Profile | Spring 2019
There can be few legal roles in the US of as much significance and substance as White House counsel. And when Beth Nolan jettisoned film school for law school, she had no idea her eventual career, including serving as White House counsel for President Bill Clinton – the first female to take on the role – would be almost the stuff films are made of.
But the path to what could be termed the ultimate general counsel role was not an obvious progression for Nolan. Eschewing private practice thanks to an interest in administrative law, she found herself as a junior attorney with the US Department of Justice (DoJ), tasked with working on government ethics.
‘I was disappointed I was given that assignment if I’m honest,’ she recalls. ‘The Office of Legal Counsel is known for handling the weightiest questions of executive power and executive privilege, and I felt like I was going to be advising whether somebody can accept the free gift of tickets to a tennis tournament.’
But initial reservations turned out to be unfounded and her burgeoning passion for ethics would go on to shape the course of her career. After four years at the DoJ, Nolan began teaching constitutional law at George Washington University, while writing about government ethics and lawyering.
‘That’s the specialty that was eventually of interest to President Clinton in the White House when I first started as an associate. There were scores of constitutional scholars, but there weren’t that many people who really knew government ethics, and so that changed the trajectory of my career and my life.’
Of course, at the time, as a recently-tenured associate professor at George Washington, Nolan still didn’t know that. After volunteering for the Clinton presidential transition team, she was offered a role running the government ethics programme at the White House.
‘My original four years in the Justice Department were during the Reagan administration. Eight years of President Reagan, followed by four years of President Bush. So there weren’t that many Democrats who had government experience in government ethics laws, particularly some of those that had come through from the Ethics in Government Act of 1978.’
‘I was somebody who was teaching it, writing about it and had prior government experience doing it. So I got called to the attention of the people in the White House, went to meet with them and was offered the job.’
Putting academia to the side, Nolan was given a leave of absence to return to government. And although she had spent the past eight years focused on government ethics, the realities of her new position set in almost immediately.
‘I had a misconception I would still have time to think about theory. I had this image of myself as being tucked away in some basement of what is now the Eisenhower Executive Office Building working in my office on difficult issues. Instead, it is a rodeo ride. I remember having to slow down to take a breath. When I look back at it, I remember having to tell myself – as a friend advised me to – “Stop and take a picture in your mind.”’
Nolan spent two and a half years doing conflict-of-interest counselling and vetting non-judicial presidential nominees and appointments, before returning to teaching – anticipating the rest of her career in academia. But then the former ‘vetter’ found herself on the other side of the equation.
‘In the spring of 1996, I was asked if I wanted to return to the Justice Department as the nominee for assistant attorney general for the Office of Legal Counsel. Sometime in the start of President Clinton’s second term, I was nominated,’ she notes.
‘I had my confirmation hearing, waited a year and still hadn’t had a vote on my confirmation – it was caught up in politics. I respected the Senate and their prerogative, so I just waited and waited.’
But in another twist of fate, as one door closed, another opened for Nolan. In the summer of 1999, she was invited to return to office, this time as White House counsel.
Following Mr Smith
The White House counsel is the chief legal adviser to the president (in their official capacity) and the White House staff. A non-statutory position, unlike the statutory standing of the attorney general role, the White House counsel is there to advise as the President wishes, meaning that each presidential incumbent can have a counsel who fulfils different roles, depending on their relationship.
‘There are some things that you would expect the White House counsel to always do: to serve as a liaison to the Department of Justice; to co-ordinate legal issues with other departments and agencies in the executive branch; to help respond to congressional inquiries and investigations; and then to provide advice and counsel to help the White House staff stay fully within legal boundaries as they execute on their policy agenda,’ notes Nolan.
Like any GC role, this involves handling multiple constituencies – although, in this instance, those parties are Congress (both the House of Representatives and the Senate) and other executive agencies, all of which have interests that might be incompatible in any particular moment.
Not many GC roles involve an interview with the President of the United States!
‘That moment does stick with me, particularly because the meeting was in the main floor of the State Rooms of the White House itself, not in the West Wing,’ Nolan recalls. ‘If people had seen me going through the halls of the West Wing to the Oval Office to meet with the President, there might have been speculation. So instead, it was in the White House itself – which is just majestic. You have such a sense of history.’
That history is significant, not just from the perspective of the institution itself, but for those who came before Nolan and laid the foundations for her appointment.
‘I came in as a successor to Chuck Ruff – certainly not as his replacement – because no-one could ever have replaced him. But I’d had the opportunity to work with him, as well as John Podesta, who was the chief of staff, and with Cheryl Mills and Bruce Lindsey, who were the deputy White House counsel. And, to be frank, if Cheryl Mills hadn’t already decided that she was going to leave government, she would have gotten the White House counsel position.’
Taking the reins
Despite coming in after the impeachment proceedings against Clinton had concluded, Nolan entered into a highly charged political atmosphere, replete with investigations alongside the busy day-to-day role.
‘I remember one day where there was an urgent national security matter that we had to attend to, followed by another urgent call about the implementation of the Easter Egg Roll! Sometimes it was just like that,’ she says. ‘What I learned was that you have to love and embrace every kind of real issue and question that arises. [But] I was very fortunate, as I had a really great staff of lawyers.’
The day-to-day workload also encompassed matters of executive privilege, questions about political activity, nominations and appointments, conflicts of interest, congressional investigations, independent counsel investigations, as well as the everyday business of running a government agency. But despite the absorbing nature of the role, Nolan retained her initial appreciation of government fostered by her days as a student – and teacher – of its apparatus.
‘I had the privilege of being there at the start of the administration and then at the very end. But the machinery of government transition never failed to awe me – that at 12 noon, one person is President, and at 12:01 another one is, and almost the entire White House staff changes in that minute. There was no better opportunity to be a witness to the way our government works than those moments of transition,’ she reflects.
‘[At the end of an administration] you don’t leave things. It’s not like at the Justice Department, where one administration leaves and another comes in but there’s a vast group of civil servants who continue on. It’s not tossed – it goes to the National Archives and then, in many cases, to the Presidential Libraries. But it’s not in the White House – you come into empty filing cabinets and computers that have nothing on them, and a staff who largely have no idea what they’re doing.’
That means that each new administration – and subsequently its counsel – have the opportunity to shape their own role and agenda, though, in large part, the role of the White House counsel in particular will, by its very nature, be one that is as reactionary as it is prescribed.
‘In the 2000s, national security matters have played a much more prominent role. I certainly had to handle my share of security matters, but that focus on terrorism in the 21st century, has certainly changed the White House counsel’s job,’ says Nolan.
‘During my time, we were dealing with multiple congressional investigations. This White House is just starting to face that now, whereas in the first two years they didn’t have to deal with that at all. That is going to shift the role for the current White House counsel.
I beg your…
Another potentially significant aspect of the White House counsel role is the thorny issue of the presidential pardon. The US Constitution allows for the President to issue pardons to felons convicted of a federal offence. President Clinton issued a large number of pardons on his last day in office, sparking controversy.
‘We certainly handled pardons at the end of the administration in a way that was different from the way they had been handled before, because the President wanted to be sure that he was able to exercise his pardon power, and the rate of pardon recommendations coming out of the Justice Department was very slow. Although we tried to get people alerted that we wanted a faster process early on, things just didn’t proceed that way. We ended up in the White House reviewing some pardon applications directly, still working as closely as we could with the Justice Department,’ Nolan observes.
‘We would give the President – and also the chief of staff was involved in some of these as well – our best advice about whether or not to grant a pardon. But ultimately, it is the President’s power – I read my copy of the constitution and I didn’t see the counsel to the President being given any authority in this.’
One decision in particular that stoked the flames of controversy, causing a federal prosecutor to be appointed to investigate its legality, was Clinton’s pardon of Marc Rich. A financier and commodities trader indicted on charges of tax evasion and trading with Iran while the country was under embargo, Rich had fled the US.
‘I did testify about that after I left the White House – the President waived any privilege with respect to that pardon. I testified that I did not recommend that [Clinton] grant that pardon. I did not see anything improper about him granting the pardon, I just, as a matter of policy, did not think it was a good exercise of the authority,’ says Nolan.
‘Congress and the US attorney all were interested enough to investigate the exercise of the pardon power – so it was not treated as a hands-off issue completely. In fact, my very first day as counsel to the President, I was delivered a subpoena from Congress to testify about pardons the President had granted before I even became counsel. So Congress has, in other times, not been shy about investigating or reviewing the exercise of the pardon power. I never felt tested as I didn’t see anything improper. I think the President likely has the authority – Congress can complain about it – but it will be interesting to see if there are other limitations that get explored over time.’
White house to in-house
After leaving the White House at the change of the administration, when Clinton handed over to Bush, Nolan trod a different path.
‘When I left the White House, I thought I liked being a general counsel and knew this type of role was a strong fit for me. But I also realised, I did not have any experience on the private side,’ says Nolan.
Nolan joined Crowell & Moring as a partner, where she spent five years working in the firm’s white-collar and securities litigation practice.
‘Gaining that experience was valuable, but I felt a strong desire to be a part of a team, not just an adviser to a team. I also wanted a job where I felt aligned with the mission, so when the opportunity to return to George Washington University as general counsel arose, I knew it was one that resonated with me.’ The opportunity to come back and serve as the chief legal adviser to the university that served as the springboard for her professional life ties the career of Nolan together.
Looking back, Nolan is proud of being the first woman to serve as White House counsel. Since her appointment, two more women – Harriet Miers and Kathryn Ruemmler – have served.
‘The feeling I had in the moment was mostly very personal. It was a mix of pride and excitement and sober awareness of the responsibility. And then I look forward, and what I look forward to is the day where there are no more firsts, and it is not remarkable that a woman is appointed. We’re not there yet, but I would love it if there were no more firsts.’
Reflecting on a life in law that spanned the pinnacles of government, academic, private practice and in-house functions, Nolan says that there is no secret for success but did offer some reflections for the next generation: ‘What worked for me is that I followed what interested me; I tried to know myself well enough to know exactly what that is.’
‘One of the important things is to figure out how you can be yourself at your job and, if that is not working, you have to focus on what needs to change. I would say sometimes that is the job, sometimes that is you and sometimes that is a combination. But use disappointment as a tool to learn and grow, and don’t forget to enjoy the ride.’