All The President's Lawyers

Have you ever wondered with the White House counsel does? Who it is? Whether that person is the president’s personal lawyer…or something else? And what about the Justice Department? Where do all those legal types fit in? Our guest is political science professor Nancy Kassop. She’s an expert on many things, but her extensive experience interviewing White House counsels helped us dig deep on this topic. We also dive into the legal norms and traditions that are being strained under the Trump administration. Civics 101 is hosted by Hannah McCarty and Nick Capodice. Christina Phillips produced and anchored this episode. CLICK HERE: Visit our website to see all of our episodes, donate to the podcast, sign up for our newsletter, get free educational materials, and more! To see Civics 101 in book form, check out A User's Guide to Democracy: How America Works by Hannah McCarthy and Nick Capodice, featuring illustrations by Tom Toro. Check out our other weekly NHPR podcast, Outside/In - we think you'll love it! Learn more about your ad choices. Visit megaphone.fm/adchoices

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• 0:00Speaker 00

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• 1:30Speaker 06

  I'm just gonna go ahead and get started. Sounds great, Christina.

• 1:37Speaker 06

  Hi, hello, are you ready to do this? I'm ready. Born ready, Phillips. All right, you are listening to Civics 101. I'm Christina Phillips, and today I have dragged you, our hosts Hannah McCarthy and Nick Capodice, into the studio to talk about the most powerful lawyers. We're gonna start by talking about the White House Counsel, also known as the President's in-house go-to advisor for, can I do this, should I do this, and how can I do this?

• 2:07Hannah McCarthy?

  Right.

• 2:07Speaker 06

  Sounds good. Yep. And later, we're going to talk about the Justice Department and the relationship between the president and federal law enforcement.

• 2:15Hannah McCarthy?

  I am quite excited for this because while I have a general sense of how all of these things go on, this is like a prime example of one of those civics 101 things that we try to avoid, which is assuming that we know anything, right? This world within the executive branch is something that I think I know, which is dangerous because it means I haven't looked into it. So, huzzah, Christina.

• 2:37Speaker 06

  We're also going to talk about the difference between lawyers who work for the government and lawyers who work for a person. And if when that person is the president, is there a line between them? Because it's not really clear that there's a line anymore.

• 2:49Hannah McCarthy?

  Okay.

• 2:50Speaker 04

  When the president says, "I'm going to ask my Department of Justice to criminally prosecute people who served on the January 6th committee, or people who were legally my opponents," we've never seen that before.

• 3:01Speaker 06

  That's Nancy Cassib. She is a political science professor at the State University of New York at New Paltz, and she studies the relationship between the presidency and the legal system, particularly the White House and the Department of Justice. And she's interviewed a number of White House councils over the years.

• 3:18Hannah McCarthy?

  So, I think we should be explicit, right, that like, she is talking about something that just happened, right? This is not a hypothetical. She's saying, "We've never seen before what is actually happening right now." And it seems to me like she's implying that this is the president using the Justice Department personally.

• 3:40Speaker 06

  Yeah, exactly. So, President Trump has been accused of weaponizing the Justice Department against his personal political enemies.

• 3:45Hannah McCarthy?

  Okay.

• 3:46Speaker 06

  And he has said that those political enemies include people inside the government, those Justice Department employees who, on behalf of the government, investigated him for alleged attempts to overturn the results of the 2020 election, and alleged withholding of public records, including classified documents, after leaving the White House. And we should say that since his reelection, the Justice Department has ended those investigations.

• 4:08Speaker 04

  It does, though, feel like there is a long and storied tradition of presidents rewarding friends and punishing enemies. It's just, this is the first time I feel we've seen him use the Justice Department to do that.

• 4:21Speaker 06

  Yeah, it's the first time that a president has explicitly said that people in the Justice Department were his enemies and said that he is going to order the Justice Department or mandate the Justice Department to investigate people who investigated him as a person in office and out for federal crimes.

• 4:42Hannah McCarthy?

  And given the recent Supreme Court decision about executive immunity, we're in a sort of different legal landscape now.

• 4:48Speaker 06

  Yeah, yeah. So the unprecedented part is sort of multifold in that, like, we have no president to compare this to because no president has looked like Trump or even close. And then also, the way that he is positioning people and the way he is appointing people is unusual, even though presidents have appointed people who were friends, you know? This is unusual.

• 5:11Hannah McCarthy?

  Okay.

• 5:16Speaker 06

  So I think the central question I want to get to today is, is the Justice Department a tool for the president to use to enforce a political agenda? And when we hear about the president's lawyers, are we talking about the federal government employees or private lawyers or both?

• 5:30Speaker 02

  There are lawyers in the White House and there are lawyers outside of the White House. And so the lawyers outside of the White House would be those in the Department of Justice, as well as every one of the cabinet departments also has a general counsel lawyer. But for this purposes, the White House counsel is the lawyer inside of the White House, actually is part of the White House staff. So when you see other people in the White House staff, such as the press spokesperson or the White House Chief of Staff, the White House staff office is relatively small and it is situated, you know, physically within the White House. The job of the White House counsel is to look at the presidency as an office and to protect its prerogatives.

• 6:14Speaker 02

  And so the kind of advice the White House counsel would give to the president, we often talk about it as being a mix of politics. Policy and law. So in fact, it's the White House Counsel's job to tell the President when the President wants to take some kind of action, whether it's some military action or whether it's signing a law from Congress, the White House Counsel will give the President legal advice. Is this constitutional? Is this legal? Is this good policy? Is this wise?

• 6:44Speaker 06

  The White House Counsel started with Franklin Roosevelt and it's evolved over time. It used to be more of a policy advisor and a speechwriter and now it's a legal advisor. I also want to note that this is somebody who's in the office at the behest of the President. They do not have to be nominated and confirmed by the Senate. So there's really not congressional oversight over this position in the way that there would be for a political appointee in the Justice Department.

• 7:09Speaker 04

  This sounds kind of like an advisor, you know, like, like, what is it, Chief of Staff? Isn't that also an advisor who's like, I'm gonna help, at least I'm just going by the West Wing model?

• 7:17Speaker 06

  Yeah.

• 7:18Speaker 04

  Margaret, have we heard anything from the President this morning? No, sir. You want me to call Debbie? No. But it sounds like the White House Counsel is somebody who you want to be kind of like your buddy a little bit, but also has a really good understanding of the law and the Constitution and can say, you can do this and you can't do that, but if you wanted to do this, let's come at it from this angle. It's like a real strategic, you want a real good game player to have that job.

• 7:46Speaker 06

  Yeah, and I think some of the things that the White House Counsel, and sometimes you'll hear like Counselor to the President, and they'll be used interchangeably sometimes. The White House Counsel is oftentimes the person who, if the President says, oh, I want to do this, can I do this? The White House Counsel is the one who's going to go to the Justice Department, to the Office of Legal Counsel, which has all this institutional history about how laws have been applied, and say, so what's your official recommendation? And then the Office of Legal Counsel will come back and say, you know, we think you could do this or not this. And then the White House Counsel has to sort of seek out ways to do it. If they don't have the information, they're consulting with other lawyers that can help them advise the President on what they're supposed to do.

• 8:28Hannah McCarthy?

  So when I think about, let's say you're a really high-power lawyer, whatever term you would use for it, you have a huge staff of people who do a ton of research and prepare a bunch of documents and they like, let's say you're looking for a loophole, that can take like hundreds of hours, so you have to have a bunch of people working for you to like produce the document, the loophole that you need. So are the lawyers in the Justice Department effectively the White House Counsel's support staff? Or does the White House Counsel have paralegals and other individuals working for them that do that?

• 9:06Speaker 06

  The latter, for sure. So the White House Counsel is going to have an office of staff.

• 9:12Hannah McCarthy?

  Right.

• 9:12Speaker 06

  And so these are all people where when the President says, can I do this thing? Or I'm thinking of making this decision, or you know, maybe Congress is investigating me. Should I turn over documents? Like, what's my right here as the President? The White House Counsel is then going to find that information.

• 9:29Hannah McCarthy?

  Yeah.

• 9:30Speaker 06

  And so they may consult the Justice Department. And we will talk about the firewall that's been put in place a little bit later about like how much the Justice Department is going to tell the White House what it's doing. But as far as the White House Counsel, they are going out and getting answers

• 9:46Hannah McCarthy?

  Yeah.

• 9:46Speaker 06

  from these other legal advisers. Like, the AG is going to be also advising the President, here's what I think you should do. And National Security Counsel. But the White House Counsel is sort of like the filter and the one who's also making sure that White House employees are following ethics rules and making sure that the President isn't meeting with anyone that could give the appearance of something nefarious. Like, they're really interested in protecting the President's image, but also protecting the institution of the presidency and the powers that the President has.

• 10:13Hannah McCarthy?

  And so the relationship between the White House Counsel and the person who is in charge of the Office of Legal Counsel's office, the White House Counsel will say, can I do this? And frequently

• 10:23Speaker 02

  The person in charge of the Office of Legal Counsel say, no, you can't. I mean, again, when I've talked to people who've served in the White House Counsel's office, they have said it's a very conflictual kind of relationship because I often don't get the answer I want. But then the White House Counsel's job is to be creative. That particular office often, and not so much under the Trump administration, and again, it depends on the personalities of who's appointed in that office, but that office has often had the reputation of actually being very solicitous of the president and giving the president green lights to go ahead and do things. And so it's often known as somebody that the president can turn to and say, okay, I have authority from the Office of Legal Counsel, I can do this.

• 11:06Speaker 02

  The opinions that get published are often the ones that are permissive to the president that will say the president has the authority to do X, Y, and Z. Frequently, what doesn't get published is the oral advice that the lawyer in the Office of Legal Counsel gives to the White House Counsel. What the public sees that gets published are the opinions that are mostly favorable to what the president wants to do. And the opinions that are negative of that often don't see the light of day because they're only exchanged through an oral exchange rather than a written one.

• 11:50Hannah McCarthy?

  You know, I think about the fact that like a personal lawyer is probably perceived by somebody as being someone who is loyal to them, right? Like you're paying them and so they're gonna, they're gonna back you up. Is it a similar deal with the president? I mean, is this White House Counsel expected to be quote unquote loyal to the president as a human person?

• 12:11Speaker 06

  I'll first say that it is pretty common for these White House Counsels that get appointed to have had a relationship with the president before they were in office.

• 12:21Speaker 02

  And the White House Counsel's job as a lawyer, and this is one that a lot of people don't often understand, is the lawyer for the institution of the presidency. So people think, well, is this person the president's personal lawyer? Does this person give the president personal legal advice? And the answer is no. And that is an important distinction is that this person's job, even though it is a, an appointment by the President, so it's often somebody that the president knows quite well. The important point here is that it is not someone who technically owes their loyalty to the person of the president, but in fact, to the institution of the office of the presidency.

• 13:03Speaker 04

  I think a reliable White House counsel would be more of an improviser and say, yes, and instead of no.

• 13:09Speaker 02

  Because I've I've had the opportunity to interview many people who've served in the office of the White House counsel. You know, one of the things they will say is that their job is when the president wants to do something that seems legally questionable, their job is to find a way, and I use that phrase very, very, you know, advisedly, to find a way to tell the president, this is how you can reach the policy outcome you want, but you can do it in a different way that will be more legally, you know, responsible. And the White House counsel's job can say to the president, if you don't take my advice, and if you do this particular action the way you want to, you could be making yourself legally liable, or you could be subject to impeachment.

• 13:52Speaker 06

  So a couple of things the White House counsel advises the president on are pardons, on judicial appointments, other political appointments, and then, of course, executive orders.

• 14:02Speaker 02

  On the first day of a new president's administration, it is now very common for the president to issue a slew of executive orders. And many of those executive orders are setting in place policies the president wants to be able to pursue, and many of them are also repealing the executive orders from the previous administration.

• 14:21Speaker 06

  They screen people who come through the White House and train the White House staff on ethics.

• 14:25Speaker 02

  Let's put it this way, every person who walks into the Oval Office to speak to the president is supposed to have been somehow either approved or vetted by the White House counsel. In other words, to make sure that unsavory characters don't get into the Oval Office to talk to the president. Because, again, the counsel is protecting the office from bad influences.

• 14:50Speaker 02

  The White House Counsel is supposed to advise the President on pardons. That's obviously a very, you know, interesting and timely kind of issue. And particularly at the end of a presidency, that is the time when we see a flurry of pardons. It's like the last couple of weeks of the presidency.

• 15:08Speaker 06

  And they communicate with Congress. So when Congress is drafting legislation, legislators will go to the White House Counsel and say.

• 15:14Speaker 02

  Do you think this is something the President's going to approve? Will the President sign this? Or is the President likely to veto this? So the White House Counsel is sort of relaying the President's position on legislation as it's being drafted.

• 15:30Speaker 04

  So who gets the job? Like historically, like what kind of person gets hired to be White House Counsel?

• 15:35Speaker 06

  Yeah, so the first thing I'll say is they do not have to be a lawyer.

• 15:38Speaker 04

  Really?

• 15:39Speaker 06

  The only office Congress has mandated in the executive department that has to be a practicing lawyer is the Solicitor General. So the attorney-

• 15:45Hannah McCarthy?

  Wait, so the AG does not have to be a lawyer?

• 15:47Speaker 06

  No.

• 15:47Speaker 02

  You know, political scientists love this sort of fact is that the only office for which you actually have to, by virtue of a law of Congress, Congress requires that the person who serves as Solicitor General, the lawyer for the government of the United States, must be a bona fide certified lawyer. The Attorney General doesn't need to be a lawyer. The White House Counsel doesn't need to be a lawyer. Of course, obviously, practice has determined that those people, of course, are always lawyers. But there's no actual written requirement anywhere with the exception of the Solicitor General. So that's sort of interesting.

• 16:18Speaker 06

  So the White House Counsel is almost always a lawyer, but they are not going to be representing the President or the federal government in trial. They may serve on a legal team, which they have in the past, including for impeachments, but they are not necessarily, like, they don't have to be able to show up in court and argue on behalf of their client.

• 16:39Speaker 06

  So it's not unusual for the White House Counsel to have a personal relationship with the President before they were in the White House. So this could be a former advisor in a different political office, or a legal advisor on a campaign, or even a personal attorney. And on the other hand, some Presidents choose someone who's had a lot of experience in Washington and in federal court. So there have been former judges. There's even been one that was a White House Counsel for a previous President.

• 17:04Speaker 02

  The kind of people who would serve in either of those offices, as I said, there were two models. Some presidents choose their White House counsel as somebody they can trust. It often is somebody they've known over a long period of time. President Bill Clinton chose his best boyhood friend, Mac McClarty, back from, you know, Little Rock, Arkansas, as his White House counsel because it was somebody who he knew would give him unvarnished advice, would be looking out for the president's best opportunities. And so the White House counsels that have come in that have been close friends of the president are often people who are not very familiar with how Washington runs. You know, it's sort of a balance. On the one hand, the president says, "Well, I know this person is going to look out for my best interests."

• 17:46Speaker 02

  But this person might not be the one who has had contacts throughout the government and throughout Washington and understands, you know, national politics. It really depends on each individual president as to which model they choose.

• 17:59Speaker 06

  For example, Clinton and H.W. Bush both had White House counsels who were legal advisers during presidential campaigns or for their personal businesses. But then, when Clinton was being investigated by Congress, he brought in Charles Ruff, who's a trial lawyer for the Department of Justice, and he'd actually worked on the investigative team during the Watergate scandal. So he had been part of the team that investigated Nixon and the Justice Department during Watergate. And he worked as a U.S. Attorney in D.C. So he understood impeachment trials, and he really understood D.C. politics.

• 18:28Hannah McCarthy?

  And he understood what's going on when someone's looking into the president's behavior, right? Because he did it.

• 18:34Speaker 06

  Yeah. So sometimes you want to bring in a White House counsel who's a super player in the D.C. area, who has a lot of influence and a lot of institutional knowledge that someone who's worked for the president for years might not have. And then Trump, in his first term, for the most part, appointed White House counsels who represented him as a private citizen, his business, or his presidential campaigns. One example is Don McGahn. He worked on Trump's 2016 campaign, and he represented and defended him in lawsuits brought against the campaign for alleged voter intimidation. Pat Cipollone, he represented Trump in commercial litigation. But he also worked for Bill Barr, when Barr was an attorney general to H.W. Bush.

• 19:17Speaker 06

  Trump's current White House counsel is David Warrington. He's an election law specialist and he was on Trump's 2016 campaign. And he was his personal lawyer for lawsuits following the January 6 Capitol attack and was his general counsel for the 2024 Trump campaign.

• 19:31Speaker 02

  The other point about the White House counsel is they can only give legal advice. It's up to the president to decide whether to take that advice or not. All the counsel can say is, if you don't listen to me, it might not work out very well for you.

• 19:48Speaker 06

  It's also worth mentioning that White House counsels can be subpoenaed, and they have been, to testify before Congress or the Justice Department about their legal advice and what the president did with that advice.

• 19:58Speaker 00

  They had been seeking his testimony for months. And today, it finally happened. Former White House counsel Pat Cipollone, arriving on Capitol Hill. A key witness to Donald Trump's efforts to overturn the election and to the chaos that...

• 20:11Speaker 06

  One big, big thing I want to emphasize is that the White House counsel is not supposed to carry out investigations itself on behalf of the White House or within the Justice Department. They don't have the authority to investigate people. Okay. Whereas the Attorney General, the Deputy Attorney General are given that power.

• 20:34Speaker 06

  So what we're going to do now is we're going to start looking at the relationship between the White House and the White House counsel and the president and the rest of the Justice Department. So we're leaving the White House. We're sort of like floating in that space between the White House and where the Attorney General's office is. What's happening in those communications? And also, what is the Justice Department supposed to be doing? And how much of a firewall is there between what a president wants and what the Justice Department is required to do, which is enforce federal laws? Okay. We will talk about all of that after a quick break.

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• 23:40Speaker 01

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• 24:11Speaker 06

  We're back. This is Civics 101. We've been talking about the White House Counsel, but now we're going to talk about the relationship between the President and the Justice Department at large.

• 24:22Speaker 06

  And I feel like now is a good time to really define what the Justice Department is.

• 24:28Speaker 06

  Just to make sure we all know, what are the things that the Justice Department does? Right. Do you want to try to take a stab at a couple of those?

• 24:34Hannah McCarthy?

  The Justice Department is an executive department, so it's a part of the executive branch. The executive branch is the branch that has the most enforcement power. The President and other people take an oath of office to uphold and defend the Constitution, right? So, my understanding is that the Justice Department ensures the enforcement of, the following of, federal laws.

• 24:59Speaker 06

  That's pretty good. Isn't the Justice Department the bridge between the executive branch and the judicial branch, where they are taking rulings from the courts and applying those rulings to everyone? Yes, and also if the Justice Department or the executive branch decides to charge people with crimes or bring them to court, they are bringing them to the judicial branch, where the courts will decide. And that's also true if people want to sue the government or they want to file a lawsuit against something happening in the executive branch. They are going to the judiciary and then the Justice Department is representing the federal government and those actions on behalf of the executive branch.

• 25:42Hannah McCarthy?

  And we should say like, there's discretion here. Like, I think about all the time, especially given our Federalist system, right? Which means that there are 50 little, slightly sovereign states, and then there's the big federal government. There are things, and I think like, the prime example everyone thinks about, even though lawyers absolutely hate when people bring up this example, is marijuana being a Schedule I drug, right? The federal government could bust up every single dispensary that is legally permitted by states, because these states have decided to engage in commerce around a Schedule I substance. They just choose not to. Right? First of all, it's a whole part of the economy now. People would find it really unpopular.

• 26:26Hannah McCarthy?

  At the state level, the federal government is looking for litmus tests, right? So it's looking, basically, for the states to mess around and see what works and what doesn't, and then maybe they change federal law. And also, that would just be so chaotic.

• 26:39Speaker 06

  Yeah, I think that's a really good example of, you know, how vast this kind of network of institutions and laws are. A couple of other things I want to touch on is that the Justice Department includes the FBI, the US Marshal Service, the DEA, and 94 separate districts across the US with their own district attorneys and staff. And there's over 100,000 people in the Justice Department. Many of them are non-political career positions. So they're civil servants that are working in the Justice Department.

• 27:11Speaker 06

  Other executive branch departments have their own enforcement arms, but the Justice Department is where they go for help and support. So the Office of Legal Counsel, for example, that the Justice Department is helping advise other executive branch departments on what they can do, or what they should do, how they should apply the law, and also can help with enforcement against violations of federal law.

• 27:30Speaker 02

  What's important to sort of emphasize, and what the public often doesn't recognize, is how much of the government is populated by career people. And they will say, you know, "I've worked next to, you know, the next desk to this person for the last 30 years, I couldn't tell you what their political opinions are, or what political party they belong to." But the top layer is what are political appointees. And there are very few of those. They're just the heads of each of the divisions within the Justice Department. And that includes the Attorney General, the Deputy Attorney General, and the Solicitor General. Those are political appointees. They must be confirmed by the Senate.

• 28:09Speaker 04

  Also, the Justice Department, these people carry guns. They don't just say what someone should do, they enforce it.

• 28:16Speaker 06

  It's law enforcement.

• 28:17Speaker 04

  It's law enforcement. It's America's cops.

• 28:20Speaker 06

  Yeah, that is given to it by Congress. Like, Congress writes the laws that say that, yes, the Justice Department can do this. This is what law enforcement looks like on a federal level.

• 28:41Speaker 06

  So let's talk about these top political appointments in the Justice Department. We've got the Attorney General, who oversees the entire Justice Department. The Deputy Attorney General, who has almost exactly the same powers as the Attorney General, but does more of the everyday logistics and enforcement of department policies. And then there's the Solicitor General, who represents the federal government in court. And I asked Nancy, you know, okay, so where does the White House Counsel fit in? If there's all these people over in the Justice Department, and then there's the President in the White House, what is the White House Counsel's role in communicating with all these different people?

• 29:15Speaker 02

  That's an excellent question. And in some respects, the White, you could sort of think of the White House Counsel as the hub, the center, the spoke of the wheel. Because all of these other executive branch offices and departments and agencies are running things through the White House Counsel. And it's the White House Counsel's job, really, to be, as one Counsel put it, "the best law firm that the President can have access to."

• 29:38Speaker 04

  I've worked with a lawyer before. You know, lots of my friends and family are lawyers. But a lawyer is, first and foremost, an advocate for you, the person who hires them. And the word "advocate," I want to advocate for you, avocat. It's, that's what a lawyer's job is, is to represent you. And I can't get over this feeling that the job of White House Counsel really does have one client. I mean, ostensibly, it's, it should be America, it should be democracy, but it seems like, first and foremost, the White House Counsel is going to say, you know, "I'm going to advocate for you, Mr. President." Just something it's, I'm wrestling with.

• 30:14Speaker 06

  Yeah, I'm glad you said that, because that kind of leads into where the- That line can be crossed where perhaps a White House counsel or even the Justice Department are acting on behalf of this person in the White House, this person with the position of president in a way that may not align with federal law and also with the interests of the public. And so I'm going to bring us to Watergate and talk about how Watergate kind of revealed this issue between like the personal interests of the person in office and the Justice Department and this law enforcement arm of the executive branch.

• 30:51Speaker 01

  Just a year after that great election victory, Richard Nixon is now perceived by an increasing number of Americans to be unworthy of the mandate. And so there is tonight a real persistent and substantial question of whether the president can in fact carry out his responsibilities.

• 31:07Speaker 06

  So do you guys remember what happened with Watergate as far as the involvement of people in these political positions in the Justice Department?

• 31:16Speaker 04

  Well, I know some names from Watergate because my father used to sing me this song. When Harald, Alderman, Ehrlichman, Michelin Dean. The one name I know that's a White House counsel is Chuck Colson. Charles Chuck Colson was in the office of the White House counsel. And I know that because all the president's men. Steuben said you worked for Colson?

• 31:35Hannah McCarthy?

  Steuben's crazy. I never worked for Colson. That's what he said. I worked for an assistant. Colson was really big on secrets anyway. Even if I had worked for him, I wouldn't know anything.

• 31:48Speaker 04

  Which is a great movie.

• 31:49Hannah McCarthy?

  I've not thought about it until just now that the title of that movie is meant to say, people think that one guy did something wrong. No, this is the story of when everyone colludes.

• 32:00Speaker 04

  Yeah.

• 32:01Hannah McCarthy?

  All of the president's men were like, let's do this, guys. Let's make this happen, you know?

• 32:07Speaker 04

  I have also never thought of the title because I've, you know, I read the book when I was so little.

• 32:10Hannah McCarthy?

  Yeah.

• 32:10Speaker 06

  Yeah, essentially the story here is that Nixon's reelection campaign was working with his White House counsel and senior White House staff and the attorney general at the time, John Mitchell, to carry out this scheme of illegal activities, including breaking into and wiretapping the Democratic National Committee. And what I find interesting about this is that the FBI, which is part of the Justice Department, was investigating that break-in. And that's when they made the connection to Nixon's White House staff. And of course, by that time, the White House and the acting FBI director were already starting to destroy evidence. And the Attorney General was trying to cover things up. And a bunch of these people were charged with federal crimes afterwards.

• 32:55Speaker 06

  But the investigation process itself was pretty compromised because these were people who were violating federal law while they were federal law enforcement. And afterwards, naturally, the public is very suspicious of the Justice Department and the White House because of the whole colluding with one another to break the law and then cover it up. And so Nancy told me that one of the solutions that Carter's White House counsel came up with, his name is Griffin Bell, he wanted to instill trust in the executive branch again. So he wanted to create some sort of firewall that would demonstrate that there was a separation between the White House and the Justice Department. And here's how he went about doing that.

• 33:35Speaker 02

  And so he was trying to bring some sort of sense of civility and sense of ethics back to the Justice Department. And so he established this process that the Justice Department would write up a memo. And the White House counsel would write a counterpart memo called the contacts policy. I mean, I actually describe it as the no contacts policy because what it meant was that the Department of Justice is supposed to be completely separate from the president when it comes to particularly law enforcement or any type of criminal matter that somebody that might be a person that the president knows who is about to be indicted. And there is to be no contact, with the exception

• 34:19Speaker 02

  of the White House counsel and the Attorney General. So at the very highest levels of both offices, they are permitted to talk to one another. But beyond that, there's a prohibition on anybody else unless they are designated by the White House counsel or the Attorney General. But it's supposed to be that the person-to-person contact between those two offices is only at the very top level. And the idea is to keep the president insulated from any kind of criminal indictments that the Department of Justice may wish to bring.

• 34:57Speaker 04

  Christina, can you just clarify this for me? Is the president not supposed to have any communication whatsoever with the Attorney General?

• 35:05Speaker 06

  I think this is all like norms.

• 35:08Speaker 04

  Someone's got a case of the "supposed to." Yeah, this is like, "You're not supposed to."

• 35:13Speaker 06

  Yeah, I think the word we're looking for here is "tradition." There's been a tradition that the White House should not interfere, or at least keep the appearance that it's not interfering, with Justice Department investigations. Even Trump, during his first term in office, didn't directly order the end of a Justice Department investigation into Russian interference in the 2016 election, though he was very unhappy about it, and he did fire the FBI Director, James Comey, for his participation and overseeing of this investigation. And that, of course, is part of a pattern we see with Trump and his first administration, where he fires people, or they leave because they refuse to do what he wants, especially

• 35:54Speaker 06

  in the Justice Department and in the White House, and some of his top advisers. We're going to talk more about the relationship between the interests of the White House and the interests of the Justice Department, right after a quick break.

• 36:09Speaker 04

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• 36:54Speaker 04

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• 37:14Speaker 01

  I don't know what I'm doing. Need a break. Forget it, I quit. Escape to Pluto TV.

• 37:19Hannah McCarthy?

  This is objectively fantastic.

• 37:21Speaker 01

  Relax into the movies and shows you already know and love, all for free. Shwing! Even our news is uplifting. You stay classy, San Diego. Watch Tommy Boy, Crazy Ex Girlfriend, Anchorman: The Legend of Ron Burgundy, The Ex Files, Wayne's World, and so much more. We're not worthy! The best things on TV really are free. You just have to know where to look. Escape to Pluto TV. Stream now, pay never.

• 37:44Speaker 03

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• 38:21Speaker 06

  We're back. This is Civics 101. I'm Christina Phillips, and we have been talking about the supposed firewall between the White House and the Justice Department. And one thing I do want to say is that former presidents, especially after Watergate, and this includes Reagan, Bush, Clinton, Trump, and Biden, have all been in office during investigations carried out by the Justice Department that involve their allies, their family members, members of their campaign. And many of these are what are called special counsel investigations, meaning the Justice Department appoints people outside of normal Justice Department channels because they want to guard against any conflicts of interest. Like, if the AG was involved in something, a special counsel would be shielded from the AG getting involved, so the Justice Department can investigate independently.

• 39:04Speaker 06

  And whether the president is actually shielding themselves for involvement or not is kind of up for debate, but also presidents have asked for their Justice Department to carry out these investigations or express their frustration at those investigations. But there has been an effort since Nixon to put on this show that the president is not making the final call. And that the Justice Department is allowed to investigate things it needs to investigate. And all of that is usually laid out in a contact policy. And that's usually written at the beginning of a president's administration by the White House Counsel that lays out, you know, the firewall that will exist. So only these people between the White House and the Department of Justice will communicate with each other.

• 39:49Speaker 06

  There will be no presidential involvement, investigations, that kind of thing. So I think now is a good time to talk about, when we hear the words unprecedented, what is different about Trump as a president compared to presidents past? I don't think we can really do a one-to-one comparison about what Trump is doing compared to previous presidents, because no presidents past have had the kind of legal history that Trump does. So there are three things that we should think about. One, Trump has been charged with more federal and state crimes and been in more civil lawsuits

• 40:31Speaker 06

  and has been investigated by the federal government since he left office than any other president in history. He has a large network of personal lawyers who have represented him in these cases. And to say that Trump has felt as though the federal government has been conspiring against him would be an understatement.

• 40:46Speaker 00

  The ridiculous and baseless indictment of me by the Biden administration's weaponized Department of Injustice will go down as among the most horrific abuses of power in the history of our--

• 40:59Speaker 06

  The entire thing has been a witch hunt, and there is no collusion between certainly myself and my campaign, but I can always speak for myself and the Russians, zero. There is really no model that is like Trump as far as his position and his history as president.

• 41:18Speaker 04

  It's not just since he was president. Donald Trump has a history of courts and laws and going back decades.

• 41:26Speaker 06

  Yeah.

• 41:30Speaker 06

  So here's number two. The other thing we have to consider when we talk about Trump is that he's only the second person to run for reelection, lose, and then run for reelection again and win, and then return to office. So the first was Grover Cleveland, and I know the sample size is one, but he was not indicted for federal crimes when he left office.

• 41:48Speaker 04

  No, he just made Labor Day.

• 41:50Speaker 06

  Yeah. And number three, since his return to office, Trump has begun the process of filling the highest positions in the Justice Department, these are political appointees, with people who defended him in court.

• 42:03Speaker 02

  Okay, so we are heading into a very, and it's a very overused word, but it is true, a very unprecedented set of circumstances in that the White House counsel, as well as the Attorney General, the Deputy Attorney General, the Associate Principal Attorney General, which is the third person, and the Solicitor General are all people who have been private lawyers for the incoming president. That has never been the case before. From my point of view, it will be fascinating to see how they exercise their authority in those positions. Clearly, these are people who have personal connections to the president.

• 42:44Speaker 02

  That's in itself not necessarily anything disqualifying, but to have served the president in a legal capacity as a private, personal attorney versus now having to do a complete sort of turnaround to become the lawyer for a governmental office is a very different kind of opportunity. It'll be fascinating to see how they manage to do that.

• 43:08Speaker 04

  The White House counsel, I can understand as being a job.

• 43:11Speaker 06

  I agree.

• 43:12Speaker 04

  From someone that's been with you through thick and thin.

• 43:14Speaker 06

  Yep.

• 43:15Speaker 04

  But in terms of the people who actually had the Justice Department, being private lawyers for you, that is erasing this mirage of impartiality towards the president.

• 43:26Hannah McCarthy?

  I appreciate that, this idea of like it being a mirage, right? Because I feel like we often talk about the fact that like, sure, it it seems like things are all just fine, but you know that there's stuff going on underneath the surface. And it's like, yeah, but but there's a degree to which it is important that everyone even pretends, right? Like, I come back to this idea of like, the Constitution and democracy, those are just ideas. Like, if you don't look like you're doing it, if you don't do it, you know, if you're not faking it till you make it, then you're never gonna make it. Like, the appearance is important to a degree.

• 44:00Speaker 04

  It's also, these are, these are Senate-confirmed positions.

• 44:02Speaker 06

  Yeah, I'm so glad you said that, because different from the White House counsel, these are all positions that have to be confirmed by the Senate. Some of these confirmation hearings are still ongoing, of course, but so far, the Senate has confirmed anyone that Trump has put up for these positions. So it's not just that the President is appointing these political allies and former, you know, personal attorneys, the Senate is saying, yeah, that's fine, we want these people to run our Justice Department. And since we've now established that, let's actually talk about a couple of these people real fast. So we're taping this on Wednesday, February 12th. I interviewed Nancy in mid-January, so you may hear her refer to a couple of people who are up for confirmation, who have now since been confirmed.

• 44:45Speaker 06

  And I want to start with the acting Deputy Attorney General. That's Emile Bove. So he has been in office while the Senate is doing confirmation hearings for the future Deputy Attorney General, that's Todd Blanch, but it's understood that Emile Bove will stay in some sort of high position in the Justice Department after that confirmation. And then there's D. John Sauer, he's the nominee for Solicitor General, and both worked for Donald Trump's personal defense team in federal cases brought by the Justice Department involving classified documents and alleged election obstruction. And Sauer also represented President Trump in court for his presidential immunity case. He's the one who, after the judge asked him if the President could order the assassination

• 45:30Speaker 06

  of a political rival, he said that a President could only be charged with federal crimes after they've been impeached and convicted by Congress. That was his answer to that. So here's what Nancy had to say about these two people.

• 45:42Speaker 02

  Those two lawyers and others in their legal filings in some of the Trump legal cases that have gone through the federal courts have used language that is very rhetorically charged, and they've even been reprimanded by the federal judges, reading their legal briefs or listening to their legal arguments and saying, you know, you're not making a legal case, you're making a political case. The lawyers in their legal briefs that are, you know, official documents filed with the courts are saying, this is simply a political witch hunt against Donald Trump because his political enemies want to try to make life as difficult for him as possible, something like that. That's a political argument.

• 46:23Speaker 02

  And in fact, it actually makes the brief lose credibility to, you know, the judge is not going to think kindly of that. They're not helping their client, let's put it that way. The legal argument would be that the president has this authority from the Constitution, the president is the commander in chief, the president has certain legal powers that he can exercise.

• 46:45Speaker 06

  Here are a few things that Emile Bove has done since he's been in the position. He's forced out a bunch of non-political employees at the Justice Department who are supposed to be helping shield Justice Department investigations from political interference. He also ordered the FBI to put together a list of names of FBI employees who investigated the January 6 riots. And again, these are employees assigned by the Justice Department to carry out their law enforcement duties under federal law. And so part of the issue with that, according to lawsuits filed by some of these employees, is that they don't always get to choose what cases they work on. And also, there was a concern that he's requesting personal sensitive information about employees outside of secure channels. And he also ordered federal prosecutors to drop a corruption case against Mayor Eric

• 47:30Speaker 06

  Adams. And when the US Attorney General in charge of that case and five of her prosecutors resigned, they said that it was a quid pro quo, where essentially Mayor Adams agreed to help enforce Trump's immigration policies in New York City in exchange for having these charges dropped against him. We've also got Pam Bondi. She was just confirmed a few days ago to be the Attorney General. She worked on Trump's legal team during the first impeachment trial, and she spread conspiracy theories about voter fraud in the 2020 election.

• 47:59Hannah McCarthy?

  I do know the big thing that at least the media has indicated is of concern is what Trump said publicly about Pam Bondi after she was confirmed.

• 48:10Speaker 02

  She was asked those questions. Well, are you going to do what the president asks you to do when it comes to criminally prosecuting Liz Cheney or Benny Thompson or Jack Smith? And she'll say, you know, I need to look at the facts and I will decide each case on a case-by-case basis. Well, that doesn't give you a whole lot of confidence. I mean, on the other hand, that's sort of the expected answer. I can't give you a hypothetical answer now. I need to look at the facts and make a judgment and make a determination. But those are the kinds of things that would be so unprecedented. And those would be the type of things, would the career people put a break on that and say, wait a minute, you can't do this? Will they be listened to? People's jobs depend on doing what the president has asked them to do.

• 48:54Speaker 02

  And if they push back and if they say to the president, sorry, I'm not going to follow through on that, then they have a responsibility. Do I resign and protest? And do I resign and protest and make it public so that the public is informed of what is going on behind the scenes?

• 49:12Speaker 06

  Since she's been appointed, Bondi has released at least 14 memos about how the Justice Department will run. One includes firing staff members who choose not to participate in court proceedings on behalf of the federal government or sign legal briefs. So in the past, Justice Department attorneys have had the right to recuse themselves or not sign their names on legal briefs. She's also ordered an investigation into staff who worked on federal investigations against Trump and his alleged role in trying to overturn the 2020 election. Another thing that's happened is that the White House Counsel, David Warrington, released his contact policy. And in it, it said that the president, the vice president, the White House Counsel and the deputy White House Counsel can all speak to the Justice Department about investigations.

• 49:56Speaker 06

  Now, this is not too far off from Trump's contact policy in his first administration, except this one specifies that the president has the right to ask the AG's office or other Justice Department employees about criminal investigations, which is not the norm.

• 50:12Speaker 06

  And the AG's office has already put a White House liaison right in the Justice Department to facilitate these communications. So that strict firewall that previous presidents have really tried to establish, that does not seem to be what's happening here.

• 50:28Speaker 04

  That's quite an understatement.

• 50:29Hannah McCarthy?

  Also, we can pretty reasonably guess that Pam Bondi is not ordering these investigations just because, you know, her understanding of the law and her, you know, heart and her soul guide her to do so. Trump said explicitly that he would be making sure this happened. Now it is happening. So I think we can say this is on his behalf, at his behest, right?

• 50:57Speaker 06

  Yes. Even if these people, which, for example, Emile Bove has said he is acting on guidance from the president, but not on the orders of the president, even if that's so, they are doing things that the president has said he wants his Justice Department to do. Do you want to know who the liaison is, by the way?

• 51:15Speaker 04

  Yeah, who's the new liaison?

• 51:16Speaker 06

  So the new liaison is this guy, Paul Ingrascia. He says he's a constitutional law expert, but he's most famous for pushing a fake theory that Nikki Haley wasn't eligible to run for president on Trump's social media app, Truth Social, that Trump then promoted. And his theory was basically that Nikki Haley's parents were not US citizens at the time of her birth, which disqualifies her from running for president. Which frankly, I can't believe I have to say this, but I'm going to say it anyway. You must be a natural born citizen to run for president. Nikki Haley was born in South Carolina.

• 51:45Hannah McCarthy?

  And then Trump entered office and issued a presidential action that essentially would make that conspiracy theory true.

• 51:55Speaker 06

  Yes.

• 51:56Hannah McCarthy?

  If indeed Nikki Haley's parents were not lawful permanent residents or citizens of the United States.

• 52:01Speaker 06

  Yeah, yeah. The argument was basically that her parents were not US citizens at the time of her birth. That's what he said.

• 52:10Speaker 06

  I was thinking a lot about like, so what now? Like, where do we go from here? Especially because this does seem to be the way things are going. Is that no matter what past history shows us, Trump has been appointing people into the Justice Department who are acting on his behalf politically. And we're seeing it happen. Congress, by allowing these appointments, has so far signaled that that's OK. There have been lawsuits in court. Those will continue to play out. But what does this mean as far as how the Justice Department operates? And I was thinking about career civil servants, who, all these people in the Justice Department, who make up the majority of the Justice Department, who are working under these political appointees.

• 52:54Speaker 06

  And here's what Nancy had to say about that.

• 52:56Speaker 02

  For people who have been career civil servants for the last couple of decades, many of them at the beginning of a new administration, depending on how their own personally, even though it may not be something that they express publicly, their own political views about the incoming administration have to decide for themselves, is this an administration I can serve? Will I be comfortable staying in my job or not? And so there's this big question right now, particularly among executive branch lawyers. And again, they can even be Republican executive branch lawyers. It doesn't, it's not always by party because the Republican Party itself has changed dramatically over the last few decades. But the big question is, do I stay or do I leave?

• 53:39Speaker 02

  And can I be of service to the presidency or to this administration? If the administration coming in is particularly politicized, is this something I feel comfortable doing with a sense of integrity? Or would I be better off leaving?

• 53:57Speaker 04

  Of all the tropes since the election, this is the one I've heard the most from guests in our episodes, which is so many people who work for all these departments and all these agencies have been there for 30, 40, 50, 60 years. They know how stuff works. They know how to get bills passed. They know how to do the right thing for the world, right? Or for the environment, or for healthcare, or whatever. So every single, at every single juncture in America right now, that is going away. This notion of it doesn't matter how long you've been here or who you've served, all that matters now is fealty. And you're losing so much institutional knowledge when you do that. It's the people who have done stuff for so long and know how things work, they're gone. I think the thing that might be sad is just because of the guests we talked to

• 54:41Speaker 04

  is the lack of institutional memory for all of these agencies and departments. It's going to be gone.

• 54:48Speaker 06

  What I was thinking about is I'm like, OK, so there is chaos in the Justice Department. There are people who are being fired, and there are people who may leave in droves. There may be this lack of institutional knowledge. Well, the Justice Department still has a job. It still has a responsibility to the American people. As a voter or as somebody in America, you expect your federal government to work for you. And so I just think a lot about, well, what happens if the federal government is not able to do those things anymore? Either because it doesn't have the right people who have trained to do it, or because it's been given different directives that mean it is doing certain things at the cost of others.

• 55:28Speaker 06

  As people who live in this country and who are civically engaged, what do we expect the Justice Department to do for us? And how can we hold them accountable to doing those things for us because they are supposed to serve us? And I don't have an answer necessarily. Call your congressman. But that is something we should expect the federal government to continue doing, no matter who is in the position.

• 55:54Speaker 06

  Yeah. I agree.

• 56:18Speaker 06

  This episode of Civics 101 was written by me, Christina Phillips, and edited by Rebecca Lavoy, our executive producer. Rebecca is also the head of the podcast team at New Hampshire Public Radio. Special thanks to our hosts, Nick Capodice and Hannah McCarthy, for joining me in the studio for this episode. Music in this episode from Epidemic Sound and Chris Sabriski. Civics 101 is a production of NHPR, New Hampshire Public Radio.

• 57:00Speaker 01

  This is Phil Bradison, former Democratic governor of the state of Tennessee. If you love digging into how history shapes U.S. policy, check out the new season of You Might Be Right. And this is Bill Haslam, former Republican governor. This season, we're asking the questions that have divined every pivotal moment in American political history. Is democracy really under threat, or is that just a story as old as the republic itself? We're tackling the biggest questions shaping the 2026 midterms, so join us. Follow You Might Be Right wherever you get your podcasts. I don't know what I'm doing. Need a break. Forget it, I quit. Escape to Pluto TV.

• 57:36Hannah McCarthy?

  This is objectively fantastic.

• 57:38Speaker 01

  Relax into the movies and shows you already know and love, all for free. Shwing! Even our news is uplifting. You stay classy, San Diego. Watch Tommy Boy, Crazy Ex Girlfriend, Anchorman: The Legend of Ron Burgundy, The Ex-Files, Wayne's World, and so much more. We're not worthy! The best things on TV really are free. You just have to know where to look. Escape to Pluto TV. Stream now, pay never.