, giving perspective to this program so congratulations to what youre putting together, an outstanding panel. Its been my experience from a few other organizations can do something like the federal society has done today with this program. Our topic is the relationship between the type of justice and White House and the Notion Or Norm d. O. J. s dependence. I use that term because by law the constitution, as we all know taking care of loss faithfully executed. Chief Law Enforcement Officer in the u. S. A member of the president s cabinet and serves the pleasure of the president. How d. O. J. Acts independently from the White House is a discussed topic and one overtime administration and for terrific Speakers Today to address these topics and more. Our focus is on the department primarily in its relationship with the White House, let me start with our former d. O. J. Officials and Fan Turn to former white House Counsel. U. S. Attorney general from 2007 2009. 1988 to 2006, a judge of the u. S. District court for the southern district of new york including chief dutch. Frederick might yell possible, served as Counsel Loughran entered. Jamie served as deputy Attorney General at the department of justice 1994 97 before coming to the department, jamie served as general counsel in the department heads and a member of the bipartisan 11 commission. Graduate of harvard law school, a partner law firm. System Attorney General deputy assistant Attorney General in the same office 2006 2009, Supreme Court justice, anthony kennedy. Graduating you possible partner at the doctor whopper. White House Counsel from 2009 11 before serving in the White House, general counsel of the 2008 obama is a natural campaign. He was in the published a book, after reconstructing the president with his coauthor, colton. A professor at the York Diversity school of law so i prepared a number of questions for our panelists but as the program moves along, i hope you will include some questions in the chat that we can share with our panelists at the appropriate time. I may start with this, what we mean when we talk of d. O. J. Independence from the president and the White House . How would you characterize that and how is it honored during the administration in which you served it and why dont we start a chronological order. Jamie, lets start with you given your service in the Clinton Administration. Thank you. I think that prohibition, if you will is efforts by the White House were others in the administration, Enforcement Matters primarily criminal but sometimes civil as well. I will tell you with direct discussed these matters except at a Policy Level like more cases of this, we dont care too much about that except when i initiated a conversation where there was foreign policy considerations that i bought be brought to bear in our own decision making. In civil cases there were matters the heads up about what we were doing and we briefed the White House on important criminal Matters Investigation into the oklahoma city bombing. I will note parenthetically that several members of congress during my tenure did asked me about a pending criminal case and i rightly said it not something i can discuss with you so not everyone understands the importance of having a Justice Department independent from political pressure. Numbers are watching today to get a refresher. Lets head to the Bush Administration, Judge And Fan for maternal. Thank you. I think i was living in something called paradise when i served because i came in at a time when there were allegations at the Justice Department of any appearance when i was serving they were pretty loose. I was committed to select the deputy and pass on any senior Assistant Ag went i took office which as far as i know, something others were not committed to do. I wrote with jamie, the issue is most in criminal cases, i did have one experience when i was told about White House and the department had taken on behalf of the u. S. Supreme Court Case, not a criminal case Supreme Court case. When i appreciate change but i would talk about that, we maintain the situation we had before so that was as close as i came to any kind of pressure from the White House in respect to a case. I should add that most of the pressure in my experience came not from the White House, which is the only example i can think of rather from congress and others, not at all bashful about making their views known. The treatment of detainees was criminal violation and the other departments, the State Department wanted me to take a certain position on certain treaters treaties and other matters that i politely told them, i took the position outlined and on one occasion, i read about a legal advisor who told the European Audience you would have words about our treatment of detainees when he got back to the u. S. And i had stern words for him and his boss and the president about that all armed down. Now we will head to the Obama Administration and the perspective on the White House. Thank you and i appreciate the invitation to participate in this conversation. I was talking about reversing the order of my answers and i dont recall where there is any thought of pressure in the department of justice on criminal matters the norm of restraint in that respect applies typically in both cases. Parts of the of application but never did i find that our office was under pressure to participate in anything the White House the department of justice was infringing upon the norm. I will add we had a policy, that defined appropriate context it was more complicated and made out to be because the president had the authority to do whatever the president would like to do the president of United States reading the newspaper in Fact Conduct reported on the executive want to pick up and coffee Attorney Generals of the u. S. And demand he or she look into it say they sometimes do that, i think we can all agree that as a matter of Process And Outcome it would violate the norm the most dramatic way in particular a matter of Self Interest to attempt to bring political pressure on the department to bring about a Result Investigation to campaign raising other legal issues but by and large, everybody has recognized theres no exceptions, the importance of broad construction in progress procedures within the institution Obama Administration to comply with them. Thank you and then will move ahead to the Trump Administration. Thanks. I think these policies have been consistent across administrations and i can say firsthand experience certainly the department of justice and white House Counsel office in the like took them very seriously. One thing to keep in mind is the extent to which Attorney General and department of justice are primarily responsible for enforcing these norms and direct authority is supervised the Attorney General at the end, the authority to appoint him with the senate remove him but thats all, importance is not easy as we take it lyrically costly so the president cannot open an investigation and they cannot so it is the Attorney General who has responsibly on a daily basis of making sure the department criminal and civil decisions are made for the right reasons so i think obviously theres been a lot of discussion in recent times, but it comes from, on the front and the investigation into the present terms administration, others come from obviously the president speaking about civil and criminal matters on twitter continue to speak about them publicly and the like but when you look at president public fame in his opinions of President Trump and actions of the department of justice throughout the of menstruation, i think when you see the norms were taken seriously and in terms of actual activity with maybe some exceptions, the norms were followed through in the trump of ministration. I want to ask you each, maybe talk about positions you had when you served in government. Our listeners or waters understand the rules roles each of you served but some of our audience doesnt. He week specifically talk about how your role touches on the White House d. O. J. Relations and let go in the order i introduced the speakers so judge casey. Bradley, Attorney General overseas prosecution of the fence cases to which u. S. Is part of or by the Supreme Court or another court although that was the one situation i described interaction within the White House, but in my extent, for easy part. The oversight of federal Law Enforcement agencies can be difficult and complex Assignment And Interaction with other departments is a constant source of orders. It was true as well as regard to national security issues, in respect to other departments and having to make sure they understood their Authority And Pay under certain hours. Sometimes required a higher level and those were the situations that i think brought any issues in the White House. I think it is impossible to overstate the importance when it comes to issues like this because a lot of it, and i expense depends on personalitys of people involved and i had a great relationship with white House Counsel and there was good communication and in situations where it was something perhaps brought on, i felt no pressure at all, going ahead and one situation i was asked by congress to report on whether i thought, i declined to say that during my Confirmation Hearing since i didnt have any details on classified speeches. When i found out it was no longer used in many of them, the Detainee Treatment Act standards that would require reviewed, i thought there was no need before my first Oversight Hearing at the hearing i wrote them a letter white House Counsel said since i was a rookie at the time, i didnt think there was any harm in what had been sent the letter and all worked out but as i said, i was in a situation where the White House was hands off and i feel fortunate. Jamie, deputy Attorney General. The deputy Attorney General, or the acronym nomenclature, dag, busy eo of just Stuff Department organized in different ways, Justice Department was organized as a unified Ag Dag at the top with everybody reporting through the deputy ag. Our staffs were largely unified but Attorney General has small personal staff so i run the front Office Staff with some excellent people including Merrick Garland, a fabulous group of people in the office. The divisions of the department of justice and u. S. Attorneys although many u. S. Attorneys that they reported only to god, to main justice but thats another day. I also had direct oversight of the fbi dea, marshall, bureau immigration and Naturalization Service which current Leadership Department of justice are happy thats over at the department of Homeland Security because it took up a disproportionate amount of time not a particular set of expertise within the department of justice. I had the role of policy court nation, Attorney General reno wanted for policy decisions to come to her in a coordinated way and that meant i needed to make sure i understood everyone in the department was a particular issue. When you do that, a lot of the issues go away. At that level, issues tend to resolve themselves, leaving the most important ones for her flipping views identified an opportunity for her to hear from everyone. She didnt love working issues at the White House or within the administration and that is very much something she wanted me to do. I had weekly meetings with each of the five white House Counsels serving in the Clinton Administration during my tenure regular attended national security 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 in particular the white House Counsel office. The one thing i went over this, i want to make it clear when i said at the outset, judge, Enforcement Matters were really in the hands of the department of justice and i included that, i didnt include civil litigation in the ordinary course. Talking about his agreement with the White House over civil litigation, my view was and is that a position in the Supreme Court reports of appeals on key issues of policy are totally appropriate for the White House to weigh in on. I dont know if it hes out that issue because i think its important prerogative of the president to say i dont think we should be challenging this law why do or i think we should weigh on on this issue in these policy implications so i would distinguish between Enforcement Matters and other civil cases. I think that there from my perspective when i was at the department, a highprofile case, who are defending executive orders for the president of course there would be competition about decisions and whether work should be done at the President Or D. O. J. Or elsewhere. Really important office in terms of the operation of the executive branch into just shut up and that job. How would you describe the job. I think weve had a nice transition as we talk about civil matters because have one of the functions of the Attorney General controlling criminal prosecution matters, also defending u. S. And other statutory function of the Attorney General is providing legal advice within the executive branch about what the legal position would be and ultimately its supervised by the president who takes care that the laws are faithfully executed. In this Day And Age and for a long time, Attorney General advice given function has been delegated to assistant Attorney General legal counsel so in that role, we see informally and through opinions provide legal advice about various government actions and other questions that would merge mostly outside court or particular enforcement proceedings and that includes executive orders which we must review and sign off on before they are issued as well as other President Ial decisions, some of which national security context, some of which a variety of other context so in connection with that advice giving role from in general and certainly my experience works regularly with White House and the most important client was Attorney General, i would think the second most or equal would be the white House Counsel and wed work with folks in the counsels office on a daily basis and provide a pandemic several times a week, that includes participating interagency meetings on national Security Council matters for Policy Matters, immigration trade for the department of justice are important in the discussions going on this is consistent with the norms of independence former talk about this because its not about independent from a particular Enforcement Matter, its determining legal use of executive branch in one pass to do that cap a principal faces with reasons and the like so its no different looking for house and thought matters in any work hours executive branch. Thank you, this is a great use of heavy role in the White House white House Counsel Office Drop which is also demanding position and how you viewed the d. O. J. In relation to the work you are doing the White House. White House Counsel is a critical contact setting the standards for the rest of the White House in communication with the department of justice, the Context Policy for example governs the relationships with White House between the White House and d. O. J. Communications with the d. O. J. Report out over the name of the white House Counsels office questions about the application of the context on the white House Counsel. The white House Counsel has ongoing significant communications with deputy Attorney General of the first contact would be the most critical level of the department and routine head of the Office Counsel also general to return to this. , there may be some sensitivities around intervention by the White House litigation but it certainly true that a line needs to be applied to criminal enforcement and how it applies to civil matters and thats also true about the constitutional physicians the executive branch takes. President s campaign on particular visions of the constitution in a variety of ways including the Supreme Court of u. S. In the direction of the u. S. So the administration positions on constitutional questions could very well implicate President Ial equity significantly so i always viewed white House Counsel has properly specializing representing the executive, the White House own, completely free and Court Docket having conversations about on behalf of the administration on constitutional questions, please are physicians the president answers for the president answers publicly for those positions so there needs to be medication around those issues between the White House and Generals Office just as there are specific questions the aoc takes up, in which there may be specific policy related equities. As it an example of one particularly sensitive part of president Obamas Position to enforce but not defend we are jacks and that was a question that required significant communication in the department of justice, Attorney General and the president had communications on this topic to make a decision, it had to be handled in a rigorous process in effect took into account all the relevant use putting use of Attorney General and the department of justice so in short, i should start think i should have started by think the white House Counsel the senior legal advisor to the president in the White House and coordinate roles in the ninth circuit had an occasion to remind white House Counsel during the last Administration Counsel doesnt have any Binding Authority legal judgment, the agencies on these judgments, ill close by saying talk about the department of justice omitting the relationship white House Counsel plays in coordinating legal affairs at the senior level throughout the senior executive branch donating again, understanding how the legal advisors components in the department of agencies proceedings determining their jobs and positions they take, issues they seek development, that is also part of that role. Great. He mentioned a couple times context policies between White House department and maybe make sense, maybe i will start with steve since he was most recently in government but talk about what that policy is and how it works and what purposes it aims to serve and whether it honored sometimes reached but talk about the White House Context Policy in origin and purpose. I think what we are talking about here is primary operational way that d. O. J. And the White House govern their relationship in criminal and civil Enforcement Matters and policies consist of a written set of instructions that restrict communication between d. O. J. And White House on these, a very small group of people. In particular people who are sensitive to maintaining the boundaries the independents in the department. Her policies were first put in place in the Port Administration and continued, they been updated regularly, issued or reader should throughout the Trump Administration in the first week of the Administration Trump d. O. J. Just the Holter Policy which was issued in 2009 before that there is a policy, basically operationally what we are talking about is when there are conversations between White House d. O. J. On these subjects generally speaking on the criminal side with the Attorney General or deputy Attorney General, enforcement is involved, they throw in the associated Attorney General i generally white House Counsel deputy although the President And Vice president are also included, at least in my recollection, much less common that there is direct contact on some of these things with the White House and it serves basically as the function a lot of the times when White Houses have got in trouble on these matters, its relatively people policy people dont necessarily understand boundaries supposed to be upheld and by putting it down in writing i think its salutary generally in my experience. Anyone else have a different sense or want to confirm. Let me jump in, we are assuming when we talk about these policies, someone picking up the phone, 70 Attorney General to White House and they gave you in secret but President Trump just announced, tweeted, spoke of his views on issues and defend something would happen at the department of justice that seemed consistent with those views on Enforcement Matters. Not happened in im not saying it happened all the time and i credit what steve was saying, as he said for the most part but i do think when you have, for example, a reversal on the Plane Case after the president says lynn should never have been prosecuted, whether that was because the president said back or because the Attorney General felt that on his own, the public will never know and i think at one time Attorney General bar said the President Ial speaking of these issues is making his job more difficult and that may be that he could have done this anyway but to an outside observer, one never know so bill clinton never communicated publicly or privately what he thought should happen in an Enforcement Matter think we need to contemplate the Context Policy which assumes a communication that private, whether one needs to have a policy that says the White House will not communicate publicly or privately with the department of justice on Enforcement Matters, which is pretty much the current office is more likely and detailed and in line with prior policies so i think there is a new issue here prompted by some of the ways in which President Trump spoke about issues pending at the department. Probably very to say it was easier before twitter communications. Reduction representative separate issues here because the Context Policy specifically about d. O. J. Providing information to the White House about a pending matter, it works both ways the President Medication on these would be consistent with the Content Policy including policies i see and if the president qualities Attorney General, policy may be inappropriate or unwarranted unwise but even that policy but not necessarily speak to that. The second part jimmy mentioned president commenting on these matters which again he did before president and while president and after just like he also commented on sporting events and hollywood celebrities and everything else im not saying whether or not would be wise but president has a patent on a host of things including criminal civil matters. Im very confident the President Twitter Feed and a look at actions d. O. J. Did not take, he would not high correlation. The Brooklyn Park at 2 00 p. M. Every day and it doesnt necessarily speak to what influencing time or accurately reporting but it does create Complexity Attorney for set this publicly. An action consistent with what the president previously said publicly, theres an Appearance Issue which makes the department of Justices Job Everybody job very difficult in that respect because its open to criticism. I think it would be a mistake, im not sure that it would be consistent that the president tweeted about general Flynn And Department jumps from to the contrary. I think he often tweeted about general flynn and the decisions were made at the time that was appropriate for public justice but it makes the Attorney Generals job more difficult certainly creates an issue so just one last thing, it could be counterproductive to any president objectives. It could be at the president is seeking to enable department of justice in a certain direction for public statements dont make it easier and it raises cost of any action the Departments Project take her not speaking about what President Trumps roles for or want respect, im sure its an effective strategy. May i just say another Thing Steve says something thats a fundamental flaw in the policy, it just tells you doesnt say what you cant say or what you may say and i think this is why President Biden was so clear before he nominated Merrick Garland and he was a candidate, he said i want a Justice Department influenced in decisions by me. I think all of us would agree that is the purpose because its simply a process from the policy doesnt say that or hasnt for many years. And fairness from i think President Biden may have gone beyond that to suggest that the department of justice in fact would be independent of his monotonous respect to limiting Enforcement Matters. When Attorney General had taken positions in recent weeks, the White House not just Enforcement Matters but institutional positions the department is highly the court, the White House has been clear distanced itself, its just the object taking action but on the other hand, there have been other examples when the White House is consistent with the objectives of the president they have waited. The subpoenas from the records and the like, its not inappropriate but i agree when we talk about independent we should be focused on Enforcement Matters all president do better if they stay out for all kinds of reasons but pure Independence Model leads to the extent that some of what President Biden said it may not be desirable or effective. I didnt want to interrupt. Go ahead. With everybody here on a regular Basis Or Guest speakers, you could play also the hypotheticals for the complexity of these issues. Trumps sweet i think its fair to say, he didnt understand why he is continually told was out of his control and should be able to do for you wanted with it, thats not that he didnt listen to his legal advisors but it certainly covers the intent behind the tweet because of frustrations with what he thought was for example, Jeff Sessions mistake fusing himself from the russian investigation and other circumstances he had harsh words didnt perform to his specifications so there something unusual about the attack, norm of the questions on the part of former President Trump. Normal circumstances, the question is application. The question of what a president can take publicly is complicated because president s are going to be asked in the case of civil disorders, what is your response to a topic in location exports the president might say its in inappropriate whatever the conditions are met particular patient and in this activity, is that inappropriate on a matter an ongoing investigative matter . I would suppose so. He can go back and look at a number of cases like that for questions happen raised in commenting on the conduct of combat giving you pursuit or detained. Has the president led people to believe he or she has reached judgment on the conduct that will be subject to federal investigative enforcement actions it becomes tricky critics on either side will be quick to jump on the President Position say you shouldnt have said that could find examples for that as well but it is propagated because its extraordinarily important. I took it seriously and i think probably on this call took it seriously if i dont think what you set aside some of the controversy in the Trump Administration, by and large from the d. O. J. Relationship anyone took that lightly didnt commit themselves to enforcing it but i do think also the confusion has been created by the nursing the department of justice is independent thats how unfortunate how some of these issues get boiled down. Its not independent. The president dominates Attorney General for the expectation or she will pursue the policy to enforce the laws the way the president would have his or her department so i want to like that for the president has to account publicly for his position. The president is doing what the president actually has to do to fulfill broadly speaking on a partisan sense the public political duties of their office. I just want to say, the pronouncements of the Justice Department can have a significant effect of what its related to me. There is a much more elaborate policy, at least two or three times by my successor. On the other hand he once described himself of his job as a president s wing man. That can turn from im wondering your view on this public perception. I think that is absolutely a question the presence Attorney General from there all reducing connections from we saw the Attorney General the ford administration, what you define as your leadership and understand your position . Is going to be thought to be significant how the Attorney General answers that question. Im thinking of a much different case kennedy the President Ial campaign manager. The answer back back yes, a very significant moment in Peoples Understanding of the dimensions of this particular form which in that case, as an apparent matter to take police directly challenged and im sure its fair to say at the time but it launched us into the modern understanding but i think you are right, Attorney General would say John Mitchell or kennedy were to say at the microphone im here to make sure the president is reelected to a second term by doing everything possible to satisfy what put him here in the first place, that would be inappropriate that was the president in a difficult position. I think you all acknowledge there were times when the department will typically have civil matters but the president is well aware on specific litigation or policies that has to be made but setting that aside, Attorney General in their own judgment has make independent evaluation of how they are going to be in a certain case or determine other action. Im wondering if you could give the audience some sense, can you reflect on may be a decision or two you had to make while you were selling in government you felt honored and preserved the idea d. O. J. Independence even if it created tension with another Principal Or Concern for the administration or a view of the White House . To know if theres a specific audience examples, consideration you might have to wait and on the department as something is White House and how the White House dealt with it. Like to come up with a minor example because not only confidentiality i went to strip names out of this but the department was pursuing Enforcement Matter which was appropriately not something the White House had, investigation that led to the prosecution taken earlier in a previous administration continuing on into the administration, a highprofile matter, not so highprofile that it was for everybody but it was well known it was the works, it was my thought at the time that it was illfounded prosecution the only reason it was proceeding was the ministration was essentially the essence because any judgment would have been inappropriate i didnt say anything, of course i didnt nobody else did in the prosecution forward it was extremely illfounded prosecution, the government lost badly and brazenly by the way correctly so, pat one of the costs. I think i did the right thing, having a debate, i saw the complaints the date it was made public, i knew right away the government would lose it and make it the embarrassingly way that i said thats just the way it goes. As a case i was under pressure to do anything . Is certainly one half but i also think theres an example again, it doesnt always work for the better. Somebody was prosecuted in a case the Government Couldnt when shouldnt have one and there was nothing done on the subject because not operated in a way they expressed opinion even for the highest have inconsistent with the norm and what happened judged harshly in the public sphere. If you had sent to the department at that time, obviously this decision its worth but i think youre going to get told, or that have violated the norm . Thats a really good question because to some degree you could say yes, i think it would have, i would have had to take to the president socializing, the chief of staff we need to have a meeting and people should be in the meeting, theres no monumental Train Wreck that will reflect on your presidency about to happen, i didnt do this in this case, i didnt like it because, from a press perspective, there is a political dimension that would have been read into that dimension i thought would be impossible to defend publicly so i could imagine, who came up with this idea lets in this case, there was no hope of winning on this intervention. Anything from d. O. J. Perspective or maybe d. O. J. Made the right call . It was not simply a difference about a Policy Matter and the White House has, it was a question of what it was that would prevail important and i thought listening to his experience in the Supreme Court far outweighed my own or anybodys experience, he had, by far, better reasoning, it wasnt that it was entirely the White House position but it was a question, it was his rather than the Governments Position prevailed. I have three examples, i dont know how they would be in your construct but i will give it to you anyway. One, i got a fact one day from a senior person in the White House, it was about a criminal case and it just had scribbles on the top, can you take care of it . I the facts inside the car and i drove over, i was driven to the White House and i went in and i said, this is something you can do and heres why you cannot and i never want to see any of these again. In a factual setting and in a legal context, it was new and innovative. Given the strong interest in the country and having a robust internet and nurturing that of our but i thought is really important for the class to know what we were going to do. We gave them a headset. It was an Enforcement Matter. We didnt ask their view but we said this is whats going on, becoming. I thought that was the right thing to do, and i thought the department was protected. Ill give you a reverse example. So the fbi had an investigation of chinas efforts to influence our elections, affecting or trying to affect the election of members of the senate and the president. The White House, the fbi briefed those members of the senate and said theres these people, this is what they are doing, you should be on alert. I said you need to briefed the president as well, and the fbi said no, that could affect the course of an inquiry. I said i didnt understand that, but there must be something 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. The director said no, he cannot do it. I strongly disagreed with it. I thought, i asked the criminal division and the fbi what could be said that would not affect the investigation. They gave me something i thought was sufficient to put them on alert that there was this effort by an adversary to affect our democracy. We disagreed. We took it to the Attorney General and she deferred to his judgment which i thought was wrong. It was all public and thats really interesting i felt very comfortable that i was protecting the department while also taking Congresses Oath of foreign policy, nationals could issues as well. Sure. I think just speaking at a high level of generality. To some degree in the daytoday comports the my job i i had er the folks of discretionary policybased responsibilities on some of these questions. What we are being asked to do was essentially pronounced on what can go and not go, legal perspective. You make your best judgment. And the context, there were many, many ideas that are floating around on a regular basis, number which are not being able to go in one Form Or Fashion and we dont do the White House favors to sign off on something that is ultimately going to be embarrassing, loss in the course and in this Day And Age there something is not challenged in court but we deal with the heck of a lot of things are challenged in court all the time. That being the case, not infrequent in which we would be required to disappoint policymakers in the White House and otherwise with respect to things. With all of that some of it is just management. You need to have credibility and to be able to explain your perspective about how and why its not going to work so i think i was aided by support from the white House Counsels who i worked with and the Attorney General as well but at the end of the day you make, you are only temporary occupants of the offices anyway so you the best judgment you can. You can create and you take it from there. Followup issues after decisions were made, we appreciate all the problems you solved before the internet in litigation. I should mention we often had im sorry. We often had strong support not only by the Attorney General but i the solicitor general and the various heads of the civil division in the context of advising. We would often leaked folks in when appropriate on those things. Thats a terrific discussion on how these issues are in real life and the hard decisions that all of you had to make. Another Area Bob touched on briefly i would love to hear your views on is the fact, dojs that the only agency and executive branch, the are many others, and while the department is terming legal position and the United States in various matters, many of the cases that the department is litigating or otherwise involved in, advising on will invoke the equities, very popular work in washington, executive branch, the equities of other agencies. It could be the the State Department, about four the federal courts that have implications. There could be a physical issue of department is litigating the treasury a strong interest in or take immigration issues which is a joint effort between dhs and doj. So can all of you talk about how doj problem solves or works collaboratively with other agencies when theres this grievance, how this assault . What is the White House role and whether this catches on the norm of independence of the department . 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 State Department. I thought was awfully nice. I told Somebody Whod been working with me on the confirmation about the invitation, and he should be careful, they are going to roll you. And sure enough we had barely gotten past the vichyssoise when the subject of the was the authoritative who gave the authoritative determination on the meaning of treaties came up, and i was told in no uncertain terms that State Department frankly at the suggestion that olc was the final arbiter of what treaties met and would State Department negotiated been they certainly had the authority. I listened as politely as i could and moved the food around on my plate, i got out of there as quickly as i could. There were other issues that came up as well. Clearly, i wondered whether steep experienced this. There were some agencies more tractable that others when it came to the stories of olc to do what the government legal position is. Certainly this is an issue that recurs across administration. 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, and colluding on treating matters, but on a whole host of matters, that Doj And Olc was empowered to ultimately decide those issues. As you know i was in the Bush Administration at olc and at a time they had a secretary of state and a president , and also close with folks in the building of a different views so that was continuous back and forth on the issue, even though there was at least prominently and maybe, maybe if you still Threat 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 a final word on treating matters. That was the letter that was changed at lunch. So in the Trump Administration but i think it is probably more broadly, nothing is ever settled in the bureaucracy. There are no permanent wins or permanent losses but i think from Olc Perspective in the recent administration i think the other question is when folks just go it alone, right, in other departments or agencies. Its not doj, is not the table for every meeting and were not sitting there with every Cabinet Secretary makes a decision. Olc is a a roll is only as stg as they are, their advice is sought by the departments and agencies. With the White House making sure that doj is brought in when appropriate. That was generally honored in many important decisions in my experience but not always. There are people who didnt consult either because i i dit think about it or because they felt it would be better off going it alone but, of course, one lever the department of justice has is that we are on the hook of defending in court a lot of these policies. Folks who do go it alone need to recognize it may or may not be doj will be with them if they dont have the backing of the department including the civil division and or Olc China before hand. The breaches existed were not in regular course. But a lot of these things do end up in the labyrinth of white House Counsel has 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 they tried to corner you in your vichyssoise, michael, but he worked before i was sworn in. Really astounding. I was similarly cornered at the, what is a 55 maybe 100 anniversary, of the legal advisors office. The legal advisor, one of the leading legal advisors, very active professor, was one of the conveners and i was on this panel. I got blindsided. He asked me whos you should prevail when the Justice Department and the State Department disagree on Treaty Interpretation . And i of course said the Justice Department, because this is what the Justice Department does. I thought he was going to pop out of his chair. But anyway, this one 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 is happen. So thats not a hypothetical. Two of of the comments i would make. One is doj is the arbiter of the position of the United States in the courts, as steve said. It doj that has to stand there and defend the administrative actions, for example. But there are often disagreement among agencies when one agency wants a particular position taken. And in our administration, our solicitor general blackstone was spending time from time with those agencies tried to get to a common view and sometimes that didnt happen, and in the end his opinion prevailed. That didnt mean that people didnt 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. Steve rightly points out how important olc is, and that it is the keeper of President Ial authority and advises president on what their authorities are. Theres the danger of having cut relationship be so tight that other forces are not heard. In the example would be John Hughes Opinion on torture where his boss, the assistant Attorney General, didnt 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 deputies at table for plenary discussion with the civil division, with the solicitor general so that, so that it could get a real caring. I dont think we ended up ever Overbuilding Olc but sometimes there are considerations that were brought to bear in that room that affected how olc proceeded. I think that if you are 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 President Ial glory. Well, i can add one sort of my own because in this instance i was the one who issued the invitation, and it bears directly on this conversation. There are, for example, national security matters. There may be a requirement that you coordinate the discussion, particular legal positions did administration will take either as a matter of policy oriented pending Court Case among the defense department, intelligence committee, the department of dhs, of Homeland Security. The State Department. And the White House, this was true under Counterterrorism Policy in 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 come as you said, judge, and that wellworn term equities. One case, and the white House Counsel has a significant role in that and certainly did in the Obama Administration. I dont know to what extent the same organizational structure was adopted in the Trump Administration. I suspect something like that very much so is taking place in the biden administration. But in one take your case we had a lawyer, although in the department who thought all of the other agencies and departments with equities in the matter were catastrophically wrong, and demanded essentially at the White House organized and beating so that he could make his case more successfully to people who just simply didnt understand issues as well as he did and were headed in the wrong direction. 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 Discussion Tickler views held a very strong. But number two, i did that wanted to open the conversation by telling everybody in the room, senior lawyers like himself, how to get their work. I thought that wasnt going to be helpful. The Email Traffic was become increasingly heated on the subject so people were beginning to dig their heels and more in opposition to the personal character of the criticism and thus because of the merits of the issue itself. 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 Out Outlier picky was te with what i call the setting dissenting view. I think the White House does its best in that field to make sure that there are component views and the scores theres a lot of literature about the adoption, the Bush Administration and some of the decisions, process have been identified on part of people who may have, do not quarrel as i do with the contents. They do quarrel with the process. The white House Counsel attempt to deal with it in areas outside of national security by maintaining an ongoing dialogue with the general councils of agencies and departments because thats an area where the White House is on the defensive. That is to say, all of a sudden an agency puts out a notice of proposed rulemaking gracious a policy, the whitest did 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 it . Did you know this . Why is your government, your administration doing this . I can tell you of the chiefs of staff i serve, the one whos likely to react most strongly was rahm emanuel. I did a numerous amount of work to try to prevent him from being surprised people to think that desire not to be surprised and 12 everybody with a view on the issue of any significance included in the conversation, thats the class a whole range of subject matter areas. Thats great, bob. One other comment i would make, and this is apropos of what steve was saying. There are agencies that are 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 doesnt happen very often that it can. To go to the point we were raising earlier, it does make the president look good. Nobody in the public says one of them is an independent litigator. I mean, these are not ones that is not in the public debate. Certainly not once scrupulously followed by the press. Thats a a great point in s entire conversation proves that decisionmaking is difficult throughout the executive branch given the number of stakeholders typically there are for any single decision. And i guess this proves the adage there is a such thing as a free lunch. I have to say here in the midwest we just had lunch with people because we like them here that works a little bit differently i learned from my time. So we have 15 minutes left. I i have one accumulation but if anyone any ideas would like to contribute to the Chat Or Q a function please do. I did want to ask the group, we talk a lot about how the White House can or should or shouldnt influence decisions made at the department but there are to turn the tables although that there are ways in which the department influences what the White House does even powers that are typically reserved for the present. For example, judges for u. S. Attorneys granting pardons. Those are formal functions of the White House but the department has had a role in those types the decisions and others. Does anyone want to talk about the ways the departments influences the White House and how that this is the interest of the two entities or maybe doesnt . It influences the White House in speedy decisionmaking i i guess i was making the decision it makes. But yes. Its a bad question. It would be the first time. The relationship between the Justice Department and the White House on judges changes in different administrations. In mind 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 Counsels office. Obviously the nomination of u. S. Attorneys and marshals is something that should have our lot of responsibility in the Justice Department because both were marshals and just attorneys are part of the Justice Department even though those are President Ial nominees. And on pardons, again, in my administration there was no pardon given without, when i was there without a recommendation from the attorney reported to me and through me to the White House. Those change between administrations, so others may have a different experience. I think a lot of that depends upon the personalities involved the relationships that folks at doj have with the president and with the president can White House, senior Staff And Counsel want to order some of these functions. Judges have changed over time, pardons certainly the Trump Administration worked in a different weight than other recent administrations. On personnel, i mean, basically obviously when we talk about doj personnel who ultimately report to the Attorney General, in my experience at doj placeable n that. These are President Ial decisions but the president doesnt make those decisions without consulting the department of justice. Obvious in the case of u. S. Attorneys and light senators play a significant role in that as well. By the way i thought, i did mean to defer from the question youre asking, judge. I was going to say certainly the office of legal counsel has been your most impact on the White House specific because its the office of legal counsel as has often been remarked, frequently after exploring with the likes of dashing white is is house is anxious not to have put to paper. Provider shall we say assurance of a little more flexibility in some of how one supersedes. Whether it may, in fact, be reasonable commitment unless he has a brain because it is generally viewed as rightly or wrongly, the offense, steve, sort of the honest broker. Any circumstance, the White House legal position is different than the llcs olcs, the general Press Assumption is the White House is right and the olc a stronger the only other thing wanted to raise, judge, we dont have to discuss us directly response to your question but the extraordinary episode of u. S. Attorneys and Compassion Response in the Bush Administration because that is a facet of how people have thought about the department of justice, norms, with the authority over these matters is located. That was a significant and i would say its forgotten but it left a mark that the democrats and congress launched investigations to the dismissal just attorneys and the number of assumptions that started to build about what level of accountability congress, the president has publicly and to congress deciding a u. S. Attorney ought to be dismissed and enacting and ultimately permanent replacement ought to be considered. It flashed him ahead whole subject, in history that would be written about modern debates of doj and particularly White House noninterference, the u. S. Attorneys episode of the Bush Administration would merit a chapter. I think it serves an example of how not to fire u. S. Attorneys. Certainly. As you know i, you being, mr. Bauer, who wrote about it, or somebody what about in the book, i avoided to take a look at that she did a very thorough job, got complete cooperation from the White House went boldly concluded there was no impropriety. There was a lot of bad and yet you dont fire u. S. Attorneys. By having somebody, several not just down the chain called them up and tell them to clean out their desk, you have somebody, you have perhaps the Attorney General call up and say on the authority of the president they are being asked to move on. As i understand the Clinton Administration fired all 93 just attorneys as they had the right to do, and replaced them. Thats the norm. But then getting into question about what some it was a wasnt doing the job properly i i thk its a huge mistake and was in the Bush Administration. If i could briefly followup. In the book we talk about that investigation and the report that nora produced or goes ultimately by the Way Substance of her conclusions about where the legal lines lay was ultimately adopted by the Obama Administration to deliver to congress in a letter, notice to coast and a letter. We think that ought to be considered more formal guidance on these issues. Im glad you brought that up. I have one last question for the group. This just may take us to the in so i apologize to those of you have submitted written questions. But our discussion has been historical for the most part. We had one or two brief mentions about current administration. Making the Context Policy, prepared by the biden white House Counsel office. I do want to ask the current administration has been in place over five months. Now have the Attorney General in office for a few months. Are there examples that come to mind in which the department, to your mind, is honoring Doj Independence, is not honoring that norm, or are the Question Gc on the table that are to be answered going forward about Doj Independence . Isil that open to anyone who has a thought. I throw that one open. Preps the most prominent example i would give, its true that Joe Biden campaigned on an independent doj. I dont think that he was talking about anything other than Enforcement Matters at all. And one with a good example of it is his reaction to the gag orders and warrants served on media. He said its wrong, and i dont know whether the Justice Department would have come to that 17 that same conclusion but its new policy is its not going to do it. That is consistent, in my view, with the proper roles of the White House and the Justice Department. Its a matter of policy and i think committed clearly to the judgment of the president. I should add reluctantly i agree, although i have to tell you that i would have given my eyeteeth to have made a Leak Case when i was there because i thought that phenomenon in which somebody in the bureaucracy decides that he or she knows better or his or her agenda needs to better serve the people who are there to carry out policy is something that really undermines the function of government. It could also undermine national security. Thats a whole separate issue but it is fundamental antidemocratic for somebody to do that. Regrettably, i was disappointed. I agree. I mean, i sought and got leak investigations. You are totally right, michael, about the corrosive effect of government of people taking matters into their own hands and making their own decisions about classified information. Its a tradeoff on press issues that i think is a decision that the president can and should make. I think that those decisions are within the prerogative of the president and they should be evaluated at the end of the day about whether theyre good policies or not good policies. We will see whether, where this one goes. Its inconsistent from a formal claim for independence but thats okay because as we discussed the norm were talking about is not the same as the Policy Judgment and trade upon press freedoms versus national security or Law Enforcement investigations. At the end of the date is the president wants to make the decision he can make it. The Attorney General is the one to carry it out, and so its entirely appropriate for the president come for the Attorney General to audit directives on his Policy Judgment but it does require the Attorney General to go along. Yes. That is absolutely true. I dont view the candidate bidens desire for stated desire for an independent Justice Department to be quite as broad as maybe you might. I think was intended to focus on Enforcement Matters, and i think thats kind of, that is how theyre doing it. A quick a followup verification. Steve, you said that the president could make the cut of judgment were talking about, a revision of the policy governs subpoenas and usually the organizations of the investigation but requires the Attorney General to go a long period please explain. We are talking about the president supervises his cabinet officers including the Attorney General. The the president stands at tp of the pyramid but at the end of the day Attorney General garland is one has the statutory authorities to seek subpoenas or to cause indictment or grand jury subpoenas or the like to go out. It would be appropriate for the president to get a directive, policy directives, appropriate for the Attorney General to accept it. The Attorney General said im not going to do it, im seeking a subpoena in the media case. The president decisions are to move them or to back down. Thats all. Pardon me. The the President Cant Dot himself. What would you review the of his attorney joe said im not interested in your view . I review that is a defensible position for the Attorney General to take . I think it is often to be a transient position for the Attorney General. Look, we could phrase in a different context. Think of the Bush Administration has been reported that President Bush was prepared to overrule jim comey acting Attorney General expect to certain Surveillance Programs. The president have the ability to give the authorization which had been doing even if the office of legal counsel, evenf acting Attorney General or Attorney General ashcroft when he got back disagreed in that case. They all said okay thats fine but if you do that we are going to resign. In that case the president said you know what, im not going to lose my Attorney General and my Fbi Director and attorney deputy Attorney General. So President Bush backed down with it and what with the legal department of the proper justice not within the fact as a formal matter the president takes care of the laws are faithfully executed. So in other words, on this is to say that there are pragmatic judgments are going to be made here. Likewise if Attorney General garland said no, thank you, mr. President , im going to continue to pursue this, once President Biden says is publicly it becomes more politically costly to them to do it but if this conversation happened privately and the Attorney General said i dont think thats right, the president would have decision to make. There is a unitary executive from a certain point of view but as a practical matter it needs to rely upon principle and inferior officers to carry out his will, the powers of the presidency are always the power to persuade to some degree as well. Usually the president is able to get his way. Go ahead. As historical Meta Medicine is the accommodation that was made with respect to the Surveillance Program of the Bush Initiation was a very minor one. A minor tweak. Great deal of drama has been expended substantive adjustment was very small. Judge, i was using is is a Case Example rather than trying to you know, go get us the details. Judge readler, you Loss Control entirely. Yes. I feel bad for bob because Im Thinking he probably wants the sequel after biden. We didnt give them much better to work with but theres more time but perhaps this is good for democracy that we didnt have much for bob to add at this for future book at this time. I apology to the audience we were not 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 sometime because you all had so much to bring to this conversation. Its a very important one. Let me just think the audience for listening and also thank our panelists for a really terrific discussion. I enjoyed it and show the audience did as well. The senate gavels in today at 3 p. M. Eastern to consider the general counsel for the director of national intelligence. About to advance the nomination is scheduled for 5 30 p. M. On tuesday a vote is scheduled on whether to begin debate on the election reform bill. On the House Agenda this week protecting workers against age discrimination, Credit Card is for lgbtqi owned businesses, and reducing pollution caused i methane. House Members Return for legislative work on tuesday. Watch live coverage of the senate on cspan2, the house on cspan. Both are online and on the cspan radio app. Tonight on the communicators antitrust and Competition Policy in digital technology markets. We are off the charts in terms of where we have been for the last 40 years in terms of competition, antimonopoly, and in the last year we had five antitrust lawsuits against google and facebook. With all kinds of actions against amazon. We have people talk about new philosophies, Competition Policy. This is radically new and this conversation can turn out to be truly transformative for the United States. The communicators with antitrust analysts Jennifer Huddleston and Barry Lynn Tonight at 8 p. M. Eastern on cspan2. Next, Lael Brainerd a number of the federal Reserve Board discusses crypto currency at a conference hosted by coindesk. This is just under half an hour. Yes, it is my great pleasure to introduce dr. Lael brainard. Really doesnt require much of introduction. Dr. Brainard is of course a of the federal Reserve Board of governors. Shes been in that role since 2014, and before that she was in that sector of the us department of treasury. Shes had a host of expenses on the international and domestic stage and were