Jamie Gorelick Oral History

The first thing we want to do is thank you for agreeing to do this. We've been looking forward to it very much. I know it is difficult to get this much time out of your schedule and we're grateful. We hope you enjoy this and find it interesting, I think most of our participants do. The main thing that I want to do at the outset is to reiterate the rules of confidentiality, which basically hold that you're the only person in the room who's free to report to anybody outside what we've talked about. We want to encourage you to speak confidentially to the historical record. We're trying to get an accurate picture of the Clinton Presidency from the people who know it best, so it's important that you understand that what you say here will, in fact, be kept in confidence.

The other thing we do at the beginning is a voice check. There will be a transcriber working on these, and he or she will need to be able to associate a name with a voice. Jill is also going to be keeping notes, which will be the sequence of interventions and also proper names, so she may be grabbing you at the occasional break to ask questions. Feel free to call a break anytime you need it, otherwise I'll probably take us to midmorning and then break. So if I could get everybody to speak your name and a few words so the transcriber can pick up who you are. Again, I'm Russell Riley and I've been heading up the Clinton Presidential History Project for the Miller Center.

I'm Jamie Gorelick. I'm a partner here at Wilmer Hale and have various titles that you have reflected in your materials.

Darby Morrisroe. I'm an assistant professor with the program.

I'm Stephen Knott. I'm an associate professor with the program and currently heavily involved in the Edward Kennedy Oral History Project.

Yes, I've heard of it.

And I'm Jill Abraham, I'm a graduate student at UVA [University of Virginia].

To begin, how did you start in politics originally?

I really wasn't involved in politics. I came to the Clinton administration with almost no political background. As you noted in your materials, I was a participant in the [Jimmy] Carter administration, albeit at a very low level. Just to set the chronology, after I graduated from law school in 1975, I came to work at a small litigation firm called Miller, Cassidy, Larroca & Lewin, and I was basically a litigator for 18 years before I went into the Clinton administration.

There was a slight break in that chronology. In about 1978, I was appointed to serve as vice chair of a commission, the Task Force on the Audit, Investigation, and Inspection Components of the Department of Defense, which I got to in a fairly circuitous way. In any event, it was a part-time assignment, so I stayed at the law firm, but I spent a great deal of time at the Defense Department helping the Department, and specifically the Deputy Secretary of Defense, Charles Duncan, form recommendations as to whether there ought to be an inspector general at the Department of Defense. That gave me a very interesting, across-the-board look at the Department of Defense at a very young age. I was 28 at the time and had about three years of legal experience under my belt.

You finished law school—

In 1975. I graduated in June '75 and—

You would have been how old?

I was 25. I went straight through college to law school. At the end of that commission, or task force, as it was wrapping up its work, President Carter shuffled his Cabinet and decided to replace [James] Schlesinger with Charles Duncan because the President had come to the conclusion that he needed a manager to forge a single operating unit out of the three basic agencies—and other agencies as well—that had been literally thrown together in the middle of the oil and gas crisis.

In the course of my work on this task force, my point of contact with the Deputy Secretary's office was his military assistant, then Colonel Colin Powell, who, when I first met him, was a colonel sitting outside the Deputy Secretary's office. He then was elevated to general. When Charles Duncan's nomination—maybe even the intent to nominate—came out, Duncan asked Powell and Deanne Siemer, the general counsel of the Defense Department at the time, to put together a transition team. And they asked if I would participate in that. They were looking, I think, for a group of smart, young people with a diverse set of backgrounds to come in and assess what the problems were and what the opportunities were.

I give you this background only because it is fairly relevant to the decision of President Clinton to put me over at Defense. In your chronology, you've got it slightly reversed; the task force came first and then the assignment at the Department of Energy. I worked with Secretary Duncan there, on any number of issues—getting him confirmed, getting his Deputy Secretary, John Sawhill, confirmed. And then, I was asked to stay on as counselor to the Deputy Secretary and Assistant to the Secretary. Secretary Duncan tried to create and model the organization at DoE [Department of Energy] on the structure at DoD [Department of Defense], which is a joint staff for the Secretary and the deputy.

Can I interrupt and ask about your work? You said you helped get him confirmed.

Yes.

Were you actually doing liaison work with Capitol Hill on that, or were you doing background research on his own career to prepare?

There was a team, a very sophisticated team, of congressional affairs people who were assigned to that process. I was not knowledgeable about Capitol Hill, really, at that point. I didn't learn about the Hill until I was working at DoE. But there was a lot to be done, substantively, in the preparation of someone for confirmation hearings, and in following up on inquiries, and on the ethical issues, et cetera, so I was charged with making sure the team operated cohesively. I also did this particularly with respect to John Sawhill's confirmation, working with the congressional liaison.

Okay.

I stayed through the transition and then did join the staff for a period of maybe six months. I left in early 1980, which we can talk about if you wish. But in any event, by the time President-elect Clinton was putting together his own transition, I had been a lawyer in private practice for 17 or 18 years, and I had had some governmental experience, particularly in the defense arena. I had not participated in the campaign, or for that matter, any campaign. The only thing that I had done in the policy world was as an advisor to Senator [Joseph] Biden, who had formed a council of advisors, in which I participated. I was on the list of people that he, as Chairman of the Judiciary Committee, called on for advice on substantive issues. But I had not been part of the political process.

You mentioned your departure from Carter. Is there a story there that we should probe about? Were you—?

I didn't like it.

You didn't like it.

I didn't like working at the Energy Department.

And why is that?

I found that there were warring fiefdoms and I was right in the crossfire. Deanne Siemer, who had been general counsel at DoD, moved over with Secretary Duncan to become the Special Assistant, which gives you a sense of where she thought the actual power would be. This unified staff put me in a position where I was dual-hatted, essentially reporting to her—as I was an Assistant to the Secretary—and reporting directly to John Sawhill, the deputy. The two of them did not agree and I was supposed to be the agent of both. I quickly realized that that was not a good place to be. Moreover, I didn't have particular expertise in energy. The learning curve was very steep. By the time I had spent about six months at this, I had learned a great deal and felt that it was time to return to my law firm.

I raise the question partly to make sure that we didn't miss something, but also because what shows up repeatedly in the later materials is the perception, among people who worked closely with you, that you have a very good organizational mind and ability to manage. It's interesting that in wearing your hat at Energy, you find yourself in a situation where you're evidently picking up lessons very quickly about how organizations should not operate.

There were a lot of negative lessons learned there. We can maybe return to some of them later, but I felt that, while I adored Charles Duncan, and still do, and had tremendous admiration and respect for John Sawhill, and liked many of the people who were in the Department at the time, I didn't like the atmosphere and would not have created an atmosphere like that in any organization that I could put my own stamp on.

Was there anything with respect to the Carter White House that was problematic for you? Was there a sense that the President or the White House people had helped to set up this problem area, or were you pretty much isolated over in Energy—?

I had some dealings with the White House, which actually proved helpful later on, because I knew how a Domestic Policy staff worked, I understood the role of the Office of Management and Budget, and I learned a lot in those six months about the various coordinating mechanisms that exist within the government, or can exist. I learned a tremendous amount about the influence of Capitol Hill, and even individual Members of Congress, on decision-making within government agencies, lessons that you would never have learned sitting on M Street as a lawyer, and that very much informed my legal practice thereafter, and my work in government some time later. I had any number of interactions with people in the White House, and some of them bred continuing relationships that lasted into the Clinton administration.

One other question about this, and again this will be a thread that we'll pick up on later, but about your own self-education in becoming a manager, is there a sense that you possess a native skill, that you were always a highly organized individual, or is there an accumulation of experiences before you get into the Clinton White House that created those skills? Are you a born manager, or are you a made manager, or a combination of both?

Well, A, I had no idea I was any kind of manager until I started managing at DoD in 1993. B—and you can see I speak in A's and B's—

You're a manager.

I credit my legal training, actually, with a fair number of the attributes that help in managing. I know that lawyers aren't known for their management skills, but one of the things you do as a litigator, when charged with responsibility for dealing with a knotty issue that a client has—and I was in a small law firm and had very direct responsibilities early on—your client is here, and needs to get over there, and you need to think analytically about what steps will get you from here to there.

One of the things I saw, quite concretely, when I went over to the Energy Department, was that I had those skills, which others, whose background was in the energy business, on Capitol Hill, in politics, in any number of other disciplines, actually didn't have. And I have since, and frequently, told young lawyers, "Between your formal law school training and what you learn in your first few years of practicing law, you will find skills you don't even know you have, that will give you advantages that can be very helpful to the people with whom, and for whom, you work." I am otherwise just a very organized person. I don't like chaos.

I'm trying to recall—I thought there was a reference in some of the biographical materials that you had something to do with the [Michael] Dukakis campaign?

It was very remote. It found its way into some article about me early on, but just as I had counseled with Senator Biden and his staff on criminal justice issues—in which I was absolutely steeped—when Governor Dukakis had a task force on criminal justice issues, the campaign would call from time to time. I don't think I ever attended a meeting. I might have looked at some material.

But this is the kind of thing that's very helpful in the interview because future people trying to map networks might very well come across a reference like that and make something much more of it.

I couldn't tell you any lasting connection that came from that or, frankly, anything substantive that I did. And I couldn't even tell you what it did.

[laughs] Okay. Well, then, let's see, you said you hadn't had anything to do with the campaign.

Right, so we're now in the postelection period. I had made contributions to various candidates from time to time, again, not very sizable.

Is your husband political?

No, he's a physician; he's very not political.

So he's not giving money; you're giving money?

Well, it was our money. To the extent that either of us were participants in the policy arena, it was me. I had been a lawyer in Washington for a good long time. I had many, many connections in the legal community because I had worked with so many people. I was President of the District of Columbia Bar, so I had a constituency the size of a small congressional district. That's how many lawyers there are in D.C. The number was something like 60 thousand at the time, and that was well over a decade ago. I had participated in various policy exercises, but none of them political.

So if the nature of your question essentially is, "How did you get from being a lawyer on M Street to being general counsel of the Defense Department?" there are a couple of strands that come together. One is that many of the people who were political, and who were running personnel and other elements of the transition, knew me. So when they were making lists, they would call and ask, "Would you like to be considered for—?" So my resume was in that vast computer—or dumpster, whichever it turned out to have been—that was the personnel operation for the transition.

You had not proactively—?

Everybody in Washington who was a Democrat was certainly interested. I always referred to the [Ronald] Reagan-[George H. W.] Bush years as the "long Democratic drought." So I did want to go in. There wasn't much I thought I could do about it because I didn't know the senior people running the transition, but I knew a lot of the people who were actually making lists. The women's community was also making lists. Then, in addition to that, I think it was Jack Quinn, but I'm not certain, who was running the effort to develop ethical rules for appointees, and I had a background in legal ethics, a very substantial background in legal ethics. I had been chairman of the D.C. Bar's Ethics Committee, I was on the American Bar Association's Professional Discipline Committee, I'd written on the subject. He called and asked if I would help in the writing of those rules. And I did. Not that any of my suggestions were adopted. I disagreed with some of what the transition put in place, and most people would view them as having been a mistake, but I did provide input there.

Is it that they were overly stringent?

Yes. I may have been just about the only person actually subject to them—that is a slight exaggeration—but if you left, as I did, before the end of the Clinton administration, the rules applied to you, but at the end of the administration, they were rescinded. Since I left after the first term, they did apply to me. They didn't have any real effect on me, but they would have if I'd gone to a law firm, so that was another strand.

So, I knew a lot of people who were in the transition world. I was one of hordes of people put on the Justice Department transition list. But, as far as I could tell, it was an exercise run by a very small group of people and I had very little input into it.

By the transition list, you mean the people who were responsible for providing input into the organization?

The DoJ [Department of Justice] Transition Team. The teams were organized by departments. I remember going to one enormous meeting run by Bernie Nussbaum. I can't recall who his cochairs were. I was titularly a member of that.

Can I ask what your assessment was of the Clinton transition operation, based on your experience?

I thought they had it absolutely backward. They spent an enormous amount of intellectual energy putting together big books of substantive memos on how the Clinton administration would change things from 12 years of Republican control of the Justice Department, and they did the same thing at Defense and all of the other agencies. I saw both books, for Justice and Defense. That energy should have gone into the identification of individuals to run the departments and ensuring some sense of cohesion between what the President wanted and had run on, and what those people were thinking. In the end, those books were barely opened by anybody in a position to actually do anything. Maybe somebody read them. I had both of them, I never had time to read them.

We've heard this story before.

I said it at the time and nobody listened to me. It was a way of channeling energy. If that was what it was for, it did that very well. People were writing and they were passionate, and all their passion ended up in three-ring binders.

So future historians who are looking at boxes of material in the Clinton archives probably shouldn't pay a great deal of attention to what's in those binders, at least insofar as they had an effect on social change.

They would be interesting as anthropology. They might be interesting as a way to tap into what was animating Democrats broadly as they came into control of the government, but that's all.

So the strands are, to go back—I know people who were running the personnel operation, I had a connection to the transition in its "ethics" mode, the women's community was agitating for and putting together lists of women—and by that point I was a fairly senior woman with governmental experience. Then—

Forgive me, you mentioned the women's community a couple times; who would have been the leading figures—?

The leading figures were and are Judy Lichtman and Marcia Greenberger, who run the two largest, most effective, women's rights organizations, certainly in Washington and, one might think, in the country.

Thank you.

Another strand came in a call from my client, Zoe Baird, around Christmas Eve, when the President was about to identify her as his nominee to be Attorney General.

Your client in—

She was the general counsel of Aetna. I had gotten to know her when she was litigation counsel at GE [General Electric], and she had been my client there. Then, when she had a very large and challenging matter at Aetna, she brought me and my law firm in to help with that, so I had been working pretty closely with her at both General Electric and Aetna. She called to say, "The President is about to nominate me. I would like you to run a team for my substantive briefings for my confirmation."

With all the fits and starts over who would be nominated, my name popped up from time to time. I never thought it was particularly realistic for me to be considered for Attorney General. I thought there were many more people with considerably more relevant experience and seniority.

Can I interrupt and ask you, did it strike you differently then, that Zoe Baird would be nominated? Was that the kind of person you were expecting the President to nominate, or when that nomination came did you think, gosh, maybe I was selling myself short?

No, I didn't think that. I had thought that the reserve of senior women who would have been well known to the President and the First Lady was pretty long—Pat Wald, Brooksley Born, any number of people. And I was just not in that orbit. I had met Hillary Clinton in a large group of people at an ABA [American Bar Association] meeting when she was the head of the Commission on Women. I had never met the President-elect. I didn't know any of his people, and they knew lots of people, so that never made much sense to me. But we can return to that question a little later, when we get into decision-making about where I would go.

I had, for a long time, been invited to the Renaissance weekends and I never went, because they seemed to me to be a busman's holiday. I had a family, and I viewed my vacation time as actually time to vacation. Going to seminars and seeing many of the same people whom one sees during the workweek did not seem to me to be fun—not for me, and certainly not for my husband and children—so I had never accepted. But because Zoe was going to be there and I was indeed interested in going into the administration, and because everybody, after Clinton won, was going to go, I persuaded my husband to take four days of what would have been our vacation and go to Hilton Head, which we did.

Right before that, I put together a very good team, including Ron Klain and others, to put together a substantive notebook that would actually be read by the nominee in preparation for confirmation hearings. I wanted it ready so that she could have it and read it at Hilton Head, and I would be there if she had follow-up questions. By the time we got there, however, she mentioned this problem with her babysitter. And while I tried to, and pretty much did, move the substance of that issue to others—both the politics of it, to Ron Klain; and the substance of it, to my partner, Seth Waxman—it became, as you well know, the overarching story of her nomination. We tried to pay attention to the substance, and she was having meetings with Senators where substantive issues were coming up, and we were preparing her for her hearings, but it was extremely difficult to do that.

If you want to talk about that episode more, I'm happy to, but the footnote I was trying to drop a minute ago about where I would go is this: Between the end of December and the end of January, the following things happened: Before I left for Hilton Head, Harold Ickes called me and asked me if I would come to visit with the President-elect in Little Rock, Arkansas, in January—I think it was the middle of January, somewhere between the 10th and the 15th, before they all decamped to Washington for the inauguration—to discuss what role I might play in the administration.

Had you known Harold before?

I had met him, but I didn't know him. One of my former partners, Jonathan Sallet, was working with him on that and might have participated in that decision-making, but I never knew what was behind the call or, frankly, what I was being considered for.

I had a friend from college, Tom Schneider, who was a very good friend of the President-elect. He was also a good friend of Philip and Linda Lader. He was escorting the President-elect at Renaissance, introducing him to people and being helpful to him. He introduced me to the President-elect. That was the first time I'd ever met Bill Clinton. I had a funny conversation with him. He said, "I've heard about you. I'd like to have the opportunity to talk if you have some time here." I said, "Yes, I can do that." He said, "What are you doing right now?" and I said I was going to go to one of the sessions." He said, "I just love it here. I'm going to a session right now on tax policy; it's going to be so much fun." He was like a kid in a candy store in this policy world. So we agreed to talk at some point, but we never did until I went to see him in Little Rock.

I did have an opportunity to talk with Mrs. [Hillary Rodham] Clinton, whom I also just ran into, literally, when she was walking on the beach. She said, "I've been wanting to talk to you to get your ideas about the White House counsel's office," which I gave her. But her ideas and my ideas were completely different.

How so?

She envisioned the White House counsel's office as a sort of think tank, a group of people who would be dealing with the most interesting, difficult constitutional and other issues, a place where they would deal with the most interesting legal and policy issues within the government. She, I think, had a view of the group that she would put together as brilliant young lawyers, which I thought was fine. But what I tried to convey was the degree to which one doesn't control one's agenda in the White House, and the need to have people who were experienced in the mechanics of running the government; the fact that they would be, for the first six months, the de facto general counsels of the agencies until those general counsels were there; and that they would have a deluge of Executive orders and emergencies to deal with.

I urged her to focus on practical experience in the government, and I tried to warn her that I thought she was not going to be luxuriating in interesting policy, as much as she would like to have the ability to do that, in that space. That was our conversation.

On the beach?

Well, I ran into her on the beach. We came in and sat on a couch. But she was in sweats and a T-shirt.

And you?

I was dressed like this.

Sort of [Richard] Nixonian in your beach attire? [laughing]

I was not wearing wing-tip shoes, but I was dressed for a conference.

Did they follow Mrs. Clinton's model, do you know, with the counsel's office, at least initially? Is that what they attempted to implement, the think tank—?

I think it was more of that model than the other at the beginning, but I think they very quickly realized that they needed to grab everybody they could find who could move them through the transition period—and perhaps migrate back to the other model when things settled down. But of course, they never did.

So Zoe, at that point, was preparing to be Attorney General. She had Terry Adamson working on personnel for her—I'm sure you've talked to Terry in connection with the Carter project—he was a veteran of the Justice Department and a good choice to help her do that. And she very much wanted me to be chief of staff. I told her that I felt I needed to run something of my own, that if they wanted to slot me in as head of the Criminal Division, the Civil Division, deputy, associate, any of those would be fine, but I did not want a staff job. There were several of those conversations.

Tom Schneider felt that I should go over to Defense as general counsel. As it turned out, when I went to Little Rock, I had a long meeting with the President-elect, who had just come back from Mexico. He'd had good meetings in Mexico, but at that time he was also briefed on the budget and was shocked, I think, by the lack of running room he would have in the budget and how draconian the cuts would need to be if one wanted to have a balanced budget.

Do you remember the specific date of this?

Well, he literally had just come back from Mexico so that shouldn't be too hard to determine, but it would be in the middle of January of '93.

Was the President alone at this time?

Yes, this was in the Governor's Mansion. He was a combination of exhausted, energized, taken aback by the budget issues, and trying to focus on the task at hand, which was me, at that moment. I'm not sure we accomplished the latter too well, but we had a very nice chat. I came to think that I was there to be interviewed for White House counsel, based on what I could glean from a discussion with Susan Thomases, whom I hadn't known, but whom I had been asked to go see in the transition offices when I arrived. But again, no one told me. And because the President-elect did not actually ask me anything about the White House counsel's office, I concluded from that meeting that I was not going to be White House counsel.

But we had a very nice meeting, and the interesting end of it was this—we were walking out and he asked me, "Why don't I already know you?" And I said, "I don't think you know everybody. You know a lot of people, but you don't know everyone, and there are some very good, talented people whom you should get to know." There, in that little moment, was an appreciation of the gap between the political/policy world in which he had been operating and the larger, I would say, substantive, community of lawyers and policy people in Washington.

Specifically in Washington?

I think specifically in Washington. I don't know if you've talked to Stu Eizenstat, but Stu had run the Domestic Policy staff for Carter. If you raised his name in any context in the transition or at the beginning of the Clinton administration, there was almost a back-of-the-hand dismissal, not so much of him, but of anything Carter. It was almost as if the view among the President-elect, Hillary Clinton, their close advisors, was that Carter had done it wrong and they were not going to do it that way. And there was much to that, but there was a little bit of throwing the experience from those years out with the bath water.

You don't have a very big farm team to start with.

No, right.

And then there's a disqualifying factor—

I don't know if it was disqualifying, but I certainly didn't feel that my brief service in the Carter administration was a plus, let's put it that way.

In any event, the President asked the question, I gave him my answer, and he laughed. He didn't take offense. He laughed. Pretty soon thereafter, I was called by Larry Smith, who was working the transition for Les Aspin, and was asked to go meet with him.

On the other track, the Baird thing had gone south—

These are happening in parallel. Her nomination bites the dust the day or two after the President's inauguration, right?

On the 23rd.

Yes, so it's like the 22nd or 23rd.

Okay. Forgive me, I've interrupted.

But you're right, because they are happening in parallel and it's a little bit of a fugue. I'm trying to weave the two together. We are working very hard to get her ready for her confirmation and also to address the emerging story, getting our hands around the facts as to what the babysitter tax situation was. And ultimately, she decided to withdraw. The whole process ruined what would have been a very nice set of inaugural parties for me. [laughter] I didn't make it to many, and at those that I did make it to, I didn't look too good. It was tragic for her, and a really bad stumble at the outset.

If you had to assess the responsibility for this stumbling, was it an avoidable problem if it had been properly—?

Yes. Well, I don't know what was said to whom. She indicated that she made full disclosure. The vetting was done by [Warren] Christopher's team. Either they didn't know, or they didn't appreciate the impact of this. Chris was one of her mentors, and Lloyd Cutler was one of her mentors. There were people at a very senior level who knew her, liked her, vouched for her. And perhaps there was a blind spot. I don't know what happened there. It might have been manageable had they had an affirmative strategy in place.

I do know what happened thereafter. I tried very hard to get the political people—I felt that this was not my area and I could not make these judgments—to jump in. I tried to get hold of Ron Klain and Ricki Seidman and Bernie Nussbaum, to say, "Make a judgment here. Either pull the plug or help. But right now." I felt we were left to swim largely for ourselves for several days, and that the senior people in a position to do something were overwhelmed and not focusing. People were moving from Little Rock. Some of them were taking a couple of days off. It was very unclear who was doing what.

And the White House staff was being put together.

Yes. It was not pretty and I probably saw one of the ugliest pieces of it, although I inherited one of the other really ugly pieces of it, which we'll get to.

My recollection is that there was some considerable back-and-forth between her and the senior people in the administration about whether they ought to fight this out.

I think so, but you need to ask her. She played that very close to the vest. There was a meeting here, right here at this table, with her, me, Lloyd, and Vernon [Jordan], at the end, in which she came to the conclusion, after talking it through with them, that this was not going to work. I think the decision was made on the 22nd, it may have been announced on the 23rd. I may be wrong about that, but one of those two days. She had lots of access and lots of conversations; I don't know what they were. I was really trying to, A, get her ready on the substance; and B, help determine the facts and get the political team to assess the possibilities on the Hill.

I wonder if I could ask you to think a little bit broadly for a second, before we go on with your appointment, about what kind of Attorney General she would have made. We're always curious about what-if's in administrations. If there had not been this train wreck at the beginning, how would she have differed from what we ultimately saw as an Attorney General?

Zoe Baird and Janet Reno are vastly different. Both very admirable, bright, broad-gauged people, but vastly different. Zoe had been in the senior reaches of corporate America. She had worked at the Justice Department in the Office of Legal Counsel. She had worked in the White House counsel's office. She was very sophisticated about the media, about politics, and had a wide range of interests. She also had some blind spots, as one can see from this episode.

Sure.

The one thing that they had in common is they needed—and knew they needed—someone very organized and decisive around her or beneath her, either in a chief of staff or as a deputy, or both. Zoe, as I said, was very broad-gauged, very bright, but I think she felt that she would benefit from the disciplining presence of someone quite organized, as well as people who would speak truth to power, who would talk to her.

Did she have a particular legal or policy agenda formulated, as she was proceeding, that would have been—

She had no criminal justice background, and that is the single greatest difference between Reno and Baird. Zoe was very interested in civil justice reform and in tort reform. She was very interested in the foreign policy arena, and she would have, I think, been interested in those interactions, particularly given her relationship with Christopher. But it's very hard to know, because all of those policy discussions and all of those substantive discussions were truncated. Much of this is a guess and I'm basing it on what I knew of her then and what I know of her now. We're friends and I see her; I talk to her about her work at Markle. You can see what she's done at Markle; she has been a transforming person there. She took it from one agenda to a completely different one, obviously a much smaller venue, but it nevertheless provides an insight.

Let's pick back up then with the track.

Pretty much simultaneously I was interviewed by Larry Smith and then Les Aspin, who had been identified as the Secretary of Defense nominee, and ultimately offered the position of general counsel at DoD; and the President had picked Janet Reno to be his Attorney General nominee. I joke that because I had done such a good job with Zoe Baird, they asked me to help Reno get confirmed. [laughter] But I don't think anybody blamed me for what happened to Zoe, and I think that the White House thought I would do a good job with Janet Reno. I also knew that I was leaving private practice, so I would not have had any conflict, in this very ethically minded transition process, in advising the Attorney General. I would not be going back to a practice in which I would be advocating before the Department.

You made the decision to leave practice because you fully anticipated you were going to get a position in the administration?

My recollection is that I was offered the DoD general counsel job before the President selected Janet, or it was going to be happening. I knew from these conversations that I was going to go in, one way or another, and I believe I thought at the time that I was going to DoD.

Okay.

There were discussions thereafter about whether I would be Deputy Attorney General under Janet Reno, but it didn't seem to me to be serious. So that gets you to—which route of these two do you want to take? Do you want to take the Reno route, or do you want to take the DoD route?

Let's do the Reno route, because the DoD route is longer.

Okay. Bernie Nussbaum invited me to come into the White House counsel's office. I hadn't been inside the White House since the Carter administration. I'm sure you've had the first couple weeks of the Clinton White House described to you, but it was fairly chaotic, although Bernie's office looked like it has always looked. In the White House counsel's office the furniture pretty much stays the same and, while he had things in boxes, it looked pretty much up and running.

He was there, and Reno was there. He had asked me to come in to talk with her about helping her with her transition. There were other people in the room, but I actually can't remember who.

Was Ron Klain there?

Ron might have been there, that would make sense. She might have had someone with her. She had a gentleman from her former law firm helping her with the personal aspects of her confirmation. I do recall that he tried, one Sunday when we were all in the Old Executive Office Building, where we were running our transition, to go get a cup of coffee and ended up in the Sit [Situation] Room. [laughter] The Mess is right there; he just took a wrong turn, and set off all kinds of alarms.

Maybe they have especially good coffee in the Sit Room?

Anyway, pardon me for that. There were some funny moments.

This is perfect. These are wonderful tidbits that we need to hear.

Anyway, she was basically in listening mode because Bernie was rattling off all the things that needed to be done pronto. She's got to fill out a stack of forms that would choke a horse. She has to prepare herself for her congressional visits. We have to do media training. Everything you can think of. And she's got nothing. She has her suitcase. She has no place to live. Her mother had died at the end of December, so she had been spending all of her time, both on her own office—which she was still running, by the way, in Dade County—and dealing with the death of the most important person in her life.

She is embracing this challenge, but has no idea what is involved in the confirmation process. And I, in her words, "swoop in" and say, "Here's what we're going to do." I made lists and I recruited the same people I had for Zoe—I had the book, right? [laughter] I already had the book, it was a very good book—and proceeded to set up briefings for her. We were given space in the Old EOB [Executive Office Building] and we worked around the clock.

It was February and it was miserable out, and she's in Florida clothes. She is literally looking—almost is—homeless. She was a prodigious worker, so we were in there 18 hours a day. One of the things I do have is a great Rolodex, and I knew the people whom I would want to have brief her on every substantive issue, some of which she was very knowledgeable about, but some of which—because they were federal statutory, regulatory and policy concerns—she'd never had any exposure to, so she had to learn antitrust and immigration law from the federal perspective. We brought in the best teachers. I was also using this to preview some people she might want to bring into Justice and look for that chemistry. It was a set of wonderful tutorials.

Meanwhile, Ron was setting up her meetings on the Hill, and accompanying her. I don't know if I actually did any of that with her. I might have, but I don't recall doing that. We had a lot of fun. It was substantively a feast. She was like a sponge, soaking everything up, and I think she really enjoyed it. I think she thought that many of the mechanics were silly. The forms, for example, some of them are silly. We made her spend time with Michael Sheehan on how to be camera ready, which she rejected. She did it, but she rejected all his advice. He—Have you ever met Sheehan?

No, we have not.

Talk about a wonderful view into an administration. He did all the media training for everyone in the administration, at the expense of the DNC [Democratic National Committee], I think, and was a consigliere to the President for almost his entire tenure. Also a great wordsmith, and a wonderful, thoughtful person. But the way he earns his living is doing media training for executives.

He sets up a camera in the conference room that we had at the Old EOB, and he tries different camera angles on her, and he gets her to talk, and he coaches her. You could tell that she is having none of this and he is getting incredibly frustrated, so we break and he comes back in an hour with—You know, she has glasses that are very big and that gradually, in the course of a conversation, if she's putting her head down, slip down her nose. If you're a media person, you don't like the way this looks, and he kept saying to her, "Could you put your glasses up on the bridge of your nose?" She would do it and they would slip back down, and he would say that again and she would push them back up, over and over again.

He comes back from lunch and he dumps on the table every kind of little sticky thing that you can put on your glasses to keep them on the bridge of your nose. And he said, "Could you just try any of these to get your glasses to stay on your nose?" She said, "Look, I'm trying to learn about antitrust, immigration, civil justice reform, the crime bill that the President has on his mind. I don't want these, take them away." She said it nicely, but this was a true contrast in style, shall we say.

We had a very interesting transition process. It was a brutal period because obviously the Department was being run by Stu Gerson, who was a holdover from the Bush administration, a lovely man, but decisions were being made that she would have wanted to make herself. There was an incident with a meeting that Webb Hubbell had with representatives of the black community about a case, and a question was raised whether he should have taken that meeting. And that started the Wall Street Journal's "Who is Webb Hubbell?" series of articles. Then you had decisions about firing the U.S. attorneys. There were things happening that needed the presence, the calming presence, of an Attorney General. In the end, her confirmation was close to a coronation. I have never in my life seen or heard of a nominee walking into a hearing room and getting a standing ovation. There aren't ovations in hearing rooms. Her entire extended family—every one of them over six-foot-two—was there. They were lovely and quite the characters themselves, and I thought she was magnificent.

The authenticity—

Oh, magnificent! She had me in tears. When she was talking about her family, I started to cry, which shocked her, because I think she thought of me as a bit of an automaton.

We didn't get the Kimba Wood piece. Did you have any—?

She came and went so fast. No. No one asked me to do anything. Before they could put a team together, the nomination was gone.

During this period, when you're briefing Reno on Justice issues, who in the White House is advising you what the agenda of Justice is going to be? Did that guide your briefings, what initiatives might be put forward?

The person who was most knowledgeable about the Clinton Justice agenda was Ron. He was part of the team and could tell you in 15 seconds what the President had run on, on any issue having to do with the Justice Department. Ron was a key player in putting this book together and had vetted all the material. If someone had written an environmental piece, he had the last look at it. And while he wasn't in most of these briefings, when we did Q&A [questions and answers] and prep, he was there.

Other than the crime bill, which obviously was going to be a major part of the agenda, were there other major issues that you could tell us about that they saw as part of their Justice agenda early on?

There was a lot of focus on restoring integrity to the Department, honoring its best traditions, those kinds of things. Obviously, we were going to be more encouraging of civil rights enforcement. We would be more open to antitrust enforcement and environmental enforcement, but I don't recall any other specific agenda items besides the crime bill. But that was so significant that it did, as an agenda item, overwhelm everything else. It was in the top two or three pieces of the Clinton agenda at the outset of the administration.

You mentioned Webb Hubbell's name. I guess he would not have been confirmed at this stage?

But he was in the Department.

As an unconfirmed—

That happens in transitions and that's totally appropriate, but there is a line that you can't cross. You can advise the, in this case, Acting Attorney General, but you cannot make any decision. It's always hard, and when you have a transition between parties, it's particularly difficult.

I wanted to ask you, did you have dealings with Hubbell at this early stage?

I had met Hubbell and [Vince] Foster in my brief visit to Little Rock. I actually spent some time with Foster talking substantively about the White House counsel's office. He had been identified as the deputy White House counsel before there was a White House counsel, which was a little backward, but not crazy, given his background. So I had met them, and had a fair amount of contact with Foster throughout that January-February period, and again, had met Webb Hubbell, but didn't really know him.

Did you have impressions of them from these meetings? Did you feel like they were fish out of water or out of their depth?

I was impressed with both of them, substantively. I thought that Webb Hubbell had some innate leadership qualities that were admirable. He seemed to have been an experienced civil litigator. We did have, at one point—and this is one of the pieces of the chronology that is confusing to me—a discussion about what he would do and what I would do, if I were to be at Justice under Reno. I either had an offer, or thought I would have the offer, to go to DoD. We had a frank discussion about what his strengths were, what my strengths were, who would do what if we were both there. That's all I recall about that. Foster was very anxious and driven—a lovely, sweet man who had a good game face, but you could tell he was not having fun, at all.

Anxious and driven is an interesting combination.

He really felt that. He never said any of this, but he gave the impression that he felt that he was responsible for making sure that everything went right, and so worked a tremendous amount. My mental impression of him is someone walking very fast. He moved fast, almost dashing from thing to thing and task to task, and it was actually unsettling to watch him.

That's interesting, because my impressions, which are entirely impressionistic, would have been exactly the reverse and I have no idea why. Maybe it's because of the sadness that kicks in later that you associate with him.

Enervation, right. But in the beginning he was dashing about. He dashed about, in and out of the transition offices in Little Rock, and in and out of the White House counsel's office. He came over for my swearing in at DoD, so that would have been at the end of March, or early April.

April.

He looked beat. I asked him how things were going and he did this [gestures].

Tugged on his collar.

He tugged on his collar.

I think we all need to break for a few minutes.

[BREAK]

You asked me about my transition to DoD. I met with Larry Smith; I met with Les Aspin. I had not known Aspin at all, and he brought with him a highly concentrated group of people with whom he had worked. He essentially moved his infrastructure from the House Armed Services Committee, plus consultants and academics to whom he looked for guidance, such as [Ashton B.] Ash Carter, over to DoD. I was an alien body in that group, working very hard not to be rejected as an alien body from the corpus of this team, so I spent a great deal of my time and energy trying to learn about Aspin, his views and approach, and to understand who was doing what on the team.

In this regard, I had two sources of insight that I would not have had but for my prior government experience. One was John Deutch, who had been Under Secretary at the Energy Department in the Carter administration, and who had had the office next door to mine. I had known him, though not terribly well, but we liked each other and had worked well together. And he tried to be helpful to me. The other was Colin Powell, who by that time was the Chairman of the Joint Chiefs, and he had his own insights into the workings of the Secretary and his people.

You kept up with Powell through the years?

A little bit. We weren't close friends, but we had kept up with each other. So how to begin, what would you like to know?

One question comes to mind and that is, were there any women in Aspin's inner circle?

Not in the inner circle. In the second circle, Deborah Lee was Assistant Secretary for Reserve Affairs, and Nora Slatkin was Assistant Secretary of the Navy.

These weren't people who were in that corpus—

They were all Aspin's circle. Literally, the whole group knew each other beforehand, whether they were working for him when he was Chairman or not. For my first several months, I felt that I had come in in the middle of a conversation, or several of them.

And did that work to his disadvantage in the Department? Were there resentments in the Department about this foreign body coming in and—

Well, I got an earful from Powell. He literally said, "You must come and see me and let's talk." This was even before I was sworn in. He said, "They're only talking to each other. In my view, they're arrogant and they don't know what they're doing, and they're—" in his words—"pissing off everyone in the building." So one might ask who was the foreign body.

I had a couple of advantages at the beginning. First of all, I developed in very short order a good working relationship with Bill Perry, the Deputy Secretary, who is a fabulous human being and a wonderful leader. I had already known Deutch and Powell. Perry, Deutch, Powell, and Reno all came to my swearing in and stood up for me. That was good, sending certain messages to the building. Second of all, the pace of filling positions at DoD was so slow that for most of my tenure, or much of it, there were only the Secretary, the deputy, the Under [Secretary] and me, as confirmed political appointees, and then the odd appointment like the general counsel of the Navy, who was put in there even before there was a Navy Secretary. But we didn't even have Service Secretaries identified, no intents to nominate, by the fall of 1993. All that substrata was missing; there were none of the Service Secretaries' Assistant Secretaries, and very few of the DoD Assistant Secretaries.

The bad news was that I was having to get people confirmed, get them through—this was a big part of my job, to get them out of the White House, get the papers up to the Hill, mobilize teams to get them confirmed—and there were many of them in the pipeline, because DoD has more political appointees than any department except for the Justice Department. There was a lot of work, and then there was a lot of work corralling the people who, like Webb Hubbell, as we just discussed, were in nonofficial status. But of course, the impulse at the beginning of an administration is to make decisions. Secretary Aspin had no patience for these niceties and he would give orders to people like Ash Carter and Mort Halperin, and I would have to say, "I'm sorry, they can't go and execute that order. They can advise, but the actual people in acting capacities have to execute." This was frustrating, because it went on for a very long period of time.

The good news for me was that, because there were no general counsels of the services, there were no Service Secretaries or Assistant Secretaries; all of my relationships were directly with the TJAGs [The Judge Advocates General], the head military lawyers in each of the departments, whom I got to know very well, and their bosses, the Chiefs of each of the military services. Rarely does a general counsel have a very interactive working relationship with the military in the way that I did, of necessity.

I did a couple of things at the outset to try to make sure that I could do my job and that I wasn't just an afterthought in the process—"Oh, we have to get legal sign-off at five o'clock; run down there and get her to sign"—which I was told had sometimes been the case with my predecessor The general counsel sometimes struggles to get involved at a meaningful point in a decision-making process.

I don't know if you've ever met Paul Ignatius, but Paul is the father of a good friend of mine, David Ignatius, who is a columnist. Paul had been Secretary of the Navy, in the Johnson and Nixon administrations. When I got the DoD general counsel job, I called him and asked for his advice. He said, "I have one piece of advice." I said, "What is it?" He said, "The first thing they send you, send it back. I don't care if it's good or bad, reject it."

I didn't quite do that, but I told people, "I will not sign this unless I understand it. And unless you talk to me early and get me involved in conversations early, I won't." Now that was a high-risk move, because you could be viewed as simply obstructionist.

Sure.

But I also thought that our people could deliver value. I had one very strong thing going for me, which is that the career deputies in the general counsel's office were superb. They weren't always appreciated, but substantively they were superb. If you gave them room to fly, they did. So we got the office in the loop in the way that it needed to be, to be effective.

Did you have any specific understanding with Aspin about your portfolio when you came in? You're shaking your head no.

I don't think he had a good idea of how to use me. I don't think he was naturally inclined to think that lawyers can help. I'll give you one example. Around October of '93, he started to put together his Christmas list, as he had every year when he was on the Hill, of people to receive a Kringle. Has anybody ever been to Wisconsin? Kringles is one of the great Wisconsin bakeries and they make a pastry that is about eight or ten inches across, looks delicious, probably weighs about two pounds. It's mostly butter, as far as I can tell. When he was on the Hill, I was told that he would order up two thousand of these and have drivers drive them all over town, and send them all over the country, to his list.

When he put this plan in place as Secretary, people would tell him, "But sir, there is no budget from which one can pay for this now that you are in the executive branch." When the first aide asked about this, I said, "No. This may be appropriate on the Hill, but it's not appropriate here." Then about every day or two, someone else would come to me and say, "The Secretary, as you may know, sends out these Kringles every year and he has asked me to—" and they would present the question as if I'd never heard it before because, of course, they didn't know that I'd heard it before. He was serially asking anyone around him to fix this, and, quite helpfully, they all ultimately came to me.

Finally I said to him, "Look, you've asked me directly and you've asked me indirectly about six different ways, but we cannot do this in the way you did it on the Hill." So we came up with an alternative. We literally wrote out a Christmas card in the shape and color of a Kringle, with a picture of a Kringle on it. You open it up and it said something like, "New rules, no Kringles. Come to Secretary Aspin's holiday party." [laughter] I said, "You can have a party." We sent those out. He thought that was great, so I tried to solve his problems with some humor and with every effort to keep him within the bounds of the law.

I must say, I don't see your legal training helping you. There must be some invention [laughter] in working your way from point A to point B.

Anyway, he didn't know what a general counsel in such a circumstance would do. I was supposed to make sure nothing illegal was done, and after that I think he knew I could help him achieve his goal within the bounds of the law.

But it was mostly just, Oh, that's the lawyers, they're over there—

Lawyering.

Yes, okay.

My main contact with him, actually, was Rudy de Leon, whom I suggested that you speak with, who had been a senior aide, I can't remember what his title was, on the Hill, and who came over as Special Assistant—and you know how the DoD is organized, with the deputy and the Secretary sharing staff—the Special Assistant is a very strong position. And Rudy kindly translated a great deal for me as I was getting started.

A question just slipped my mind. It was about—

Kringles?

Actually, I have a follow-up to the Kringles story.

Seriously?

In part. Earlier you mentioned that you thought some of the ethics rules that the Clinton transition team was coming up with were perhaps a bit excessive. I know you're a lawyer and you're supposed to do what you did over there to make sure the Secretary stayed out of trouble, but were there ever times when you thought that these kinds of regulations were simply too excessive? The fact that the Secretary of Defense can't send a coffeecake to a friend or whatever? Did those things ever bother you?

At various times you would find the rules very annoying, that you couldn't make a phone call without using your own credit card, and that people were policed for very small violations. We spent a great deal of time trying to figure out the proper allocation of costs for installing secure communications equipment into Aspin's home. The government should pay for the installation of that equipment. When that provokes a necessary roof repair, is that his obligation or the government's? Hours and hours were spent on that. But I tried not to fight those battles. I tried to come out with a reasonable set of determinations and get people through whatever the thicket was.

Okay, I'll reclaim my question. You talked about how slow the process was for filling all of these positions in the Department. Who is responsible in the White House for that? Is it the personnel operation that is responsible for doing this?

Yes, I'll share with you my two insights about this. One is that the personnel operation did not have a stable corps. That is not atypical. People would go in with the intention of finding themselves a job and then leave. So the turnover—

This is in the White House?

—in the White House Personnel operation—was horrendous until fairly late in the game, certainly not through the beginning period. Second, there was a lack of decisiveness that emanated from a desire to, in my view, please everyone. So when I persistently asked, "Where are our Service Secretaries?" I would be told, "There's a list of nine people and there are only three slots and they're highly coveted, so until we find ambassadorships or other positions for the other six, we can't announce the three."

That situation persisted until the eve of the public announcement of the Tailhook investigation. I finally called George Stephanopoulos in September of '93 and I said, "This is coming out; we've indicated to you before that it's coming out. If you don't even have an intention to nominate a Navy Secretary when you have to impose discipline at the highest levels of the Navy, you're going to come in for some steep criticism, and people are going to look at the fact that you have not staffed up this Department. I understand your reasons, but they are overwhelmed by our need to have someone." And the intent to nominate John Dalton popped out the next day, just about.

Sure. You mentioned in this instance you're speaking with Stephanopoulos. Is he the person you typically would have talked with?

No, I got to know—We've skipped over gays in the military, chronologically. I know it's not your intention to leave it off the agenda, but I did get to know George in that process. I had not known him before, and I would not normally call him, but when I needed to get someone's attention, I stopped calling the personnel office, I can tell you that.

Bruce Lindsey was the Director of Personnel at this time, or is that not correct?

I don't think so, or if he was, he wasn't the person I dealt with. I almost never talked to Bruce. It is my impression that Bruce was physically present around President Clinton—

Even at this stage?

It's my impression that he spent a great deal of time providing counsel to the President on a wide range of issues. I could be wrong about that. I wasn't all that close to the White House in this initial period. From what I saw, in trying to help run a department, I was not seeing either the decision-making or the efficient movement of materials necessary for a nomination. Papers were constantly getting lost. I brought in a military aide just to track the paper. Her only job was to keep track of nominees' papers.

We're winding back to the gays-in-the-military aspect, but I want to frame it by dealing with the bigger question that the administration seems to confront, and I want to get you to comment on this because there's a perception from outside that there's an enormous amount of tension between the military and this White House, particularly in the person of the President. I want to ask you to confirm that and if you've got any specific evidence that you can report to us about the vibrations that you're picking up once you get into the Defense Department, with respect to their respect, or lack thereof, for Bill Clinton and the White House itself. And if I can refine the question, one specific point, did you get the sense that there may have been, in any way, a lack of urgency in the White House, with respect to the Defense Department, because they didn't consider this a high priority in relation to other things they might be working on?

I didn't feel the latter, but again, I was not in the senior level meetings or conversations and I got to DoD, in that respect, relatively late. The conversations about what the priorities were for the Department were happening in December, January, February, March. And while I was physically there for some part of March, I wasn't there very often and I wasn't in the loop at all until May. Then it took me a long time to get briefed up, so by the time I was really active in June, most of those conversations had all taken place. I can give you the data points I have.

One was this conversation with Powell, which communicated to me that the mode of operation in the front office was exacerbating what was already a level of mistrust between the military and the President, most of which I knew about simply by reading the newspapers. Everyone was very respectful—the military does salute. They're very professional and I never had any experience with anyone in which they appeared to be disdainful of the President, or disdainful of me. So I have to separate out those institutional issues and perspectives from the personal. I felt personally quite welcomed. Some of that might have been just Powell's silent but communicative embrace, which his military colleagues noted, and part of it might have been my own style and the fact that I had been at DoD before. And I did a lot to reach out to my military counterparts.

And we're going to want to hear about that.

I very quickly realized that I did not have what every other Assistant Secretary had, which was a military assistant, and I realized that I needed that "glue." I needed someone who knew the building, who knew the personnel, and who could be my eyes and ears and implementer, allowing me to actually spend time at the policy level and make sure the work of the office got done—and that the two met up. I hired a fellow named Dennis Corrigan, who was a 30-year Army JAG [Judge Advocate General's Corps] veteran. A 30-year career in the Army, and particularly in the JAG Corps, was long. He was a wonderful combination of Army and Irish, very organized and very disciplined and very knowledgeable, and a person to whom people wanted to talk and with whom they wanted to share information, so he had both a formal network and an informal network that were hugely helpful to me.

How did you find him?

Very early on, among the first things I did was to call up the TJAGs from each of the services and ask if I could come see them and meet their colleagues. I went to their offices—as opposed to having them come to me—and I had very good meetings. I asked about what was on their minds. We talked about issues. I asked them to brief me on what they did. Each one of the services has a different division of labor between the civilian lawyers and the military lawyers, so when I realized—when the water was just up under my nose—that I needed help and that other people had the type of help that I didn't have, I put the word out to all the TJAGs. Now, this was also an opportunity for them. Each of the services nominated one person and General [John] Fugh, who was the TJAG of the Army, called me and said, "I have the guy for you." I interviewed all four and picked Dennis.

I was impressed with the military lawyers—both the ones who were in the JAG offices and the ones that were assigned to my office—their intelligence, their dedication. And I think I communicated that.

Let's wind back then to the—

We should, because it colors a lot. One of the reasons I got to know all of these military lawyers was that I was assigned to work through the implementation of "don't ask, don't tell."

How did you inherit that? Was it a part of the portfolio from Day One?

No, the issue was being managed by Secretary Aspin personally, with the White House. He considered this to be a very important part of his job, and he had conversations with the President and his advisors, with Senator [Samuel A., Jr.] Nunn, with Senator [J. Strom, Sr.] Thurmond, with all of the relevant players on the Hill, which I would find out about thereafter in staff meetings. Rudy de Leon held daily staff meetings to which I came, and I would hear about this. About a month or two into my tenure, when Aspin and de Leon felt they were close to a substantive agreement on "Don't ask, don't tell"—which was floated by Nunn and which then became the basis of the policy. I remember being in a staff meeting of Rudy's with a large group of people. Rudy was talking about committing that decision to paper and announcing it.

I said, "Look, whatever you write down here is going to become the underpinning of regulations that are going to affect the military from top to bottom. Let us help." He said, looking at me piercingly, "Someone has to land this plane." The implication being, What makes you think you can land this plane? I said, "This is not an assignment I'm looking for, but I think the lawyers are going to end up with this one way or the other, so if you would like me to try to land this plane, I'm happy to try to do that."

His concern being that the lawyers are going to get in and start messing up their—

He saw any number of moving parts. He had what Aspin thought was agreement with all of these titans, the President of the United States, the Chairman and Ranking Member of the Senate Armed Services Committee, half of the Members on Capitol Hill. You had the President with no support on the Hill for doing what he wanted, none, zero; and you had a huge constituency, the gay community, thinking the President could and would do more. You had the Secretary having conversations but no meeting of the minds around an actual piece of paper, and you had the Secretary interfacing with the Chiefs of Staff of the services. And it looked to me, and I think it looked to Rudy, as if you could have people thinking they were agreeing, when they were not.

I think he was saying, Isn't this really above your pay grade? And in fact, the politics of it were. I didn't know Nunn or Thurmond other than through the fact that I'd gone through the confirmation process, and I didn't know most of the players. So I think it was a pretty apt question, and frankly, everyone I knew told me to stay as far away from it as I could.

Did that include Colin Powell?

I don't recall Powell giving me advice on this. He was desperately worried about this, that this was going to wreck the military, wreck the relationship between the military and the civilians in the Department. There was already a deep breach. I didn't know whether it came from the President's history with the draft, or because he's a Democrat and most people in the military are Republicans—and increasingly so with the all-volunteer Army and the swath of society from which it is recruited. But Chairman Powell was deeply worried about this, as were the individual Chiefs of Staff of the services, most notably the Army.

More the Army than the Navy?

Both services had problems, but the Army had the most. I think that the Army Chief of Staff felt that he would have to resign if the policy did not come out in a way that he felt he could implement. The stakes were pretty high here. You could have had senior military officials resigning, so everyone told me, "Don't do this," and my worry was that I would inherit it later anyway, worse. I couldn't do much about the substance of what was being decided, because that was happening above my pay grade, but I could at least see if there was indeed clarity as to what they thought they were agreeing to.

So somewhere in the June to July period, I was asked, essentially, to translate what the Secretary thought the agreement was into a couple of pages, which were put out ultimately at the end of July, and thereafter, translate those into actual regulations.

So can you walk us through the process?

It's in two parts. The first part is the process of developing that statement or agreement in July, and the second is the implementation. In the first part, I started off writing what I thought the Secretary meant and then giving it to Rudy and then the Secretary for them to have conversations with the others.

Okay. Now, in your drafting of this original document, you're basing this on what you have absorbed from sitting in meetings, or do you sit down with Aspin and you say, "Tell me what this needs to say"?

Ultimately, I could not discern from the conversations what the agreement was. I then had to literally ask, "What do you think you have agreement on?"

Do you ask the Secretary?

The Secretary and de Leon. Then I tried to write it out and get it so that it mirrored at least what they thought. And they were then taking it to the others. But that's where the landing of the plane was running into turbulence, because we weren't getting to a piece of paper. I then said, "Let me take this and literally go around to each of the chiefs of staff, to Nunn's office, to Thurmond's office, to the White House, and see what we can do here." So I did that, except for the White House piece. What Aspin wanted was something that represented the views of the Department and such buy-in as he could get from Capitol Hill. I did that.

It usually started off with a meeting including me and Rudy and the Chief of the service and his TJAG, and then it devolved pretty quickly into the lawyers meeting together. Senator Nunn had Andy Effron, who had been at the Department of Defense, as his chief counsel. He had been my college and law school classmate, so that was a wonderful fortuity. He is now a judge on the Armed Services Court of Appeals. And Arnold Punaro was Senator Nunn's staff Director—I can't remember their precise titles, but they ran the committee staff. We went back and forth and ultimately there was a meeting in the Tank with the Chiefs and Secretary Aspin, to go over this document and get their buy-in.

At some point in this process, Stephanopoulos called and asked, "Can you tell me where you are?" The Rand Corporation had been asked to look at alternative ideas, but that went nowhere because there was no meeting of the minds between what the White House wanted and what the military wanted. The gulf was enormous. I believe that Rudy and I might have gone together to the White House. I'd not met Stephanopoulos before this, and I remember telling him where this process was and he was shocked that the Pentagon was so far away from what the President wanted.

I tried to explain to him that we were simply carrying out what Aspin thought he could get in the way of an agreement. I think George felt that the debate was going to be over whether a homosexual could be overtly affectionate on bases or simply a declared gay person, but that was not where we were. That may be a slight overstatement, and I'm sure you've talked to George about this, but I remember seeing his face when he heard, and I was surprised that he was surprised, because I hadn't had conversations with him. The communication about this had been handled by the Secretary.

Sure.

I remember seeing his face when we told him what the lay of the land was. He said, "Can't you do better than this?" And I said, "If you show me any support on Capitol Hill for where you would like this to be, it might be possible, but all the Democrats are lining up behind Senator Nunn's position, which is what is on this piece of paper."

So we had this ultimate meeting in the Tank. The Chiefs signed up to it. I think the Chiefs signed up to it believing that there would need to be a cultural change within the Department, that they would have their work cut out for them, that it wasn't a radical change, but it was a change. This was announced in July and then we were given the job of turning it into regulations. We had to take these three pages and turn them into a 200-page book of regulations.

Before we move on to that stage, can I ask a couple of questions about the former stage?

Sure.

In your negotiations with the various services, what was the most difficult? Maybe you could tell us who was the most difficult, which service was the most difficult for you to navigate through in this process, and conversely, which person or which service did you find to be most amenable to working with you and the development of this, if that's a fair characterization of any of them.

I think all of them felt that they had very little running room.

How so?

In terms of the pressures within their own services. That's the feeling I got from them, that they would like to solve this problem, they would like the problem to go away. All of them, at the senior levels of the military, knew gay people. Some had gay people on their staffs and they knew it. As you got further and further down into the ranks, because people didn't declare themselves to be gay, people lower down in the ranks didn't think they knew anybody who was gay, and therefore they had no way to put a human face on this.

So I thought that several of the Chiefs would have had a more open policy if they could have written it themselves, but felt literally that they had little running room, as leaders of organizations that were hostile to a change in policy.

So they have their own constituencies?

Huge.

Can you help us understand how that pressure is—

How that is expressed?

—felt? Is it in the officers' club they're talking, or are they getting letters or e-mails?

All of that. I don't really know, but I think it was expressed within the standing military, from the reserve community, from the veterans at the senior ranks who talk about these issues, from the supporters on the Hill where there's a mutually reinforcing mechanism. I don't know the answer to that question. Some of those people would talk to you if you were interested in it, but I know that they felt this pressure in a heartfelt way. Whether they thought the pressure was legitimate or not, I can't tell you.

Do you recall any instances where you felt like you had an understanding on some point and then the constituency got motivated because word was leaking out that—

Several times. For one thing, a number of the military lawyers who were working on this were also active, in their own fashions, in the Family Research Council and other entities that were agitating on this issue. So we were operating largely in a fishbowl. For another, there were people who tried to please multiple constituencies—not always successfully, let's put it that way—people who would participate in discussions with me or with Secretary Aspin and then essentially back away from what they had agreed to. The most striking example of that was this. We had the meeting in the Tank to reach agreement. Hearings were set. I was to testify. Others were to testify. And after I testified, the TJAGs—who had sat behind me at the hearing and, to my knowledge, were not there to be witnesses—were essentially called up and asked their individual views on what we had agreed to, and they departed from the agreement that their bosses had made.

This was after it had been written—

Written, announced, and—

Signed off on.

That is correct. If you look at that hearing, you can see it. And these were people that I had worked with—I had opened up the process completely to them, I had dealt with them in total honesty—trying to be a broker for a situation I didn't like. I didn't like any of this. I remember—and we are jumping ahead some—but riding back from this hearing with Carol DiBattiste, who had grown up in the Air Force but at that point was deputy general counsel of the Navy, and I was fuming because I had felt completely stabbed in the back by people I had trusted. I asked her what she thought and she said she felt the same way. I asked her because this was her world. It wasn't my world.

I went into the River entrance, and instead of going up the stairs to my office, I turned right and went into Chairman Powell's office. I said, "I need to see the Chairman right now." And I went to see the Chairman right then. I don't anger easily, but when I do, I can be very angry, and I was really angry. And he got angry for me and started picking up the phone and calling each of the Chiefs and saying, "We met in the Tank. This administration has come a long way to addressing your concerns, and to have your people depart from that in this setting is unacceptable," which was helpful, but—in the end—too late to undo the damage.

There were times like that and there were times—for example, at one of the meetings that we had in the Tank—where we had reached an agreement on something, I can't recall what, and the Chief of Staff of the Marine Corps called me afterward and said, "I just talked to my TJAG, and he tells me that what I agreed to, I shouldn't have, and I would like you to essentially excuse me from that agreement because I didn't understand what I was agreeing to." I said, "Okay. We need your actual agreement, not one that we happen to have gotten, so send him down here. Let's talk about where there is space between us, and let's work this out." I think he was actually quite appreciative of that, that I was not going to embarrass him in front of either his troops or the Chairman or the Secretary.

Was it the case here or in other instances, where this was an honest misunderstanding about where things stood, or do you think it was a case where he goes back—

And they said, "You agreed to what?" I don't know.

Could be either one.

I didn't know and it actually didn't matter.

Was the White House always consistent in its position? Did you ever have any problem from that end, in terms of—?

I was often in the position of trying to clarify for them where we were after a conversation between the Secretary and the President, or the Secretary and one of the President's advisors. I most often was not in those conversations, so I got the fallout, to use a polite term, of whatever those conversations were.

In your estimation, where were the critical junctures, in terms of White House decision-making, which ultimately resulted in a policy that was far from where they started?

I can't say. I wasn't in those conversations. It was baffling to me how they were proceeding. It didn't seem to me that there was an actual meeting of the minds, when a meeting of the minds was being reported as having been achieved. That's why I said, "Let me try to write this because I think this is a train wreck."

For the most part, the White House was happy to have this—

Off the agenda, until they saw what it was producing.

Yes.

There was a moment—and I can't remember if it was in the first stage or the second stage—when Rudy and I met with Professor Chai Feldblum of Georgetown, representing one of the key advocacy groups for the gay community, to tell them where this was heading. It was clearly an off-the-record meeting, but they then broke the rules and went to the New York Times. The resulting story created a humungous flap because it brought to light—which was their intention—that we weren't where they thought the President should be.

That was one of the times I heard from Stephanopoulos, saying, "What the hell is going on over there?" And I realized that if I was counting on the Secretary to have made those communications, I was making a mistake. So it was a good lesson.

There are a couple of people in the mix, and Tony Lake's name hasn't come up, but is he totally out of the loop on this, to your knowledge?

Secretary Aspin and Tony Lake talked all the time, but I have no idea what they said to each other. I had almost no contact with Tony.

Okay. And [Samuel] Berger, I guess, was his deputy at the time?

Berger was his deputy. I did see Berger a lot, but not on this.

Not on this issue. Nothing from the Chief of Staff, Mack [Thomas] McLarty is doing other things?

I can't remember if Mack was involved in this. The person I remember on this is Stephanopoulos. I don't remember Mack playing a role on this, but perhaps he did.

I want to come back. There are two components, and again, feel free to interrupt and push this. Steve, you want—

Am I correct in understanding that you felt you could not rely on Secretary Aspin's accounts of what had transpired between him and the President?

Let me put it this way, I think he thought he had more agreement than he actually had because when you're speaking about these things, as opposed to looking at a piece of paper, there is an enormous capacity for people to hear what they would like to hear. This is an artifact of his prior experience. If you're the Chairman of the Armed Services Committee, you may drill down every once in a while, but you are operating at a fairly macro level, and you give directions to somebody; that eventually results in a piece of legislation thicker than this book. You reach broad agreement with the counterparty on the committee or on the other side of the aisle and let the staff work it out.

Well, that's fine on how much money you're going to appropriate for F-22s or whether you're going to step up the peacekeeping capability within DoD. It's not so fine on something like this, where the change, literally, of a comma or a word makes all the difference. So it wasn't that he was not honest, it's just—I think he thought he had more agreement than he actually had.

With this President, in particular, we've heard similar stories in other instances where Clinton has a tendency to speak in ways that lead people to believe he's agreeing with them sometimes, when he may not have exactly reached that level of agreement. What I think I'm hearing is another instance of that here.

I never had a conversation with him about this. I was at—Where were we, either National Defense University or Army College?—when he gave his speech on this. I saw him. I might have even said a word to him, or vice versa, but I never had any substantive conversations with him about this.

When you're translating your two-page document into the two-and-a-half-inch-thick regulations, are you doing that in consultation and checking with the Secretaries and the services? Is the White House involved in that at all, or is that pretty much your operation?

This was a huge undertaking. I got lawyers from my office. I borrowed some from the military services—lawyers who were terrific, by the way, including a Navy lawyer who I think took a lot of grief from his colleagues for the head-knocking that he had to do to get to "yes"—but I had populated it with military lawyers, with civilian lawyers, with lawyers from each of the services, with lawyers who were in the personnel area, particularly. And I literally said, "We are going to do this in a completely open and transparent way. There are not going to be any surprises in it for anyone, and everyone is going to have to agree to it in the end. If we don't agree, we will serve up the differences to the Secretary and to the Chairman and to the Chiefs, and that's what we're going to do." And that's what we did. We lawyered it to death, so that there were few, if any, issues left.

I presided at a number of those meetings. I had a very able deputy, Michael Vatis, who had been sent to me by Justice [Ruth Bader] Ginsburg. He worked on it. He was, and is, a very smart lawyer. I had any number of people with deep military experience working on it. I had informal input from Andy Effron, channeling what the Committee's reaction would be—he was deeply steeped in military law himself, was retired Army himself—and others like that. By that time, I had developed pretty good relationships with the House and Senate Armed Services Committee staffs and their lawyers. I got very little input from the White House. They wanted to know how it was going, but I think they wanted two things. They wanted the policy in July, and they had that; and they wanted the implementation of it not to blow up, and they had that.

I did a tremendous amount of personal shuttle diplomacy on the hard issues. I would closet myself with [Michael] Nardotti, who was the TJAG in the Army, for hours, if I had to, to say, "Here are the four issues, and I've got to have agreement with you. I need to know where you are, and if you're not where I think you need to be, I need to talk to your boss." And that's what I did. Coming back to what I said earlier, that was a fantastic experience, in one respect, for a general counsel of the DoD. You never get to spend hours with the Chiefs of Staffs of the services, their lawyers, their personnel people. It just didn't happen, because usually there are intermediaries. And I think they thought I was an honest broker.

Was this also true on the Hill? Do you have any specific recollections of particularly contentious meetings with people on the Hill on this?

One of the subtexts here was a little bit of triumphalism on the right, where they felt that they had pushed back a major initiative of the President and there was an appetite to slam dunk him, not just take the victory, if you will, of paring back considerably what the President had wanted to do, but also to take advantage of the fact that there wasn't a counter voice on the Hill, to show their constituents that they were going to give no quarter to gay people, or to the President, or to Democrats, or whoever their bogeyman was. So there were attempts to make the situation worse, which we had to deal with.

Are you involved with your own congressional liaison staff as you're doing this? Are they going over and escorting you to meetings?

Some. This was more Gorelick, Punaro, Effron, than it was broad-brush congressional relations.

And I will assume that Howard Paster and his operation is completely removed from what you're doing, too?

I can't recall talking to Howard about this, but it's possible he was involved.

But it's not something that was a permanent feature in what you were doing?

No.

Anything else on this? I've gotten the sense that we've talked about the first stage but not the second stage.

The second stage—I think Darby just asked about it—was this boring crunching through drafts and periodic eruptions, or issues that needed to be resolved. I kind of summarized it. I frankly can't remember the details, except I didn't have the use of my conference room for most of the six months.

In the briefing book there was, I guess, the announcement or the unveiling, whatever, almost Christmas of '93—

Christmas Eve.

A couple of bad holiday periods for you.

I'm Jewish, so it didn't bother me particularly making the announcement on Christmas Eve. It took a long time to get the regulations done. The Secretary had said he wanted it done in September. I told him we'd get it done in December. We got it done in December, but just barely.

Do you remember anything about his presentation of this?

Yes, I quite clearly do. Why?

It reads odd to me. Did it sound odd to you as it was being—?

There is a phrase among litigators that will communicate how I felt. It is the feeling you have when you are the so-called "second chair" at a trial, and the first chair is senior to you and may know many things, but may not know some things that he should know. You sit there, desperately trying to control yourself so that you don't pop out of your chair and stand up and contradict the first chair. That's how I felt. He wasn't supposed to speak substantively. I was supposed to do that. He was supposed to make a brief word of introduction. He wasn't prepared for it.' He said several things that were wrong. The remarks were largely undisciplined. And I felt that when I stood up, I, again, had the water right below my nose. So that's how I felt about that. I was not happy. I hadn't known until the day before the announcement that I was to do the press conference, so my performance was not particularly scripted either, but I did know what I was talking about.

Well, who scheduled this if—?

I don't know. It was one of those things that did not come off as well as it should have. I think the Secretary wanted to be in control, but did not take the time to prepare.

This occurs at a time—there are a number of intervening episodes in the fall, which we'll come back to, that make for some difficulties for the Secretary at this point—but I was struck, not even so much on the grounds of substance, but on the grounds of how you want to portray this to your audiences. "The most important thing is that an acrimonious fight in Congress was avoided." That sounds like the kind of thing a committee chair might well say to a group of guys drinking bourbon and branch water, but it's not the kind of thing that you would expect to hear, especially when a President is taking all kinds of blows from his constituency.

Right. That's what Aspin thought, and it was not the right message to convey. I like Les Aspin very much, but I don't think he ever fully made the transition. It's hard. I've watched many people come off of the Hill to take Cabinet positions and there are certain themes that you can see in observing that. He was of a piece with those themes.

Was there any particular fallout from this, the way it was unveiled? Did you get calls from the White House afterward, wondering what was going on?

The only calls I got were, "You did great, thank you very much." I got only pleased calls. I watched Rudy de Leon's reaction. He was pained by the Secretary's conduct. It wasn't horrendous, it just was not what we needed.

Was he somebody you could speak to afterward and say, "Look, Mr. Secretary, there were a few things you didn't say correctly," or "I just want to point something out to you that you misspoke," or—?

In other circumstances I might have. If this were part of a continuing conversation, I might say, "You're going to be talking about this again, therefore you ought to know—" But this was done.

You mentioned your early discussion with Colin Powell when you first arrived, and his assessment of the relationship between the civilian and the military personnel, and Aspin's relationship with the military service personnel, the Pentagon. By December, had you noticed any change in the assessment, either by Powell or by people in the Pentagon, with respect to Aspin's management of the Department?

When was Mogadishu?

October 1993.

Well, they'd had had more exposure to him, and on some very tough issues. I know we'll talk about some of them, Tailhook being one, Mogadishu being another. It's hard to speak about a group of people and characterize their views, but I'll try. They liked him personally, but I don't think that they respected him, and they didn't like many of the people around him. I don't think that abated.

Did you share that opinion, did you find—Powell tells you early on it's an arrogant crowd, they only talk to themselves. You were an outsider of sorts. What was your take, after all was said and done?

Honestly, I made some good friendships among the group. After some initial setbacks, there was a great deal more humility than there had been in the beginning. Thus, it was easier to get my advice heard. It was not a front office with which I felt hugely comfortable, ever, until Bill Perry was there. Just stylistically, Aspin and I were so different. I was used to dealing with a wide variety of clients. In 17 years of litigation you see a wide variety of clients, so I was perfectly capable of adjusting to his style, but it wasn't the easiest, so I did more of my business with Perry and Deutch.

Are you okay to continue? I think they're going to bring us lunch in here in about 45 minutes.

I'm used to sitting in depositions where the challenge is to sit there longer than your opponents, and you're not an opponent.

Not at all, although it is interesting, often with the lawyers one of the first things we have to do is break down the barriers where people's mindset is thinking deposition. Short answers and don't really tell us anything.

I don't think you're having that problem with me.

I want to ask about Sam Nunn, because Sam Nunn is a bit of an enigma to those of us who are watching this process from the outside. You said that you dealt very closely with his staff.

And Senator Nunn as well.

What can you tell us about Nunn and his relationship with the Department in particular and with the administration in general? Tell us some things that will help us understand this evidently contentious relationship that develops with Nunn.

I'm not sure I can, because I came in after the die was cast. So I accepted it as a reality that Senator Nunn thought that the President's approach to gays in the military was wrong. He felt that if the President had turned this issue over to Chairman Powell, with the charge to come up with modest changes, that that would have happened and that it would have been a stepping stone to an evolution that might have taken five or ten years as society changed and as the military, throughout its ranks, got more used to gay people. I think that's what his thinking was, that this was too abrupt and didn't take account of—legitimate or illegitimate—feelings, views, within the military that a Commander in Chief needs to accept and understand. His view was that you can move this large institution that you are charged with leading, but you have to appreciate the givens at the point at which you begin.

Right.

He was disdainful of that lack of understanding on the part of the White House. It had an intellectual component and an emotional component, because of his strong feelings for the military. Apart from that, I don't know what the conversations were. I'm giving you this reading from conversations that I had with him and with Andy Effron, well after the fact.

Did the gays-in-the-military thing carry over and affect relations with Senator Nunn on other defense-related issues, or was it the case that you could sort of compartmentalize this, and on things like budgets or whatever other kinds—

It certainly didn't affect me and my dealings with Senator Nunn. It affected the White House. You could see that they didn't trust him at all and were very resentful of the way in which he jumped into the fray. That you could just pick up from their comments.

Anything else on this? We've probably exhausted that. My assumption is that this is what preoccupied you for the better part of the first months that you were there, or is that a misimpression, are you actively working on a zillion other things?

I was actively working on a zillion other things.

Okay, tell us, what are some of the other big items?

Let me refer to the timeline because I don't have it in my own head. Women in combat was a huge issue. What positions would women be permitted to fill? The women's groups, within the military and outside, wanted more positions opened up so that women could serve in positions that would permit them to advance. And you had a lot of resistance within the military, and concern about whether they could ever send women into positions where they would be in harm's way, and what that would do their flexibility, frankly, and their ability to act. I was completely immersed in that because it came down to a definition of combat. There, interestingly, I found the strongest proponents for women having greater opportunities in the military were the senior military men who were parents of daughters who wanted to serve, or even of daughters who didn't want to serve, but just daughters for whom they wanted opportunities. These were fierce feminists in uniform. It was a pleasure to see.

Tailhook becomes public in September, I believe, or it could have been October, but it had been pending for this entire time and there are recommendations coming up, and that took a lot of my time.

Is that something that has an internal chief, somebody—

That was one of the consequences, as I said earlier, of not having a Secretary of the Navy, because that's who, in the first instance, is supposed to run something like this. The response was rudderless and very problematic and corrosive because there was this vulnerability from the bottom to the top of the Navy, which wasn't being acted upon.

At the very outset of the administration—I'm not sure I have the timing right—Bill Perry and John Deutch looked at what would happen, with the shrinking military budgets, to the industrial base. The deputy ran an evening meeting at five o'clock every day, to address what had happened that day and what needed to be happening the next day. At one of them, Dr. Perry came in with a chart. The chart showed each element of military procurement in gross, how many suppliers there were, and how many suppliers we would be able to support. You could see that we would be going from eight suppliers to three; four to two; three to one. Now, we were not picking which ones would survive, but there would be a very substantial downsizing to implement the Bush 41 budgets, and what were likely to be the budgets for the Pentagon in the Clinton administration. This was tied up in the Bottom-Up Review.

I looked at that and went back to my office and asked my deputies, "How does the Defense Department play in the discussion when there is a consolidation, or when there is a proposed merger?" "What is our role in the antitrust review?" The lay of the land that I was given was, "We have no role. It would involve the Defense Department in making industrial policy if we were to involve ourselves in these discussions. This is a matter for the Antitrust Division at the Justice Department and for the Federal Trade Commission. We don't do anything. Occasionally, when there are proceedings and witnesses are called, the companies involved call individual witnesses in procurement or the military customer, so we are simply reactive. But to do otherwise makes us vulnerable to the charge that we're engaging in social engineering." I had done a fair amount of antitrust work in private practice and my framework was that the customer has a very important role to play, opining to the regulators on the effects on the customer of a potential merger. Here, we are the customer. How could we not have an organized point of view and organized input?

I asked for a meeting with Deutch and Perry, and I said, "If this chart is right, there will be massive change, but currently this Department is neutered in its capacity to have a meaningful role in this downsizing. And while we don't want to be picking winners and losers, we can't have the current organizational structure or posture. I would like to set up a task force, headed by Bob Pitofsky"—who was then in private practice, but who had been a leading light at the Federal Trade Commission, and who was one of the leading antitrust lawyers of the time, and ultimately became head of the Federal Trade Commission—"and I would like to have industry representatives. I would like to have representatives of consumer groups. I would like to have economists. And we can come to some understanding of what we should do." Perry thought that was great. Deutch saw some of the political risks, with which he helped me, but I got sign-off to do it and we did it. Today those procedures are in effect, and the Department would have been very ill-served had that process not been put in place.

So I stood up this task force and I stood up another one on the myriad of investigative resources in the Department, all the IGs [Inspectors General], who does what, what is the division of labor, are we adequately resourced? I asked Chuck Ruff, who later became White House counsel, to head that. I put together staffs for each of these. So those were two big initiatives.

I didn't have much to do with Somalia or the aftermath. I did have to get all of the nominees through. And it wasn't just Mort Halperin; it was every one of them, and there were several. We had created Assistant Secretary positions where there had been none, and borrowed to find slots for all these people, and there were many of them. You have Halperin on your timeline, but we had to get Ash Carter confirmed, and Graham Allison and several others. I spent a great deal of time on that.

I spent a huge amount of time on Haiti, because one of the key challenges was, of course, helping to support the rule of law there. That's where I got to meet and work closely with [Wesley K., Sr.] Wes Clark, who as I recall ran that effort.

Before we get too far down that, let me ask you—

I'm trying to list—

Exactly. Let me stop and probe on the appointments. Again, your role in this was not congressional, or was it? Maybe by this time you—

My role wasn't congressional so much as shepherding the process from start to finish. You could call on the congressional people to do the congressional piece, but it was getting the nomination out of the White House, getting the papers filled out, and the ethics issues addressed, and the papers to the Hill, and the Q&As done, and the briefing schedules, and making sure the people were not acting out of bounds, and all of that.

Okay. And the Halperin case, in particular, I'm sure shows up in the timeline—

It does.

—because that's where there was press attention, any time you got one that wasn't working.

Right.

What are some of your recollections about that? How early were the warning signals that there may have been some problems?

Well, Halperin was—maybe "reviled" is too strong a word—but he was not liked by conservatives. He was viewed by them as an inappropriate interloper, really, at Defense. And while I like him a lot, I thought it was a very odd selection myself.

For political reasons it was odd?

If you looked at the work that needed to be done within the Department, and you looked at whom Aspin wanted to have around him, there was an odd matchup of tasks to personnel in general, in my view. I didn't understand why we needed so many people. I thought that some of the criticisms of the array were right. They were tripping over each other, there were so many of them. I tried my best to help Mort, although I had much less to do with this than it appears from the two clippings.

I was in charge of getting documents over to the Committee, and the documents were delayed in getting over, although the Committee got what it needed. Compared to today, and the hassles and disagreements over document production relating to nominees, this should seem like an easy process. I never said this publicly, but I was blocked from transmitting these documents by the Secretary, and I had to fight internally to get them loose. Now, I took the blame for it, but it actually wasn't me. After this, I circled back with all of the people who had been critical to explain.

The Secretary did this for what purpose?

I can't remember the details. There were documents that the Republicans wanted that the Secretary thought were out of bounds. And there were debates among himself and de Leon and the congressional people. I was the transmitter and I argued, "We've got to get this up or his nomination is going to be blocked." I have only a very dim recollection, but my best recollection is that I thought that while some of the positions that the Republicans were taking, in seeking information, were unfair, we had made the best accommodations we could and put in place the best protections we could, and we ought to let it go. You'd think from that [John] McCain quote that this would have been a big problem for me, but I never had any fallout from this. I spent a lot of time on the Hill. I dealt with McCain on both the '96 Olympics and the run-up to 2000 Olympics. I never had any issue with him. I hope these clippings are a distortion of his views of me. In the end—

This is very helpful to have this on the record, because again, somebody coming at this 20 or 30 years down the road would look at that and—I don't know what they would make of it, but it wouldn't be good.

I had to do a press conference afterward—there were statements like that being made publicly about how we hadn't cooperated, and I literally held in my hands the book of documents that we had delivered to every Member. I showed the press what we had produced and I showed them the request. I showed them the response. It was completely, in the end, quite transparent, and that's what I did. The story died.

Can you return to Haiti and tell us a bit about your role in Haiti?

Exactly, I'd like to get that fleshed out.

When is the invasion?

The [United States Ship] Harlan County is in October, mid to late October.

I remember a huge planning session for the invasion, I think, at NDU [National Defense University].

September of '94 is when the dictators leave and [Jean-Bertrand] Aristide is restored.

Okay. I'm going to tell you what the memory is and you can figure out the dates. How about that?

That's the way to proceed, exactly.

Here is the sum total of my Haiti recollections. Number one, I was enlisted to try to assist the military in determining what resources would be available, military, civilian, in DoD and DoJ and elsewhere, for standing up a police force and helping create the rule of law in Haiti. And I had created a group within DoD to do that. We tried to be of help. After the invasion, I went down to Haiti with the CINC [combatant commander in chief].

But I flew down on his plane with a group of people to see how we were organized, how we were relating to what was left of the court system, what our resources were for training up police. Quite an interesting visit to a teeming and disorganized Haiti at that point.

My other Haiti role was when I was at Justice and people were taking to their boats. Clearly it was much more involved, and I was at the Sit Room every other day on this. We can get to that.

Okay. Aspin's departure: are you still at Defense when this happens?

Oh, yes.

Can you tell us about your recollections of that? When it came down, how you found out the news, sort of what happened in the immediate aftermath?

I don't recall how I found out the news. I do recall that there was a lot of buzz, and again, Rudy de Leon was my principal source of information. There was a great deal of buzz that this was going to happen and then it happened. I wasn't involved in any of the discussions about this, but I was asked if I would be available to help shepherd the nomination of the successor. I put together a little team. I met with [Bobby Ray] Inman. I worked with Inman, and then he had a problem that caused him to pull out.

The first person was Inman, is there anything you want to say about Inman's failure?

No, other than that there were issues, and those are for him to discuss if he wishes.

Okay.

One of the things I didn't talk about, and I can't believe I forgot to talk about this, is that I did vetting for the Cabinet in the transition and at the outset of the administration.

I didn't know this.

Yes, and that was another very significant involvement with the senior leadership of the White House on the transition.

In the transition were you working directly with Christopher on this, or—

Christopher essentially delegated the establishment of teams to Jim Hamilton, and Jim Hamilton set up four or five teams, maybe more, to vet, and I got Ron Brown. I think Jim gave me the hard one, because Ron's business interests and other issues were so broad, and Brown was a favorite of the then President-elect and was very desirous of coming in. I had a fair amount of experience, even by that time, vetting nominees, and have continued to do that even today. What brought it to mind was Inman, because I had no role in vetting him and watching that unfold was another lesson for me in what happens if you don't do the vetting right.

Who was responsible for the vetting in this instance?

I don't know.

This would have been somebody in White House Personnel by this point?

White House Personnel or the counsel's office.

Can I ask a question about the final months of Aspin's tenure? We referred briefly to Somalia a few minutes ago. Did you have the impression that that was kind of the last straw for the military folks? Did the whole mood and the tenor at the Pentagon change after that event, that you noticed?

Well, because in its immediate aftermath blame was being apportioned, and because Secretary Aspin felt that he had granted every request that Chairman Powell had made, there was a considerable amount of back-and-forth, both within the building and on the Hill, about who did what. And there, Chairman Powell's credibility and superior level of connection to the important voices on the Hill, combined with Secretary Aspin's image, disabled him from making his case.

So was it your impression that Powell—For instance, one of the major criticisms of Aspin on Somalia was not getting the heavy equipment, the heavy armor, to the forces there. Is it your impression that that was actually Powell's failure?

I don't know the facts myself. I know that that is what Aspin said internally, and I believe, externally. I'm sure there's a case study to be written about both what happened there and the aftermath of what happened, but I remember him saying that. I was not involved in this at all, so it was just what I heard.

Did you hear these rumors at the time that there was some questioning of Powell's loyalty to a Democratic administration, having come up primarily through Republican ranks, that this was not a person you could count on in the crunch? Did you ever hear that? If so, did you put any credence—?

I heard both things. I heard that, and I heard that he is much admired. In fact, there was an exercise, right before he retired, to see if we could give him his fifth star. So there was a level, I'd say a very high level, of ambivalence about Colin Powell.

Since Powell's name has come back up, I want to ask you one more question on the gays-in-the-military issue, because one of the ways that was debated was on the civil rights dimension, especially on matters like unit cohesion, the claims that the arguments were—

A veil.

Practically the same during the earlier civil rights era. Did you ever have occasion to talk about this analogy with Powell? Was he—? There were some African Americans who were offended by—

Only obliquely. Powell felt, I think—as did Nunn, as I've described Nunn's view—that if he had had the ability to work this issue, that he could have and would have made progress. He has gay friends, and it can't have pleased him to have to publicly debate this in the way that he did. But I think he felt that in preempting debate and discussion, and simply announcing what the President would do with the flick of his pen, the President-elect had put him, Powell, in an untenable position and then the die was cast.

Sure.

That also, in some respects, took him off the hook, in that he was then free to say, "I couldn't do anything more than that." And whatever progress he could conceivably have made, had there not been such an announcement, would indeed have been incremental. It's an unknown. We don't know what could have happened without this precipitating event.

But your commentary is helpful for us to understand Powell's own motivations. There's a difference between someone who is committed to an ultimate end and believes that the practicalities have been muddled by missteps, and a person who doesn't believe in the ultimate end, and is using the interim practicalities as a smoke screen for—

Well, if you think about it, the term "unit cohesion" and its concept assumes a fact on the ground, which fact on the ground could change. So if your desire is to maintain the cohesion of military units and then society changes—as it has changed remarkably in the last decade, in terms of its acceptance, generally, of the freedom to be gay, and publicly so—then you could imagine getting to a point where the facts on the ground had changed. So I don't think he ever said, or would say, "There's no place for gays in the military." He was simply saying, "We need to recognize a fact, which is that there is tremendous anxiety or hostility right now, and we need to deal with that."

Now, his critics would say, "Unit cohesion is simply a veil for prejudice, which we should not countenance." His response to that, I think, would have been, "I don't know what it is, if it is legitimate or illegitimate, I just know it's there and I've got to be a leader of a million and a half people who have to work together well, and I've got to address that reality on the ground."

With your permission, there are just a couple more things on the Defense end, and then we can break for lunch and move on. I don't know that I've got any more questions, other than just that Perry gets nominated when you're still there.

I had something to do with that. This, in many ways, was the first time anybody at the White House ever asked me my advice, [laughter] because there was a fairly long list of alternatives to Inman. And Bill Perry—We all know how wonderful Bill Perry is, but he did not project the image that Clinton initially thought he was looking for, because Perry is professorial. I can't recall exactly who called, but what people in the White House wanted to know was, will he be good, will he be strong, will he be well regarded, will the Department be cohesive under him? My answers were unhesitatingly yes. And while I don't think I played a huge role, I was a very strong advocate for Bill Perry with the people I knew in the White House. And I worked to answer their questions, worked on the nomination itself, worked on the confirmation. As you can tell just from my tone of voice, I'm a deep Perry loyalist and fan.

And you were correct on all these predictions?

I think so.

There was no significant fallout in the Department over this nomination?

No, I think Perry was very well liked, and I know you're writing history here but—

You're writing history.

I think if the senior military leaders in the Department today could have Bill Perry back, he would be back tomorrow. He's well loved. I once had a conversation with David Jeremiah, who was, for part of Powell's tenure, the Vice Chairman of the Joint Chiefs. He and I were working on a CIA [Central Intelligence Agency] project together. I can't recall what the event was, but he was complaining about Secretary [Donald] Rumsfeld and reciting how angry the senior military leadership, almost as a whole, was about their dealings with the Secretary.

I said something like, "Well, I don't hang out in the same crowds you do, but my impression is that the view of the senior military leadership of Secretary Rumsfeld is different from their view of Secretary Perry." He responded immediately, "Perry is a god." Those were his words, which astonished me, because I knew Bill Perry was well regarded, but I think there is both affection and respect for him in the Department.

Any unexpected shoals that you had to navigate in working that confirmation process?

Not that I recall. He was substantively very able. There was no briefing or teaching needed. We did a murder board for him where he was spectacular.

The only other issue that we haven't talked about that took up a lot of my time was the C-17. And I'll mention that this was a huge program that was completely stalled because of a disagreement between the company—at that time McDonnell Douglas—and the Pentagon. John Deutch undertook to meet with the company at its highest levels and restructure the program. He ran interference for the resolution with Capitol Hill and made it happen. He had some great ideas about how to do this, which I restructured and as to which I offered solutions. We formed a partnership in doing this. He led it completely, but I think his view was that together we were able to make a pretty good team and solve a problem. And the C-17 is up and flying and a critical part of our military structure today.

Sure.

Then there was just the daily business of the Department. It is huge. It has the largest health care system, the largest education system, the largest environmental issues, the largest of almost any subject you can imagine. The mere "day-to-day" there is a very substantial undertaking, so I didn't spend the bulk of my time on anything. I was spread across the Department on many issues and tried to keep issues moving, by empowering people, by keeping task forces—on gays in the military, or consolidation, or the other issues—going, as we dealt with the day-to-day business.

I should ask, in that regard, whether there were any liaison responsibilities that you had, with either the intelligence community or the State Department, on a regular basis as part of your portfolio.

We had regular fisticuffs with the State Department because it was poor and we were rich, and it wanted to do things very differently than its predecessors had done, and always looked to our budget. I was frequently sent to both protect the equities of the Department and try to figure out a way to allow the administration to do what it felt that it needed to do. So I spent a great deal of time on that.

In terms of the intelligence community, we owned 80 percent of the budget. We had joint authority for the NRO [National Reconnaissance Office], which owns and launches the satellites. It had CIA authorities and DoD authorities, so I was constantly trying to determine which legal hat the NRO should be wearing. All foreign intelligence surveillance wiretaps that were done through the NSA [National Security Agency] had to be signed off on by the Deputy Secretary, and I was the principal point of contact on the legal issues relating to the wiretaps of U.S. persons abroad. There were any number of other ways in which I interacted with the intelligence community, not the least of which was a task force on security standards. DISA [Defense Information Systems Agency], the industrial security program, reported to me. The general counsels of the nine or ten defense agencies reported to me. That took up a fair amount of my time, including the intelligence piece.

Did the antiterrorism piece show up at all at this stage of your career, or is that only—

To a certain extent. I went with Bill Perry, at the behest of SO/LIC (Special Operations and Low Intensity Conflict), down to Fort Bragg to review our Special Forces and Special Operations capabilities. I was very much impressed with them, as was he. They were historically shut out by the more traditional military services, so I spent some time being briefed on our counterterrorism capabilities. I did everything I could to be hands-on. As we were flying down to Fort Bragg, we got briefed on the paratrooper capabilities of our Special Forces personnel. Then they put on their gear and opened up the back of the plane and jumped out—a little bit of theatrics for us!

You didn't go with them?

No. I did fly a mock night bombing run in a military attack helicopter with a 20-year-old pilot. I wore night-vision goggles and tried shooting 50-gallon-drum targets.

I also went to the shooting range; I shot the full range of rifles, pistols, on up. I have a pretty good sense of, and was very admiring of, our Special Forces capabilities and the way that they interacted with other elements of our government, for example, in the counternarcotics area. I flew out to an aircraft carrier to see for myself what it was like and to observe a trial at sea. I went out to the Air Force Academy and went soaring above the Rockies and experienced the training that our pilots, our young cadets, get. I tried to get my hands dirty and understand the business of the enterprise that I was advising. Those are just examples.

Maybe we ought to break now, and if someone thinks of something we missed, we'll come back.

[BREAK]

Have we omitted anything that we should talk about on the Defense portion? Obviously, we can't do everything.

I don't think so, there may be things that I'll remember later.

We'll come back to that, but I want to be clear about the time—we were told we could go into the evening and we'd get this done if we made the time.

What we need to do is take a break midafternoon and let me assess where we are, and let's make the decision then.

That sounds fine, I just wanted to make sure I was pacing things right. We're never in a situation, again, where we can cover all of the entire universe of possibility because time is a finite resource, but I want to budget the time as best I can.

Let's talk about when you were first approached about going to the Justice Department, unless I'm missing something—

Right before Phil Heymann resigned, which on your timeline is January 28, 1994, I saw the Attorney General at an event of some sort and I told her that what I was hearing from various people at the Justice Department was that things were fairly disorganized, and I hoped she knew that that's how the troops were perceiving her administration. She said, "Just sit tight." Then a couple days later, Phil resigned. Shortly thereafter, she called and said, "Would you mind if I put your name in for consideration as deputy, at the White House?" I said, "I really love my job. I love working for Bill Perry. I'm just getting my sea legs and I don't want to be 'in play.' On the other hand, certainly I would want to be considered, but with those concerns in mind." I called Bernie Nussbaum, then White House counsel, and I essentially told him the same thing.

Then I called Phil, who had taught at Harvard Law School when I was there, and I knew him fairly well. I said, "Janet Reno has called me. Is this something that I should want to do?" And he said something like, "Why would you ever want this job?" I asked him what he meant and he said, "She doesn't want someone to be a policy maker; she just wants a manager. That's boring and nonsubstantive." So I needed to understand what that meant and think about it, which I did.

In your conversations with Phil, did he talk about his own frustrations in that position?

Yes, he basically said that she wanted to make all the decisions, that she wasn't cognizant of how much work had to go into them, and that the Department as it was structured made it impossible both to manage and to participate in policy formation.

Okay, so how long was it—unfair question because these things often are lost to memory, but fairly soon after that, you're approached again?

I don't think it took all that long. Let's see, I was named on the 23rd of February and Phil resigned on the 28th of January, so it took about a month. I didn't like being up in the air. Dr. Perry was not thrilled. He'd just been sworn in and we had a very good working relationship. I had my hesitations. In fact, I remember a conversation with Dennis Corrigan, my military assistant, in which I said, "I don't really know what to do." He said, "Look, you can't be serious about breaking the glass ceiling and all that if you don't take a challenge like this, even though I can see how much you love the job you have." I said, "I can't believe I'm needing this advice from a white, Catholic, Republican, Army guy." [laughter] He said, "Yes, I can't be more of a feminist than you here."

Was it the case then that, notwithstanding Phil's concerns, you decided to take the job, or that—

There were many people I knew at the Justice Department and around the Justice Department who had observations about Attorney General Reno's management style, what the problems were, what Phil was doing, what he wasn't doing, how his staff was structured. So I thought hard about it and came to her with a complete list of all the things that had to happen if she wanted the problems fixed and if she wanted me to do it. They ranged: I wanted the entire Department, with the exception of the Office of Intelligence Policy Review, to report to me, and to her through me. I wanted a unified staff that would serve both of us, but which would be organized and essentially run by me. I said she would make all the important policy decisions, but I would have responsibility for making sure that they were fully vetted and that all the voices were heard beforehand. I had drafted memo formats for decisions and for information for the entire Department that mimicked, essentially, what we did at DoD.

I listed things like that that I wanted. And I wanted to switch out those on Phil's staff that I didn't feel suited our needs. There were other things like that. She agreed to all of them. I met with her and Webb Hubbell and laid that out.

What were some of the other things that you were hearing from the other actors about her management style at this time?

First of all, she was focused externally. She was out a lot and felt that that was very important. And I actually thought she was doing a great job of that. Second, she communicated a huge openness to people and, as a consequence, got a deluge of incoming ideas and communications and did not have the systems in place to deal with the deluge, so she made long lists. In fact, she gave me a notebook, about this size, so an inch and a half, of things that people in the Department were supposed to do, organized by topic. It was called the "Get-Back List" as in, "We need to get back to someone on this." It was just a list, and it was hundreds and hundreds of items that were not being tracked other than by her. Now that worked for her in Dade County—but barely in Dade County, because even as a management system in a smaller office it has its limits. It worked not at all at the Justice Department.

Also, the DAG [Deputy Attorney General]'s conference room table, when I got there—and the conference room table in the deputy's office is roughly three times this size—was filled with green folders of decisions waiting to be made, just piling up. And many of them were not ready for prime time.

But she wanted to be a success, and she wanted only two things: she wanted to be able to do the things she wanted to do, many of which were external; and she wanted to make the key policy decisions in the Department. I thought that there was plenty of room in that structure for input into policy by me. Because first, when you bring people together and have all the voices heard, some issues go away, if you actually join an issue. Second, for the others, you get to serve them up and say, "Here are the alternatives." You structure them, and say, "Here's what I think," so that's what we did.

It was reported that as she had originally designed things, she preferred not to have a chief of staff or a strong staff person. Is that correct?

She did not want to have a gatekeeper because several of her predecessors had been criticized internally within the Department for being inaccessible. Also, it wasn't her personal style.

Ron Klain came in and played counselor and political advisor. How did that come about and what specifically was his role?

I know it has been reported that I made that a condition. I didn't make it a condition, but I said I thought it would be useful, if we were going to have this unified staff, to have someone in her office who helped give some priority to her time and would keep the trains running on time when she was out, in terms of interfacing with her. I also felt that the political and public affairs capability was not what it needed to be.

I think the White House suggested Ron. It may be that she or somebody said, "What about Ron?" to which my response would have been, "Great." I don't remember affirmatively pushing him, but it's possible. I'd known Ron for a long time and he's very able.

You'd both teamed up together in her—

In the confirmation, but I had known him since he was chief counsel of the Senate Judiciary Committee. And, as I mentioned earlier, I had had a fair amount of interaction with him when he worked for Senator Biden. I had represented Senator Biden in the inquiry following the Anita Hill testimony.

Phil had been hired by Reno? Or is he one of the people who had been pre-positioned?

I don't think he was pre-positioned. I think that her first choice, or the White House's first choice, was Chuck Ruff. When he ended up with a tax issue, he suggested Phil.

So you didn't have any problems with the Attorney General accepting the conditions that you set forth?

"Conditions" makes it sound a little contractual. That is not quite right. I said, "If you want to achieve what you say you want to achieve, these are the things that are going to need to be done and I would be happy to do them." I never said, "I won't come if you don't," because we never got to that. She just said, "Look, it's not working the way it is. I trust your judgment. What you say seems to make sense. It's interesting to me that the DoD doesn't work the way I'm working over here, and that it does function, in your view, and I like the fact that you bring that experience. Plus I am seeing a lot of interactions with the national security community go awry and you would bring knowledge of that community." Recall that we had worked together on her confirmation.

Steve, anything on this?

No.

Okay. So you accept the nomination.

Yes.

Then you've got to go through a confirmation. Any big hang-ups there?

No. Well, there was one. I had good relationship with Senator Biden and I had a good relationship with Senator Hatch. The only hang-up was that Senator [Charles] Grassley—who was very supportive of the False Claims Act, and particularly the qui tam provisions, which allow a whistleblower to sue in the name of the government—felt that, because of my prior representation of defense contractors, my service at DoD, and the fact that I had taken a meeting with people from the American Bar Association and the defense industry who were considering changes in the qui tam laws, I was essentially being dispatched to the Justice Department with the mission of undermining this law that he is still, to this day, very supportive of.

So it took some effort on my part, but I convinced him that I had no brief on this, that I had not, in fact, represented companies against qui tam plaintiffs. That issue went away, so I had a reasonably quick confirmation process and I was confirmed in near record time, about three weeks.

Shortly after you're confirmed, Hubbell resigns. Can you walk us through what that experience was like and the fallout, the effect that had for the Department of Justice?

I had asked the Attorney General about him because there were elements of this issue in the public domain before he resigned. She said, "He's assured me personally that there is nothing to this, and I have personally vouched for him." So she was in shock. He was quite well liked, even well loved, within the Department. There were many people, career people and political appointees, who were in tears over this.

How do you explain that? What was the nature of this great affection that had developed for him over time?

Well, he'd only been there a year, so that affection developed rather quickly. I think I mentioned my impressions when I first met him. He's a soft-spoken, albeit large, person and he has natural leadership qualities in a self-effacing way. I think people felt that he did appreciate the best values, historically, of the Department, and that he was glue when Reno was out and Phil was in policy debates that they didn't know about. I think they felt both sad for Webb and sad for the Department, and a little betrayed.

Part of the reason I raise the question, it strikes me that there are some circumstances where a person who is very close to the White House is put out into a department and there is some natural anxiety that that person is there basically to do the President's bidding or to keep a watch over the flock. You never got the impression that Hubbell suffered—?

I think people saw his decision-making up close and thought it was on the merits. I barely overlapped with him, so I can't tell you that I saw any of this. I'm just telling you what I heard, after the fact.

Or before the fact—

Both.

—because you'd done an awful lot of homework, as you've already indicated, talking to people about what the problems were likely to be that you were inheriting. We're not governed by legal rules of evidence here, we're interested in knowing what you're hearing, as well as—

That's what I'd heard. I am wanting to distinguish between what I saw for myself and what I'd heard from other people.

Can you talk about any organizational changes that were made to the DoJ on your arrival? You mentioned bringing the line of authority through the deputy office before going to the Attorney General for—

Everything.

All departments. How was that responded to by the litigating divisions and other divisions? Did they welcome that change?

Let me answer that two ways. The Department had been variously organized at the top over time, so there was no one who could say, "We don't do that here." Second, these changes were roughly coincident with Hubbell's departure, so in the first instance he accepted this and agreed to it, and in the second instance he was gone.

So you didn't have an associate in place that you were having to change a relationship with.

Right. And finally, there was a deep hunger, which I had identified from the homework I had done, for orderliness, for decision-making. It was demoralizing to people not to be able to get decisions. So, to a certain extent, there was a sigh of relief and a wait-and-see approach to see whether this was just a big power grab or whether it was a set of changes designed to actually make a difference.

But people were willing to trade off the open door for a more efficient operation.

It wasn't really a trade-off. While there had been a hypothetical open door to the Attorney General, there are only so many hours in the day. It's not as if she saw 10,000 people a day before and after she saw four. She saw the same number of people, but she saw them in the order of priority for the decisions that needed to be made. She was not ever walled off from people, ever. She wouldn't have stood for it for a minute. And she wanted to hear from that line attorney who was making a proposal. She wanted that person in the room and she got that person in the room.

Apart from the organizational structure and the management chaos, were there any other challenges you faced on your arrival, that you perceived?

Well, there were lots. All of those folders contained hot issues, so it was what to do with the post-BCCI [Bank of Credit and Commerce International] and BNL [Banca Nationale del Lavoro] reports on the relationship between the CIA and the FBI [Federal Bureau of Investigation]; there were judges to be nominated; there was, right off the bat, a Supreme Court nominee; there were the rules about contacts with represented parties; there were the sentencing guidelines. There were many, many issues already sitting there. Even if you'd started with a clean desk, the pace at which information and requests and decisions came to the Attorney General was blistering.

If you look at the organizational structure of the Defense Department, it is exceedingly hierarchical. The deputy has, at any one time, two to four Under Secretaries reporting to him, and then the military departments. The deputy at the Justice Department has oversight of 94 U.S. attorneys and 32 operating components, and no intervening grown-up, except for the civil litigating divisions that report through the associate. We made some changes there, which shifted some responsibilities to the associate so that he could take some of the load off.

If you look at the Treasury Department—which had, at the time, the Secret Service, ATF [Bureau of Alcohol, Tobacco and Firearms], and Customs—it had an Assistant Secretary for Law Enforcement and an Under Secretary for Law Enforcement between them and the Deputy Secretary of the Treasury. The Deputy Attorney General had the FBI, the DEA [Drug Enforcement Agency], the Marshals Service, and the Bureau of Prisons, with nobody between them and the Deputy. So the pace was blistering.

Do you have more organizational questions you want to pose?

No, that's okay.

I guess there's a raft of these issue areas that we can delve into and ask you questions—

Go right ahead.

One of which is, you mentioned a Supreme Court nominee coming up. It is not clear to me what role you would have in that process. I thought normally that was pretty much handled out of the White House.

The Supreme Court nominees were pretty much handled out of the White House, although the White House counsel's office looked to the Office of Legal Policy at Justice for help. For all nominees, we did all of the vetting, all of the legwork. For Supreme Court nominees, the White House counsel's office controlled the decision-making process, but we did much of the supporting work. For the other judges, of the courts of appeal and district courts, we did a lot more of the—not so much decision-making—winnowing of lists, pros and cons, vetting with folks on the Hill, negotiating over who would be the nominee, obviously, with a lot of participation and decision-making by the White House counsel's office, but a very significant role for the Justice Department as well.

Do you want to talk about, generally, judicial selection issues now, while we're on it?

Sure, go ahead.

As deputy, were you on the Judicial Selection Committee that had members from Justice, or was that Eldie [Eleanor Dean] Acheson?

Yes, that was at her level.

Do you have any recollections during your time there of any disagreements of real substance with the White House, in staffing the federal judiciary?

Well, the thematics, certainly, were that the President very much wanted to have centrists, and many of the interest groups and elements of the party to the left of the President wanted much more of an activist cast to the nominees. That was a constant source of tension and battle within the administration. But it was clear to me that, with a few exceptions, most of them at the very outset of the administration, this President was not going to nominate someone whose outlook was not consistent with his very centrist point of view.

Did you have, as deputy, or do you have, any observations of Justice's role in congressional negotiations with respect to the confirmation hearings?

It depended on the level. I mostly got involved when someone needed to see Senator Hatch. We vetted everything with him—not to say that we wouldn't send up a nomination that he disagreed with, but the President really wanted to pick his fights and thus needed to know where Senator Hatch was. We needed to know where there might be a fight.

This is after '94?

This is before and after. I don't remember a change in this. I could be wrong about this, but it is my view that this was throughout. I recall that very early on in my tenure at Justice.

I was sent as a keynote speaker to one of the interest group events, and in the question-and-answer period, the very first question was, "What good does it do us for to have elected a Democrat if your nominees are fungible with those that would have come out of the Bush administration?" to which I responded, "You can't be serious. Our nominees would not have come out of the Bush administration." And I went through some wonderful nominees whom we had sent up. I remember this point of view from the beginning.

My understanding of the mode of operation was that Eldie and her people, or the White House counsel's office, depending on the division of labor, did vet each of our nominees with the relevant Members of Congress or the leadership of the state delegation and the leadership of the Judiciary Committee. Of course, it's complicated in each state. And I did some of that myself.

So it's fair to say that the counsel's office and the Office of Legal Policy were pretty much on the same page when it came to their ideological preferences for judicial selection.

I think so. Obviously, the White House counsel's office also had to deal with the various political constituencies, which might have led to a selection of someone who wouldn't be OLP's first choice. If the Italian American dinner were coming up, the Italian American on a list might be a more likely candidate to come out of the White House this particular week. Now, there were very few occasions, but there were some, when Eldie would come to me and say, "There's a big move afoot to put So-and-So on the bench, and we just don't think he's qualified," or, "We don't think [a particular nominee] will fly." I had weekly meetings with the White House counsel's office, and not infrequently on my list was the status of decision-making on a judge, where Eldie really wanted me to emphasize what I thought were downsides or upsides of particular people. And I did. I didn't keep track of who was up and who was down and what was pending. She did all that.

You mentioned you had weekly meetings with the counsel's office. Apart from judicial selection, were there other matters of regular conversation and discussion? Or were these just meetings to deal with any ad hoc issues that were raised?

I felt that it was critically important that we control the communications from the White House to the Justice Department, and the reverse. So I sent a letter, at the very beginning of my tenure, to Bernie Nussbaum, proposing a set of rules, which were essentially that there would be no communication with regard to any case involving enforcement, other than through him or his deputy, or me and my principal associate deputy.

Don't lose your train of thought, but I want to ask you this directly here. You were making this effort because of specific conditions that you had inherited when you came in? Was there a heightened sense of sensitivity to this problem because of press reports about the contacts? There was at Treasury and that's why—

Someone would have to go back and look, but I believe I was asked in my confirmation hearing about the role that Webb Hubbell played. There was a lot of rumor about the White House interfering with the Justice Department, which actually in today's world looks rather quaint, because many of the contacts that were being complained of were perfectly ordinary. This was an effort on my part to lay out what I thought, consistent with the traditions of the Department, were the best practices with respect to that communication.

To go back to my train of thought, it would not be appropriate for the White House to interfere with an enforcement matter. It is completely appropriate for the White House and the Justice Department to work hand-in-hand on the crime bill. It's completely appropriate for the White House and the Office of Legal Policy to develop, together, judicial lists. It's completely appropriate for the White House to know about and opine on grant strategies for local law enforcement. This letter tried to lay that out.

We had regular meetings with the White House counsel. The Attorney General said she would like to come to them, but she almost never did. I can't even remember one where she did. We got a lot of business done. We discussed major briefs in the Supreme Court, the status of the crime bill or the gun law, pardons. I was the signatory on every pardon proposal to the President, and during my tenure he never acted on one. There was always a reason why we weren't going to do it now. I thought it was a power that he was essentially going to lose his ability to use if he didn't do it. And it wasn't right to the people whose pardon applications were not acted on. There was a process. That was an almost constant discussion. I would always say, "Now you've got 18 of them." "Now you've got 42 of them."

These were ones on which you were recommending that he use the power?

Correct.

That had already been vetted through the pardon—

Yes. It was a changing list every week. I had tremendous respect for each of the counterparties that I had. I had several White House counsels on the other side of the table from me through my tenure.

In fact, subsequent to my earlier question, I remembered that one place where this came up was with the Travel Office investigations, that people in the White House had said that there was an ongoing investigation with the FBI—I don't think now is the point to get off on the FBI, although I want to spend some time on that—so, in fact, there was a bit of history.

There was. And Phil Heymann, as I recall, got very upset with Bernie Nussbaum on that. But I wasn't there then.

Although in this instance it seemed to be somewhat more elevated because there were some missteps. I guess, again, the Treasury Department—There had been a problem with the communications back and forth. That was much more complicated.

That was when Roger Altman was dual-hatted.

Yes, exactly, which made it much more complicated there.

There was a timely question, given your mentioning having been through was it three? It was [Lloyd] Cutler, and then [Abner] Mikva, after Nussbaum.

Five. Then Ruff. And Jack Quinn.

Correct. Can you give us your observations about each of these individuals and your relationships with them? Even their relationships with the Attorney General?

Let's start with Bernie Nussbaum. I didn't know Bernie, but I knew of him. I knew his law partner, Marty Lipton, very well, because we had worked together at the Energy Department, strangely enough, in the Carter administration. I always found Bernie to be lovely to deal with, smart and funny and sweet and tough—and utterly miscast, [laughter] because he just hadn't been in Washington. You cannot put your finger on what it is about Washington that is different, but if you haven't been here, it is very hard. I think everyone from Bernie Nussbaum to [Alberto] Gonzales would tell you that. It's hard.

So the song is not true. If you can make it in New York, you can't make it everywhere.

You can make "it"; the question is what the "it" is. And he had a set of clients, if you will, in the President and in the First Lady, who were combative when it might not have made sense to be combative. Then, when they ultimately backed off, they ended up, in many people's views weaker. I don't think Bernie had very much fun in the job, as far as I could tell, pretty much ever, and I think he was very happy to leave.

He put together, I thought, a very good staff. There were some very fine people, Cliff Sloan and people like that, in the associate positions.

People at Justice, though, generally felt comfortable with him, or was there a sense that he was in over his head, or—?

I don't think people at Justice really had anything to do with him. It was not the case, as it is currently, for example, where White House counsel personnel go over to the Justice Department and discuss issues. That never happened.

Okay. That's important for us to know.

We were deadly serious about this. It's not like the rule was hard to enforce. People were happy to do it. It just was the way we did things. And I felt very strongly that we needed to keep it that way. This will come up later, on China, when we talk about that.

Lloyd is my law partner. Lloyd is my friend. Lloyd was encyclopedic. If an issue would come up in the White House counsel's office, he would say, "Well, in '67, we handled it like this, but then in '83 we had a different approach—" And the "we" here is Washington. Literally, the "we" is speaking for how the government worked or works, and how the different powers of the executive and Congress and the courts relate to one another. No one else had such a depth of knowledge, which, when you combined it with his knowledge of Supreme Court precedent, was simply astonishing. And he had great judgment.

You were telling me beforehand that he kept his papers?

He kept all of his papers and he bound them. So you'd be talking about something and he would go up to his wall and pull off the 1987 book and open to a page and say, "See, this is how we did it in 1987." Or whatever the year was. It was really—

Makes for authoritative participation in meetings.

He had Joel Klein as his deputy, and Joel was very able and really smart, and they were a pretty good pair. After Lloyd returned to private practice, Ab Mikva became White House counsel. I was astonished that Ab Mikva took the job. He is that rare bird who has actually been in senior positions in all three branches of government. Really, there isn't a career like his. And he had wonderful judgment, a great sense of humor, very philosophical, lovely with people. The pace was wilting, though. It was also for Lloyd. But Lloyd only had, by definition, a six-month run.

The White House itself, as I'm sure you've seen from your interviews—While it progressed over time, it was often not a particularly organized place. It changed with the different Chiefs of Staff, but it was not hugely orderly as it is responding to events of the day. I don't think I could have worked there. I would have found it very personally challenging. And I think Ab found corralling issues, grabbing them before they went out the door, to be hard. But he was a wonderful counterpart and a brilliant guy. You get to see what people are like in a crisis. He was there during Oklahoma City and was a steady presence.

I've known Jack Quinn forever. He was a close friend, and I like him very much. He knew his way around—very sophisticated, wonderfully combative. At that point, the administration was quite beleaguered and under attack by the new Congress, and he was a happy warrior, I thought, and a smart tactician and a good advisor. Chuck Ruff knew the Department well and had great judgment. All of them were men of principle, very smart, very able, and all good people.

Any observations about Janet Reno's relationship with them? Did she have a relationship with any of them?

She had a relationship with Bernie Nussbaum because he was one of the first people that she met. I remember after her confirmation I gave a little potluck dinner at my house and he came. I have this funny picture of them standing back to back. [laughter] He had great affection for the Department and I think they liked each other. I don't know what she says about how frequently she saw him, and I don't know what she did when she went to the White House, but it's not my impression that she saw any of them a lot.

I have some questions about specific issues, but—

That's where I'm headed, so—

I was going to ask about a holdover issue that you had to deal with—maybe that's where you were going, Russell—and that's this whole Ruby Ridge situation that occurred under Bush 41. I noticed in our timeline here that you had to issue an edict, essentially, in terms of disciplining the FBI agents involved. You were criticized at the time, and even to this day to some extent, by groups on the right and gun-owner groups or whatever, for not dealing harshly enough, not firing anybody. Would you care to comment on that?

First of all, I did inherit this. The shooting itself took place during the prior administration. And I tried to put in place a process that was as careful as it could be to look at the facts. In the end, we ended up having to reinvestigate because the original investigation had not been done well. So there are really two different episodes here, because we had an actual criminal inquiry at the end.

Who did the original, not names—

It was done by an inspection unit at the Bureau and one of the reasons that we redid it was that well before I got there, they had assigned someone to it, who was in some respects conflicted. But I didn't know that at the time.

Legally conflicted?

I mean a person who had personal and professional relationships, with some of the people who were under inquiry. I don't have my papers on that, but what I would say about it is this: Number one, I had this investigation fully reviewed by the career staff at the Justice Department outside the FBI and they came to me with recommendations. Two, the shooters undeniably believed, and in good faith believed, that they were following duly made orders. The individual who conveyed that order left the Bureau under a cloud, but the Department had insufficient proof to do more, which was frustrating to me, but the original investigation had muddied the record. The only other issue left for me was [Larry] Potts.

I had seen Larry Potts in action and he is a very able guy. It was no wonder that Director [Louis] Freeh wanted him as his deputy. Freeh persistently asked me to approve that promotion. The rules gave me no say over the discipline that Freeh took with his junior people. But I did have a say on the senior people, including Potts. The evidence with regard to Potts did not show that he knowingly participated in giving what was, essentially, a "shoot-to-kill" order, but it looked as if he could have done more than he did to stop that from happening.

In those circumstances, I did not think it made sense for Potts to be elevated, and I told Freeh that. And he came back to me every single week, and he called the Attorney General, and he called Mary Jo White, and he called everyone he could, to try to dislodge it. Ultimately, I talked to the Attorney General about it and I said, "Look, I disagree with his judgment. But Director Freeh is running this agency. He tells me he needs Potts. I think it is going to be bad for Potts and bad for Freeh, but I can't tell you it's out of bounds. He's telling me he's got to have it and I'm going to say yes." And I did.

By the time of the hearings into Ruby Ridge, we had put in place remedial policies in the Marshals Service and in the Bureau. I explained my decision in terms of accepting or rejecting the Civil Rights Division view of what had occurred—and the other two reports that had been done—and I said essentially what I just told you about Potts. I didn't get much pushback on that from the Senators. One has to wonder, if I had said "no," what would Freeh have done? Freeh had told me he was going to quit if he couldn't have the deputy he wanted. That was a practical judgment I needed to make.

In the end, Freeh determined that it was a mistake for Potts to have been elevated to be his deputy. Potts was far worse for it, because when he finally was demoted by Freeh, it was a major event in his life, a major event that caused a huge breach between him and Freeh. So I did the best I could with what was a very ugly process. The fundamental problem with it, from the get-go, was that the original investigation was horrible and I had no way of knowing that until well after the fact. I had David Margolis and the other most senior criminal justice people in the Department looking at it. It was a horrible instance, terrible, heartbreaking, from the initial shooting to its consequences for the Bureau.

Should we talk a little bit about the FBI?

Maybe now is a good time to go ahead and do that. You're making it okay?

Me? [laughs]

One of the things we discover is that our practitioners usually have a much more solid constitution than our academics do.

Any time you want to rest—

No, we're fine. Believe me, I haven't had nearly enough yet. Let's go ahead and do the FBI piece.

I had some questions about Director Freeh. I'm wondering in general what your impressions of his tenure—I mean, it's a somewhat controversial tenure. We've heard reports that there were folks in the Clinton White House who were not particularly happy with the Director. There were folks in the FBI who were not happy with him. What was your take on Director Freeh?

In general, John Harris's book got it pretty much right, in terms of assessing the White House's view of him and why. When I met him, I liked him enormously. Bernie introduced me to him. He was Bernie Nussbaum's pick. He told me, "You're going to love working with Louis." I had many friends in the Southern District U.S. attorney's office who told me he was great. When you meet him, he is smart and charming and human, and he's got that square jaw. You want to believe everything he is saying.

He is, and he comes across as, a dedicated public servant. His strengths were that he loved the cases and he was a great case agent. He got into the casework. He understood the cases, from having been an agent, from having been a prosecutor, from having been a judge. So he knew and understood in a way that most, if not all, of his predecessors did not, the actual day-to-day work of what makes an agent and what makes a case.

His deficits were that he didn't particularly like management. So getting him to focus on the institutional and structural change that the FBI needed was like pulling teeth. He and Reno had fisticuffs over the computer system because it wasn't making progress. He would come to his regular meetings with us and say that it was progressing, and the Justice Management Division of the Justice Department, which oversees infrastructure and budget, said it wasn't. And frankly, they were more credible. And other changes were very slow to happen. You could literally see his eyes glaze over. It just did not get his juices flowing at all, so I think he paid less attention to it.

I think it is true that once the power of the purse changed hands in 1994, he felt the need to make sure that the Bureau was in good stead with Republicans. In the view of the White House, he curried favor with the Republican leadership by sharing information, perhaps, that he shouldn't have, and distancing himself more than he should have from the White House. In the 9/11 Commission Report we said, "You can't have an FBI Director who can't speak, won't speak, to the President of the United States." You can't. And that was what we had.

So it was a complicated relationship. He putatively reported to me, but it was very difficult. My staff would joke about it. I would say, "Let's get Louis and tell him we need X." And they'd say, "Yeah, right," as if to say, "he won't listen to us." So it was a challenge. He'd take my calls and we would talk, and very often he was responsive, but sometimes he was not.

Is this just part and parcel of an FBI Director's position in the government? Or is this more a function of the individuality of this individual?

It's both. You have a unique situation where you have a ten-year term, so the presumption is that you're going to stay beyond terms, so the President could not really fire him. If the President wasn't going to fire him, no amount of oration by me was going to make a difference, though I tried, and we were on very good personal terms, all the way through to the end, until today. The issues on which we disagreed were usually issues of management.

Would it be better, in your view, that the FBI Director not have that ten-year term?

In my view, ideally, both the Bureau and the intelligence community, if you would, should be headed by essentially nonpolitical people. On the other hand, the President should have the final right to get rid of someone when, despite those expectations, it's not working. I think the system by and large works, unless you get a President who is so far back on his heels, with regard to the Bureau, that he couldn't ask the Director to leave. Because in the end, it was not good for the country, and it is objectively not good for the country to have those two people not operating in sync.

Were there ever attempts made where the President would call Louis Freeh in and say, "Look, we've got to make this work"?

Not to my knowledge.

Is there something about the FBI—It had a series, at least going back to Ruby Ridge, if not beyond, and the [Robert] Hanssen case, maybe even Waco to some extent, certainly 9/11. It seems to be a somewhat dysfunctional agency. Is that a fair—?

You're seeing how firm the culture is. Here you have Bob Mueller, a Marine, a Republican, a career prosecutor in many respects, given the charge by the President of the United States to make this agency into a premier counterterrorism agency, where they have more money than they know what to do with—that's a slight exaggeration—but where they're properly funded, or getting well-funded, and where they have center stage. And even then, I think it is fair to say that Mueller is very frustrated at his inability to move the organization as fast as he would like. I actually don't know enough about its inner texture to explain it. Cultures die hard and change with difficulty.

The intelligence I get—maybe we're getting far afield here—but is the wall broken down between the CIA and the FBI?

Not according to the WMD [Weapons of Mass Destruction] Commission. The WMD Commission said that any semblance of a legal prohibition that there ever was—Whatever legal rules anyone ever thought barred or encumbered communication between the CIA and the FBI are gone, and yet the WMD Commission very recently found that those communications are not occurring the way they need to be. It's just proof of the intransigence of cultures and the difficulty of making even small, let alone large, turns in a hefty and unwieldy boat.

Do you think it would be best to start from scratch and get rid of these agencies and set up alternatives?

That is a much longer conversation.

I'll accept that as a parry and ask you a few questions about some of the specific places where relations with the FBI were at issue and get you to comment so we can flush all of this out. One was on the crime bill. Were there tensions between the administration and the FBI on positioning, with respect to selling the crime bill and various components of it?

Do you have anything specific in mind?

The only thing I can think of would be the assault weapons.

The crime bill was mostly managed by Ron Klain, but police groups were as firmly in our corner on the crime bill and on the assault weapons ban as you can imagine. You had cops backing a Democratic proposal over Republican opposition, which was extraordinary. But police faced these assault weapons on the streets and were afraid of this army that they found facing off against them in the inner cities of America and in the drug corridors of America.

I didn't anticipate there being anything, but I just wondered, as an issue, would there be anything of interest.

If there was, I don't recall.

You inherited a piece of the Waco follow-up and investigations, am I correct?

That was something that Janet Reno ran on her own as the questions, during my tenure, were largely about her own actions. She was so deeply knowledgeable about it, and she put together a special team to help her on it. I frankly felt that, relatively speaking, I could add very little. I was aware that it was ongoing, but I didn't do very much. If there's something specific, I'm happy to respond, but I have no real recollection on this.

I can't think of anything specifically. But do let me ask you this, because that's something that is not funneled directly through you, did it create problems for you, the nature of the investigation or her involvement with it, did it create a managerial problem for you?

Not really. Most of the post-Waco review was focused on her. There was very little that affected the Department. It wasn't like Ruby Ridge, where the question was how could it be that our procedural rules would permit a shoot-to-kill order? In Waco, the FBI developed this plan. The plan had flaws in it, but the flaws were not sufficiently apparent to her so as to cause her to turn it off. She was only three weeks into the job. She had no other advisors. Perhaps she didn't ask all the questions she should have, but honestly, it seems to me, looking at it from afar, that she was trying to do this on her own, using her own best judgment. All of the follow-up inquiries seemed to focus, literally, on her personal decision-making and not on systemic issues with regard to the Bureau.

Did the Filegate situation affect you at all? Did you have any piece of that as you came into the Department?

Do you recall the date? I was definitely there, and here's my recollection of Filegate. The White House asked for the FBI files on those who had White House passes so they could determine who these people were and whether the passes should be continued or rescinded as the change of administrations occurred.

Which I think is fall '93, sometime in the first year.

When they asked, right?

Yes.

But the explosion over it occurred while I was there, I just don't recall when. Maybe it's in this timeline somewhere. This comes to light, and within about a day it's apparent to me that the White House, at some low level in the security office, asked for this information and it got directed to some low level within the Bureau, which mistakenly sent over files it shouldn't have, and people had them who shouldn't have had them. But it never got to a level of a political person, and there was no misuse of this information. If there was fault anywhere, it was in the Bureau, which is, after all, supposed to safeguard this information and not just willy-nilly send FBI files to anyone.

So as soon as I did a little bit of due diligence on this, I was about to name someone within the Justice Department to investigate this. It would have been either the Office of Professional Responsibility or the inspector general. And before I could do it, Louis announces that his general counsel, Howard Shapiro, is going to do the investigation. He makes a public announcement of it, without calling me, without so much as notifying me that he's going to do it, which I would have objected to because it was his general counsel. That's not an independent view. In any event, Howard Shapiro undertakes a gargantuan effort, studies the entire thing in a very short period of time—perhaps a week or two weeks, but the fact is there were only ten to fifteen witnesses; there weren't very many people to ask. He does an inquiry, which essentially reports what I just said.

He tenders it to Freeh. Freeh is out of town, at Quantico. And Freeh issues a statement saying that the FBI has been victimized by the White House, at which point I become absolutely apoplectic. I called Freeh. I repeatedly tried to get him on the phone, tried to get him pulled out of whatever he was doing at Quantico, and I screamed bloody murder. I said, "This is inaccurate, it is false, you have defamed the White House, you have tried to shift blame from your organization to it, and people are giving this credibility. It is not right and you must correct it." He said, "Well, I'll—next time I have—" I said, "No. You are going to issue another statement tonight," which he did. He said, "It was put out in my name; I didn't see it." I don't know if that's true or not, but I thought that was poor public service.

The White House, of course, was beside itself, because Freeh had credibility. Aren't I supposed to be managing this Department? And I felt terrible, because I had not been able to stop this, but that was because the Bureau was acting on its own when it shouldn't have. There were standing requirements for it to clear public statements like that with me, with the public affairs office at the Justice Department, and it didn't do it.

So that was Filegate. I cannot remember how that ended up getting shifted to [Kenneth] Starr's jurisdiction. I thought, frankly, that Starr would dispatch it very quickly because it was very simple administratively, and he did not. I do not think that that was a responsible decision either.

Were there other instances between this and the China thing that you can recall where the FBI and the White House were again at loggerheads over—

There was a moment after Oklahoma City where that was a possibility because—

You were in by Oklahoma City.

Oh, yes.

Okay. And we'll want to hear the whole story on that.

There was a moment in the aftermath of Oklahoma City where it was certainly possible that the Bureau was going to try to blame its inability to have discovered [Timothy] McVeigh on the Levi guidelines. These are internal Justice Department guidelines, promulgated by Attorney General [Edward] Levi after the COINTELPRO [counterintelligence program] case, which constrained the FBI's ability to do domestic surveillance in the absence of a predicate, to believe that someone was doing something wrong. That's a shorthand version for a very long paper.

I spent a lot of time with Louis discussing this and I think, in the end, persuaded him that there was nothing wrong with the guidelines, that what was wrong was the understanding within the Bureau of what they meant; and that they had been overinterpreted to create a greater barrier to action than was indeed the case. In the end, he did sit with me in hearings on the antiterrorism bill in 1995 and gave testimony consistent with our discussions.

So there were moments where we might have diverged but did not. In general, I had a very good working relationship with him and it was very collegial. Often, they were annoying in that they would go up to the Hill on their own. You always knew that if you sent him a budget request that had one nickel less than what the Bureau had initially proposed, they were going to go and make that clear on their own, which is not permitted in government, but they always did it. The military did it, too.

And successfully, usually.

Yes. It's what you have here. But that was in the zone of annoying-but-business-as-usual.

Exactly. I guess I could ask you now about the China thing, although it comes up fairly late in your tenure, since it is still FBI-related. I want to say that's '96, but I'm—

Doesn't it come on the scene, Russell, after the '96 election? Doesn't it break as—

The news about it breaks later, doesn't it? Because I thought it had some bearing on—

Let me tell you what I remember, and it would probably help to have this on the timeline, if it isn't. At some point, someone in the Department, perhaps someone in my office, comes to me and says, "The Bureau wants to brief Members of Congress on evidence that it is developing that the Chinese are trying to influence our election by funneling campaign contributions to their campaigns through Chinese Americans, or otherwise." This is before anyone said that there was any similar effort to influence the Presidential election. This was, as I recall, and I could be wrong about this, a request to brief Congressmen and -women that they might have been a target of this.

I asked whether we were going to brief the NSC [National Security Council], which manages our relationship with China. I can't remember if they said yes, or no, they weren't planning on it. But in any event, I said, "If you're going to brief the targets of this Chinese scheme, you certainly need to brief the White House."

The targets being?

They were Members of Congress, I don't know if it's public and so I don't know what I can say about it. But there were at least four or five or six Members of Congress as to whom the Bureau had developed evidence that someone might have made, or be thinking about how to make, a political contribution to them that emanated from the Chinese. Then I heard nothing further about it. I'm trying to remember what happened next. Somehow, I became apprised that the Bureau felt that there was a similar effort with regard to the Presidential election, and Presidential campaign fundraising.

I asked the Bureau and the Justice Department, in a meeting in my office, to develop a statement of what could be made to the White House about this—since Secretary [Madeleine] Albright was traveling to China—that would not in any way affect the investigation, because indeed, if someone is engaging in illegal activity, you don't want to brief them about the investigation. But I didn't have any indication that anybody who would be being briefed was indeed a target of the investigation. But they raised an issue and I said, "I'm sure there's something you can say that will not undermine the investigation." And they wrote out what they would disclose. And I sat there with them—with the Deputy Director of the FBI and the head of the Criminal Division, or the head of the office, I can't recall which, and I asked, "Are you comfortable?" And they said, "Yes." I said, "Fine, we're going to use this to inform, then, White House counsel Chuck Ruff, so he may decide what to do with this."

Then, as I recall, the Deputy FBI Director came in to me and said, "I've called Louis in the Middle East and he doesn't want this communication to take place." And I said, "I don't think that's right. You have two jobs here, one is your criminal justice hat, but you are the only entity responsible for national security inquiries within the United States, and in that regard, your obligation is to the National Security Council. You are personally deciding which of those two hats you're going to wear. That's not appropriate and I don't agree with you, but you may take it to the Attorney General." They did, and she said, "I can't overrule Louis," and so it did not go.

We wrote some anodyne letters. There's some correspondence to Chuck Ruff, saying essentially what he could have read in the newspaper, because I think it had leaked by then. I thought that was wrong on the part of the Bureau. They also had different offices across the country investigating this and no coordination. I had been told that they had a coordinating function at headquarters, which you would expect, and I actually asked to see the head of the China desk, only to find that there wasn't one, at which point I told the Deputy Director, "You need to create this capability because you have these overlapping investigations in different field offices with no ability to know in one place what they're doing in the other," which of course has resonance for 9/11.

I'm looking because I thought there was some information on this in here and it might help to refresh our memories, but I can't put my hands on it right now. But the NSC briefing did take place.

Yes, and there was some dispute over it because the Bureau ultimately said, "We fully briefed this to the NSC." And the NSC said, "You told us we couldn't disseminate it." The Bureau said, "That's not true." The White House then found the briefee's notes, which said, "Don't disseminate." Now, the NSC staff could have appealed that. Even if they thought they had been told that, they could have called and said, "What does this mean?"

That would have been—That call should have come to you—

It could have come to the Director, it could have come to me, there are any number of places it could have come to. But in any event, the Bureau shouldn't have given that instruction—in fact, it denied that it had—and the NSC shouldn't have accepted it.

This strikes somebody who is an outsider as being an odd set of circumstances, where an NSC staffer, who, I guess in the chain of command, works directly for the President of the United States, is given information and then told that it can't be passed up the chain of command. Is that an unusual set of circumstances?

That's unheard of. "Do not disseminate," can mean, "Don't tell every agency in the national security establishment." It might not mean, "Don't tell the National Security Advisor."

But your sense then is that the staffers—

The former might be legitimate, "We don't want the State Department, the CIA, the NSA—" Once you start a proliferation of e-mails and cables, you never know where it's going to go.

Of course, right. But the interpretation inside the NSC was that they were not supposed to tell anybody else, even within the NSC.

Evidently.

Or on up. Your reading of this is that the people who made that interpretation should have immediately taken some action to either clarify that this is what it meant because it is such an unusual set of circumstances, or they should have simply understood that given their reporting requirements that nobody from the outside can tell them what they can and cannot do.

It depends on whether they thought the information they had would have been of value to someone. I don't know what was briefed to them. But if you get something that you know is relevant to a senior decision-maker and you're told you can't tell them, you need to do what you can do to address that prohibition. So it's possible that what they were told seemed irrelevant, anodyne, not ripe, not interesting, I don't know. But if it seemed interesting or helpful, and would have been relevant to the management of our relations with China, or, for that matter, whether the President of the United States is compromised vis-a-vis the Chinese by taking a campaign contribution, you determine what your alternatives are.

I guess that was the direction I was heading, because, again, my recollection was that this was occurring in '96 when all of this activity within the White House fundraising operation—

Yes, I think you're right, it was in the fall of 1996.

And, if I recall correctly—and frankly I can't remember whether I read this in John Harris's book or whether it's something that we picked up elsewhere—but there was an extraordinary level of unhappiness within the White House at not having been given a heads-up on this that might have allowed them to avoid some compromising situations, at least in terms of appearances.

Yes, that is what the Harris book says.

So that's another knock against the FBI in a set of circumstances that is continuing to deteriorate between the two. Was there anything else in your time at DoJ where FBI and White House relations is at issue?

Well, very early on, when the Criminal Division recommended against an independent counsel with regard to [Michael] Espy.

The Director wrote a note disagreeing with the recommendation—which, in the division of labor at the Justice Department, is quite extraordinary. The Bureau investigates, the Criminal Division recommends with regard to prosecution, or makes the decision on its own, depending on the nature of the prosecution decision. Then the memo leaked, likely from the Bureau. That made the White House quite unhappy as well.

So that actually preceded everything we just talked about. This is an additional contribution to sore relations. Steve, any follow-up on this, or Darby?

No, I don't think so.

I'm sorry, there was one other question I was going to ask about Freeh.

I hate to go back, but the Filegate thing—you said that Freeh was down at Quantico when this statement or report was issued, and he said he hadn't seen it, he had sort of signed off on it from a distance. You weren't certain—is that your gut feeling, that that's what happened there?

I don't know.

Is this possibly an instance where the agency, some of his underlings were using him?

Either he said, "Get a statement out," and they wrote it and didn't check it with him, or they put one out on their own, or they did check it with him, and I don't know which is the case. He's writing an autobiography. Maybe we'll find out.

That's good news for us. You had mentioned—

I hope you're going to interview him as well.

He's on the list but hasn't been approached yet.

He cares a lot about how history will treat him, so he may well want to do that.

Good, okay. You just touched on the independent counsel business so maybe that's a thread that we ought to pick up, go back to your—was there any particular aspect of the independent counsel piece that naturally gravitated to you in the position that you were in at Justice? Are you in a management position to—

I was, technically, and I did have conversations, as these recommendations would move along, but there were very few areas where the Attorney General took her own personal responsibilities more seriously than this. She involved herself to an extraordinary degree, which is totally appropriate. It's a very weighty decision and one that is to be made only by her in the end. And frankly, I could not participate in that same way. The way we structured things enabled her to delve deeply into the issues that she cared about and was passionate about, or felt a critical responsibility as to, I had 15-minute meetings all day.

So I had people in my office looking at these. This was her office, too; the staff worked for both of us. She often dealt directly with them. Each independent counsel issue was unique. So on Brown I was completely recused. The others I'm actually having trouble distinguishing among, in my own memory.

What would be the standard procedure?

The standard procedure would be that the Criminal Division would work with the FBI to understand whether the initial standard for a preliminary inquiry was there, and would give advice to the Attorney General in that regard. That standard was fairly low. If there was a basis for a preliminary inquiry, they would do one and then—

Within the FBI?

The Bureau would do the inquiry. The Criminal Division would do the assessment, and the Division would then make a recommendation on whether the standard for seeking an independent counsel had or had not been met. That recommendation would come from the Criminal Division, through me, to her. I had a role in this, to be sure, but these issues were very personal to her and she was very involved.

The other piece of the history here is that because she had had to reverse herself with regard to Whitewater, she had—I don't know if she would say this, but I think she felt she had less maneuvering room than she otherwise would have had. She reversed herself because she didn't want to have an independent counsel and said so, and said it wasn't justified. Then the White House came to the conclusion it needed to have one, and then she named one.

You're quoted in some of the materials here as saying very positive things about the independent counsel.

The statute.

I'm wondering, given your experience, do you still feel the same way, or when you were speaking these words here were you basically taking the company line? Did you have personal—

I'm probably quoted differently at different points in time. I know that there was a symposium—I think it was a UVA symposium, or the Fourth Circuit Judicial Conference.

This is the LA Times, January '95, interview with Ron Ostrow.

What do I say?

You say, "I think having an independent counsel available as a mechanism for insuring the American people that even those matters that are closely related to this administration are being pursued aggressively is a very good thing. It enhances the trust of the American people in our government, and frees this Department from the buffeting of claims that it is behaving in a way that is politically influenced. In all, the independent counsel statute is a good thing." You do say that you'd like to see greater ability and flexibility on the part of the independent counsel to utilize standing offices. But you say that both [Robert] Fiske and Starr have moved quickly and not wasted much time on things like infrastructure and hiring.

Hypothetically, an independent counsel does make sense. But we saw them literally spin out of control. What moved my view of the independent counsels more than anything else were two different sets of experiences. One was watching the career people in the Criminal Division absolutely recoil at what they saw Starr and [Donald] Smaltz and others doing. The career staff reported that these independent counsels were not operating consistently with the procedures, policies, and practices of the Justice Department, which was mandated in the statute. Rather, they were making decisions that no legitimate prosecutor, in their view, would have made. I trusted their judgment on that much more than I would have trusted my own.

The second is that, when I was in private practice, I had represented someone in nearly every one of the previous independent counsel investigations, and I saw some independent counsels handle the investigations in a very straightforward way, and I saw others handle them in a way that was an abuse of power. As you read this to me and as I see what my stated views were then, I think hypothetically that is correct. But these procedures were too often distorted. I gave you the example of Filegate, or you can take the investigation into Foster's death. We know for a fact that those investigations were completed pretty quickly, but perhaps because they exonerated the White House from the most extraordinary allegations. I don't know if that's the reason, but we know that the results of those inquiries were held and not promptly released. That's not right. Filegate could have been done in two weeks, maybe a month. To have that hang out as a cloud over the administration is not right.

I think Attorney General Reno saw this as well. She saw and heard the same reports from the career people as I did.

The career people were reporting to you through some formal mechanism? Did they have some formal review over the independent counsel, or were they simply watching as interested observers and seeing what they felt was an abuse of discretion?

The statute required that independent counsels abide by the rules that govern the Department of Justice. There were any number of instances where the Justice Department was being asked by an independent counsel either to do something, or to agree that a position was a position of the Justice Department, or that a process was a normal process. Sometimes it was observation, but my impression is that that view was expressed, in the first instance, in response to an exchange they were having with an independent counsel about what was to be done in a particular circumstance. There was a fair amount of interaction.

I didn't realize this. So they're trying to get feedback from the career prosecutors about what would be standard procedure under a certain set of circumstances?

Yes. I can't recall the triggering events for these conversations, but I don't think it was merely observing. The statute required independent counsels to act consistent with the policies and practices of the Department.

Regarding your evolution in thinking about the work of the independent counsels, is it principally your reading of what's going on with Ken Starr's investigation, or is it also an accumulation of evidence about these other investigations?

It's as much the others as Starr's. Smaltz was reviled within the Department.

Which one was Smaltz?

Wasn't he Espy?

Espy, okay.

People thought that he behaved like no one who had ever been a prosecutor. That was the view within the career ranks of the Justice Department.

And the [Henry] Cisneros investigation still goes on as we sit here, is that correct?

I have no idea.

I believe that's correct. I think there was a stipulation in a piece of congressional legislation earlier this year, maybe a few months ago, that would have terminated that, and the Republicans refused to accept the amendment.

I'm sorry, I haven't followed it that closely.

We're supposed to go see Secretary Cisneros in about two months, so I guess we can find out then.

You'll probably have the transcript subpoenaed.

Anything else? We need to take a break.

[BREAK]

All right.

I thought we'd turn to Oklahoma City?

Okay. Where were you when you heard this, do you remember?

I was in one of our secure facilities, seeing some of the changes that we had made in the Department's ability to intake and manage the inflow of intelligence information. So, hard to reach, but I was found.

This was in the building?

It is in the building, but in a SCIF [special compartmented intelligence facility], a sealed-off portion of the building. I went back to my office immediately. I called the DEA, which I understood had people in the building. I called the FBI. I called the U.S. attorney's office to get sort of a status report. And then Rahm Emanuel called and said, "You've got to get your arms around this, find out what's happening, and let us know right away." And almost before I could do that, they called and said, "Come to the White House," which I did.

You, alone? Or were you to go with other people?

I believe I went by myself. I asked Merrick Garland, my principal deputy, a seasoned prosecutor, to find out anything he could in the interim, and coordinate with the Bureau. I had already had a conversation with the Bureau, I think with [Robert] Bryant, who was at that time the number two, and got a situational briefing. Then I went to the White House.

Was the Attorney General in the building at the time? Was she in town when the news broke? Do you recall your first conversations—

I had spoken with her about this. She also wanted us to gather information quickly. I also have a recollection of talking to her about how we would staff this and what our participation would be, from me at Justice to those on the ground, and who the FBI team would be, et cetera. Her office was just upstairs from mine. We went up and down quite frequently, and she often just appeared in my office, so I might have gone up there. But my recollection is of having to go over to the White House even before I fully knew what was going on. And I remember saying two things.

Can I ask you how big a meeting this is?

This was in Chief of Staff [Leon] Panetta's office in the White House

He had a much more rigorous standard for participation in White House meetings than Mack had had. There were only as many people as would fit around his conference room table, so maybe eight or nine.

My contribution was twofold. I told them that this would have the Justice Department's full attention; that we had FBI present there, and we had a larger team en route; that we would reach out to the Governor and the mayor and work out rules for making sure that this was treated both as a rescue site and as a crime site, which is often difficult in a disaster; and that we would be working with the intelligence community and foreign law enforcement liaisons to see if there was any foreign involvement.

Is it the case that in the air at the time there was a presumption that there was foreign involvement, or had people suspended their judgment until they'd seen more?

In the immediate aftermath, in that first four, eight, ten hours, there were some fears it could be foreign and also some notions that it didn't fit that profile.

Because of where it took place?

Because of where it took place, the lack of anyone claiming responsibility, the absolute absence of any chatter, warning, anything. There were any number of factors that suggested it might not be foreign, and then there were some that suggested it could be.

And that was the one-year anniversary of Waco?

Yes, it was April 19th, and that was the first thing that occurred to Attorney General Reno.

Okay, interesting. I'm sorry I interrupted you.

Yes, so there were two things that I remember contributing at that initial meeting—I think it was the initial meeting—one was "steady as you go": we're going to take care of this and it will have all the resources it needs, and we will find whoever did this. Then I prayed that we would. I actually had a lot of confidence in the combined capabilities of law enforcement, but cases can be hard to crack.

The second was that I begged for the ability of the Department to be left alone for a little bit and not get sucked into a million meetings, because I said I and others needed to put our hands on this. And the White House was pretty good about that. Of course, the case broke in a couple of days with the state police arrest of McVeigh, and the discovery of the Ryder truck axle with the vehicle identification number.

But in between, we apprehended a traveler from a Muslim country, who had left the Midwest proximate to that time with a suitcase full of electronics. I completely concurred in asking the British to hold him when he landed. He was quickly released, but nevertheless, we did do that.

We quickly determined that this was domestic terrorism and recognized that we had very little insight into McVeigh. We knew some of the groups with which he was affiliated and were quite familiar with the militia literature. The Attorney General had had all manner of threats from militia groups since Waco, and we knew quite a bit about militia groups, but it was troubling that we couldn't identify him with any group. As it turned out, the cell itself was minute. There has been speculation that it was larger than we ever found out, but it wasn't very large, in any event.

The President had his own very sharp instincts about this because he had had run-ins with militia groups himself. I hadn't seen him that much up close myself, and I certainly had not seen him so passionate and so surefooted, ever. He thought he knew, and I think he was right in what he thought, who the enemy was in this. He very quickly related it to the militia culture. He completely understood the connection to Waco. And he was very, as I said, surefooted, in both what this was about and how he should be as President. I was very proud of him. I thought we were well led here. He was totally engaged and wanting to know whatever we knew in real time.

There was a second set of meetings in Panetta's office, to discuss what to do next, where we talked about legislation and we talked about the Levi guidelines that I mentioned earlier. I predicted that there would be an attempt on the Hill to suggest that these guidelines were at fault and that otherwise we would have found out about this cell. So I put a very high premium on working this issue through with Director Freeh. Then I said that the Hill would want to act legislatively. I noted the temptation to take everything that's in the drawer out of the drawer. What you want to do is make sure that there is a relationship between whatever we now ask for and this event. We tried to do that as we vetted these legislative proposals.

Early the first day and the hours after it, what was the mood of the White House when you were there?

When Rahm called me, apparently he did not hear enough alarm in my voice. I don't normally communicate alarm. And he said, "Don't you understand? This is big." I said, "I understand this. We have hundreds of dead people, including children, in the heartland. I understand that. I'm watching this on television; I know this is big." So that was interesting— That anybody would think they would need to tell me that, I found astonishing. But they were in battle mode.

This played out very interestingly. If you look at the materials that you've gathered from me—I went back and looked at them last night—I remember quite vividly the congressional debate over the legislation. Quite frankly, we made proposals—many of which are now in the [USA] PATRIOT Act [Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism]—which I testified for and on behalf of, and which I thought were perfectly sensible things for the government to be able to do, and we were turned back, mostly by the right, with some help from the left.

Testifying on that legislation was odd, because you normally speak to the center of the panel—it's natural not to turn your head left or right. At the center of the panel were Henry Hyde and Chuck Schumer, but all the questions are coming from the wings on both sides. To have law enforcement thought of as "black-booted thugs," when law enforcement was trying its hardest to deal with a severe threat to this country and to its social fabric, was overwhelmingly sad. I found that to be astonishing. And for me to be the embodiment of a black-booted thug was also an out-of-body experience. The politics of this were quite odd.

It was rather striking-looking. I found the same thing reading the materials and picking up threads of what you've just spoken to, that the conservatives were giving you a difficult time in getting some of this stuff passed.

Yes, and that's of a piece with other issues. I routinely had a very hard time reassuring Congress that we were not abusing the foreign intelligence surveillance wiretaps because we had increased them dramatically. I routinely got questions about roving wiretaps and the use of our various powers. It's hard to put your mind back in that context, but that was how people were feeling at the time. All of the pressure was to limit our law enforcement and intelligence powers.

Why was there such a steep escalation in the use of those wiretaps during your time?

It was the concern about terrorism. We had some counterintelligence investigations, but we also had terrorists that we were concerned about. Not al-Qaida, because it didn't come onto the screen until late '97 and '98, and I was gone. But we had Hamas and others, who were real threats.

In the immediate aftermath of Oklahoma City, is there any emergency standing that the government goes on under circumstances like that?

There was no standing procedure for something like this. We dispatched Merrick Garland, who was my right arm, to Oklahoma City. We put together a crack team. We had frequent calls with Freeh, who was very much involved. This was where he was wonderful, because his instincts as an investigator were very good. They weren't perfect, because we had some problems at different points in cases in which he involved himself, but they were very good. And he was energized.

We were all over this, both in the Bureau—with assistance from the DEA. We worked out the issues with the ATF. You always have these jurisdictional issues. I was constantly on the phone with Frank Keating. Thank God he was Governor of Oklahoma at the time, because he was very knowledgeable about federal law enforcement, having served as an agent and at Treasury and Justice. I also spoke frequently with the mayor. And there was a lot of coordination needed. Then there was, of course, the overwhelming sadness.

I remember essentially not going home for three weeks. If I was home for a couple of hours' sleep, that would be a lot. I did not see my children. We were just flat out.

But there was no formal alteration, like you go to DEFCON 4 [Defense Condition 4]?

No. There were procedures for naming an incident commander. There were procedures, but we found many flaws in them when we did our after-action review. After Oklahoma City, we created an emergency handbook for the Department, which had every type of emergency described and a plan for each—the relationship with the military, and who transports, and whom you notify, and what the chain of command is, and what's done in the command center, and who has authority to do what, and—because it hadn't been there.

Who put those plans together? Was it within Justice or were there interagency—

I'm talking about simply within the Justice Department. I took that on and parceled it out.

I'm sorry. I interrupted your chain of questions.

No, it was a natural segue to talking about the counterterrorism bill. You mentioned there were a number of plans in the drawer that could be pulled out. How did you go about deciding and who was involved in the decisions about which ones would ultimately be part of the counterterrorism bill?

There were many different conversations happening pretty much simultaneously. One set of conversations was between Ron Klain and Andy Fois, who headed the Legislative Affairs Office at the time. I can't recall when Cathy Russell joined my staff, but she had been chief counsel on the Senate Judiciary Committee. There were presentations made to the AG [Attorney General] about what she wanted to include and what she didn't. She was unhappy with the Bureau for seeking additional resources for terrorism because she had just been through the budget process and had asked them if they had everything they needed. She always asked them that. She never cut back or turned down a request for counterterrorism resources, at least during my tenure. So when they came in asking for more, she was not happy. She didn't think that she should say no, but she was displeased.

Was the construction of the legislation mostly taking place at the Department of Justice? Did you have operational control of the legislation?

There was much White House input, but we were the keepers of the bill.

Was there a direction that the White House wanted to move that was systematically different from the approach that you at Justice wanted to take?

Not that I can recall. There may have been issues, but I don't remember them. I was really involved in the investigation, and while I played a role with regard to the legislation and was the voice of the administration at the hearing, I have to say that I didn't have as much time to spend on the legislation as I otherwise might have.

Because you were involved in the investigation, the McVeigh investigation?

Yes, and these were happening, as you may recall, simultaneously.

Right. What exactly would have been your role as a senior Justice Department official—

It was standing up a team, making sure that the lines of communication with the FBI were right, making sure I knew about developments so that I could inform the Attorney General and key policymakers, deconflicting overlapping jurisdictions. It was a fair chunk of my time.

And it is an important job, obviously, but I'm trying to—Were you then the senior-most government official who is riding herd on this?

Because Merrick Garland was my deputy, and he was the person on the ground, the natural line of communication was from him to me and up to the AG.

Okay. And the jurisdictional boundaries here were problematic also within the federal government. I can understand why—

Well, the ATF was involved because there was an explosive device, so that's the Treasury Department. And you certainly don't want to have ATF and FBI squabbling with each other when you're dealing with a great national tragedy, so we tried to work those things out.

Who's your counterpart at Treasury?

It was Larry Summers. I don't recall with whom I had conversations. It could have been Ray Kelly, the Under Secretary for Law Enforcement. It could have been Ron Noble. Then there were many conversations with the Governor and with the mayor, and between the DA [district attorney], who was also investigating, and the U.S. attorney's office.

With the Governor and the mayor, those were basically—it's not the right word—but those were political questions, rather than investigative questions or jurisdictional questions?

Well, no. You had firefighters wanting to do things at the scene—treating it as a rescue and recovery scene—that the FBI wouldn't want them to do because it was also a crime scene. For example, do you knock down a building before you get the forensics? How much of it is a safety issue? There are multiple issues and equities that needed to be addressed, and quite sensibly. All of these people are running to the scene and giving orders, and not necessarily thinking about how their orders and other people's orders might not be consistent with one another. Just getting the rules set and the lines of communication open and used required some doing.

And your deputy is the one who is on the ground getting all of that.

He's trying to. He's trying to. Some of it required elevation. I worked very directly with the Governor on this.

For purposes of the historical record, we're doing this interview about a week or so after the hurricane and flood in New Orleans, so some of what we're seeing now in New Orleans—we talked about this over lunch—there is some degree of understandable confusion about jurisdictions that they obviously haven't quite figured out yet. But what you're reporting is that in Oklahoma City you're having your own run of trying to figure out who's going to be the controlling authority, if you will, in that environment, who's going to be guiding.

Yes, but this is a very hands-on effort. The worst thing that you can do in a circumstance like this is make assumptions about whose job it is to do what. People can assume away the hard part of their jobs. People ignore other conflicting, or potentially conflicting, mandates. The problems need to be worked, and that simply takes time, energy, thoughtfulness, the ability to listen, and the ability to be decisive. I jumped into that to make sure that problems were resolved.

Sure. Was there anything in your own personal history, or was there any institutional memory that was relevant to dealing with a crisis or emergency situation like this? Nothing comes to mind immediately, other than maybe the World Trade Center incident in '93, which was not anywhere near this severe. I guess I'm trying to figure out whether there is any relevant experience at this stage that you can rely on to inform yourself about how to deal with a problem of this magnitude. Or are you inventing the wheel at this point?

There were, to be sure, resources to call upon. We had a group of people who did community relations. They dealt with the aftermath of riots, for example, and other things. So they could be dispatched. We had an Office of Victims Assistance. We had grant money that we could use. We had lots of relationships that you could call on. But there was no book for this one; you had to make it up. And the White House was very clear: they wanted to understand where there were conflicts and deconflict them. We had meetings where the questions were "Who's doing what? Where are you having problems? What are the obstacles?" And they worked them. Leon was very aggressive in working out problems.

Did you spend much time in the President's company during this period?

More than other times. I didn't spend much time in the President's company, but I did hear he was very engaged.

What were you learning about him from this exposure?

Well, my observations of him in this context were that he was very knowledgeable and spongelike in wanting to have and soak up information; that with regard to the issues, his instincts were excellent; that as a healer, he was wonderful. I thought his words, his demeanor, were just right.

Were you in Oklahoma City when he made his speech?

I was not. I was completely glued to my office, as there was so much to do. The Attorney General went; I did not go. But I heard him. He wanted his government all over this. And it was. This was right from the top, and it was right from the first minute. Leon was the perfect person to be Chief of Staff at that moment.

Steve, do you have anything?

I have a question. I don't know if you want to get to this counterterrorism, the so-called "wall" issue?

Yes. The Levi thing has come up a couple of times, so please go ahead.

As you know, this came out during your service in the 9/11 Commission, this memo that former Attorney General [John] Ashcroft released that you wrote, I believe, in 1995, which, according to press reports, charged that intelligence investigations—or counterintelligence investigations—should be walled off from criminal investigations. I hope I'm summarizing it accurately. Could you tell us a little bit about that memo, why it was written, and whether the press accounts distorted it or not?

The press accounts distorted it because the Attorney General was not honest. And he was not honest because he was trying to deflect attention from his pre-9/11 failures—the failure to act on the CIA's warnings, the failure to take briefings from the FBI on counterterrorism, the failure to pay attention to his responsibilities under the Foreign Intelligence Surveillance Act [FISA]. These failures were laid out by the staff of the Commission before Ashcroft testified.

Let me give you the facts, which are documented in the many histories that have been written on this subject.

First, in the aftermath of the [Frank] Church Committee [United States Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities] and [Otis G.] Pike Committee [United States House Permanent Select Committee on Intelligence] hearings into allegations that Director [J. Edgar] Hoover had abused the FBI's surveillance power, the FBI's Domestic Intelligence Division was dissolved and reforms were recommended "to build a wall between federal law enforcement and the nation's intelligence community." Attorney General Levi issued guidelines for intelligence collection in the United States and, in 1978, Congress passed the Foreign Intelligence Surveillance Act.

Second, the guidelines implementing FISA were set out in a memo from Attorney General Reno in July 1995. They reflected the Department's long-standing interpretation of FISA. As the court of appeals responsible for the review of Foreign Intelligence Surveillance Court, also called the FISA Court, rulings said, "the Department at some point in the 1980s began to read the statute as limiting the Department's ability to obtain FISA orders if it intended to prosecute the targeted agents." The court found that the Department's procedures were designed to "avoid running afoul" of what was called "the primary purpose test" used by the courts to determine if a surveillance order was properly being used for foreign intelligence purposes or improperly being used to evade the stricter requirements of criminal search warrants.

Third, the memo was the product of a task force that the Attorney General had asked to be set up—with senior representatives of the FBI, the Criminal Division at Justice, and the Office of Intelligence Policy, which was responsible for representing the Department before the FISA Court. The memo was unanimously endorsed by the entities responsible for FISAs and it had the advice of the Office of Legal Counsel, which is the arbiter of the authorities under which the government operates. Note that these procedures had no effect whatsoever on what the intelligence agencies, like the CIA and the NSA, could share with prosecutors or investigators. It applied only to the internal communications of the Justice Department, to prevent prosecutors from directing the use of FISAs. Information could continue to be shared within the FBI.

Fourth, if you need any proof that this July 1995 memo represented the institutional view of the Department—and not my personal view or Janet Reno's—you can find it in the reissuance of this very policy by Ashcroft's own Deputy Attorney General in August 2001, just one month before September 11, 2001. Ashcroft himself concluded that if the Department didn't want to lose a critical national security tool that had been provided by Congress, Justice needed to assure the FISA Court that prosecutors seeking a criminal indictment or conviction had not used a FISA warrant and had not directed or controlled the FBI's use of the proceeds of a FISA warrant.

Fifth, and amazingly, even after Congress passed the Patriot Act in 2002 and changed the law to eliminate the "primary purpose" test, the FISA Court reimposed the policy establishing that test. It was ingrained in the law. That ruling was ultimately overturned by the appellate court. By the way, I supported the Patriot Act and its attempt to change the law on this.

Sixth and finally, Ashcroft testified about an earlier March 1995 memo to the FISA Court that I had signed—although he refused to declassify it at the time, so neither I nor anyone else could respond to his lies. That memo did not set policy for the Department of Justice, but resolved a particular problem in the World Trade Center bombing case, which was that the U.S. attorney in the Southern District of New York wanted to use a FISA warrant to tap individuals who had already been the subject of criminal wiretaps—something that had never been done before and which the Department of Justice's Office of Intelligence Policy feared that the FISA Court would not permit, for the reasons I have just described.

The U.S. attorney, Mary Jo White, and the head of that Office of Intelligence Policy, Richard Scruggs, came to me to ask me to sign an agreement that the two of them had negotiated to permit this extraordinary step—with various safeguards—in the hopes that, if I vouched for its compliance with FISA, the FISA Court would permit the arrangement. The memo I signed was an aggressive use of the FISA power, not one that shrank from utilizing all of the government's power to protect against terrorism.

After the March 5 memo was finally declassified, it was reviewed by the 9/11 Commission itself—I was recused from this process—and by many other scholars who concluded that Ashcroft's version of the facts—which the right-wing megaphone tried to magnify—was false and the facts that I have laid out here are true.

Needless to say, the episode was very frustrating to me, as it resulted in a lot of people believing this false narrative. I received—and my family received—death threats because of Ashcroft's irresponsibility. But most objective observers have rejected Ashcroft's narrative and the issue has receded.

Did you see or vet FISA applications?

No, they didn't come through me. This was an office—

They were for her eyes only?

She would have shown them to me if I had asked, but this was an area that was given to her by statute. She was very interested in it. She wanted to make sure that the FISA Court was satisfied, that we got these through. She was very interested in prevention. She made herself immediately available—in contrast, I might say, to her successor, Mr. Ashcroft—to the people who needed to present FISA applications to her. It's interesting to hear this wall described as the "Gorelick wall"—this is one area where Attorney General Reno focused her attention and where there was a direct reporting relationship between the office and her.

Forgive me for jumping in, but this is a good occasion for us to ask you more generally to give us your assessment of the Clinton record, specifically as you were a participant in it, with respect to antiterrorism. It's fascinating, because before September 11 this is not something that those of us doing the kind of work that we're doing would have thought probably to have invested much time in, so you can see how the prism of history changes given events after time. Partly because you were a central player in a key agency during this period, but as much as anything else because this has become much more publicized by virtue of your Commission work since that time, it would be very helpful for us to get your bird's-eye view of Clinton's work, and the Clinton administration.

Most of what I would say about that is indeed reflected in the 9/11 Commission Report. By every account, the President was very worried about terrorism. He was deeply knowledgeable. He absorbed every bit of intelligence that he could get and he was very frustrated at the limited tools that he had available to him. He also, as the 9/11 Commission Report suggests, was repeatedly assured by the FBI that they knew of whatever activity there was in the United States and had it monitored. Certainly the same representations were made to me and to the Attorney General. And they did produce many FISA applications, many, many more than had been the case in the predecessor administration. By all accounts, there was a tremendous amount of activity and vigilance. The Attorney General asked about this all the time. As I said, she always asked the FBI whether it had the resources it needed and was very hard on it with regard to issues like technology to make sure that it was state of the art, which it was not.

I actually spent a fair amount of my time, and the historical record would reflect this, implementing changes that emerged from the study of what had gone wrong in the prior administration in the BCCI and BNL cases, which reflected an utter lack of communication between the FBI and the CIA. I was extremely aggressive in pushing to ascertain whatever roadblocks there might be and to bring them down.

We established the Joint Intelligence Community Law Enforcement Working Group; it met regularly. We had the Gang of Eight—the top four people at the FBI, the top four people at the CIA—which met monthly. These were all things that I put in motion. I sent out notices to all of the intelligence agencies to remember their obligations to report any potential or actual criminal activity that emerged from their intelligence activities. We created an MOU [memorandum of understanding] with the State Department so that in the Embassies, the law enforcement personnel could converse freely, consistent with protecting sources, et cetera, with their colleagues also housed in the Embassy.

I did something that the prior administration declined to do, which was to get legislation authorizing foreign intelligence physical searches. Until 1994, if I wanted to wiretap you as a spy, I could go to the FISA Court and get an order based upon a showing that you were an agent of a foreign power, or the agent of a terrorist organization. If I wanted to go look at your computer or your notebook, I just got a note signed by the Attorney General, and did it. The AG didn't like that. In one place you have a court order, and in the other you have nothing but inherent executive authority, but no one was willing to ask Congress to provide authority for fear that Congress would say no. But we did.

I testified and I asked for it and I took very hard questions from Members of Congress who said, "Why do you want this? Why do you need it? How do we know it won't be abused? Isn't this domestic spying? What controls are there on this? We don't like this." Numerous of my predecessors in Republican administrations urged me not to do it for fear that we would not get it and then where would we be, but we felt that we needed to have it. I was criticized in the Post and in the Legal Times and in other places for my efforts to bring down the wall, if you will, between the intelligence and law enforcement communities, because I thought this was a problem.

So I find the notion that I was not aggressive in the protection of our national security mind-blowing. The procedures that we put in place were designed to protect a tool that we desperately needed and to protect convictions if we got them. And all of the other work that we did was viewed as extremely aggressive, I think, in the community, and when it was ever public, in the public. So from that point of view, I thought we were quite aggressive and I thought that the description in the 9/11 Commission Report of what the Clinton administration did was correct.

Did you spend much of your time in contact with counterparts overseas? Was there any part of your portfolio that involved negotiations or—?

I met with some from time to time, as courtesy visits. Occasionally there would be an issue of what the FBI was doing in another country, what permissions they would like to have, and so forth.

But that's not a big part of the job?

No.

A couple of follow-ups on this. Did you have any piece of the action on continual monitoring after the first World Trade Center bombing and the prosecutions and so forth there?

No, this was very much being handled by the U.S. attorney in New York. Occasionally we would get some pieces of information but no, not really.

Were there ongoing efforts after that to try to learn from the experience, as a mechanism to make sure there weren't missed signals for what was about to happen in '93 that we could have learned something from later?

Well, I don't know the answer to that. We did hire one of the lead prosecutors, [J. Gilmore] Gil Childers, to work in my office and to work at the intersection of law and criminal justice and national security.

Is that where Fran Townsend also came through, or is that a different office?

She worked initially for Jo Ann Harris, who was the head of the Criminal Division. She worked in the Criminal Division. Then she was elevated to Special Assistant to the Assistant Attorney General, and then after I left, she became head of the Office of Intelligence Policy Review. But Gil's portfolio included that constellation of activities. The Office of Intelligence Policy Review also had responsibility in that area. I'm not aware, there well may have been some after-action report, but I didn't see it.

Again, I'm trying to think of some ways of probing a bit deeper on this general question about the administration and counterterrorism. Steve, do you have anything you want to follow up with?

This may be a question you may not even want to answer, but you described earlier a somewhat distant relationship between President Clinton and FBI Director Freeh. It has also been reported that he had a somewhat distant relationship with James Woolsey, who was his first CIA Director, a somewhat difficult relationship with John Deutch, and I think a fairly good relationship with George Tenet. But what would you say to the accusation, which I've heard from people who study some of the things I do, that these kinds of issues were not in the forefront of President Clinton's agenda, that he was more focused on domestic issues?

That's not what I saw. I saw a President focused on these issues, seized with them, both in terms of the reality of what he saw in the intelligence, but also the voracious reading that he did. He read spy novels and disaster novels. After I left the government, I had the opportunity to introduce him at a National Academy of Sciences event where he launched an initiative on biosecurity, where he invested a lot of money, billions of dollars, in biosecurity preparedness, because he got that. He understood it. He gave Richard Clarke unbelievable access. An assistant-level person in the National Security Council does not routinely get to spend time with a President, and he had all the access he ever wanted. So I don't understand that perception of President Clinton accords with anything the 9/11 Commission found, and we looked at everything.

In terms of his relationships, I like Jim Woolsey very much and we've known each other for a very long time, but the chemistry between him and Clinton was not good. I thought the relationship between Deutch and Clinton was excellent, from what I saw. I thought that Deutch was able to speak very honestly with the President. My impression is that he had all the access that he wanted when he was Deputy Secretary and when he was DCI [Director of Central Intelligence]. I didn't see this in action, but I think that was the case. The President's relationship with the FBI Director, as we've already discussed, was not good. One could criticize the administration's implementation of the President's desires here, and what he wanted to see done, but I don't think you could criticize his understanding that this was a real threat.

Richard Clarke was on your radar when you were serving in government, or he's somebody you've come to know afterward?

Oh, no. He was on my radar.

You're smiling, can I ask you why?

Because, on the one hand, he was the most intrusive, obnoxious, abrasive, irritating person to deal with. On the other hand, I admired him and I liked him. But he tried, from his perch in the National Security Council, to run counterterrorism policy by going in and finding the person two levels down or three levels down who he thought could implement what he wanted. The good part about that is he was active and he had a hands-on style and he knew who to call. The bad part is, you can't run an agency if someone else is giving orders externally.

And the fact is, when they come back to their building, they didn't execute those orders. They do actually have real bosses. The government is hierarchical. People pay attention to their bosses. They do not, by and large, salute orders from someone, no matter how aggressive, in the White House without the permission of their superiors. When you're sitting at the Pentagon, or you're at the Justice Department, and someone calls and says, "The White House wants—" "The President wants—" You hear that all day long and pretty soon you learn that most people who are saying that have never seen the President and wouldn't know what the White House wanted if they tripped over it. You ignore it unless you hear from Leon Panetta, or Sandy Berger.

I think Dick Clarke in many ways thought he was having more effect than he was actually having. So I liked him, I was glad that he was there, and I am admiring of him. But anyone who ever dealt with him thought he was a difficult-to-deal-with guy.

Sure. And that has its own deficiencies, too, because that can rub people the wrong way.

Attorney General Reno would not deal with him. I got that charter.

It raises a question about something you just touched on. You said that Clarke would find the person two or three levels down into an agency to start working with, to try to get something accomplished. When you mentioned a few minutes ago that the Attorney General would ask the FBI Director if he had everything he needed—or if he were on top of this situation, of whatever part of the counterterrorism business he's got—is there any way independently to verify?

It's very difficult, which is what Bob Mueller is finding. He's giving orders and being told there's—being saluted. Imagine, Bob Mueller represented to almost the entire policy community that we were steps away from having a state-of-the-art computer system, when his underlings knew we weren't, so it's very difficult. The AG literally sicced the Justice Management Division on the Bureau and used them as a way to get information from below and within, but it's extremely difficult. It's very hard.

Did she ever take it upon herself to contact people beneath Freeh, or was that considered bad form?

She asked for briefings regularly. She asked for briefings on things she thought she wasn't necessarily getting the full scoop on. So she had briefings on the computer system. She asked for regular briefings on the counterterrorism program, asking who are you worried about, who's in your sights. She had pretty good instincts about when there might well be some details that should be on the table that weren't.

Did that develop pretty quickly? By the time you got there did you feel that her grasp of what was going on in the FBI was pretty fully developed?

I can only imagine what learning curve she had post-Waco. Perfectly sensible senior officials of the Bureau come to her with a plan and urge her urgently to put it into place. She says "No, I have some questions." They go back and forth several times. Finally she says yes, and the worst thing that happened to her in her entire professional life—the worst thing that has happened to the Department in a long time—happens. That might color the next set of questions you ask.

It's very reminiscent of John Kennedy after the Bay of Pigs—

Yes.

What we hear is he was not averse to picking up the phone and calling a desk officer in the State Department to find out what was really going on.

She got to know people reasonably far down in the hierarchy, and of course she had a security detail. I don't know this for a fact, but I can't believe she didn't get insight from them, from time to time.

I was going to ask you one related question that we haven't touched on and that is, during the period of time you were serving, the communications industry was just becoming revolutionized, the internet was beginning to get up and going seriously, e-mail and so forth. Was this something you were grappling with, as a consumer as well as a law enforcement problem to be dealt with?

This opens an entire other question, and I'll answer it in multiple ways. I'll tick off the ways in which this communications revolution affected us. The change in telephony created technical issues for the Bureau, in terms of wiretapping and pen registers, and the cost to the communications industry of complying with FBI demands. This was an issue that was debated fervently.

The Attorney General and I were, as far as I know, among the few people in the government to get both the FBI information on cybersecurity, cybercrime, as well as the intelligence reporting—I guess the FBI Director got it as well—the intelligence reporting on cyber threats, which led her to ask me to stand up a working group on cybersecurity, which I did, first going to the Defense Department to ask it to do it, which it declined, and then doing it myself. They were willing to give me a couple of people to work on it from the Air Force, which was the relevant agency. We had NSA, CIA, DoD, Commerce—I can't remember who else we had. This working group ended up recommending a Presidential commission, which was established, and which produced the Presidential Decision Directive on cybersecurity.

So we were quite aware of cyber threats. We were quite aware of how the changing technology could hurt us. I spent an enormous amount of time on encryption. The FBI wanted to require that there be a system which would have minimized the ability to put encryption on computer programs and oral communications, and the industry fought it, ultimately successfully. But I spent, at Freeh's behest, a huge amount of time and political capital trying to fight this battle. Currently much of what the Bureau gets in its wiretaps is encrypted and it can't decrypt it.

Darby, there were some questions about Haiti. You said you'd spent much time working on Haiti after you'd moved over. This is when we were talking about that part—

Yes.

You want to go back—

If you could share what your role was. You said you spent a lot of time in the Situation Room and dealing with that issue.

There were two summers in which individuals took to roughly made boats from both Haiti and Cuba and threatened to overrun Florida. They quickly were apprehended and put in standing detention facilities in Florida, but we ran out of space, so we had to address that emergency and what to do with the people that we were apprehending. How were we going to apprehend them? How were we going to determine how many were going to be coming? What was our intelligence, which turned out to be meager, about the outflow? And then, ultimately, what were we going to do? You had huge problems with the difference in policy toward Haiti versus Cuba, and toward immigration from Cuba versus Haiti. How to deter people from coming and how, physically, to process them? Of course, it was bound up with what kind of government is there in Haiti, and how do you convince people not to come here in that fashion.

So I spent a lot of my time on all of those issues in my role overseeing the Immigration and Naturalization Service. We met every other day for quite a bit of time and the meeting on Haiti was the one Cabinet meeting I got to attend in the Attorney General's absence.

I'm trying to ask a delicate question about Aristide, whose image is a little fuzzy. Was that something that you were dealing with during this time, or were you dealing with the macro issues about population transfers mostly?

I was cognizant of that issue, but it wasn't on my plate.

So mostly what you're looking at are the broader questions about immigration. What were the other components of immigration that you were dealing with during your time? Was the southern border problem severe?

It was an enormous problem and it was politically very sensitive. There were then, as there are now, people who wanted to secure the border by linking border patrol agents arm in arm across it, which would have required an investment at an order of magnitude very much greater than what we had. At the same time, you had people who were here legally and who were feeling that they were prejudiced by their immigrant status, and therefore wanted to become naturalized citizens—who were entitled to become citizens—but the service part of INS [Immigration and Naturalization Service] wasn't working very well either.

Traditionally the INS had been kind of a dumping ground for underperforming personnel, so its capabilities were substantially overwhelmed by the growing mission. One bit of advice I consistently got when I went over to the Justice Department was to keep INS as far away from me as I possibly could. I did exactly the opposite, because if I was going to have this problem anyway, I thought I might as well try to fix it. I asked my former partner and friend, Seth Waxman, who later became Solicitor General of the United States, to come in and work with me. He was my partner, my contemporary, my college classmate, and I asked him to come and oversee INS.

You still speak to him?

He is still speaking to me. I told him to hang in there and that better assignments would come, which thankfully did. But it was an important thing to be doing and he did an excellent job. It was something that had to be fixed. It had to be addressed. I spent a lot of time on the border. I spent a lot of time advocating for more border patrol, more technology. I used my connections at DoD to get a better cooperative relationship between the Defense Department and the INS, in terms of technology and sensors and all that. Then I tried to help shield the INS from the politics, which were just brutal. This agency was so buffeted by hearing after hearing, and investigation after investigation, it could barely tend to the work at hand.

That's one of the things that people don't understand about government, it's a group of people trying to get their jobs done. If you bombard them with subpoenas all day long, they can't do their work. To a certain extent I'm quite sympathetic to the people working on the aftermath of Katrina, who were saying, "Could we please try to stabilize this situation in Louisiana and Mississippi before we have to respond to demands for our testimony?" I think that's right.

Sure.

They had it constantly. Doris Meissner barely had a minute to think without someone calling for her resignation or impeachment or drawing and quartering.

Did you have a contact in the White House who was to handle immigration questions, or did they prefer to keep the President out of harm's way on this one as much as they possibly could?

There were various people at various times who had it as part of their portfolio. Rahm Emanuel had the Justice Department generally and he got involved from time to time. When the Vice President had the reinventing government initiative, one of the things he wanted to reinvent was the INS, so he had people on his staff who were interested. There were various people from time to time that had an interest it—OMB [Office of Management and Budget], on budget issues, because the sheer numbers of border patrol that would have been needed were huge.

A few more things to deal with. There are two orbits in the White House that we haven't touched on, one of which is the Vice President's orbit, the other being Mrs. Clinton's orbit, which of course was heavily involved in the health care issue early on that you probably wouldn't have had any dealings with.

I did not.

But I do wonder, did you have any occasions to be drawn into those orbits or to have overlapping orbits with either the Vice President's office or the First Lady's office?

On the First Lady's office, I cannot recall any conversation with her about the Justice Department, although the right wing has posited me as her spy in the Justice Department.

Really?

Oh, yes. Maybe her staff would call on an issue, but nothing remarkable, nothing that I can remember.

The Vice President's office I mostly engaged with, both at Defense and at Justice, on the reinvention process, because there were various proposals that would come out from staff, some of whom were knowledgeable in that process and some of whom weren't. Some of the proposals would sound good facially but would not be sensible in application. At the Justice Department, those had to do with the naturalization process, where I felt that their desire to cut through the red tape to naturalize people who were deserving to be naturalized would have left us vulnerable to bringing in, or allowing to be naturalized, people who weren't qualified for citizenship.

At one point I threw out of my office an emissary from the Vice President's staff on this. I literally asked him to leave, because he came in and he put in front of me a piece of paper that, had I signed it, would have ordered the elimination of processes and procedures that I thought were required. And I took offense. I told him that I didn't want to hear anything about that, and would he please leave my office.

Was he coming to you under the rubric of the reinventing government?

Yes, he'd traveled around and done a little kind of field study, which was fine. In fact, what I did instead was I turned to the Justice Management Division and I asked them to find out what the rate-limiting factors were in each element of the process. Were we understaffed? Were there procedures that were inappropriate? I ordered up this study. I said I wanted it in two weeks, and I then ordered changes that I think were indeed helpful. I was generally pretty polite at meetings. But I was furious. Afterward, I called Elaine Kamarck, to whom this person reported, and I told her what I had done and why, and that, no disrespect meant , but this was totally inappropriate.

Did you get the impression that the Attorney General and the Vice President got along okay? Did they have any dealings with one another?

I rarely saw them together. The only other intervention, I think, by the Vice President, was on encryption. He was given that issue to resolve. And he ultimately rejected Justice's position. I also dealt with the Vice President in the planning for the 1996 Olympics.

I wanted to—the simplest thing is for me to hand you the organizational chart. I'm not going to ask you to go through all of this, obviously, in deference to your trip yesterday. But you might want to have a look at that and see if there are some pieces of the chart that spur some particular memories, either about episodes where you are involved with them or, it would be helpful for us, as students of institutional history, to know if there are some particularly problematic components of the Department that provide headaches, INS probably being one that you've already identified.

And it's gone.

It's gone. What else do you look at in there, you cast your eye over it and all of a sudden you start developing a headache because you think, oh my God, this is—either because of the people there, or the kinds of issues you have to deal with.

Well, there was a tension between the Office of the Inspector General and the Office of Professional Responsibility because they did have overlapping jurisdictions, and each one of them in some way asked me to elevate it over the other. That was one of the issues, actually, that was pending when I got to Justice.

That sounds like academic politics where the stakes were so small.

I did have occasion to adjudicate between them and I thought that was part of the job. Both very highly skilled, knowledgeable leaders, who were looking out for their prerogatives.

The Office of Pardon Attorney worked hard, and was utterly frustrated in the administration that I served in because we could not move the applications through the White House.

Were you surprised at what happened at the end of the term?

Yes.

Did you expect that to happen, given your experience?

No. My problem was the opposite.

To what do you attribute the reluctance of the President to sign any of the pardons?

Sometimes I think he was busy and it was something that there was no deadline on. And sometimes—Whenever you're pardoning someone, you are giving a benefit to a criminal, by definition. You see that, over time, Presidents have used this power decreasingly. I think that's wrong. The politics of it need to be dealt with; it's not right. After all, you had ample review of the applications. And I was a screen for them; the career people who did this were screens for them; the White House counsel's office was a screen for them. But the White House didn't want to use the power, which I thought was too bad. During my whole tenure, I don't think there were any pardons granted.

The Office of Intelligence Policy Review, this organizational chart says, reported to me, but as a practical matter their entire interface was with the Attorney General because she was the one who signed off on their pleadings. Each of the heads of that office during my tenure were handpicked by her and were close to her.

The Justice Management Division—Everyone should be so lucky as to have a professional group of people like this who have served administrations of both stripes, although I'm told that some of the people we thought were the best and who we had inherited from the Bush administration have been moved out by the current administration, which, if true, is too bad. They were straight arrows and a highly effective tool to use when you had a problem that needed addressing, and wonderful institutional memory.

The Bureau of Prisons was an interesting case study because it was headed by a career person and, whether it's related to that or not, was among the most professional of all of the law enforcement entities within the Department, of which there were many.

It's also often cited among scholars as one of the best run, in very unusual sets of circumstances, and having very high standards and morale for federal agencies.

The best. I visited prisons to see firsthand how they were run.

In between your flights over the Rockies.

Right. I wanted to experience lockup. [laughter] That might have been an exception to the I'll-do-anything rule. They were very impressive. The people who ran the prisons were impressive; the line people were impressive. During the government shutdown, which we haven't talked about, the guards, who were making $11 an hour and who, one could expect, were living from paycheck to paycheck, they just came to work. It wouldn't have occurred to them not to come to work for three weeks, although nobody paid them. They had no prospect of getting paid. They had no idea—this had never happened before—no idea how long this would go on. Did it occur to any of them to say, "You don't pay me, I don't come to work"? No. They were great public servants.

You didn't have any prison rioting during your—

Oh, yes, we did.

I'm forgetting.

We did. We had a prison riot over the sentencing guidelines. It started in one and then spread to another, and pretty soon we had riots and fires in three or four or five. I was supposed to speak at my law school reunion when the riots broke out. I called the person who runs the office that runs the reunions, and I said, "Look, I want to do this, but I cannot go because we've got prison riots." She said, "I've heard many excuses, but no one has ever told me they can't come because of prison riots." [laughter]

Okay.

But they were pros. Their instincts—Kathy Hawk [Sawyer]'s instincts were uniformly excellent. They were a model for state prison systems. I fought very hard against privatization for this precise reason. I thought that we would lose that professionalism, we would lose that dedication, and I did not know how to square up the profit motive and the obligation one has when one is responsible for everything material to a person's life, like health care and rights of free speech. I think I was right about that. But in any event, I spent a huge amount of personal time, attention, and energy arguing with Alice Rivlin about this when she was deputy at OMB.

Because she wanted to privatize.

She wanted to save money. If you look at the impact of longer prison sentences, they were coming home to roost, and as far as the eye could see, the Bureau of Prison's budget was going up like a hockey stick. It wasn't that she loved the idea of privatization, she just thought it would save money.

INS we've talked about. The U.S. Attorneys were a wonderful, feisty lot—and "lot" is probably a good word to describe them—there were 94 of them, and they putatively reported to me but they all felt that they reported to God, or maybe their Senators, but not me. So corralling them and getting them to march consistently and put their resources where the administration's priorities were, and curb whatever political ambitions they might have, and all the other things, was a challenging part of my job, but I liked every one of them. They're wonderful people.

I changed the mission of the Executive Office for U.S. Attorneys, upgraded it, and brought in my own person, because I wanted someone who would be glue between me and the U.S. attorneys, and help get alignment within the Department. It had been mostly a kind of support organization, and it could do that—make sure they had desks and phones and all that—but I also wanted input from the U.S. attorneys on policy so that you didn't get this face-off between the U.S. attorneys and main Justice. There was this natural tension that we needed a mechanism to address.

My assumption is that by the time you got into Justice, all of the turnover there had taken place.

Yes. But I did have to ask the U.S. attorney in Miami to leave.

Why was that?

There was a fairly publicized event where Kendall Coffey, an otherwise very sober fellow, got very drunk after a particularly bad defeat in court and ended up in a strip joint and bit a stripper.

After a bad—?

Bad day in court. It will do that to you. [laughter]

An occupational hazard, I guess, that those of us in the professoriat don't experience.

He knew Reno very well and I had to tell him that we could not have that kind of conduct. He's now done very well as a legal expert in the press. He's a lovely guy, and this I'm sure was aberrational. But I felt we couldn't continue. We also had to make a change in San Francisco, which is when we brought Bob Mueller in. This was not a traditional move, to bring in a senior Republican appointee to head a U.S. attorney's office in a Democratic administration.

DEA—I thought they were a really professional, smart lot. I never had any of the difficulties that I had with FBI. They were very responsive, very open. It's a different mission, but nevertheless.

The Office of Legal Counsel—to be able to push a button and have Walter Dellinger on the other end of the phone, or Randy Moss, or any of the people we had in that office, was such a gift. To have lawyers of that quality available was astonishing. Principled, smart, funny, great people.

Is that where Hillary Clinton's legal think tank ended up?

No, that is the office that is the advisor to the Attorney General and to the President on issues of constitutional law and the like. I think she had in mind something slightly different. I think she was thinking about something more at the intersection of law and policy.

Were there any circumstances that you recall in which the opinions sought by OLC [Office of Legal Counsel] were divergent from those at the counsel's office?

I'm sure that we gave advice from time to time that they would not have welcomed. Sometimes a President wants to do something that the law won't permit him to do. But they had very good interactions with the White House counsel's office, and I thought the relationships were excellent. Lots of mutual respect. I cannot imagine an Office of Legal Counsel opinion of any significance going over to the White House without plenary review within the Justice Department. We had the Solicitor General, the deputy, the relevant Assistant Attorneys General around the table discussing issues with Walter .

I raise this in the context of the torture memos. I don't understand how this important fail-safe—this institution that is so responsible for ensuring the rule of law—can issue an opinion that purportedly got so little attention internally. I don't know if it did, but that is what is said about it.

During your tenure were there any OLC opinions that you recall that were particularly difficult for Justice staff to come to agreement upon, or that you spent a fair amount of time on, either because of their complexity or their importance?

There was a lot of discussion, during the first term of the administration in particular, about religion in public life and the role of government vis-a-vis religion. And we undertook to write an opinion that was as forward leaning as we could be, and that dealt with some of the myths about how the government may interact with the religious community. I think many people were surprised by our judgments about what could be done, permissibly, consistent with the Constitution. That was one interesting decision. There were several in the area of national security that I can't discuss, but which, I think, disabused people of some notions about constraints that they thought they had, that we didn't think they had.

The issue of affirmative action in contracting, of course, was very significant. We had to interpret for the entire federal government what those decisions meant, and we tried to do it in a way that made clear the latitude with regard to affirmative action in contracting. Those are the ones that come to mind. There were, no doubt, many others.

There was a White House review of affirmative action, where the administration was trying to establish a political position on this, that must have occurred during your time.

This was part of that. The White House needed to know what the ground rules were.

But you didn't have any further involvement in that particular exercise?

I didn't, but I believe that Deval Patrick did.

Of course.

The Community Relations Service was the service I was referring to, and it was largely dismantled by Congress during my tenure, which I think was a huge mistake. The Republican Congress felt that it was a "do-good social worker" kind of entity. The fact is, when there are disasters, riots, et cetera, it helps to have someone who can go into a community and lance tensions and defuse arguments. It was a small office and the people were salt-of-the-earth, wonderful people. You could dispatch them on ten minutes notice and they would go off to some godforsaken place where everybody was screaming at each other and help prevent a confrontation. It was, I thought, an effective use of taxpayer money and a good resource to have available, and it was too bad it was dismantled. I tried to save it, but unsuccessfully.

We talked a little bit about civil rights, antitrust. We had, of course, the ADM [Archer Daniels Midland Company] case, we had the Microsoft case. We had a lot of activity in the Antitrust Division. The COPS [Community Oriented Policing Services] program, which is also history, I thought was useful in sparking additional police presence on the streets. The Solicitor General's office was of wonderfully high quality. The Associate Attorneys General with whom I served were uniformly excellent. And I think I've just covered your chart.

Can I ask a question about the Solicitor General's office? Were there pieces of litigation where either the U.S. was a party or might come in with an amicus brief, in which the White House became involved in discussions with the Justice Department on what your guy's position should be?

Sure.

Do you have any specific recollections of what the cases were that sparked their interest and involvement?

I don't. But this was an important role, an important way in which the government and the White House, any administration, expresses its public policy, by making its arguments to the Supreme Court and the lower appellate courts. So this was a frequent subject of discussion between the White House counsel's office and the Justice Department.

Were these kinds of discussions usually taking place at your weekly meetings with the counsels or were deputy counsels and people having direct communication with the Solicitor General?

Both.

I was going to come at this from a slightly different angle and ask you if there were any Supreme Court decisions that were taken during your tenure there that were particularly controversial inside, or that you recall as being particularly noteworthy?

Early upon my arrival we had a child pornography case on which I thought the Solicitor General's proposed position was wrong, and I persuaded the Attorney General of that. There was an affirmative action case where I thought the Civil Rights Division was wrong, and I was unsuccessful in derailing that. Ultimately the case was dismissed by the Justice Department after others came to that conclusion. I'm sure there were many, and Seth Waxman or Drew Days or Walter Dellinger would be the people to talk to, but Seth in particular, because he was deputy for much of that time in addition to serving as SG [Solicitor General].

The [Paula] Jones case was decided a few months after you left office, but I don't know whether the Department had taken a position on that case or not.

I don't think so, but I am not sure.

In the cases where the Solicitor General and you were in dispute, the Attorney General was the obvious arbiter of what position the Department was going to take. If the counsel's office and the Department of Justice disagreed on a course of action, where did that rise to? Were there instances where the President had to come in and hear arguments from both sides, or did those disputes get resolved by the Attorney General ultimately?

I don't remember that happening. Seth was masterful at working through these issues, as was Walter. Drew had less communication with the White House at the outset of the administration, and I can't remember concern expressed by the White House that we thought unreasonable. For much of the time, the deputy White House counsel was a former Supreme Court clerk, and certainly for all of the time, many of the associates were, and they simply spoke the same language as the people in the SG's office and the Office of Legal Counsel. I'm not saying I didn't ever have to broker some disagreement, but it wasn't a big part of my job.

I have just a few more questions and I promise we'll bring an end to a long day. One of the things that we have learned about the current administration is that there was a corpus of people who came in very much committed to trying to reclaim Presidential powers. This predated 9/11, if you go back and look at the materials, both in the White House and scattered out in the departments. Do you have any sense that there were people similarly concerned in this administration that you worked with, who took it as their mission to stake out institutional interests, to try to hold on to the power of the Presidency in a period when it clearly was on a path of erosion?

That was the institutional position of the Justice Department, and certainly the Office of Legal Counsel: Mr. President, you're well within your rights to assert the prerogatives of the Presidency. Each decision was made incrementally by an administration that was, after '94, persistently under attack. Operating constantly under subpoena can erode the power of the Presidency. I agree with the desire on the part of, particularly Vice President [Richard] Cheney, to reclaim some of those prerogatives, because it is extremely difficult to operate if every piece of paper that you're touching is under subpoena. There was, in fact, a point when we did not take notes in National Security Council meetings because it was thought that anything committed to paper would be subpoenaed. That's a dangerous thing. The irony, of course, is that that diminution in the prerogatives of the President took place at the hands of the very people who elected Dick Cheney. But I still agree with him. Honestly, it is very important that we have transparency with Congress, but Congress has to be reasonable in allowing an Executive to function.

Do you have any specific recollections about the changes that occurred in the immediate post-'94 electoral environment? Was there any significant or noticeable change in the way that the Justice Department operated?

We had subpoenas for everything, every day. I can't remember how many calls for the Attorney General's impeachment there were. It got to be so routine we barely paid attention to them. You'd think that it would be a major event when someone calls for the impeachment of the Attorney General, but honestly, it happened frequently. Her response, which was quite admirable, was "I'm happy to come and testify, whenever you would like. I'm ready to discuss this." The constant threat was "I'm going to hold a hearing on this," and her view was "Fine." She almost always bested the committee, in my personal view, so I think they stopped thinking of that as a hammer over her, but it was a very difficult environment. We had teams and teams of people who, instead of doing the work of the Department, were responding to inquiries. It was very hard.

Did she have any close friends, or did you have any close friends, on the opposition side on Capitol Hill who, notwithstanding this avalanche of calls for her removal, could be counted on to be rational and levelheaded and reasonable?

She didn't spend much time on the Hill and I don't know whom she would have considered in that category. I had many friends on the Hill, Members and staff, on both sides of the aisle. I thought that the leadership, in the Senate, was pretty rational, but the House was an extremely difficult environment for us. A staunchly Republican House, where the leadership is very much on one end of the spectrum of the Republican Party, creates a difficult environment for a Democratic administration. We saw this with the "Contract for America" and in the hearings that followed, at which I testified, and also in the two government shutdowns during my tenure.

Sure. One more specific question and then a couple of general concluding questions. The specific one is, you were occasionally asked, in some of the press accounts, about any difficulties that you might have encountered serving as a woman in a high-ranking position in the government, and your response was you'd never been a man so you didn't know how it might be different, which I thought was a nice rejoinder. [laughter]

So what are you going to do?

I'm going to ask the question in a slightly different way, not about yourself but about the White House in particular. We've talked to a fair number of women who worked in the White House and without violating any confidences, we do get feedback from them that there was a kind of second-class citizenship in this administration, that when things went wrong, it was the women who got fired and blamed, and the men would get elevated. Did you have any close friends on the White House staff that you would commiserate with occasionally on this kind of issue, or are you just too busy?

I had friends on the White House staff, but I didn't have that sort of conversation with them. There were men whose advice I trusted, who told me that under no circumstances should I go to work there, that it was too much of a men's or boys' environment.

This was early or late or throughout?

Throughout. Not that it was an environment in which one would be harassed or anything like that, but that it appeared to them that the women were not all that comfortable, and that I would not be comfortable with a lot of the jocular talk. I also did not want to be in the White House, because I really like running something; I'm much less good at being staff. I tried to pick the places where I could be of greatest help. Plus, I have a family and I very much value my autonomy. Now, most people would not have thought of the Deputy AG position as particularly autonomous, because of the workload, but relatively speaking it was.

Had you always intended to leave after the first term?

I had made no plans one way or the other. By the end of the first term I was tired. I approached that job as a sprint and I was literally flat out every day. There was no downtime. There was no minute to take a breath. And I gave it everything. So by the end of the first term, I was pretty heavily inclined to leave. I make most of my decisions on vacations. I went away for Christmas and came back and told the AG and the President that I would be leaving.

Was there any consideration of moving into another position elsewhere in the administration that might have suited you?

It's hard to know what would have happened had I been asked to take a job other than the one I had, because I was very tired, and I thought I had done a good job in that job, and that I would not, if I stayed, be able to do as good a job in the future. Also, I think that the Attorney General felt like she was less needful of my style of being a deputy, that she was much more in control of the Department. She knew where the bodies were buried. She was very comfortable with the substance. And she put up with a fair amount of criticism in the Department for having me around—all of these articles that said I was really running the place and she was this dotty old woman.

That was totally incorrect. She was firmly in control of the place. She made all of the substantive decisions and she was completely with it, plugged in, in control, and yet the press, at least the Washington press, could not accept that. Part of me said she should run this place on her own, in her own way, and that my style was not right for the second term.

Do you know whether she ever gave serious consideration, during your time there, of resigning? Not necessarily under pressure, but because she felt like she'd had enough and wanted to go back to Florida?

She really liked the job.

Did she?

She loves public service. When she finished the second term, I spent some time talking to her about how to arrange a portfolio of activities that would be great for her. She talked about taking her little red truck and going around the country, and writing a book and giving lectures. We had all the pieces set up, and then she tells me she's going to run for Governor. I remember sitting with her on my screened porch. We had a bunch of people from the Department over to dinner and they all left and we sat out on the screened porch. I said, "Look, I will support you on whatever you want to do, but why do you want to do this? You have your health to protect. You have given a tremendous amount to your country. You've served eight years in a really hard job. Why do you want to run for Governor?" And she said, "Does a cow moo?" [laughter] That was it. That was her answer, so there was no way she was walking away from that job.

That's a very poignant tale, right on target. What about your time there were you most pleased with?

We haven't talked about "Team Gorelick." I had a fabulous staff, maybe the best ever. I think most observers would say it was a hugely talented team. We were able to restore morale, make things move. We reenergized the career staff, who had felt sort of disenfranchised in the prior administration, felt that they couldn't get their work done without the proper support of the front office in the beginning of the administration. So I was pleased, actually, with the part of the job that Phil Heymann said I would hate.

I thought making decisions and serving them up cleanly and carefully, in itself, was a good contribution. In the course of it, we made some progress. I think the enforcement agenda was a good one. I think we managed the aftermath of the Oklahoma City bombing well. I was proud of the teams that we fielded. I thought we addressed the crime bill and the assault weapons ban well. But my principal contribution was literally as manager.

That's your version of a cow mooing, isn't it?

Yes. If I were to be the principal in an agency, I would not consider that to be the highest and best goal. Really, the challenge for me, if I ever have that opportunity, is to see if I can let someone else do what I did.

Right.

I would, however, be able to tell the difference between someone who can and someone who can't. Along the way I had the opportunity to put my stamp on any number of decisions, and I think we left a wonderful legacy of members of the bench. Having Merrick Garland on the D.C. Circuit is wonderful; having Bill Bryson on the federal Circuit is wonderful. I can name any number of appointments that would not have happened had I not pushed them and advocated for them, so we'll see.

So I take it, given what you just said, that you might consider going back in at some point.

I might. I told the team that was preparing for the [John] Kerry administration that I did not want to go in. My children are now 17 and 12, and I believe, although people said I would not have, but I believe I would have stuck with that. I am quite happy doing what I'm doing, but I do like government and we'll see what happens.

I hope that if you decide to go back that you'd be as generous with us after the next administration as you've been today.

You're more than welcome. What I get out of it is a timeline of things I did, which I otherwise would have forgotten about. No one has prepared such a book for me, so I thank you for it. It's certainly worth a day of my time to get a little bit of my history back.

We'll stamp "Compliments of the Miller Center" on it. You really have been very generous. I always say at this point that we haven't exhausted all of the possibilities of discussion, but we've probably exhausted all of the people at the table. Thanks for giving us so much of your time. It has been interesting and enlightening for all of us at the table, and more importantly, it has helped fill in some gaps in our knowledge base, not just for our own purposes but for the people who, five, or ten, or fifteen years from now, are going to come back and know how it actually was. We're very grateful.

You're more than welcome.