The White House Counsel Succumbs to Partisanship

The chief justice seemed to have some effect on the chamber. By and large, except for a few additional rough patches of rhetoric, the proceedings were generally orderly and the conduct restrained. One performance stood out, however: that of White House Counsel Pat A. Cipollone. This was not so much because he lost his temper or slipped up and let the politics of the president’s case show behind the legal argument. He made a decision to make the political case in direct and unapologetic terms, and to ignore issues raised by his involvement within the White House in the various factual matters the Senate was called upon to resolve.

It is said often enough that impeachment is a political process, and, to one degree or another, the politics are unavoidable in the construction of the House managers’ arguments and the senators’ questions and statements on and off the floor. Cipollone is the White House counsel, the chief lawyer to the office of the presidency, and so is appropriately evaluated under a different standard. He is not a politician. He is not the president’s personal counsel, who is at liberty to turn arguments at will in a personally or politically self-interested direction. He is a senior government lawyer who carries a special obligation to decide the correct posture, including his choice of tone and argument, that his institutional responsibility calls for.

Cipollone chose to stay on the path that he traveled earlier in the House impeachment phase, in communications with that body. At that point, he mixed a good bit of in-your-face politics in with his formal constitutional and due-process arguments. In December, he advised House Judiciary Committee Chairman Jerry Nadler that he and other House Democrats had “wasted enough of America’s time with this [impeachment] charade.” Two months before, he had accused the House Democratic majority of seeking to overturn the previous election and influence the next: “a naked political strategy.” He also used the occasion of that October letter to promote the president’s record in office, citing Donald Trump’s record of “strong economic growth” and success in “extending historically low levels of unemployment.” It was not easy to tell where in the text the White House counsel had turned the pen over to the White House Office of Communications, or whether he considered himself equally adept at the art of political spin.

This highly political approach continued in the Senate. Early on, Cipollone accused the House managers of “hypocrisy,” but with a bitter twist: “It is too much to listen to, almost—the hypocrisy of the whole thing.” He declared that the managers were “not here to steal one election. They are here to steal two elections.” The House’s goal, he said, was to “perpetrate the most massive interference in an election in American history.”

This was an extraordinary attack on the House’s motives. Out of the mouth of the president or any of his political lieutenants, or even his personal counsel, it may have been ill-advised or lamentable or just what his political base thirsted for, but not (especially for this president) out of the ordinary. For a White House counsel, a government lawyer representing the institution of the presidency, it was a remarkably partisan performance.

The unusual nature of Cipollone’s role did not end with fevered political attacks. In January, the House managers advised him that their evidence had revealed that he was a fact witness, and reminded him that a lawyer with direct personal knowledge of the facts of the case should not serve as advocate. A lawyer who is a witness owes testimony to the court, not professional loyalty to the client on whose behalf he might be selective (or worse) in the presentation of the facts. In a succinct statement of the problem, one of the nation’s leading experts on legal ethics, Stephen Gillers, noted that:

Because Cipollone participated in the underlying events, facts he implies in his advocacy can appear particularly credible. After all, he was there. Yet he will not have been placed under oath and he will escape cross-examination, traditional safeguards for ensuring that testimony is truthful. In this way, he gets advantages that hinder his opponents. He is both a witness and not a witness simultaneously.

Of course, while the Senate trying an impeachment is a court, it is not a court like any other. It makes its own rules. So long as the controlling majority chose to overlook Cipollone’s troubling position, it was free to do so. However, the ultimate choice was his. He was not required to take up the leading role in the president’s defense. He might have yielded the podium to others.

Cipollone decided to keep the reins, just as he declined to leave the rhetorical assault on motives to the president’s personal lawyers and the White House political apparatus. Shortly before the Senate voted on witnesses, press reports suggested that Cipollone had attended a pivotal meeting in May during which the president directed John Bolton to initiate pressure on the Ukrainian government to investigate a chief political rival. The questions of fact about the president’s conduct and motive in the Ukraine matter are central to the case before the House and Senate, and according to the press accounts, Cipollone was a witness to the president’s actions and apparent or stated intentions.

Cipollone has also come under criticism alleging that his arguments on key facts were misleading or false. Fact-checkers have found him wanting on this score. But even if plenty of room is normally given to lawyers to shape the facts, within generous bounds, to their argumentative advantage, a White House counsel is not just any lawyer. Cipollone would have been well advised to be more scrupulous than, say, the president’s personal lawyers in his aspects of his factual presentation. This care was especially important in light of his decision to resort to highly charged political claims and rhetoric.

Cipollone is not the first White House counsel whose performance has triggered the concern that he has become enmeshed in the president’s politics at a cost to his responsibilities as a government lawyer. Early in the history of this office, critics feared that a White House counsel at the president’s beck and call in the West Wing would fail to distinguish the president’s personal and political interests from his official interests. One of President Jimmy Carter’s attorneys general, Benjamin Civiletti, considered the office to be an “abomination … [with] lots of potential for conflict because of its political nature.” To Civiletti and other observers who shared his view, the advent of the Office of White House Counsel was a disastrous turn away from the times when the attorney general was the “president’s lawyer” and the Department of Justice was his law firm.

In time, however, the office became institutionalized and the White House counsel was here to stay. There were a host of reasons, including the growth in presidential power and expansive claims of authority; the challenges of divided government and polarized politics with recurring scandals and congressional investigations; and the demands of managing the complex legal regulation of various executive-branch functions. The task for the White House counsel is to support the president with sound legal advice and to facilitate an administration’s achievement of its legitimate objectives within the rule of law. To do the job effectively, the counsel has been required, like any good lawyer, to know the “client,” including appreciating the range of pressures and factors, some inevitably political, that every president faces. But the White House counsel is obligated to perform as a lawyer in the employ of the United States—answerable to the public for meeting the highest possible professional standards, and remaining always alert to the danger that the political pressures and the president’s personal demands will become controlling. The reputation and standing of this always controversial office depend on it.

It is not always easy. Few of Cipollone’s predecessors can claim to have gotten it entirely right, and anyone who has held the office, as I did in the Obama administration, should not to be too quick to criticize another. Cipollone has been working under intense pressures and, to understate the point, for a most difficult client. Trump values loyalty above all else in his lawyers, and he is not particular about methods. He has declared that Joseph McCarthy’s notorious counsel Roy Cohn exemplified the loyalty that he, as a client, most values: Cohn, the president once declared with satisfaction, was “vicious to others in his protection of me.” We may never know enough about the pressures on Cipollone to evaluate all the choices he made. Perhaps some of those choices behind the scenes were better than those on public display in the impeachment process.

On the face of it, however, Cipollone’s public performance in this most serious of constitutional processes—his choice of tone and rhetoric, and liberties taken with the facts—was not one compatible with the best showing of a White House counsel in his institutional role. All counsel run the risk of appearing to operate within the president’s political team, looking primarily after their short-term personal and political interests. In the Senate trial of Donald Trump, Pat Cipollone did not manage that risk well. He seemed largely to disregard it.