Abner Mikva Oral History

Welcome, everyone. We’re here for the Judge Abner Mikva interview as part of the Clinton Presidential History Project. I will mention on the record what we discussed off the record. The Judge is familiar with the ground rules under which we’re operating: He is free to discuss anything said here today, but we as interviewers are not. 

Before we begin, I’d like to go around the table to identify ourselves and make it easier for the transcriber to identify who is speaking. I will begin. My name is Darby Morrisroe, and I’m an assistant professor with the Presidential Oral History Program.

I’m Paul Martin. I’m an assistant professor, also with the Oral History Program.

I’m Jill Abraham, a researcher at the Miller Center. Today I’m going to be writing down the speaking order to help the transcriber with proper names.

I’m Nancy Baker, an associate professor at New Mexico State University.

I’m Karen Hult, professor of political science at Virginia Tech. 

I’m Abner Mikva. I’m the person in the hot seat. 

We’ll begin with a little bit of biography. Could you tell us how you initially became involved in politics? 

I was just starting law school at the University of Chicago. Wisconsin, where I grew up, is one of those wonderful places—especially Milwaukee—where politics is very open, very easy to get into. If you walk by the party headquarters slowly enough some night, you can be county chairman before the night is over. I’d been told that if I went down to Chicago I should just forget about politics—it’s a closed party, closed machine. I came in 1948. Adlai Stevenson was running for Governor, and Paul Douglas was running for Senator, and I just couldn’t reconcile that. 

I actually did make an effort to get into politics. In fact, there’s a wonderful story that came out of that. I stopped by the eighth ward Democratic headquarters on the way home from law school one night and said, I’m here to volunteer for Stevenson and Douglas. The quintessential Chicago ward committeeman took the cigar out of his mouth, looked at me, and said, Who sent you? I said, Nobody sent me. He said, We don’t want nobody nobody sent. That was the beginning of my career in Chicago. But I did get involved in the campaigns anyway, and obviously I remained interested in politics. 

My first job out of law school was as a law clerk in Washington. Sherman Minton had been a Senator from Indiana, and he encouraged me to get involved, so I came back and got involved in some individual campaigns. In 1955, thanks to a Supreme Court decision, all the seats in the legislature were reapportioned, and the district around the University of Chicago where I lived had open seats, nobody incumbent. We also had something called community voting at that point, which meant each candidate could get three votes from every voter that could be divided up among three candidates, one-and-a-half to two, or one to each of three. So running as an independent Democrat, I could win the seat with 40% of the vote, which I did. 

I was in the legislature for ten years and loved it. I made my first try for Congress in 1966, running against an 82-year-old man. He was the last Spanish-American War veteran, and he beat me. They asked him how he felt on election night, and he said, It was just like when I climbed San Juan Hill. Then I ran against him the next time around, when he was two years older, and the organization thought I might win anyway, so they declared neutrality. I won that primary and went on to have two terms in Congress. Then I was reapportioned out of my seat. I moved to the North Shore, lost my first attempt to keep my seat, and then won three terms.

In the middle of my third term, President [Jimmy] Carter appointed me to the court. I was there for 15 years, the last four of which I was Chief Judge. Under court procedures, you have to step down as Chief Judge when you reach 70. So I would have had to step down the next year, and that was when the White House Counsel’s Office was going through all that Sturm und Drang with Bernie Nussbaum, and Lloyd Cutler had come in temporarily. He called me one day. He knew that I wasn’t going to be Chief Judge any more, and he said, How would you like to get out of the judging business and be White House Counsel? 

I had met Clinton once in my life, going through a receiving line or something. But I liked what he seemed to be doing. 

Did you have any interaction with Clinton at all during your years of Congressional service? 

The only interaction I had was purely one-way: I heard his dreadful speech to the Democratic Convention, whenever that was.

1988.

And it went on ’til 1992. [laughter]

What were your impressions of him at that convention, apart from the dreadful speech?

I wasn’t at the convention, but just listened to it. He was just somebody who didn’t know how to use the great limelight he had, overused it. We’ve had several like that. There was a great primary candidate in Kentucky once whom everybody was very excited about. He got up and delivered the same kind of awful speech, and we never heard from him again. Clinton survived, and we’ve heard from him since. 

Was it a hard decision to step down from Congress to take the position on the federal bench? 

Not really. I’d been on the ballot every two years for 24 years. I’d run in 23 elections. Running is like a rubber band: you can snap back so many times, and then the snap goes. Usually I’d take the weekend off before the election and then go into high gear. We have a summer place in the Michigan dunes, and in the last campaign I had, I was sitting on the beach with my wife, and I said, This is going to be my last one. She said, Oh, you’ve been saying that for years. I said No, really—it’s so hard to get worked up to do this. I was in a very close district. I was winning by less than 1%. It was a heavy drain on me, my family, and my friends.

Was the money game part of it?

In the previous campaign, the one before the last, my opponent and I had set a record for spending more money than ever before. I was embarrassed at the time, but I’m sort of proud now, because it was $500,000 each, and that was a record. 

My goodness.

Now they spend that much in an unopposed primary. But it wasn’t that. You have to spend so much of your energy raising money and imposing on your friends. One of my fundraisers once said that having me as a friend was like perpetually having a kid in college.

Aside from the campaigning, did you enjoy your time in the House?

I loved doing that. And I loved campaigning. It’s just that I was 53 when I left the Congress. I was 28, 29 when I started. There are differences in the way you feel, the way you respond to things, the way you react, the way you take wins and losses. Politics is a young person’s game. 

You were in the House at an especially exciting time in terms of the changes post-Watergate: more decentralization, subcommittee bill of rights, and things of that sort. Could you reflect on that a little? 

I was elected in ’68, and I came into the old-boy network with just the beginning of rumblings. There were people like [Morris] Mo Udall and Don Frazier, Bob Kastenmeier, and Don Edwards, who were trying to stir things up, and a few Republicans like Tom Railsback. But the old boys had firm control. John McCormack was Speaker, and he was an old-line Democrat. We did not get along at all because I was elected as an anti-war Democrat in ’68. Every time he would recognize me, he’d say, The gentleman from New York. The Parliamentarian would lean over and remind him I was actually from Illinois. I never knew whether it was because I was against the war or because I was Jewish, but somehow he couldn’t identify me as being from Illinois. 

I lost in ’72. Then the impeachment started. I wasn’t there for it. Paul Sarbanes was sitting in my seat in the House Judiciary Committee. I had such mixed emotions. I was so proud of what a good job he was doing, but so angry that I wasn’t there and involved in it. However, when I came back in ’74, first of all, I had, as a re-tread, an extra leg up on the chain. Even though we were no longer playing seniority, I at least knew which way to turn when we went out the door. So I went on Ways and Means, and I was on the steering committee. It was exciting to see all those reforms going on, see the subcommittees change, committees change, kicked out most of the old line Bourbons who had been there, legislate reform. 

During your long tenure in Congress, you had the opportunity to deal with a number of different Presidents. What is your assessment of both the Presidents during your tenure and their Congressional relations? 

The one who had the best Congressional relationships had the worst record in getting along with Congress; that was Gerald Ford. Everybody liked Jerry. I liked him; we played golf together. He testified for me when my judicial nomination got in trouble. But his time was wrong. He inherited what was left of the Presidency after [Richard] Nixon dumped on it so, and Congress was overwhelmingly anti-Watergate, anti-incumbent Congress, and also the war. He was left trying to defend the war, and Congress was clearly determined to end it. 

I think the most impressive lesson I learned during all my years in the legislative area is that in this delicate balance between the President as Commander-in-Chief and the Congress in the capacity to wage war, the President has all the cards except one. It’s an ace that Congress is always very uncomfortable playing, but when they play it, it wins. That’s when they pull the money plug. 

I still remember. It was a May night, and it was a $600-million appropriation on the floor that was going to allow us to leave Vietnam with dignity. [Henry] Kissinger was controlling the back room, and Bob Michel read a letter from President Ford saying we must have the $600 million. We voted it down and the war ended. It ended with all the dire predictions that people said were going to happen coming true. People were leaving at the end of a rope on a helicopter and a lot of allies were killed. But it’s the only way Congress can trump the President’s powers, and that’s as it should be. (Don’t count on it happening easily.) 

Of the other Presidents, Nixon always had an uneasy relationship with Congress, but he got most of what he wanted. He seemed to have a mandate, and Congress went along, even though it was a Democratic Congress. He was able to put together coalitions. He got most of the things he wanted. He lost a few fights, particularly through a little piece of the second term. But people also forget that Nixon was nowhere near as conservative a President as he campaigned or as historians sometimes think of him. A lot of the environmental legislation passed during the Nixon administration, and some of the affirmative action legislation passed. So it wasn’t that he didn’t get what he wanted, but that most of the things he wanted weren’t as awful as they seemed. 

I was not there for [Ronald] Reagan. I had just left the Congress when he came. Let me talk about Carter first. Carter had terrible relations with Congress, even though it was a Democratic Congress and it wanted to move the country generally in the direction he wanted to move it. The rhythms just didn’t match at all. He was having terrible fights with Congress on things that there shouldn’t have been a fight on—tax reform. 

I had come back, re-elected in ’74. The reformers had pretty much stacked the Ways and Means Committee. We had a two-to-one Democratic plurality, and a lot of the people on the Ways and Means were newcomers and not beholden to anybody. Carter wanted to put through a tax reform package—if you remember the three-martini lunch. But he was so out of step with the way Congress moves, he was determined to put a whole package in, all kinds of things. He was going to reform the whole code all at once. As a result, he stepped on every pair of toes in Washington. Out of 25, there were about six of us who were defending the President’s program. We couldn’t get anything through.

In fact, finally, at the end of a terrible morning of one proposal after another being put up and voted down by the committee, about mid-afternoon Secretary [Sidney] Blumenthal signaled that they’d had enough. We had a terrible fight getting the committee to agree to adjourn because so many had made commitments to the lobbyists they had to put up. Finally we got an adjournment resolution through. Later on, I saw—I don’t remember whether it was the Secretary or one of the Assistant Secretaries—at a cocktail reception. I said, Mr. Secretary, do you think you can persuade the President that tax reform is incremental? He looked at me and said, The hell it is; it’s excremental. As I said, he had a terrible time. 

I was not there for Reagan, as I said. I had just left. I’d hear from my former colleagues, mainly from [Thomas] Tip O’Neill. We were good friends. He was beguiled by Reagan, but just despised what he was doing. He recognized how effective he was because he had great charm. Once in a while he’d come back from a meeting at the White House and say, That so-and-so, he sat there telling Irish stories all day, and we didn’t do a God-damn thing about the country. 

Then came [George H. W.] Bush, and I really didn’t see much of his interaction with Congress. I’d known the senior Bush. We were in Congress together; we played paddleball together. I think it was a fairly tranquil period. He put through a few things like the ADA [Americans with Disabilities Act of 1990], which he was proud of and Congress was proud of doing. The Gulf War took up everybody’s time for a while. But really, if you look back at those four years, they were not very eventful in terms of the relationship between Congress and the President. Then came Clinton. 

Did you learn any lessons that would be useful to Presidents in terms of what makes for a successful relationship with Congress? 

Most of it has been talked about. But the biggest piece of it is chemistry and a knowledge of how the Congress works. You can either get that on your own, or you can get it through the people you hire. I’m sort of mystified that George W. Bush has been as successful with Congress as he has been. I know he has pretty good working majorities in both the House and the Senate, but even so, I can’t identify anybody in his White House who is that tied in to the Congress. 

I know Speaker [J. Dennis] Hastert only slightly, but I was never that impressed that he was one of the skilled parliamentarians of our time. Maybe he is. Maybe he’s a lot better than I think he is—he’s been very successful. I don’t know the Senate people at all. I don’t think that the President shows any understanding or awareness of how Congress works or how it moves or how to interact with it, but he does seem to have incredibly good relations with Congress, and gets most of the things he wants through.

Former Majority Leader [Thomas] Delay, were you part of that—

No. Tom Delay was a great exterminator. When I left the Congress, he was still one of the backbenchers. I don’t know if you remember that the backbenchers at that time—Delay, [Newton] Gingrich, [Robert] Walker, some of the others—had zero influence. The only influence they had was if they could get O’Neill’s anger up and he would go through all kinds of commotion to make sure that they were recognized as the backbenchers they were. The only time they were able to take the floor was on a special order after the work was done. He would order C-SPAN to pan the House and show that it was empty, and there would be this little strip underneath, The House has adjourned, and no further business is being conducted. 

But they used that forum anyway to build up a nationwide constituency, and lo and behold, in ’94 they parlayed it into a majority. That ’94 election blindsided everybody. I know it blindsided President Clinton. But part of it was that the House leadership, particularly, had become so arrogant—not necessarily [Thomas] Foley, but some of the committee chairmen—and some of the ways they’d do business. It was easy to build them up as irritants to the people, and they were. 

I remember sitting around in some of the skull sessions in the White House just before the election, and some of the pessimists were predicting we might lose the Senate. But nobody expected to lose the House. It was like the Rock of Gibraltar. With the exception of Gingrich—you could always tell that Gingrich had some talent and some pizzazz—the others were just ridiculous. Delay obviously was a much better whip—which really the majority leader is—than anybody assumed he would be. I don’t know how they all did it. Apparently he’s going to be answering for it to a jury of his peers. But I certainly never assumed he was a great legislator, and I don’t think he thought of himself as a great legislator. 

So the atmosphere in the White House right after that November night must have been a little more—

You could cut it with a knife. The President went into hibernation—I think it lasted almost a month. He canceled all kinds of things that were on his calendar. You couldn’t get face time with him unless it was really important. That’s when Dickie Morris came back on to the scene, to everybody’s dismay, but the President came back to life. It was a very depressing time. Partly—and I can understand it—the President felt that this was somehow a reflection on his first two years. We’d had some ups and downs, but we thought the ups outweighed the downs. Obviously the American people didn’t.

Did your experience in Congress also help you when you were in the White House Counsel’s Office?

I thought it would help a lot more than it did. I had very good relations with the Congressional people, but the problem was that we had so many fights going on with Congress—not ones we picked, but Waco and Ruby Ridge and Whitewater and billing records. So I was spending all my time being a fireman and not doing anything about being a former colleague. 

On the few occasions that I was free to work on legislation, I liked it, and I think I did some good. But I had not been an investigative Congressman, so I wasn’t really that skilled in how to respond to investigations. 

Tell us about how you came to be named to the circuit court.

That confirms my belief that nobody gets anywhere in the political spectrum, including the appointment of judges, unless they want to be there. It isn’t that you can campaign to be a judge, but you have to make up your mind that’s what you want to do. 

I had been in Congress for five terms. As I said, I really thought I had run out my string, and I told my wife I was going to do something different. She said, What will you do? I said, Maybe I’ll teach, maybe I’ll be a judge. At that time there were two vacancies on the D.C. Court of Appeals; they had just created two new seats. President Carter was using nominating commissions to select people, and the head of the nominating commission for the District of Columbia was a former Senator named Joe Tydings, a friend of mine from when he was in the Senate. 

So I called him, and he said, Oh, by all means, apply and we’ll go through the rigmarole and I’ll bet you’ll do well. I went through it, and then there was a commission of about ten people, several Washington lawyers. I had been very active in the bar activities. I’d done a lot of speaking and I’d been involved. I’d been on the D.C. Committee for two terms, I’d been on the Judiciary Committee, so I knew a lot of the Washington lawyers, and I knew several of them who were on the committee. They were not at all friendly because the lawyers who practice in a town, even Washington, think of those seats as parochial. They’re their seats, and I was an outsider, all the way from Chicago, wanting to pick up one of their seats. Most of the rest of us don’t think of the D.C. Circuit as a parochial court. It’s not like the seventh circuit or the fifth circuit. It’s the national court. But they didn’t see it that way. 

Anyway, there were about three lawyers on. There were a couple of teachers, one from Maryland, I remember, who just was so enthusiastic about me. She kept saying, Why do you want to leave Congress where you can do some good to go off into that place where nobody ever hears from you again? You should stay in Congress. I wasn’t too sure I was doing well with her. But then there were some others. Anyway, there was a full interview period, and I filled out a long form. My biggest political problem at the time was trying to keep it as low-key as I could. I didn’t want my folks back home to know that I was ready to leave in the middle, especially if it didn’t work.

So after I’d gone through the process, there were two vacancies. The commission decided they were going to send up five names for each vacancy. So they were going to send ten names to President Carter. Joe Tydings called me after the commission had done its work. He said, Well, you’re on the list, and you’re in. I said, What are you talking about, Joe? He read me the names on the list. I said, There are some very impressive names there. There were state Supreme Court justices on it, general counsels for big companies. He said, President Carter’s going to see ten names and one face. You’re the only person on that list he knows. It’s true. We’d campaigned together. We’d had activities on the Hill—so, sure enough. 

You have said that you believe it’s excellent experience to have some political life before you join the bench.

Absolutely. I was reading more Congressional Records when I was on the bench, perhaps, than I did as a member of Congress. But at least I know how to read one. I know when somebody is just making a speech for the folks back home and when there is serious, hard-nosed debate going on about words in a statute. One of the problems with most judges, like Justice [Antonin] Scalia—whose only experience inside a legislative chamber was a horrible one and traumatized him—is that they see this debate, and they can’t tell the difference between political debate and hard debate.

So that’s for the legislative history.

That’s part of it. The other part of it is that’s not my reputation. I considered myself a judicial conservative because I’d had 20 years of being a legislator and I loved it, but I didn’t want to legislate from the bench. I understood how hard it is to get the people to agree on a particular set of words. I really believe that the court should give the words of a statute a very strict construction—not in terms of narrowing it, but in terms of trying to be faithful to whatever it is that the Congress or the state legislature was trying to do. 

I think that people who have legislative experience have a lot going for them. One of the problems our Supreme Court has run into on some of its most difficult issues has been the fact that there is such a paucity of legislative experience. Roe v. Wade is a perfect example. Justice [Harry] Blackmun, whom I loved dearly, was blindsided by the reaction. I could have told him it was going to happen. I’d been in the legislature when those fires were burning. I would have preferred to wait for a legislative solution to the problem. We were moving in that direction. New York had passed a law. California had passed a law. I still have a picture of Ronald Reagan signing the abortion reform law in California with the legislature standing all around him. But Blackmun was absolutely shocked that people got so hysterical.

But more than that, the whole political pulse changed. Up to the time Roe v. Wade came down, my mail was heavily in favor of my position. I’d put a bill through the house in Springfield to change our abortion laws. That was the case with most of the mail—it was for changing these injudicious laws. The minute Roe v. Wade was adopted, all the people who agreed with me stopped writing me on that issue, and meanwhile my mail just multiplied. 

Then you had the emergence of the pro-life movement.

That’s it exactly. Roe v. Wade did for the right what Bush v. Gore did for the left. 

I think I heard you say that at one point your judicial nomination got in trouble. Was that in the confirmation phase?

Yes.

Could you talk more about that?

Yes. Once the President called and told me he was going to nominate me, I thought it was going to be a piece of cake. I was a member of the fraternity. Ted Kennedy was chairman of the Senate Judiciary Committee. The Senate was controlled by Democrats, and some were my good friends. I’d served with a lot of them in the House. Some of my good friends were saying, You know, I may vote against you just to pick up some votes on the other side. Then we’d laugh. It never occurred to me that I was having any kind of trouble.

Kennedy called one day and said, You know, the National Rifle Association is really brewing up a storm. Maybe we’ll postpone your nomination for a few months to let it cool down. You don’t really care, do you? I said, No, not particularly. I was in Congress, and I was enjoying myself. So he kicked it over to September. But it just got worse. They ended up spending a million dollars to try to defeat my nomination, and in those days that was a lot of money. They made my name a household word in many of the towns down south. They couldn’t even pronounce it, but they knew they didn’t want me on the bench. 

I was blissfully going along, banking on my status as a Congressman and the fact it was a Democratic Congress and I was the President’s nominee. Then I got a call from a lovely Senator by the name of Thad Cochran from Mississippi, a Republican. He was someone I used to play paddleball with in the House. He called me and said, You know, right now the vote in the committee is seven to six, and I’m one of the seven. If you think a Mississippi Republican is comfortable being the deciding vote on your nomination, you better get your ass back here and start finding out what’s going on. 

I cut short whatever I was doing, came back, and sure enough, they had really brewed up a storm—to the point where Senator [Robert] Byrd, who was then majority leader, announced he wasn’t going to vote for me. Frank Church, who had been one of my closest allies on the anti-war stuff, wasn’t going to vote for me. There was a Senator from Florida who had tentatively announced he wasn’t going to vote for me, but two of my friends in the House revved up the condo lobby against him, and they started calling him left and right, and he finally ended up voting for me. But it became a real hard-pitched battle; the final vote was 58 - 31. I used to know the names of all the 31 Senators. 

How did the White House work with you? How did they respond to it? It sounds like you were getting a lot of communication directly from Senators. Did they intervene on your behalf?

No, I think this was the first judicial nomination they’d had any problem with, and more than that, they were blindsided even more than I was. I’m sure that one of the things that went into the equation when President Carter chose me was, Well, it will be an easy sell. He’s one of them. They were even more shocked than I was. It isn’t that they refused me help. I did get one piece of help. 

You’re all familiar with the Emoluments Clause of the Constitution, aren’t you? Good. I’m not a small minority. I think the NRA [National Rifle Association] found the Emoluments Clause and said that my appointment violated it because I had voted for pay increases while I was a member of the House. Now, I hadn’t voted for any during the term I was elected for, but obviously I had voted for them in previous terms. They couldn’t find any legal scholars to support them, but they tried to make a big legal argument out of it. The Department of Justice did prepare a memo exhaustively showing that the Emoluments Clause did not apply to my situation. Even if I had voted for it during the term I had been appointed for, I simply couldn’t get it during that term. That had been the way they had construed it in previous cases—obviously, there were no litigated cases about it. 

But Senator [James] McClure, who was from Idaho, was threatening to start a filibuster and refused to a time agreement—all these usually come out of time agreements on the executive calendar. But he refused a time agreement unless Congress agreed to a rider in an appropriations bill that said that any member of Congress could sue in any court in his state challenging the appointment of any former member of Congress to the District of Columbia Circuit. He missed my middle initial, but other than that it was close to a Bill of Attainder. 

I was going to say—  

Kennedy obviously agreed to it, because he knew that they couldn’t get the time agreement, and without a time agreement, they couldn’t bring up the name. Byrd had told him flat out that if they didn’t get a time agreement, they weren’t bringing it out. Kennedy said, You tell Tip about it. So I went in to see Tip. 

He said, We’re never going to vote for that God-damn thing! What do you think? He can’t push us around that way, the hell with him. I said, Tip, if we don’t agree to this, I’m not going to be a judge. He said, Well, it’s just as well, I’ll probably lose a seat if you become the judge. But then he finally reluctantly agreed to it. 

It passed, and McClure brought the suit out in Idaho. Congressmen don’t know very much about the way the court system works. I think if he had allowed it to be a one-judge court, he’d have had a pretty good shot of getting one of his district judges to at least hear it in the first instance. For some reason, he made it as a constitutional question, and so it went to a three-judge court. There was a circuit judge, who was Betty Fletcher, who was a great person on the ninth circuit, and one of the district judges, who was an old [Franklin] Roosevelt appointee, and I don’t know who the third one was. Anyway, they made short shrift of it. Even though they tried to create standing, the Constitution forbade standing since that was an issue that Congress could handle on its own. If they chose not to handle it, then that’s all she wrote.

Were there committee hearings and a committee vote, or did it go straight to the floor?

Oh no, there was a huge committee vote, a huge fight in committee. 

Tell us a bit about your experience during the confirmation hearings and the vote.

The committee hearings went very well, from my point of view. People like Henry Hyde came in to testify for me, Phil Crane came in; Jerry Ford sent a letter that Bob Michel read in the committee saying that while they disagreed with me on other issues, they thought I’d be a good judge. Joe Biden was running the hearing. Kennedy was out of town or something. It was going very well. 

The National Rifle Association was the only organized opposition. Henry Hyde had even persuaded the right-to-lifers to cool it. He kept saying, He was a lot more dangerous in Congress than he is on the court, so they stayed away. It was only the NRA. They tried to get Phil Kurland—I don’t know if that name means anything. We were former colleagues, I was a student of his. Kurland turned them down. They offered him $10,000. They finally found a professor at Northwestern—I always thought it was somebody at the law school—and they offered him $5,000 to come testify against me. I don’t think I even knew that he had been offered less money. But I’d taught a couple of years at Northwestern, and my daughter was there. They really began to give him a hard time about selling his soul for $5,000. One of them even mentioned that they’d offered Kurland $10,000. You know how academics are. 

Anyway, he decided he didn’t want to testify. My daughter had him for class at the time, and he saw her in the hall and said, Mary, I decided not to testify against your father, mainly because of you. I hope you understand. She said, Sure I do. You’re a son of a bitch. 

The vote in the committee, I think, was 9-6 or 9-5, something like that. It came out on the floor. The big problem was getting this time agreement. It was almost scripted debate. Some of the usual suspects on the right got up and brought out the fact that I had represented Playboy in my private practice, that I had tapped juries when I was at the University of Chicago as part of the jury project, and that I had represented left-wing unions in my labor practice. What else did they say about me?

But your pro-choice stand didn’t come in?

Well, again, Henry Hyde had done a pretty good job on that. I’m sure somebody mentioned it, but it was not a big issue. Then finally it came to a vote, and it was 58-31. 

Was anybody at the White House, the Department of Justice, doing so-called murder boards or prep for the committee hearings at that point?

Not really. This very nice man, Griffin Bell, was Attorney General. I had not known him. His protégé was Pat [Patricia] Wald, who was the other judge coming on at the same time. She had had some trouble, but she’d gone through. They’d given her some help, but again, it wasn’t a thing where they didn’t want me confirmed. They were pretty loyal to the President on that. But as far as they were concerned, they couldn’t do anything for me that I couldn’t do for myself. It’s true. I had access to the Senate. I could go on to the Senate floor. I could talk to the Senators. I could get through to them. All the things that the White House usually has to do for a nominee, I could do for myself. I could do everything but get the NRA to—

Were murder boards just not used as often at that point?

Not as much. Again, there had not been a fight on a judicial nomination in a long, long time. Probably the one before mine may have been Hugo Black’s. It was a long time.

So your nomination was really one of the first examples in the modern era of major politicized nominations.

Pat came up a few months before I did. The women’s groups, the anti-equal rights groups, got after her, and the pro-life group. I think she had somewhat of a hard time, nothing near mine. We were among the first.

It’s very common now, of course.

Now it’s acceptable. 

And certainly it hints at what happened to Judge [Robert] Bork, obviously, which is what really triggered the modern day.

And he came after me. 

Yes.

Really, I don’t think that before Pat and me—Well, the Nixon problems with [Harold] Carswell and [Clement] Haynsworth— 

Haynsworth, certainly.

But that was so clearly limited to the Supreme Court. I don’t think there had been an inferior court fight in recent times.

Especially with the prominent role of an organized interest group outside the process trying to influence it. 

Were the NRA’s concerns warranted? Was it symbolic?

It was symbolic. Actually, I had one gun case in all the 15 years I was on the court, and I ruled in the way the NRA favored. It was symbolic in the sense that they wanted to send a message to anybody else in Congress. If you wanted to move anywhere else, outside the Congressional arena, upwards or outwards, you’d better not get the NRA mad at you. 

I had been putting in gun bills since I was in the state legislature. I must say, I started naively. I was shocked to find out—this was 1957—that as long as you carried a gun openly, you could carry a loaded gun down the streets of Chicago. It wasn’t against the law so long as you didn’t conceal it. I couldn’t believe that. So I naively put in a bill to prohibit it, and I got a call from a criminal law professor at the University of Illinois, a friend of mine. He said, Ab, don’t do that. You’ll be wrecking your political career. I said, What are you talking about? This is one of those flukes. How can we have a law that lets people wander down the streets of Chicago carrying a loaded weapon?

He said, You have no idea how powerful this rifle association is. Well, in ten years, I did not pass a single piece of gun legislation. By that time I had my back up, so when I came to Congress, I couldn’t wait to put a bill in. One of my bills was to prohibit the sale, manufacture, and distribution—everything but the possession—of all handguns. They saw red.

You were high on their wanted list.

You were probably more of a threat, as with the pro-choice issue, in Congress than on the bench, as it turns out. 

When I first got elected to Congress, Mike Mansfield was the majority leader in the Senate, a lovely man. He called me one day and said, Would you mind coming over? I’d like to talk to you. I was very flattered, a first-term Congressman being called by the majority leader. So I went over there. He was just a lovely man, puffing on his pipe. And he said, I understand you don’t like guns. I thought, Oh, boy. I said, It’s not that I don’t like them. I was an expert marksman in the Army. I don’t think handguns ought to be allowed. He said, I should warn you that the National Rifle Association is a very powerful organization down here. 

I said, So I’ve heard, Senator. He said, I’m not trying to talk you out of anything, but in some cases, I’ve gotten their ire up, too. Just be careful how you talk about them, because they’re very powerful. I really thought he was trying to lean on me in his gentle way, and I didn’t quite know how to respond. He said, Let me show you how dangerous they can be. You know, I put in that bill after [John F.] Kennedy’s assassination. I forget what it was. He said, Look what they did in my home state. He pulled out a gun target with his face on the contours, and he said, That’s how mean they can be. I said, That’s pretty grim.

He said, Let me show you something that just came to my attention. He pulled out another target, and it had my face on it. At which time he grinned and said, Just understand you won’t get very far, but go to it. 

As somebody who served on the federal bench and has served in Congress, you’re in a unique position to make some observations about the consequences of federal court battles, the way they’ve evolved, political battles with outside interest groups playing a prominent role. 

That’s the part that’s unfortunate. After going through that confirmation battle, my first reaction—even though I was successful—was that I was very unhappy about it. I thought it was going to be a honeymoon, and it turned out to be very tough. One of my colleagues in the House got up—after I had just won seven close victories getting reelected to the House—and said, Our colleague has just won by the largest plurality he’s ever won anything by, so he’s quitting. It was a strenuous fight. It took a lot out of me. 

I was angry, but then I started to think about it. I thought, well, isn’t that the way it’s supposed to be? It isn’t really politicization. It’s unfortunate that this one interest group has gotten so much influence that they can persuade that many Senators, but this is the last time the political branch has a crack at a lifetime appointment. From there on in, it should be totally hands off unless somebody does an impeachable offense. Shouldn’t they have an opportunity to make sure that this is someone the country can live with for a lifetime? So I was making some speeches and wrote a couple of articles saying the Senate should handle the role carefully, but it was an appropriate role. I still feel that. 

But it has become so politicized. When a name is first mentioned, they choose up sides, and it has nothing to do with the merits. I probably would have voted for John Roberts. My wife and daughter are very upset when I say that, but I think I would have. I’m sure he’s going to do some things I heartily disagree with, but I think he reflects a meritocracy. And if you believe that judges should be appointed and confirmed on a meritocracy, then you don’t refuse to vote for somebody just because you don’t agree with his overall philosophy that will come up in maybe five percent of the cases, if that much. On those five percent, we lost that election last November. So I probably would have voted for him. 

I don’t think I would have voted for [Samuel] Alito, because he’s beyond that five percent. He’s more like Scalia. Incidentally, Scalia wasn’t like that in his confirmation hearings. Have you ever read the confirmation? Fascinating. He couldn’t have been nicer. He’s a very charming person. He had been reasonably mainstream, but in his confirmation testimony, butter wouldn’t melt in his mouth in terms of any controversial issues. His charm held out. 

[Clarence] Thomas, as you know, had a kind of bitter struggle with the confirmation. Probably the confirmation for Thomas was such a bitter experience—such an embittering experience—that it may have shaped how he has been as a judge. He was nowhere near that far out when he was on our court. He was much more moderate. Anyway, I still favor the process, but I wish somehow there could be a few statesmen on the Senate Judiciary Committee. I wish that gang of 14 or something, instead of finding a political compromise in which to work, would say, We’re going to look for a way to get the confirmation process back to what it was—that is, looking at the lifetime potential of this person as a judge on a high court. 

What, if anything, might the White House Counsel’s Office and/or the sitting administration do along the same lines? I’m shifting you into the White House for a while.

I wish I’d had both the time and the credibility. I don’t know how the White House Counsel gets that kind of credibility—unless you’re Sam Rosenman or someone like that—to have visited with Senate judiciary members and try to persuade them not to look at the next names that come up as if they’re running for the Senate. Look at them as somebody who’s going to be a judge, appointed by a President you didn’t vote for, or appointed by a President who was elected by your party. Put it in that prism and see what should be, rather than what this group is talking about or that group is talking about. Really, I was shocked. I never met Harriet Miers. I still don’t know what kind of a judge she would be, and I don’t know that anybody really could know, because they never gave her a chance. 

This part I think I will bar, at least until after this President is out of office, but I happen to think that Alberto Gonzalez would probably be a pretty good judge. He was a good judge on the Texas Supreme Court. I would vote for him. But they’re not even giving him the chance. They’re undercutting him before his name is even put up. That’s the part of the process that’s gone sour. Again, I would hope—it won’t be this White House or this White House Counsel’s Office, and I don’t know that it would have been the Clinton White House, or me—but I hope that sometime, again, we get a President who has a good enough consensus in the election that he won, and appoints a White House Counsel who can promote the kinds of relationships with enough Senators to go back and say, Look, let’s get this process back on track. 

I mean saying some of the things that the gang of 14 or 15 or whatever is saying, but saying it with a different point in mind, not in terms of whether we do or do not save the filibuster. I’ve been against the filibuster since I was a kid, and I’m very uncomfortable defending it. I don’t really defend it. If we were doing a rational system all over again, I think it might make sense to put in a super-majority for a thing like the confirmation of judges, with good reason. It’s not because it’s current and choice, but because it’s the only appointment that a President makes—or one of the few appointments—he makes for life. There are some that go beyond his term, but these are the only ones they make for life, and I think that may be one where the minority should have a voice.

And a separate branch?

And a separate branch.

Since we’re a little bit on White House Counsels and the judiciary, as White House Counsel did you participate in the selection or in drawing up a list?

First of all, both Supreme Court vacancies had been filled before I got there. 

Right.

So I wasn’t involved in those issues. I was very much involved in the selection of court of appeals judges, both in drawing up the lists and trying to help get their nominations through, helping them prep. And I was involved in the district judges. Mostly, fortunately, this probably isn’t too well known or the right would grab at this too. The district judges still are much more a Senatorial process than they are a Presidential process. The President can veto some and can push some. Most district judge choices come from the Senators of those states, particularly if they’re of the same party. Now, if they’re of a different party, they sometimes go to the Governor or sometimes the Speaker or House member. But it’s very seldom that the President or the White House is that involved in the selection of a district court judge.

On the other hand, the White House Counsel’s Office and the Department of Justice are very much involved in vetting the proposed nominees for those choices. Sometimes there are serious problems. 

At the district court level.

Yes, not philosophical problems, but tax problems, background problems.

There’s been some indication, just at the district court level, that the Clinton White House deviated a bit from its two immediate predecessors who had asked for at least three nominees for each district court vacancy among the names they looked at from Senators. The Clinton White House tended to go with one nomination from a Senator at a time. Is that accurate?

I’m not sure how much the three is accurate. It’s true that Clinton mostly went with one. He was more permissive about district judges. If the Senator pushed somebody who created problems, many times it was FBI [Federal Bureau of Investigation] problems. Those we treated as serious. If the Senator or the President didn’t want to, we would say, You don’t want to get into this kind of a fight. But sometimes they were philosophical problems. 

I still remember one. There was a judge in Missouri who had been proposed by the Governor; both Senators were Republican. It was a very distinguished member of the Missouri Bar; he had been president of the St. Louis Bar Association, was well known. One Missouri Senator signed off on it right away. We couldn’t get [John] Ashcroft. Ashcroft put in a blue slip. I don’t know if they still exist. Ashcroft put a blue slip on this guy. I went to see Ashcroft—he’s a fellow alumnus, I regret to say. I’ve known him for a long time. In fact, he was a baby-sitter for my sister-in-law. 

I said, Senator, what’s the problem? He said, I don’t like him. I said, Senator, I’m sure it must be something more than that. He said, I just don’t like him. Find somebody else. I was furious, but I tried not to show it. I kept urging everybody around me to stand firm. They had sense enough to say, No, we won’t. We’re not going to fight a blue slip over a district judge. So down he went, and somebody else came up.

Did the Ronnie White nomination come up when you were there?

Yes, and that one, of course, was—

That’s another Ashcroft.

We thought that was racial. That was [Duncan] Faircloth, [Jesse] Helms, wasn’t it?

It was Ashcroft.

Ashcroft!

Led the opposition. He had served when Ashcroft, I think, was Governor, and Ronnie White had been in the state legislature. I think they’d had long battles.

It came up, but I think I was just leaving or had just come on. I was not actively in it. I’m trying to remember: White didn’t go through, did he?

No. 

I was thinking of the court of appeals judge in the fourth circuit that Helms and Faircloth were opposed to. It was an African-American. [James A. Wynn, Jr.] 

Yes, I don’t remember.

It stayed vacant; we were doing everything possible. We threatened to put it to Maryland instead. It was just a grudge. 

And you think that was on racial grounds?

It would have been the first African-American on the circuit bench.

Is there one now?

There is one now. Clinton put one on as a recess appointment, I believe. [Roger Gregory]

And then they confirmed it. That’s part of the deal, that’s right. 

But it certainly was late in the Clinton administration before it happened.

What role did the Justice Department play in this whole judicial nomination process while you were there? 

The judicial nomination process was one of the nicest, most efficient processes I was involved in at the White House Counsel’s Office. We would meet, usually once a week, with [Eleanor Dean] Eldie Acheson from the Justice Department, Jack Quinn from the Vice President’s office—or somebody in the Vice President’s office, Jack was Chief of Staff—somebody from Hillary’s [Clinton] office, and me.

Someone from Office of Presidential Personnel?

Bob Nash’s office? I don’t think so.

Congressional liaison, perhaps?

I think so. I think there was somebody from Congressional liaison.

Probably a Senate staffer.

And my deputy, James Castello, was usually there. Eldie would act as chair of the meeting, secretary of the meeting. She would bring the names of people who were under consideration, and we would talk about them. I don’t remember if we had FBI reports at that time. She may have had them. We tried not to make those too widely held, obviously. She may have talked about them—whether they were clean or there was a problem. 

Then we would try to agree on a list of people we thought were good that I would send to the President. Again, these were district judges. We set them clean if we didn’t see any problems, and they were automatically approved. 

So he didn’t routinely ask questions about those?

Not if they were district judges. Again, we started out with the Senators. This is Senator so-and-so’s preference. The FBI shows clean. 

So there was no looking at the person’s judicial record for ideology or philosophy, consistency with the President’s agenda?

Only what were going to be the problems we might encounter if a fellow had been very active in an issue. Again, it’s almost a natural selection: we didn’t get any right-to-lifers on the list. But frequently we got people we thought were going to raise some hackles in the Senate, and we would go over them to see whether there was enough to offset it, enough people coming forward. 

The biggest problem we had, of course, was with Peter Edelman. First of all, it’s a D.C. choice, and that means it’s not a Senate choice. Secondly, Peter originally was proposed for the D.C. Circuit Court of Appeals, and then maybe a district judgeship, which I think he would have taken. This was the President’s and Hillary’s own. Peter had been very active in their campaign and was a good employee, good academician, everything. He had once written an article called, The Right to Eat. I don’t know if you’ve heard of it. It suggested there’s a constitutional right to the basic essentials of life. It was a nice provocative piece—nowhere near as provocative as Bob Bork’s piece on the First Amendment, but it was provocative. I think that’s what law professors are supposed to do. But it had gotten extancy in the right-wing bar and truly they couldn’t wait for an opportunity to get at him. I don’t think he was an Assistant Secretary. I don’t think he’d ever been confirmed. I’m not sure of that. It seems to me this was his first confirmation. 

I had regular meetings with Orrin Hatch, who was not delighted with Peter. He said he didn’t want to hurt the President that much, but he didn’t think we could get him through the Court of Appeals. Maybe he could get him through the district court. I remember we kept sending him memos and not getting anything back. Then one weekend I was back in the Midwest, and nobody but the White House knew how to reach me there. All of a sudden, Harold Ickes is on the phone. If you want your God-damn friend to find out about this before he reads about it in the God-damn New York Times, you’d better God-damn call. I’m cleaning this up. I said, What are you talking about? He said, Peter’s not going to get it, and you God-damn well better tell him. 

What hurt me more than anything was not that they weren’t going to give it to him, but that neither Hillary nor Bill would call him, so I ended up being the messenger. 

So, if you weren’t there, who made that decision and how was it made?

It was made by the President.

It was made by the President.

Had to be. Nobody else. Everybody had signed off on it.

That was his decision.

And his read of the Senate Judiciary Committee. 

His read of something. I think Peter might have gotten through as a district judge. The President was always reluctant to use up chits on judges. Hillary might have been willing, but the President’s a lawyer—she reminded me—he used to teach constitutional law. He had respect for the judiciary, but he didn’t see that as his legacy. Actually, his legacy in that respect is much better than the concern—again, I don’t mean to make it sound like he was nonchalant about this, but it just wasn’t at the top of his list. 

So you would agree with scholars like David O’Brien, who said that Clinton just did not consider federal judicial selection among his top priorities?

He cared about it. He put some very good people on the bench, particularly early on. He fought for a few later on, but that wasn’t what he was ready to go to the mat for.

Some of the reports at the time, I remember, suggested that Clinton wasn’t putting as much effort into judicial appointments because he was in trouble politically. Is it your sense that he never cared that much about judicial appointments, or was it a political consideration?

It was more the former. William Jefferson Clinton is one of the most complete political animals I have ever met, and I say that with great admiration and respect. He understands the political process as well as anybody. He knows how to make it work for him. I’m talking about the legislative process. I’m talking about the getting-elected process. To him, that’s where government is at, not in the courts. It’s the first and second branch, the second branch.

But some have also argued that he compromised Presidential prerogatives in the judicial selection process. How would you respond to that?

Again, if you were to ask President Clinton what Presidential prerogatives are, I think the appointment of judges would come far down the list. 

I see.

I think he’d talk about initiating legislation, about being a cheerleader for the country, using the Commander-in-Chief power and all that. Far down the list would be the appointment of judges. First of all, I’ve never lived in Arkansas, and I don’t really know anything about Arkansas politics. I’d probably make the mistake of comparing it to Illinois politics, where I have lived, and which I do know something about, and I may be wrong. Is one of you from Arkansas, or have you spent some time there? Is the University of Arkansas one of the sponsors?

They’re doing the pre-Presidential oral history.

I don’t know how much of his view of Presidential position was molded by his having been Governor of Arkansas. I know, for instance, that one of the problems we had with his attitude toward fundraising was that he had grown up in the Arkansas culture, which is altogether different from the federal culture. It was perfectly common for Governors of Illinois and Arkansas—and I suspect most of the states, with the possible exception of New York—to pick up the phone and say, Hi, this is Governor George Ryan. How about making a contribution to my campaign? There’s nothing wrong legally or culturally with the fact that it’s a government phone and the Governor’s office. You don’t do that in Washington; it’s against the law. Also, it was culturally not done. Every Senator and Congressman has a boiler room or bucket shop where they make their political calls. 

I still remember that during my first term in Congress, I was meeting with Phil Burton—does that name ring a bell with you?—one of the great guys from California, a political animal if there ever was one. We were sitting in the [Sam] Rayburn room, when this lobbyist came up to us and introduced himself. He said, Phil, I have a check for you. Burton said, Not here, you damn fool, come on outside. In front of the Capitol building, he took the check. It was just accepted. So while I was furious with Al Gore for engaging in those excesses, making calls, I kind of understood that’s where Clinton came from.

Getting back to the judgeships, which is how we started this, appointing judges in Arkansas isn’t that big a deal. I don’t even know whether they’re all gubernatorial appointments, or they’re all elected, or the Governor fills vacancies.

I somehow remember that they’re elected, though probably most of them reach the bench for the first time through gubernatorial appointments.

In Illinois a Governor has nothing to do with judges.

No, they’re all elected.

All elected, and the vacancies are filled by the Supreme Court. So the Governor never gets involved. If you talk to an Illinois Governor about judicial appointments, it’s way down the—

Although when he was President, the California Governor certainly made the court a priority.

Then again, the California Governor appoints all the California judges—not all of them, but most of them—in the first instance.

Yes, the only judges in California who are elected are of the trial courts.

Retention elections.

It depends on where you come from. It’s understandable.

Were you aware at the time that your name was being floated as a possible replacement for Justice Byron White?

When I went on the court, I was 53, I liked being a judge. Obviously, if you’re a judge—especially a federal judge on a prominent court like that—you think occasionally about what else there is. Mo Udall and I were very close friends. Mo was the only person who, during his campaign, was talking about the kind of people he would appoint to the Supreme Court. I always was on his list. As you recall, he didn’t quite get the nomination. 

The only time I really felt that I was seriously being considered was in [Walter] Fritz Mondale’s campaign, because Mondale was a friend, somebody I knew. He had respect for me, and I knew that I was a person he would give high consideration to. By the time Clinton became President—Byron White retired in—?

Ninety-four.

I was well into my 60s, I was white, I was male, I was liberal, and those were all negatives as far as filling that seat. In fact, that was the one that Ruth [Bader Ginsburg] got, wasn’t it?

Yes.

In early 1995, there were some press reports that the administration was getting a lot of pushback from the Senate Judiciary Committee on some of their nominees, and that as a response, the administration withdrew support from some. Do you have any recollections about that period, and do you think the President was insufficiently—I don’t know if aggressive is the word—in pursuing confirmation of his nominees?

It wasn’t that he wasn’t aggressive. The President never goes up to the Hill and lobbies. He calls people when you ask him to. He sees Senators when they want to see him. The real problem was how much resistance was coming from the Senate. It was at that time that Orrin Hatch—who claimed he was under pressure from other people in the Senate—was pushing back very hard on some of the nominees. 

Early on in the President’s tenure, he’d appointed some very good, and pretty outspoken, judges. One on the eleventh circuit, [Rosemary] Barkett was a really good state Supreme Court chief justice, considered very liberal. The right was very much opposed to her. They insisted she was a lesbian. She was opposed to capital punishment and so on. But he pushed it through. The Democrats were still in control of the Senate, but apparently it involved some pushing. 

Then he got a couple of appointments through on the ninth circuit. This was all before I came there. I had the feeling that by the time I got there, he really felt this was not something he should use up chits on. He had already used them up. He had to call Senators. We should find people who were mainstream enough that they didn’t raise that kind of heat. So, for instance—again, I wasn’t there at the time—I think that Ginsburg and [Stephen] Breyer were chosen very much with that mindset. The President wanted somebody who would go through without a big to-do.

Not a Lawrence Tribe.

Not a Lawrence Tribe. He had great admiration for Governor [Mario] Cuomo; he wanted to appoint Cuomo. I think Cuomo wanted it much more than he said. This was way before my time, but I think people told the President that would really set off a storm. He wanted to appoint George Mitchell, and I think Mitchell wanted it. But I think Mitchell advised him that it would set off a storm. They would use it as an opportunity.

How much was Hillary Rodham Clinton involved in suggesting names, talking about strategies with judicial nominees and confirmation? I know you said a representative of her office often participated on the judicial selection committee.

She participated at almost all meetings and was very active. I had the feeling that she was content with that—that and the fact that she had the last word. [laughter] She never talked to me about nominees. I don’t remember her being involved in any strategy sessions about the judges. But Melanne Verveer usually sat in with us, and I think Melanne regularly consulted with her.

How important to the selection committee and to President Clinton was increasing diversity, both in terms of gender and ethnicity, on the federal bench?

Very.

How did that materialize? Was it communicated to the Senators that their names for district court judgeships should reflect that? How do you accomplish that?

Part of it is almost by osmosis. They understood that if they had somebody who was a woman or a black, they’d have an easier time getting through the process than if it was a white Anglo-Saxon Protestant. His reputation preceded him in that respect. If there’s one issue that the President really cares about, it’s diversity—particularly racial diversity—but all diversity. 

If you asked me the one issue that President Clinton, as deep as possible, thought was necessary to sustain the position, it would be diversity. He really cared—probably more than any President before or since—including Illinois’ native son. 

Were there groups external to the White House, interest groups, that played a role in advancing your nominations or that you would communicate regularly with?

Yes, they’d usually initiate it. There was the Alliance for Justice, the Legal Defense Fund. What were some of the others? Interestingly, maybe because my reputation and President Clinton’s reputation preceded us, we were never visited by the Federalist Society or any of the right groups. Eldie may have been. She was much more the initiator. If I had the name of somebody I wanted to push—like when I was trying to push Peter—my first place to go was Eldie.

She’s the one who would contact the FBI and have that process started.

I hope you’ll find somewhere down the line that as far as judicial appointments, she probably is the key person.

Was there ever any tension between the priorities of the Department of Justice, Eldie Acheson, the Office of Legal Policy, and the White House in terms of who you were nominating? Can you give some examples, or tell us what types of disputes there would be?

There was one in Florida. I don’t remember who it was—and it mysteriously bypassed the regular conference—a district judge, I’m quite sure. It was somebody who apparently had been a very substantial donor to Democratic causes, but had some peripheral problems involving the FBI. Nothing important, or that the Senate would have absolutely destroyed him about, but something that Eldie—who was very straight and very good (I can tell one story about her to indicate just how good she was)—was very upset about. But it bypassed our normal process. Just one day he was nominated. 

So your office wasn’t involved?

Eldie knew and I knew, but it didn’t go through, it wasn’t ready to put on the agenda of one of our weekly meetings. Just one day the President sent up the name.

Was this because the President was directly consulted about this—

I don’t know by whom. Eldie was much more upset than I was. It didn’t bother me when the President pardoned his brother. It bothered the hell out of me that he pardoned some of the other people. If the President can’t pardon his brother—if the President can’t occasionally appoint a crony to be a district judge—there are almost a thousand now. If he does that, it’s not the end of the world. But that one bothered her a great deal. 

Another one that bothered her: in Illinois, Paul Simon had a nominating commission headed up by some very distinguished lawyers in Chicago and elsewhere in Illinois. They put up the name of someone who had been a member of the state legislature and had been a state court judge for many, many years, someone who was an old and dear friend of Paul’s and an old and dear friend of mine—a very good judge. He’s currently the chief appellate judge of an appellate court somewhere. 

When he was first proposed to Congress—he was put on the nominating commission’s list—that became public, and a woman with whom he had had a dalliance got very angry. It happened he had had this dalliance while he was married to a previous wife, and he divorced that wife. The dalliance went on; then he married another woman. When she read that he was up for a federal judge, she went to the papers and talked about him. Eldie was outraged. She just would not budge. Simon called her, I called her. I got Bruce Lindsey to talk to her. She said, You want my resignation, you can have it, but I can’t see how you can approve someone of this low moral character. 

If she said no, was that pretty well it?

This was a district judge. If she had said no about a court of appeals judge, I don’t know. Again, there are almost 800 of them. 

How would disputes be resolved among the judicial selection committee if Acheson and you took different positions? Would you ultimately just figure out a way to reach consensus, or did you ever take it to the President for resolution?

I would have felt free to take it to the President, but I would have been very reluctant. She was so good at her job and so straight up. As far as she was concerned, the job was looking for the best, cleanest judges with the most integrity we could find. I think that this man would have been a very good judge, notwithstanding his moral lapses. She didn’t. She won. 

Did you have someone on your staff while you were in the counsel’s office whose main responsibility was looking at—

Yes, Victoria Radd. She spent most of her time on judges. 

We’ll take a break for five or ten minutes. When we return, we’ll start with the ’92 election and your impressions of candidate Clinton, and move forward with the circumstances of your selection. 

We’ll return to the 1992 election. You’re serving on the bench at this point, but perhaps you can tell us your impressions of candidate Clinton. Were you a supporter?

Well, I’m a yellow-dog Democrat, so I don’t think I could vote for a Republican for President. My right arm would probably fall off. [laughter]

In the primary, that is?

In the primary, I was not a Clinton supporter. First off, all I had really known about him was that dreadful speech. That just seemed to typecast him as somebody who couldn’t rise to the occasion. Then, as you may remember, the stories were coming out about his experiences in Arkansas. Also, his environmental record in Arkansas was portrayed as very bad. He was making all kinds of deals with Tyson’s chicken, and so on. His union record was not good; the unions were not very supportive of him. I don’t remember who I was for, but it was not Clinton. I was dismayed when it was apparent that he was going to win, because I didn’t think he could win the general election. 

In January of that year, Bush was still enjoying 70% approval ratings, amazing. An amusing incident came up at that time. Ken Starr and I had been colleagues on the court and were modestly good friends, personal friends. He was then Solicitor General. I was Chief Judge of the circuit. He knew that I still kept up relationships with a lot of the members of Congress. He called me and said, You know, Abner, there’s this nominee for the court of appeals, your court, by the name of John Roberts. For some reason, some Democrats are taking out after him. The Senate was still in Democratic hands. He said, If you could tell someone he’s not a liberal; you’re not going to like some of his views, but he’ll be a good institutional colleague. I was having a lot of trouble with some of the people on the court who I thought insisted on tearing down the institution itself. He said, He’ll vote with you on institutional matters and other things, he’ll be a good colleague. I made a couple of inquiries of somebody else I knew with the SG’s office, who also said he was a good guy. 

So I called up Joe Biden, who was then chair of the Senate Judiciary Committee, and said, Joe, I don’t know anything about him, but he’s well spoken of, and you ought to take a look at him. Biden said, If he comes up, we’ll take a look. About a month later, I got a call from—this is now late January of ’92—Starr, and he said, They’re not moving on that, and pretty soon it’s going to be too late, and he probably won’t get nominated again. Well, you know Bush is going to win because of the numbers, but Bush may not nominate him again because he’s kind of a moderate.

So I called Biden again, and Biden was irritated. He said, Listen, tell your friend—whoever it is who’s pushing it—that we can’t confirm people who aren’t nominated. It turned out that the name had somehow been held up at the White House. I don’t know whether somebody on the far right was opposing him or what. Anyway, he never did get nominated that year. Then to my delight, we had a Democratic President, which I never expected to happen. I was very pleasantly surprised when Clinton won the election in November. 

The campaign was better than the primaries had been. I was somewhat impressed during the campaign. I was impressed when he took on Jesse on the right issue as he did. Interestingly, this is an example of how good a politician Clinton is. There’s no way that a Democrat can possibly win a Presidential election without overwhelming, not only support, but participation of the African-American community. It’s just a fact of life. You can’t carry states like Illinois and Michigan without huge outpourings in the black community. Somehow Clinton was able to bridge that gap. He knew that somebody had to take on the excesses to make sure that the rest of the pieces were there, and yet he did it in a way that the black community remained reassured that he was on their side, and he was. 

As I said before, if there was a single issue on which he would go down with the ship, it would be race relations. He understood how he could do that. I don’t even remember what he said. Sister Souljah was involved. He somehow handled it in a way that seems almost impossible, to reassure the white base that he wasn’t given to these excesses, but not to make the black base nervous. Again, it’s not that they were going to vote Republican, but all they have to do is stay home in any slight numbers, and there goes the Democrat’s chances. 

So I was impressed with his general campaign. It was nice to see an inauguration again. [laughter] My window overlooked Pennsylvania Avenue. I had not enjoyed the ’88 or the ’84 or the ’80 campaigns as much as I did the ’92. 

Had you given any consideration early on to serving in the administration?

I had become Chief Judge in ’91 and I was enjoying it. Again, I’d never met Clinton up to that point. I think I’d met Hillary once or twice, but I really didn’t know what to expect of that administration. In most of the cases in the D.C. Circuit we review agency work, and I thought that would be better. He would appoint better administrators. The administrators would be pro-government rather than anti-government, and the kinds of cases that would be coming up to us would be better than some of the ones we’d been having for the last 12 years. 

So I was pleased in that respect, but I never could think I’d leave where I was. 

Since you were in Washington, did you have any sense of how the transition was going after he was elected?

Not really. I thought it was going pretty well. I knew a few of the people. I had a great respect for Warren Christopher, whom I’d known, and I knew he was involved heavily, and that pleased me. I’m trying to remember who else I knew in the inner circles. I knew Leon Panetta, but Leon was at that point at OMB [Office of Management and Budget], and I don’t think he was involved that much in the transition. I’d known of Harold Ickes. I knew his father when he was a kid, but I didn’t really know him. 

The only time I got upset with the transition was when they gave Pat Wald that very hard time. I have to remember about Attorney General. They summoned her down to Little Rock. Now, the way I heard it later on, it may have been partly her fault, I don’t know. She may have gone there with some reluctance. The way she described it—somebody wanted to put her on the list, so she had to be interviewed. But apparently the interview was just dreadful. They gave her a very hard time, didn’t know who she was or what she was there for. Here she was supposedly being interviewed to be Attorney General. She came back very discouraged about it. I thought she would be a great Attorney General, and I kept urging her to let her name be involved. She said she didn’t want to work there; she was so disgusted with the way she had been treated. 

They apparently were very unhappy with the way she had responded. I don’t know what happened, because some years later when I was at the White House, Pat was clearly getting tired of being a judge and would have loved to be an Ambassador to one of the eastern European countries. I had a one-on-one lunch with Warren Christopher and told him how great I thought she was. He said, I agree with you, but I can’t do it. She won’t pass muster. I said, Come on, with whom? He said, I’m just telling you, she can’t pass muster. I don’t know who she upset so, because I don’t think she ever met with the President. I don’t know who.

One of the parts about the White House is—and I’m sure this is mostly true during a transition, but some of it happens even after the transition. There are all kinds of people who claim to speak for the White House. Sometimes they do and sometimes they don’t. I met up with a couple of them—after I took the job as White House Counsel, but before I went over there—who were somewhat insiders, because they at least knew about the appointment. They were telling me I had to do this or I had to do that or this is what Hillary wanted, this is what Ickes wanted. I knew a little bit, but I learned enough more to know if someone wants to tell you something, they should tell you. Don’t send messages. 

So you were following through the newspapers, as the rest of us were, the appointments for the Attorney Generalship?

No, well, I knew a little bit more. I had been feeling for a long time that liberals take some of the laws they helped pass too trivially, and one of them is this business of paying Social Security for household help and making sure that people you hire are legitimately here and have green cards. I once even had a fuss with one of my family members who was considering hiring an illegal, and I said, You just can’t do that. People urge the laws into passage, and when the case came up—I don’t even remember who it was any more, one of the proposed nominees for Attorney General. 

Zoë Baird and then Kimba Wood after that. 

I married Zoë Baird and her husband, and they’re good friends. But when it came out what she had done, I urged her to step away. But she was being told by other people to stand firm, ride it out. You can’t ride those things out, at least not if you’re a liberal Democrat, you can’t. And you shouldn’t. We’ll get to this later on, because I see there’s something in there about [Michael P.C.] Carns. That same issue came up much later on in terms of illegal treatment. I could talk about it now. 

Carns was nominated for the CIA [Central Intelligence Agency]. He was a three-star general, confirmed many times, and was considered to be a perfect candidate: hardliner, military man, Clinton liked him. I don’t remember where they met, but the President was very high on him. I got an anonymous call saying, You better look into his bringing back this Filipino houseboy to the States. I didn’t really know what I was going to do until I got a call from a lawyer in Washington who said, This is serious, and you really better take a look at it. At that point we put the FBI on it, and it turned out that he had in fact brought this kid back and was not paying him anything—he was really exploiting him. 

Leon Panetta was then Chief of Staff, and I went to Leon and said, We can’t go forward with this. It’s going to be a disaster. He shouldn’t be CIA director. Leon agreed with me, but he said, It’s been announced, and you know how the President is going to be. And, boy was he ever furious: What do you mean? How could this happen? How could it have gone this far without our knowing about this? This is crazy. I have egg all over my face. 

We kept saying, Mr. President, you’re going to have more egg if you go forward with it. This is going to come out. He said, Why didn’t somebody tell me about this before? Why did you let me go all the way to nominating him and saying what a great man he’s going to be? And now I’m going to pull him out? Round and round, and among other things, he just didn’t want to. I can’t remember who the CIA director was at the time. There was some urgency about his leaving—whether it was that the President wanted him to leave, or he wanted to leave—anyway, he was really upset. 

He said, You find me somebody who can get through that I’ll be as happy with, or I’m not going to pull this man down. Obviously he was going to pull him down, but we were scrambling around. Finally we had to lean on John Deutch, who had been deputy Secretary of Defense, and who wanted to be Secretary and had no interest in the CIA. We leaned on him heavily, Leon especially, but I did too. We really had to—his country needed him. I don’t think we even told him that we couldn’t pull Carns until we found a suitable replacement. Reluctantly, he took it. 

Can I ask you what your sense was in response to the President’s first question? How did someone like Carns get so far through the process without this coming up in FBI reports?

The FBI is very inefficient, I found out. They miss a lot of things. I think they’re more trustworthy than I used to give them credit for. I don’t think—at least not since [J. Edgar] Hoover left—that they make things up, but they miss a lot of things. Their agents are more than fallible. Nobody ever bothered to look to see who his houseboy was.

So you got an anonymous tip.

Originally, but then I got it from a lawyer in Washington. 

It’s just fascinating that none of that came up in the raw data the FBI collects. 

Yes, and of course what was so fascinating is that none of it was loopy. It wasn’t maybe it happened, maybe it didn’t. It was confirmable. All they had to do was look. But they didn’t. His FBI report had shown clean.

How does an anonymous tipper caller get all the way through to the legislative counsel?

It’s not that hard. You can get through. 

With the right phone number and extension.

He may have known somebody in the counsel’s office. I kept speculating afterward whether I knew the person, and I couldn’t figure out who it was. And when I asked the lawyer, he wouldn’t tell me. I don’t know what I would have done on the basis of just an anonymous call. Maybe I would have talked to somebody, but probably not. 

In something like that, the Office of Personnel did the main part of the vetting, but your office was looking at the FBI material?

Again, I was very fond of Bob Nash personally, and we’d worked together on some things, but when it was a confirmable spot, he usually was not in the picture for very long, if he was at all. He may have given names in the first place that went into the mix, but from there on, he usually stepped out and the FBI and the White House Counsel’s Office left it to whatever department was involved. 

Was that also for Cabinet appointments?

Nash wasn’t involved. I’m trying to remember now, the Cabinet was full when I got there. We got rid of [Alphonso Michael] Espy. I was involved in that, but that was because his successor was a former member of Congress. Who took [Ronald] Brown’s place as Secretary of Commerce? I don’t remember.

Was it [William] Daley or was there someone intervening? 

I was there when Daley was. No, I wasn’t, I left before Daley became a Secretary.

Why don’t we loop back a little bit and talk about your selection and then we can cast about among all the various experiences you had as counsel. Tell us how that came about.

I was in my fourth year as Chief Judge, and under the court rules you have to retire at age 70—you can’t be Chief Judge. You don’t have to retire as a judge, but you can’t continue on as Chief Judge. So I knew that the next year I would have to step down as Chief Judge. I had no problem with my successor, who was going to be Harry Edwards. I was delighted about that, but I was not looking forward to being an ex-Chief Judge. I used to tell my predecessor, Pat Wald, who had been Chief Judge before me, Pat, you must have the bloodiest tongue in Washington. She said, What does that mean? I said, All the times you had to bite it when I did something that you didn’t agree with. I’d seen ex-deans in law schools. It’s hard. One day you’re el jefe and the next day you’re just one of the Indians, not even a full vote. I sensed that I would not like to be in that position. 

I wasn’t really thinking that I would leave the bench, but I thought I might take senior status, which I would be eligible to do, and do a lot of visiting around other circuits and teach some. I’d even sent out a feeler to my alma mater about how they would feel about my coming back to teach a quarter or so. Somehow, Lloyd Cutler, who had been a friend for a long time, had either heard of my concern or just thought of it on his own. He was a very smart man. He called me one day and said, Let’s have lunch. We had lunch. He said, What do you know about the second branch of government? I laughed. I said, Well, I was a second lieutenant in the United States Army. [laughter] He said, How would you like to see it really close up? I said, What are you talking about? He said, How would you like to be White House Counsel? 

He had succeeded Bernie Nussbaum, but he had agreed to take it only for a short period because he didn’t want to take off from the law firm. And the minute he said it, I knew that was something I really would like to do. He teased me. He said it took him all of 30 seconds to twist my arm. But it was pretty fast when I said, I’d like to think about that very seriously.

What about the position drew your interest? 

The idea that I really didn’t know anything about the second branch and had criticized it from two other branches. [laughter] I had never really seen it close up. Lloyd painted a picture of it that sounded like it would be fun. I had never thought very seriously that there was anything there in Whitewater. I’d read [Robert] Fiske’s—was it his interim report? I’d seen it somehow. It had come out just before that time. It was clear that there was nothing there. It was a bad investment, and some stupid things had been done afterward, but there was no illegality. I was sure it would just blow away.

So none of the controversies the White House and the counsel’s office were dealing with gave you any pause about accepting the position?

The death of Vince Foster—I had met Foster a couple of times, and I’d been very impressed. I could understand that somebody who was new to Washington would not be able to take that pressure. The notion that there was some kind of conspiracy or something gave me a pain. I’d been in Washington for over 25 years, and as far as I’m concerned, even Watergate wasn’t really a conspiracy. It was just a third-rate burglary that someone tried to cover up—so much for conspiracy. So the idea that there was something behind Vince Foster’s death—it was perfectly understandable to me how this very sensitive young man, totally unwise to the ways of Washington, could just be so despairing about reading these terrible things in the newspapers.

Then, of course, Bernie’s reasons for leaving bothered me because at that point I agreed with the President—both politically and on the merits—that the special counsel law was a good idea. You may remember that this was Bernie’s real falling out. He thought that he should have vetoed it. In retrospect, Bernie was right. Anyway, the idea appealed to me no end. I went home and talked to my wife about it, and she thought it was great. She’s always been an adventurous spirit.

You said that Cutler painted a picture for you of the counsel’s office that was appealing. What did he say about it?

He talked about the judgeships, about legislation, about the fact that I’d been in Congress; I would have entry into a lot of these places that would stand the President in good stead. He kept telling me that the President really was a good guy and that I’d like him, I’d like his politics, I’d like his way of doing business. Then Leon had just come in, and Leon and I had known each other from House days and liked each other. As I say, from the first time he mentioned it, I was very much attracted to it. 

Then I had lunch with Leon and Lloyd, and Leon painted a great picture of it, how much fun it would be and to work together, and the good people on the senior staff. I always liked the way Leon did business; he was very disciplined, very organized. That sounded good. I had admired Bob Rubin from afar, but I was impressed, so it sounded like these were really good people. Again, the point is I couldn’t talk to anybody about it except my wife because it was obviously supposed to be confidential. 

I remember going back to Michigan and talking to my children. Two of my daughters are lawyers and one is a rabbi. Obviously, the way I described it, it wasn’t asking them for advice. I was telling them what I was going to do. My oldest daughter, a lawyer, said, You want us to say what a good idea it is for you to give up a life estate for a tenancy at will. [laughter] 

Then I came back and met with the President. It was really the first time I’d ever had a chance—aside from shaking hands in a reception line—and I really liked him. It was on a Sunday, and he came bouncing in from the residence wearing a sport shirt and said, Judge, you willing to come aboard? I said, I think so, Mr. President. He said, I’ll never lie to you. You tell me what you think I ought to do, and I’ll either do it or tell you why I can’t do it, but I’ll never lie to you, and we like you. That was it.

How long was that meeting?

About ten minutes.

So no real agreements on what your dealings with him would be over time, or what you expected from him and he expected from you.

No. 

Very informal.

Again, I have to remind you, I’d been around Washington for 24, 25 years at that point, and I understood why I was attractive to them. It wasn’t that I had such a bubbly personality or that I was the wisest judge in the world. But the idea of bringing a Chief Judge in to be counsel to the President would be good for them. On the other hand, I knew why it was good for me. I was at that juncture in my life where I was ready to give up doing what I was doing, and the idea of not having life tenure didn’t really bother me that much. 

Actually, financially, my income increased $30,000 when I left the court. I didn’t take any money from the White House. I worked for free. But I was able to collect Social Security and my Congressional pension, which I couldn’t collect while I was an active judge. So when I went to work for free at the White House—which everyone was very impressed with—I ended up making $30,000 more than I had before. 

Like one of Roosevelt’s dollar-a-year men.

I didn’t even get the dollar.

In your discussions with Panetta or Cutler, did they lay out any challenges you were going to have to face upon your arrival? 

Panetta talked some about Whitewater. He agreed with me that there was nothing there. He thought that maybe between us we could get enough of the saner heads in Congress—I remember he even once said, We have so much stuff to fight with them on that’s really important, why should we be fighting with them on this one? There’s nothing there. I got the feeling that maybe we could, and, naively, I really thought we could. 

Within a few days after I was announced, Ken Starr was announced to be the Independent Counsel. Obviously, the press came and asked me what I thought about it. I’d gotten along very well with Ken Starr on the court and afterwards, as I told you, and I said to the press, I have great respect for Ken Starr, and I’m sure we’ll get along just fine. From there, every time his name came up, Hillary would say, your friend Ken Starr—one word, yourfriendKenStarr. 

In fact, some years after I left the White House, she came in for a fundraiser for Carol Moseley Braun, the Senator. I went through the receiving line, and when I got up to her, she hugged me and whispered in my ear (this was after the impeachment and everything). She said, Now what do you think of your friend Ken Starr? She didn’t forget. 

Did you have much of a transition into the position? Did Lloyd stay around for a bit?

He stayed around for a couple of weeks. He was very helpful. I had a problem. I was having some difficulties with some of the members of my court, namely Judge [Laurence H.] Silberman. For some reason, he got it in his bonnet that my still being a Chief Judge was a terrible conflict of interest once it came out that I was going to be the White House Counsel. I wasn’t planning to stay on any long length of time, but there was about a two-week period when I thought I would go to the White House half days, and wind up things back at the court the other half day. 

He started raging about a terrible conflict of interest. So I did end up leaving the court a little earlier, maybe a week or so earlier, than I had planned. Lloyd stayed on for a couple or three weeks. I remember his first introduction of me at the staff meeting. I was then 69 years old. I came in. He said, I promised you a younger man, and here he is. [laughter]

Did you keep most of the staff in the office?

Yes. One of the traumas was I had already hired my clerks for the next year, as judges do. So suddenly there were four law graduates without a judge to work for. Fortunately, three of them were taken by [David] Tatel, who had just come on the court, and the fourth one, Jeff Connaughton, came with me to the White House, at his request. He said he didn’t want to be a clerk; he wanted to go to the White House with me. About six months later, I brought on James Castello as my deputy. But almost everybody who was there stayed. 

There was one fellow whom Foster had brought with him or had been in the Little Rock law firm, William Kennedy, and he didn’t stay long. I think he left fairly early. And Joel Klein had been deputy when I was there.

It was a good staff? You enjoyed it?

Very good staff. I had only one problem, and she came on later.

How many attorneys were in the White House Counsel’s Office when you went in?

I think 17, and they were really good, first-rate people. Some of them had been there since Bernie first began; some came in with Lloyd, but they were really fine people. I had great respect for their work habits and their abilities. The only problem I had was when I came in, I said to them, We have to have learned one thing from what has been going on so far, and that is that anything we put down on paper, we have to expect is going to be subpoenable by Congress. Don’t keep notes.

It’s hard for a lawyer. I’d spent my whole life as a litigator learning how to take good notes in meetings. Fortunately, I lost it in Congress. [laughter] But this was part of the discipline of the young lawyers in the firm. It was hard, but most of them obeyed it, with a couple of exceptions. One of them did get the White House in trouble—not me—because of the notes. 

When you first started in this position, how long did you expect to stay at the White House?

I originally planned to stay through the whole first term, so I’d planned to stay another year. Even though I still felt quite vigorous when I went in there, I had a feeling that I was a little long in the tooth for the job. I thought I could handle two years of it, and then the next term I’ll get out. There would be lots of people transitioning out anyway, and this would be a good time to put in a new person. I didn’t last two years, and that was all my doing. I didn’t realize how hard it was. I’d worked hard as a judge, I’d certainly worked hard as a Congressman, but nothing like there. 

My days would start at 6:30 in the morning, and I’d come home at 9 o’clock at night. It was always six days; it was frequently seven days. When you’re in your late 60s, you don’t have that kind of energy. I’d never even served under a young President, younger than I was, either in Congress or anything else. Here’s this kid, in his 40s. I remember one experience in particular. He came back from an overseas meeting. He had these eye allergies, so when he was tired, his eyes would get all puffed up. He looked exactly the way I felt. We had a meeting at 7 o’clock at night. He’s sitting there all bedraggled, and I’m feeling all bedraggled, and it was the usual White House meeting: nothing of substance got decided. I drag myself home about 9 o’clock at night, fall into bed. 

The next morning, one of my deputies said, Boy, the boss made a hell of a speech last night. I said, What are you talking about? He said, He went over to the hotel and made a speech to some fundraiser. He’d gone back to the residence at 9 o’clock, taken a 20-minute nap—which I used to be able to do when I was in my 40s—and was ready to go. They were planning scheduling meetings after I left. They were doing scheduling for the next week. I just really ran out of gas. Nobody will believe that, but that’s the only reason I left. 

Could you go back to that comment you just made, and I read in the briefing book too, about the meetings being often long, little getting done— desultory, I think was one of the words used. Could you talk a little bit more about that as well as comparatively? Was it your sense that that was true of other White Houses?

It should be true of other White Houses. What I learned at the White House for those 14 months I was there is how difficult it is to get 270 million people marching generally in the same direction. I’d not had that. On the court, all I had to do was get one other person to agree with me, and we had a decision. In Congress, if I was lucky and was going to pass a bill, I needed a big number, but even then it was a finite number—218—and 51 in the Senate. But frequently what I was doing was not to pass bills, it was to amend bills or to use my pulpit or all kinds of things. All I had to do was keep a majority of my constituents happy once every two years. 

This idea of how you make decisions that can fly with this huge number of people—most of whom don’t know or care what’s going on, but will be affected by it—is not easy. A good White House goes through a lot of sturm und drang on the way to coming to a decision. If you were to ask me what quality I want in anybody who’s President, the single quality I want is the capacity to resist somebody on his staff pumping him up to do something, whether it’s war or a new health program, or anything else, but particularly war. 

The person who had the most face-time with Clinton while I was there was the National Security counsel, Tony Lake—for good reason. Tony was good, and Clinton knew this was what he knew least about. He could hold his own on domestic policy, but on foreign policy he needed help, and Tony was great. So Tony would spend a lot of time each day with him. 

I remember one time Tony had gotten everybody else to agree that we had to do something in Haiti. We were running out of places to put the Haitians. They were drowning in these little bathtubs they were coming over in. We had to do something. Tony had persuaded the President that we had to invade. I happened to come into a meeting with the President right on the heels of Tony finishing. Tony was going out, and the President was yelling at him, And if there are body bags coming back— 

I realized that even at that late point, Tony was still having to persuade the President to put our troops in harm’s way. I’d much rather have that than to allow a [Donald] Rumsfeld or a [Paul] Wolfowitz to be in with a Yeah, yeah, and away we go to Iraq. 

Did you ever see that as a possible liability for Clinton? Some have observed that he wanted to hear every single person’s opinion, and then he wanted to hear them all again, and he would oftentimes juggle too many opinions and lacked a certain level of decisiveness. 

I started out thinking that was a problem before I even came there. When I was in Congress, my biggest criticism of the executive branch was that they couldn’t come to a decision. Even on the court I would see problems arising because the executive branch was floundering. When I got there, I realized that this was one of his biggest plusses. I don’t know how history treats a President who has that. I’m very anxious to get hold of Miss [Doris] Kearns’ [Goodwin] book on [Abraham] Lincoln [Team of Rivals: The Political Genius of Abraham Lincoln]. Apparently Lincoln had some way—he deliberately brought all his rivals into the Cabinet and listened to them all and then made the right decision. Somehow he was able to hear all these different views and still make a judgment. Clinton sometimes would hear so many views that it would be hard to pick and choose. 

But on the other hand, on most of the important issues—put aside his personal problem—he came to the decision that could be had. He was very much the pragmatic politician. He was caring about what could be done. Sometimes—aside from the fact that he didn’t initiate as many programs as he could have if he hadn’t spent so much of his second term on Monica [Lewinsky] —the failures were frequently that he bit off more than could be chewed: gays in the military is an example. It was probably too early in the term; it probably was too early ever to do without getting somebody like Colin Powell on your side, which he didn’t have. 

Healthcare reform.

Healthcare reform. He did it in the wrong way, but, again, it was too early, and we still haven’t done it. On the other hand, smoking. I remember all the agonies we went through, all the southern Senators, Democratic Senators coming in and telling him that this would be the end of the party in the South, and it was. I mean, it was already pretty much the end thanks to Title VII and a few other things. But, clearly, tobacco was the final nail.

They were coming in saying, There’s no way we can get re-elected, there’s no way a Democrat can get elected. He would go through all the possible scripts. This is one I will need to embargo, but I still remember him at one point saying, Suppose I just fire [David] Kessler. Leon said to him, You can’t. [laughter]

Anyway, he went out of a long meeting with Ickes and me and Panetta. Panetta was kind of lukewarm, but Ickes and I were pushing hard. Others were saying, You can’t do it politically, it’s just a disaster. He went out, still stroking his chin, not knowing what he was going to do. I still think this is one where the last word was had that night. I don’t know this in any way, but the next morning he came in and announced we were going full steam ahead, and we did. It has been a successful program as far as I’m concerned. 

That was one of his great strengths. I was a kid during all of the Roosevelt years, so I don’t know how he did it. But the country that Roosevelt managed is not the country a President has to manage today. No President could do it the way Roosevelt did, just order it done. It doesn’t happen.

How did he manage the White House, as an organization, an operation? Could you also comment on Panetta’s abilities as Chief of Staff?

I think it was managed pretty well. He had two really great managers in the White House: one was Leon, and the other was Erskine Bowles. They were both superb executives. People liked them, people were willing to go to bat for them. More than that, they could reconcile all the different points of view. Harold Ickes was a special category, but he got along great with Panetta and with Erskine. You couldn’t find more unlike personalities than Erskine Bowles and Harold Ickes. Harold was a very excitable, bang, bang, bang, New Yorker, and Erskine was a mild, soft-spoken North Carolinian. They got along great, the three amigos.

You had primary contacts with Leon Panetta, and you met with him every day?

Oh, yes. There was a senior staff meeting every morning at 7 o’clock. It was Panetta, Ickes, Rubin. Bob Rubin is such a smart man. He became Secretary of the Treasury shortly after I got there. Normally we didn’t need Cabinet officers up there in the Oval Office. He insisted that he wanted to stay a part of the senior staff meetings, and he did, and he was right, because that’s where most—Clinton used his Cabinet a little bit, but not a lot. You could very much get out of the loop if you were just sitting in your Cabinet office.

That’s very unusual.

It was the first time I’d ever known it to happen, I think, historically, but it was very important—to him and to the White House. 

Was Tony Lake at those meetings?

Tony Lake was at the meetings, Jack Quinn, the Vice President’s Chief of Staff. Who was there from Justice? There wasn’t anybody there from Justice.

Was there a domestic policy person? Carol Rasco?

Right. Tony was there, Carol.

And Mike McCurry. 

Mike McCurry was there, and somebody else from Arkansas. Oh, Mack McLarty. It’s an example of how Leon was such a smart operator. Mack was still—

Bruce?

Bruce Lindsey was not there. But Leon recognized that it would sit well with the President and be nice to have Mack there, and he was very useful. 

No one from the First Lady’s office?

I don’t think so. Melanne was not there.

Maggie Williams?

I’m trying to remember. I don’t think so. After the senior staff meeting, we had a second staff meeting that included all the heads of the departments—my deputy and various deputies and so on, which was about three times the size of the first one. Maggie was probably at those.

There probably isn’t a typical senior staff meeting, but could you describe a typical meeting? What are you discussing? Are you having policy debates in these meetings, or is it just previewing the day?

Leon would go around the room—first of all, he usually would have met with the President before that.

Before 7 o’clock?

Yes. 

My goodness.

This was an early White House. The President would have already read all the clips. He would have met with Leon and McCurry to see what was coming up, what crises we were going to have to deal with. Leon would sometimes report on what happened at that meeting, if he’d gotten some particular instructions. Erskine was very strong that we stay on message for a day or a week and not just let events move us. He wanted us to try to control what was happening and influence what was being reported as happening rather than just see who got indicted and react. Of course, that’s much easier to say than do. 

Leon would report on the message we were trying to put out: concentrate on tobacco today, or concentrate on Haiti. Then he would go around the room. Frequently just who was sitting where—we sort of took regular seats, but not all the time. Sometimes he would call on somebody first because it was clear something was coming up that required that he call on Tony first or something that Leon felt he should call on me first. He’d go around the room, call on everybody. He had this yellow pad. I’d love to see his notes. I don’t know what they were, but he was always writing, and always in the margin to append something that somebody else had said about whatever came up. It was always a free discussion. 

If someone was talking about things, anybody else could ask questions or contribute whatever they thought was necessary. Interestingly, for all those type A talkative people, the conversations were always very orderly, almost always civil. Leon had this nice sense of humor, laughed a lot. Nobody would get excited even though we were a very excitable team. And, there were some funny things that came out of that. At one point Bob Reich, the Secretary of Labor, a good friend of the President’s and one of the real good people in the Cabinet, had gone to see the President to try to get him to support an increase in the minimum wage. 

The President, especially when he was with his friends, couldn’t say no, but an old friend could really tell that it hadn’t grabbed the President. The President had never been that big on labor issues, and at that point we didn’t have the majorities in either the House or the Senate, and the idea of raising the minimum wage sounded very far-fetched. But Bob kept saying, Mr. President, you really have to do something about it. Labor just feels like we’re ignoring them, and they elected him. So he said, Yes, I’ll certainly think about it, Bob. Thanks for coming in. 

He walked out; he knew he had gotten nowhere. Then he remembered that Al Gore was going down to Florida the next day to address the executive board of the AFL-CIO [American Federation of Labor-Congress of Industrial Organizations]. Bob Reich was—notwithstanding never having worked inside government before—an insider’s insider. He came in to Al and said, You know, Al, I was just talking to the President about the minimum wage. You really ought to think about it. When you go down there tomorrow, it would be a good idea to tell them we’re working on it, give them something to talk about. 

So Saturday morning, there’s Al Gore down in Florida telling the AFL-CIO executive council that the administration is going to back an increase in the minimum wage. Of course, it’s all over the Sunday papers. Monday morning, Bob Rubin is furious, just furious. We agreed, we were not—the economy can’t stand it. It’s a terrible thing to do. You’re not going to pass it anyway. All you’re going to do is rattle the markets. It’s just the craziest thing I ever—You go tell him, Leon, he can’t do that. He’s got to pull the rug. We all figured out what had happened. Clinton hadn’t done it. 

Rubin said, You go tell him that he has to pull the rug out, this is crazy, we can’t make policy this way. Leon said, Okay, but before I do, can I get a show of hands? How many people think we ought to pull Gore back on this? Everybody raised his hand except Ickes and me; we were the two who thought that, for whatever reason, we were doing what we should be doing. So Leon, good faithful Chief of Staff, goes out. He’s with the President about five minutes, ten minutes. Meanwhile, Rubin is lecturing us on the minimum wage and how the markets behave. 

Leon came back with a smile on his face. He said, Remember that wonderful Lincoln story about when Lincoln polled his Cabinet? Most of us remembered; he told it anyway. Lincoln polled the Cabinet. It was 7-1 to do something, and he was the one who said no. He said, Well, I just told the President what the vote was, it was 7-2, and now it’s 7-3. You lose. 

Did you all have confidence in Leon Panetta being an honest broker in terms of fairly presenting your positions to the President?

I really cannot think of a single criticism I can make where Leon conducted himself contrary to what I saw for myself. 

What did Mack McLarty contribute to these senior staff meetings now that he was no longer formally Chief of Staff but was counselor to the President? 

He was mostly involved in trade issues. For instance, we had a very successful Summit of the Americas during McLarty’s time. He was very proud of that. A lot of work went into the result that he was hoping for.

He was special envoy to the Summit for the administration.

Yes, it was the exact antithesis of what just went on. Everybody was high on the President, and Mack put a lot of time in that. Is that when NAFTA [North American Free Trade Agreement]? No, NAFTA had already passed, I think. But that was his main specialty, trade.

Was your main contact with the National Security Council in those meetings with Anthony Lake, or did you have a special connection to the NSC?

It was mostly that. Tony Lake and I got along very well, and also his deputy at the time was an old friend. So I would occasionally pop in on them. But I had never done a lot in foreign affairs, so I certainly didn’t have much to contribute to their decisions. Most of the time, I would get involved when something would come up on the War Powers Act, something that had legal connotations. 

Did you do the legal work on the Haitian operation?

A little bit.

That was out of your office, not within the NSC sphere?

No, it was in our office. But again, we didn’t have much contact with main State, and I’m not so sure Tony had that much contact with main State. There was almost an inherent conflict between the NSC and the State Department, and one or the other has to run it. Kissinger ran it from two places, just one at a time. I don’t know who’s running it now, whether it’s Condoleezza Rice or NSC. I think she was running it at the time she was NSC director, and Tony certainly was running it when Christopher was Secretary of State. Christopher was very nice, a very good administrator, and he ran a good State Department, chose good Ambassadors and so on. But the major policy decisions were made at the White House.

How about Bosnia?

That one was probably made at the White House. Again, this is one where the President resisted, resisted, and resisted. In fact, what had just gone well, was it Haiti? We’d had a minor success in Haiti, and I saw him that night and congratulated him. I said, Now all you have left is Bosnia. He said, That won’t happen in my lifetime. 

He really thought we could not solve the problem, that there was too much built-in animosity within the country, outside the countries, who were allies and who were enemies? No one ever could figure that out. My middle daughter had visited Yugoslavia between when she graduated from college and before she went to law school. She came back describing a beautiful country where the people were so happy and contented, and it was unlike anything else in Eastern Europe. This was when [Josef] Tito was alive. 

I was interested because my district at the time was on the south side of Chicago, and I had a lot of Croats and Serbs, and they got along famously. They intermarried, spoke basically the same language, had pretty much the same religion. I could not understand why that animosity continued, and I was shocked when Tito died. Of course, we helped with some of the Ambassadors we sent over there, but that country just tore itself apart.

Did you review the legality of the NATO [North Atlantic Treaty Organization] effort?

Actually, no. The one I did review is that we’d had a terrible internal problem about a potential—remember, the Congress had passed an embargo. Our Ambassador over there was [Peter] Galbraith, John Kenneth’s [Galbraith] son, a lovely man. He was really accused—it was more than just a complaint, he was accused—by the CIA operative in the embassy, of countermanding the embargo and allowing weapons to go through when he was Ambassador. A special board had been appointed after Iran-Contra, a Presidential board. The President appoints all the members, it’s very hush-hush.

The Foreign Intelligence Advisory Board?

That’s it, good for you, you’re good. The head of it was a very good guy who came to see me, and he said, We have to get you involved in this thing. I think Galbraith is being falsely accused here, but we have to find out, because this is heavy stuff. So we started. His job was to make a recommendation to the President, and it goes through the White House Counsel’s Office. Remember, one of the safeguards they put in after Iran-Contra—so you don’t have the business of Reagan signing off on it while he’s telling a funny story—is that any black bag jobs or things like that have to go through with the White House Counsel and the NSC director present and able to testify that yes, the President signed off knowing what it was. So this board reported to the President, but it was through the White House Counsel. 

I remember we met with the Ambassador, whom I was very impressed with. He said, Before I went over, I went to the State Department and said, ‘What are my instructions on the embargo and on these other items?’ I was told specifically, ‘You have no instructions.’ So I did what I thought that meant: I did nothing.

Did I know that there were arms slipping through? Yes. But I don’t know what ‘no instructions’ means if it doesn’t mean that I just do nothing. 

Fortunately, the advisory board agreed with him and recommended to the President that nothing be done. I suspect that’s still security, so make sure I can embargo that.

Absolutely. Were you frequently reviewing black ops or covert ops during your tenure?

It happened about four or five times. 

Did you have someone on your staff who specialized in those?

Yes, I had two people who were in the NSC, both lawyers and detailed to me, lovely guys. They would brief me once a week or so about all that was going on that I needed to know. They were both really good, precise.

Were they on your staff and detailed to the NSC, or did you just have an informal reporting relationship?

I think they were on NSC staff. I don’t think they were detailed to me.

But you were able to communicate with them directly, without having to go through the NSC structure?

Yes, yes.

During this period, was the White House Counsel essentially an ex-officio member of the NSC?

No. I never met with the NSC as such. I had these two very good lawyers who worked for the NSC who briefed me on everything they thought I needed to know. Actually, I don’t recall anything I have ever had—it wasn’t that I wanted to immerse myself any more heavily in foreign affairs than I was. But I was always concerned that I’d get blindsided about something, that something was going on that would affect the President and I wouldn’t know about it. So I would ask some questions sometimes. I never recall that they said, No, we can’t talk to you about this. They were very forthcoming.

What about agency counsels? How frequently were you in communication with the legal advisor at the State Department or other departmental counsels? I know Cutler held regular meetings with them. Did that continue?

I tried to do that, tried to get to all those. I think we had a few meetings. I was hoping to do it once a month. But again, it turned out some of them I was very much involved with, and I would call them frequently—the FBI and NHTSA [National Highway Traffic Safety Administration] and HHS [Health and Human Services]—and I would talk to their general counsels quite regularly. Defense and I had a pretty good working relationship. Sometimes we’d meet, we’d talk on the phone. Some of them I never even knew. I don’t think I had met the Department of Agriculture counsel, but that was really unnecessary unless we got in trouble.

So if I understand you correctly, you had a few meetings early on but then didn’t find it very useful.

They were pleasant, but they weren’t really useful. Walter Dellinger thought this was a very good idea. He was in the OLC [Office of Legal Counsel], and he thought that this was such a good way for all of us to keep in touch with each other. But so many of the things I was doing didn’t affect the agencies, and so many things they were doing didn’t affect the White House. 

Were you in regular communication with the OLC?

Pretty close, yes. Walter and I go back a long way, and I still think that’s the best—No, I take that back. Until they hired Mr. U, I thought that was the best office in Washington. 

Do any particular issues come to mind in your dealings with the OLC or any opinions they rendered that were important during your period?

We had one. This is one Walter and I disagreed on. He was fascinated with it. I was interested in it, but I didn’t feel quite as committed to it as he did. This business of Presidential signing statements—

Yes. We’re interested in that. 

I think they’re stuff and nonsense. I don’t think you can affect a piece of legislation after it has passed the House and Senate. The President has one function and one function only: he can sign it, he can veto it, he can let it become law without a signature. But that’s his only function. He can’t affect it, he can’t amend it. In Illinois we have something called the amendatory veto, which I think is a very bad idea. A Governor can take a bill and literally change it around and send it back. That’s not the way the federal system works. All kinds of Supreme Court cases confirm that. 

Walter somehow thought that signing statements could influence, or should influence, the interpretation. If a President says, I’m only signing this because such-and-such meets so-and-so, that should be given weight by a court. 

That would be executive legislative intent, essentially.

Yes. I said, Walter, it’s not anywhere in the Constitution. Anyway, we had a long exchange of memos on that. Also, it had to do with signing of unconstitutional bills. Walter felt that if a President declared something unconstitutional when he signed it, that should carry some weight with the courts. Again, I said, it’s deliberate. Unless you prohibit bundling—which is what Congress does to a fare-thee-well—they now pass all the appropriation bills in one bill. They do it deliberately. I think Walter and I agreed that the line item veto is not a good idea. But if you don’t prohibit bundling with something like the line item veto, or something else, then the President has to take his choice. Does he veto the whole kit and caboodle, or does he sign it and then it’s up for grabs? And what he thinks about it or what he doesn’t think about it is just one more lawyer—if he’s a lawyer—voicing his opinion. The court is still free to do what they want. 

Anyway, Walter thought, no, the President has a constitutional responsibility. If he says it’s unconstitutional, and he’s signing it under the duress of other provisions, that should carry some weight. 

Did that mean, then, that when there were bills where there was some disagreement about whether the President should sign them, Dellinger also was involved in looking at the signing statements as well as them going through you—

Yes, quite frequently, which is good. Again, they have superb lawyers, and a lot of them are career, and they can take a longer, harder look at things than the White House Counsel’s Office can.

They have that institutional memory.

They do, and as I say, with very few exceptions, they had a superb office.

You mentioned line item veto. Should we ask a little bit about that here? You’re on the record later on as being opposed to the line item veto, and yet you also advised the President on how it could be crafted in a way that would withstand constitutional muster.

I’m a creature of the first branch and think the line item veto is a bad idea. That’s one of the ways the first branch gets where it wants to go, by making deals, by putting things together, and the line item veto pulls them apart. If Congress passes a highway bill with only these 50 items in it, then the President shouldn’t be able to say, Okay, now we’re going to pretend you’re passing 49 items. They didn’t pass that. So I’ve never liked it. But I was White House Counsel, and he wanted the line item veto, so my job was to see if we could find a way to make it constitutional. We had been notoriously unsuccessful, as you know, but we tried. 

Walter Dellinger and I did try. I think he had his problems about its being constitutional, but he thought it was a better idea than I did. As far as I’m concerned, the way a President deals with a Congress to avoid the need for a line item veto is the way the President should deal with Congress all the time. If he can get along with Congress, he doesn’t need it. And if he can’t get along with Congress, it won’t do him any good. 

Look at the items that got line item vetoed under the Clinton bill. There were all these items that should have been vetoed that weren’t, and there were a couple of rinky-dink items that nobody was paying any attention to that he vetoed so he could show it was a big deal. Robert Byrd isn’t right on everything: he voted against my confirmation. But he was right on that one. 

Did you tell the President you had problems with it constitutionally?

Yes.

And he’s said, I’ve taught constitutional law, I know this. 

It was a close question. I’m trying to remember what the Supreme Court vote was, was it or wasn’t it?

Clinton v New York. I don’t know if I wrote down the vote. It was struck down.

I know it was struck down. Again, it’s reasonable that people can disagree. Where I come from, I want you to know this is not the—

Six to three. 

Going back to the OLC—with respect to signing statements and constitutionality of legislation—when you had disagreements with the OLC on these legal rulings, did that precede whatever opinion the OLC issued, or did they issue their opinion in a way that was different from yours, and then that was simply reconciled politically between you two and what the President’s ultimate position would be? 

Walter and I had a very close relationship. We’d been friends from when he was a law professor. We go back a long, long way. I do know that he urged Janet Reno to be enthusiastic about my appointment. I don’t know how much input she had, but I do know that he was involved, at least to some extent. We always got along very well. We’d talk occasionally, once every day, maybe even more.

When something like this would come up, we’d trade ideas, we would banter it back and forth for a long time. As I remember on signing statements, one of us would usually pick up that there would be a problem somewhere. This bill was going through because legislative affairs would tell us that they’re going to put someone on it, and then we’d start haranguing each other. If I were king I would not have as many signing statements, and I wouldn’t make such a big deal of it, but they perform some purpose. I think it’s a political document; it’s certainly something the President should use as his pulpit. I just don’t like to think of it as a legislative tool, because it’s not. And that’s where we would have our disagreements. But we would usually hammer them out in advance. 

One of the reasons I wish I could have persuaded Walter or persuaded the President to go along with me is that I think a President who is firm about what he wants in a bill or doesn’t want in a bill is stronger than a President who says, Well, I’ll take care of it in the signing statement. I don’t think he really can. I still don’t think I ever saw a Supreme Court decision that turned on a signing statement. I’ve seen lower courts that do; the courts of appeals sometimes overturn some. But I don’t think any important piece of legislation has ever been interpreted in light of a signing statement. I would have preferred the President to know that his last chance is going to be before the bill comes to him, because once it comes to him, he can only sign it or veto it. 

Were you involved in any veto messages? I’m trying to recall if there were any vetoes during your tenure.

He didn’t veto any, I don’t think. He was very anxious not to, and if he did—

The first one was probably after you left, in December ’95.

Securities Legal Reform?

I was gone.

That was one where there was an issue of an interpretation of a legal phrase.

I was surprised at his veto. Bruce Lindsey pulled that off, because I was against the bill. It was a bad bill. I remember I got in trouble by indicating that I was against it. He found out in a New York Times story, and he was furious. He came storming into the senior staff meeting, Who’s responsible for this? Everybody else left the room. I couldn’t believe that he would veto it. But Bruce persuaded him that this was bad legislation. Did they pass it over his veto?

They did, and then it became a court ruling where it was interpreted—or misinterpreted, depending on your opinion—just as the White House had feared it would be. 

Yes.

Silicon Valley was strong for that bill, and they just sold them a bill of goods until they got to the Senate, a terrible bill.

Did you get the sense—of course, you weren’t in the White House long before the change in Congressional party control—that Clinton, especially during the time you were in the counsel’s office, saw signing statements as the only way to get his input in, given the changes on Capitol Hill?

The Congress had become very belligerent, if you recall. They didn’t really settle down until he shut down the government. I was already gone, but I thought that was a terrible mistake. I thought the Republicans would win that one hands down, and boy, was I wrong. But until that happened, they were totally unruly, and they kept looking for little things to needle the President, or push the President around. Was it Newt Gingrich’s mother who would say terrible things about Hillary? It was just one nasty after another. So he really felt that this was his only way. Legislative affairs was getting more and more impotent in terms of influencing legislation, and even the Democrats were jumping ship on some of these things.

Did he use executive orders?

Oh, yes.

And you went through those?

Yes, we had one on strikebreakers’ legislation, which was great fun.

Can you use that as an example, or another one, and tell us how the White House and agencies go about crafting the executive orders and what your role would be?

The interesting part about this one is this was one they had tried to do legislatively and couldn’t. It was very important to labor, and it was one that appealed—I don’t know this for sure,    because he and I didn’t talk that much about it. We talked about it once. But I think it appealed to the President as a matter of fairness. He somehow didn’t think it was right for strikebreakers to be coming in. 

Again, I’m sure it was Reich who persuaded him that he could do something by executive order. Obviously we couldn’t make it nationwide, but we could make it apply to all government purchases. The biggest government purchaser is, of course, the Department of Defense. So Josh Gotbaum—who was then Assistant Secretary of Defense—is a lawyer who worked for me on campaigns, and whose father, Victor Gotbaum, is a prominent labor leader, originally was in Chicago, been an alderman, is an old good friend. 

His son Josh was delegated by the Department of Defense to protect their interests. There we were working out the executive order, and Reich’s office was trying to push it as far as they could. I was trying to make sure it passed muster, which failed when the court of appeals struck it down. I was trying to keep it within bounds that I thought it would pass order muster. Josh didn’t want it to go anywhere, naturally, because Defense was really affected most by it. It would have been quite complicated for them to administer because it goes down to subcontractors that subcontractors are hiring, and so on. They would have had to set up a lot of bureaucracy to administer and supervise it. So he was trying to resist. Every once in a while, he would try to bring in higher authority by getting—was [William] Perry Secretary of Defense? I think so. 

Maybe at this time.

Anyway, The Secretary says— and I’m trying to say, Yes, but the President says— (I hadn’t even talked to the President.) And Reich’s people were pushing further. We went back and forth on it for several days. It was a Saturday morning, and we trying to draft the last piece. Apparently the DoD had really came down hard on Josh. They felt he’d given away the store. So he came in that morning really belligerent: This whole idea is an exercise in futility, you can’t do this. Congress has already said they don’t want such a law. You can’t do this. I couldn’t resist. I said, Josh, if I call up your father and tell him what you just said, he’ll be embarrassed. Nobody else knew what I was talking about, but he did. [laughter]

So in circumstances like that, you’re negotiating essentially with Defense on behalf of the White House, but ultimately—

And Labor, and ultimately I’m supposed to recommend to the President that he sign it. Usually it never gets to him unless the White House Counsel supports it, but I suppose a White House Counsel might say, Well, you’re doing it over my objections. 

Does something like that, after it’s negotiated in the first instance, go through senior staff or go through some other clearance process before it goes to the President?

I don’t think so. The subject matter, the idea of doing it in the first place, is probably raised at senior staff. But the impetus for getting it done could either be from one of the senior staffers who pushes it hard enough, or, frequently—as it was in this case, I think—from the President and Reich. He said, We have to do this.

So the staff secretary would not have taken a draft executive order and sent it through a regular clearance process.

No, usually there would be an okay by the President to do this and by the Chief of Staff, or maybe by the whole senior—The idea would almost always get run by the senior staff, but whether to do it was usually a Presidential decision. And then the crafting of it, the drafting, the negotiating of it would be between the White House Counsel’s Office and the chairmen of the departments involved.

Were there other important examples during that period?

The tobacco one was, at HHS. I think I was leaving before the executive order was finally crafted. I’m not sure when that came out. I know I was negotiating with the Surgeon General and with Edelman. The Surgeon General had a really good lawyer at the time. I can’t recall who it was. I was negotiating with him and with Edelman, but I don’t think I was there for the final draft.

Would it be common for you to be dealing with the general counsels at the agencies with which the executive order dealt?

Or whoever the Secretary designated. Josh was an Assistant Secretary, but he was a lawyer and was considered to have the legal expertise. 

Was there staff support for you and the White House Counsel’s Office in terms of the substance of these kinds of activities as well?

Sure. On the tobacco one, I know we had a lot of input from OSG [Office of the Surgeon General], a lot of input from one of my assistants who was practically full time on tobacco and going through all the agency precedents, the law precedents, to see how far we could go, and looking up legislative history of the drug act and all that. There was a lot of staff support. That was one of the reasons I so enjoyed those parts of my White House counseling, and I didn’t enjoy the investigations. The investigations were not under anybody’s control. They’re Congressional things, and they would go off on weird tangents, and you couldn’t really prepare for them. Anything you prepared for, they would go off on something else, whereas things like executive orders, judgeships, and legislation planning were finite, and you could—

More proactive than reactive. 

How about executive agreements? Did they follow a similar process, although, of course, with different players?

I’m trying to remember if I was involved in any. I must have been. I think there must have been somebody on my staff. I guess there were none that I personally got involved in. There must have been somebody on staff signing off on some of them. Were there any major executive agreements while I—

None spring to mind for that period. 

I was wondering as well about Presidential directives and Presidential memoranda. Would that have been lower level in your staff?

Yes, and frequently would not come through our—Presidential directives frequently can be congratulating the Red Sox on winning the World Series, and a lot of that stuff wouldn’t come into our office at all. If they did, I think there was somebody in charge, and it wasn’t usually necessary to check with me. 

It would only come to you if there was a problem of some kind.

With respect to executive orders or signing statements or any of the types of executive legislative issues we’ve been discussing, do you recall any instances where the President made a decision, went with an executive order, did a signing statement, over the counsel’s objections?

Yes. Habeas corpus.

Tell us about that. 

First of all, I had been involved somewhat in habeas corpus when I was in Congress, the state legislature. It’s not called the great writ for nothing. It’s an important piece of our legal system. The courts, particularly the Supreme Court under [William] Rehnquist, had been taking whacks at it, and of course Congress had been taking whacks at it. I was on the judicial conference when I was Chief Judge of the D.C. Circuit. At that point—do you know about the judicial conference? It’s a conference of some 25 judges who really run the judicial systems. It’s the best part about being Chief Judge. 

Rehnquist was then the Chief Justice, but most of the Chief Judges had been Carter appointees. Breyer was on the judicial conference, I was on it, some other Carter appointees, and our votes—counting a couple of moderate Republicans on key issues—could outvote the Chief Justice. Congress had been pushing a habeas corpus proposal that would pretty well do away with it. He had put it on a don’t discuss list as something that we would automatically approve. Steve Breyer caught it and said, No, no, we want to talk about that. We argued about it, talked about it, finally we voted to instruct the Chief Justice to send letter to Senator Biden, who was then chair of the Judiciary Committee, that the judicial conference was opposed to the habeas corpus modification and—

That must have been a sour pill for Rehnquist to swallow. 

Oh, Rehnquist said, Do I have to write a letter? Can’t I just tell him? But he wrote the letter, and Congress went ahead. They didn’t pass it that time, but they kept pushing it. There were a lot of court of appeals judges and most of the Supreme Court judges who thought that habeas was being abused, and this is how all these death penalty cases were being delayed for so long. When the Congress turned, in ’94, one of the early bills they started working on was habeas corpus, and it was getting pretty clear that it was coming to a head. 

The Legal Defense Fund, who had been lobbying against it for many, many years, came out with a great alternative, which I thought was terrific. It said that in every capital case, a person shall be entitled to one de novo appeal in federal court where you could raise all questions of law. Obviously you can’t retry the facts, but you could raise all questions of law, and that appeal must be completed within one year of the final state court action, which, as far as I was concerned, solved the only real problem with habeas: using habeas to drag out these death penalties for 10, 15, 20 years. But, on the other hand, it made sure that a federal court would look at the real questions of law that could be involved in the case. 

So they drafted this bill and we went over it. They brought it to me and I was very pleased. I was White House Counsel, I was very excited about it. I went to see my old friend Henry Hyde, who was then chair of the House Judiciary Committee. He looked at it and said, Well, I could be for this. Do you have a client who’s for it? I said, I’m going to try. I went back and oh, we worked so hard in the White House, one of my deputies and I. We sent memo after memo, and I had two face meetings with him. He saw this through the prism of an Arkansas Governor who had seen these people on death row for 10, 15 years. As far as he was concerned, habeas was being abused, the Congress was going to cure it, and I lost.

Were you fighting him over this, or were there others in the White House who were also bending his ear in opposition to the position you took? 

I don’t think anybody really cared about it much in the White House. If there was somebody in my office, I didn’t know about it, because everybody knew how strongly I felt. 

How about in the Justice Department?

No, Janet Reno was pretty sympathetic, and Jamie Gorelick was very sympathetic. Eric Holder was in there. I think this was the President. Now, what Bruce said to him, I don’t know. No, Bruce never got involved. I can’t imagine that Hillary would have said anything. I think he just looked at it from what he’d seen as a Governor, and decided My counsel’s got this goofy idea to take on the Congress.

Do you think it’s easier dealing with a President who doesn’t have a law degree? Maybe he’d be more deferential to you in certain cases.

He was always pretty deferential. Again, this wasn’t a case of constitutional law; this was a case of choice. All the time I was practicing law, I used to tell my juniors that we should make sure we diversify and not wind up with any single clients dominating our practice. And here I end up working for only one client, he’s a lawyer, his wife’s a lawyer, and I’m in the attic of his house. But he gave me deference. Actually, when I asserted something as a matter of legal opinion, he was always very deferential. But as far as politics was concerned, he felt he knew as much about it as I did—and maybe a little more—and certainly his was more recent than mine. And all that was true. 

An amusing incident was when I came to the White House, I was concerned that I didn’t want to be called Judge. I didn’t want that kind of formal distinction drawn between me and everybody else. So I insisted that my staff call me Ab, which most of them accepted—except two of them, who were former clerks. I don’t know if you know this about a clerk, but if today Sherman Minton walked in the room, I’d call him Judge, because a clerk can never think of his judge as somebody other than Judge. 

So they kept complaining bitterly—my deputy particularly, James Castello. He said, It doesn’t sound right when I say Ab. I said, Call me Ab, I like it better. The President always called me Jedge. So James and I went in one day for a meeting and the President would say, Jedge, what do you think about this? Jedge, what do you think about that? We walked out, and Castello said to me, How come he can call you Judge? I said, Because he’s President of the United States. [laughter]

This is an interesting period in the White House in that both the Chief of Staff and the counsel are former members of Congress. How does that affect Congressional relations? Do you play a more prominent role in dealing with Congress than other counsels?

I had hoped it would, and Leon did try to play a role. I think for that first year we were somewhat useful. Leon, I know, was meeting with the Democratic leadership regularly. I was meeting with them on some things. But then, when Congress changed, it changed so dramatically. It wasn’t just that it went—if it had gone from Tip O’Neill to Bob Michel, I would have still been useful, Leon would still have been useful. But to go from Tom Foley to Newt Gingrich, Gingrich and I were not the best of friends. 

Leon had great respect among anybody in Congress who had paid attention to budgetary affairs. His knowledge of all that was as good as anybody in the country. So I think that even after the Congress changed, he was still able to have some influence on budget things. But, as you know, when they broke up, the government shut down, he wasn’t influential enough to carry the day. 

It was one of the reasons the President thought I would be good for the job. It’s one of the reasons I thought I’d be good for the job.

You came on during a period when there were Congressional investigations under way. Any counsel would have probably had to deal with Congress, at least for the subpoena.

I was able to get some things done, even after the Congress changed and the investigations, because of the people I knew. [James] Leach was conducting one of the investigations, and he was somebody I went back with. I mentioned Henry Hyde and habeas corpus. There were a few Senators I had formerly had dealings with. Paul Simon was an old friend. But I had expected to spend more time on the Hill. Jack Quinn succeeded me, but he didn’t stay long, as you remember, because he had a daughter in medical school, and he decided he had to go out and make some money. 

Charles Ruff succeeded him, and Ruff and I went back a long way for many, many years. We had lunch shortly after he was announced. I said, Chuck, you’re really going to love this job because I think that Whitewater is behind us, the billing scandal has been put to rest, and you’re going to be able to spend your time on legislation and judges, judicial appointments and other things like that. Every time I saw Ruff thereafter he said, Tell me again about the really good times.

While you were in the White House, what proportion of your time did you spend on investigations?

Probably a third to a half. What was so frustrating about it is seldom would I plan a day that I was going to be doing that. But I’d come in in the morning and there was some new crisis, some new subpoena, some new rumor, some new news story. I had always enjoyed really good relations with the press. I’d been a very fortunate person during my political career and even my judicial career. With the exception of the Wall Street Journal editorial page, I had a charmed life in politics. But I’ve never been as exasperated with the press as I was during that year. I think they had changed. Some of them insisted that I had never seen it from that aspect before, but I think that the press has become much more of a gotcha institution than it ever was when I was there, when I was active in politics. The result is that there was nothing newsworthy as far as they were concerned unless they could find something scandalous about somebody. And every story was a potential scandal or they didn’t write it. 

Did you have someone on your staff who dealt with the news on a regular basis?

We were supposed to use McCurry’s office, and we did. I got along very well with him. His people were very good. But usually our press relations were after the fact. On occasion, every once in a while, we would try to be proactive, and more often than not it would blow up in our face, such as that time on the securities litigation when the President was really steamed. 

I tried to be a little proactive on the Carns thing when I saw what was happening, and that didn’t work out. The story got turned into something that made the President look bad, and I was trying to do the opposite. So what really happened—and I couldn’t believe this would happen to me—I just tried to stay as far away as I could. I became as uncommunicative as I could be as far as anything important went.

Were there any reporters you trusted in particular?

I trusted Al Hunt a lot, he’s an old friend. I trusted a couple of the New York Times people. But I decided that if it was any big newspaper, the reporter didn’t control the story any more. The editor could say, Oh yes, this is a good one, go after it. So I really stopped talking to everybody. 

Did your office review the press releases from the White House press office when they dealt with these?

Very seldom, and a couple of times I wish we had. I don’t know if you remember this, but at one point, a judge in New York had quashed a search warrant of some kind. No, it wasn’t a warrant, had quashed a search of a car without a warrant, and had lectured the police about their conduct. McCurry was asked about it at a news conference. He said, The President is considering asking for his resignation. Everything hit the fan. 

I don’t know why I didn’t hear about it. Usually I looked    at the clips first thing in the morning. Oh, it didn’t make the morning papers, that’s why. It was on television, and I didn’t hear about it until later in the morning. One of my staff people came running in and said, The President is in all kinds of trouble. McCurry says we’re going to ask for the resignation of a federal judge on a ruling. 

So I came storming down to McCurry’s office, and he said, I didn’t do right, did I? We started to try to back-pedal from that. The judge’s name was [Robert] Sweet. What bothered me most is that he reversed himself on it, and there was all kinds of talk that the President somehow forced it. I remember someone saying, Why don’t we call the judge and find out? I said, No, you can’t do that. It just ended up with mud on everybody’s face.

Another one like that was when the President was overseas, and it involved a woman who’s a network newsperson, married to Bob Barnett, a very nice person. Her husband is a very prominent Democratic lawyer in Washington. He’s done work for the Clintons and for Gore and all kinds of Democratic causes. The President was overseas, had had a really arduous day, and she asked him, What do you think about this constitutional amendment to allow prayer in the schools? He said, I’m sure we can work something out. 

Every secularist in the country came screaming and yelling, What are you going to work out about prayer in the school? You have to understand, he was tired and somebody should have protected him from the question, but I think that was his natural instinct. He’s a religious person. He thinks religion should play a more important role than it does in most people’s lives. When you press him about why it has to be separate from the state, he’s smart enough to understand it. But his instincts are to say, Yes, we should be able to find some way of bridging that gap. 

Of course it was a disaster. Every liberal Protestant, his whole base, was just up in arms. I was getting calls from rabbis and ministers. What are you going to do, you can’t let the President—we worked out this very tricky speech. It wasn’t tricky, but it was a complicated speech about why separation of church and state was important and why this administration wasn’t anti-religious—personally he’s very religious and he prays all the time. Every word was fought over. We had meetings in the White House Counsel’s Office for weeks on end with all the prominent lawyers of the various religious groups in this country. This was clearly supposed to be my baby, because I was among the most secular of the secularists, and also I understood what the law was, supposedly. 

So I’d worked with him on the speech, and I’d worked with the speechwriters and all the religious leaders. The Jewish representative, Rabbi [David] Saperstein (I don’t know if you know David Saperstein, a lovely guy), was particularly concerned, because, he said, This is the President’s natural Baptist instincts coming up, and he probably would work something out, a constitutional amendment. He kept saying, If you want us to sign off on this speech, it has to be as we’ve agreed. I was supposed to ride over with the President from the White House to the school where he was delivering it, because President Clinton is well known for changing his speeches on the way. 

I was on the Hill, and I got hung up in traffic. I came tearing up to the White House just as the motorcade was pulling away. Sure enough, he got up there, and it wasn’t major changes, but he threw in a few wrinkles about how he always prayed before every test, even though it was in school. He really prayed in the White House. There was Saperstein, glaring at me. Anyway, at the end, the rabbi came over and said, I have this press release I was going to issue today congratulating the President on his firm stand on the separation of church and state. I’ll think about it. [laughter]

How frequently were you involved in speechwriting? 

Not often. He had very good speechwriters. Occasionally they would ask me a legal question, but usually they did it. I used to think I was a pretty good phrase-maker when I was in politics. I had a speechwriter, but I did most of my own speeches. I realized that he has a different set of rhythms. I learned this about speechwriting a long time ago. I used to try to make my clerks write at least one speech for me because it’s a good experience. Some of them could write a speech that would sound like me, and other speeches I would have to throw away. I just don’t have that southern cadence he has. So on occasion when I would put in ideas—

They’d have to be rephrased.

They would have to be rephrased. 

Did the counsel’s office have reviewing authority?

No.

You weren’t on the list of people who had to check off on the President’s speech?

We would get the State of the Union and other formal messages, but you have to remember, this President had a lot of press conferences, made a lot of speeches, did a lot of communicating. He thought that was an important part of the job. Neither of the Bushes feels that same way about it, and I don’t think Carter did either. So he was unique. He used his speechwriters a lot, and I thought most of his speeches were on target.

They would come to you, as you said, if there was a legal issue.

If there was a legal question, or if there was something that I might have something to say about. Occasionally, he would do these sessions before a press conference. Have you heard about these?

Yes.

They were great because he would come up on the podium, and you’d ask a question you thought was going to be asked, and he’d come up with some outrageous remark, That is the shittiest question I ever heard. How can you be so dumb? He’d get it all out of his system, and when he’d go out there, he’d be smooth as pie.

Did someone in your office help contribute to briefing books for him on certain issues before press conferences?

Yes, again, if there were legal issues, my office would do it. Vicki Radd would do all the stuff on judges.

I suppose some of it on criminal justice and drug issues and those sorts of things?

Right. And a lot of that would not go by me, unless there was a change in policy or some extreme policy. For instance, during all the time we were still trying to hedge our bets on tobacco, [inaudible] was working on that issue, get that into the briefing book. I don’t think I’d even see what the particular wrinkle was, though I knew it wasn’t worth anything. Fish or cut bait. 

Would James Castello have overseen any of that work going on in the broader staff?

Probably, and Joel Klein would have, too, because Joel had institutional history. He came on with Bernie Nussbaum. So I relied on Joel quite heavily the first few months until James came on. Both of them probably did a lot more than even I was aware of. 

Why don’t we stop right here.

Let’s start with the beginning of your tenure and go through some of the issues that would come across your desk. Pretty early on, you dealt with the assault weapons ban, or at least the administration did. Did you have a role in that?

Not really. It was part of the Crime Bill, as I recall. There was a question whether it would stay in it. I think that was pretty much flattened out before I got there. The President, as I recall, was making that his price for signing, for agreeing to the bill. I wasn’t wild about some of the other stuff that got in there, but he was happy because it did include the assault ban. Didn’t they pitch that later on? Didn’t they try to repeal it or repeal it later on?

I don’t recall.

It wasn’t during my time. Anyway, I was not an active player in that one.

Did any of that crime or law enforcement legislation originate in the Justice Department or was it the White House?

What do you mean by the Justice Department? If you’re including the FBI, which you may or may not under Louis Freeh, I’m not sure he was part of the Justice Department. But a lot of it—for instance, the Anti-Terrorism Act of 1996—originated really at the FBI. They collected every piece of legislation that had been rejected by previous Congresses and put it all together.

There was a group within the White House and within the Democratic counsels that felt that it really was important to get crime off the back of the Democratic Party. They had been trying to limp through elections with it on, and it was very hard. I sympathized with the effort because I never thought of myself as soft on crime. I certainly wasn’t, I don’t know any judges soft on crime. I’d just have to remind myself that there was a Fourth Amendment issue involved when I’d end up with one of those drug cases. Most Democrats felt that way, but it didn’t matter. We were all considered a bunch of bleeding hearts who were turning these people loose on the streets. 

There was a young man on the staff at the time, he’s now a Congressman: Rahm Emanuel, who didn’t have many anchors to hold him down. He was big on getting this crime issue off the back. He did a lot to do that simply by using photo ops. I don’t know if you realize how many times you saw pictures of President Clinton with the police behind him, giving an award of some kind. These were all Rahm’s doings. As far as Rahm was concerned, every one of these was a step in the right direction. That included, unfortunately, issues as well as pictures. I would have granted him all the pictures he wanted, but he wanted the President behind every tough law enforcement bill there was. 

The Anti-Terrorism Act of 1996 came up. This was being pushed very hard by Louis Freeh and the FBI, and I know why. Most of Janet Reno’s advisors were telling her there were some really bad things there. I was very much opposed to a lot of this stuff, and Tony Lake ended up hosting the warring tribes. Freeh was pushing it very hard, and Janet didn’t feel she could interpose too much. We had a meeting in the Sit Room and Tony was presiding. Tony’s not a lawyer and doesn’t pretend to know some of these fine nuances. There’s Freeh pounding the table and saying, We have to have this, we can’t get crime. 

First of all, Freeh was never a very loyal member of the team. I don’t know that he ever confessed to being a Democrat. If he is, he hid it very well. But more than that, he was undercutting the President on a lot of other things at the time, so the fact that he was for it didn’t cut any ice with a lot of us. But Reno felt she couldn’t interfere with what he was trying to do. Tony was really quite neutral on it. Merrick Garland, who is now a judge on the U.S. Court of Appeals, was number three or four in the department. 

I’m sure you’ve heard how the Situation Room works. The principals sit in front, and the deputies sit behind. Merrick was sitting behind, I was in front because I was White House Counsel. Merrick would have to lean over Janet’s shoulder and over Freeh’s shoulder to interpose some of the objections I was picking up. 

There was one other there: I’m sure my deputy was speaking up too, but the law enforcement crowd were all saying, We have to have this, we have to have this. It ended up, as far as I’m concerned, a pretty bad bill. We got rid of a few of the worst provisions that, of course, are now in the Patriot Act. It just swept up everything that we did throw out. Tony Lake didn’t comment too much when he was presiding, but I saw him later on, and he said, Isn’t that amazing? Lawyers can never agree with each other. 

Reno opposed parts of the bill but thought she had to defer to the FBI?

The FBI and the Department of Justice have always had these problems. The FBI insists that it’s really an independent agency, but it’s part of the Department of Justice. It takes a pretty strong Attorney General to rein them in. She was strong in many things, but she didn’t feel that was one of the things she wanted to do, especially since Freeh was a pretty strong-handed guy. 

I do a lot of research on the Patriot Act. I ran into your quote—in fact, I’m using it in my book—where you said something to the effect that they took all the bad ideas you had rejected for the ’96 bill and dumped them into the Patriot Act. What particular bad things?

One was library records. I see there was just a big story in the Post about this. 

The national security letters?

The national security letters. That phrase was not used, and I don’t think it’s used in the Terrorism Act either, but it was that concept of secret capacities for the FBI to find out what books people are reading, what networks they’re logging on to, and so on. 

Another was the use of FISA, the Foreign Intelligence Surveillance, not Agency—

Court.

But it’s called FISA. 

It is from the Act. It’s a FISA court. 

It had a justifiable purpose, and that is the notion that obviously we want to find out what’s going on in foreign embassies, but we don’t want to admit that we’re doing it. How are you going to control what you do without admitting it? You set up something called a FISA court, where it’s still an ex parte proceeding where only the government is present, and you never tell the tappee that you’re tapping him. But on the other hand, there’s some supervision to keep the FBI from running amok. 

Prior to that point, it was only on the Attorney General’s authorization, and I think under [Mark] Levy and then [Griffin] Bell you saw some kind of check.

Some kind of check on the Attorney General. Again, if you’re talking about foreign embassies, especially in an anti-terrorism mode, I think it makes some sense. But what the Patriot Act has done is make FISA available for all kinds of ex parte warrants, not only on foreign embassies, but on this very room, for all we know. An ex parte hearing is just not a very good place to supervise law enforcement. It just isn’t going to happen. 

Through the whole history of FISA in those first few years, they turned down only one request. I trust federal judges. I think by and large they’re pretty good. First of all, there was a little bit of self-selection there, because, as I recall, the Chief Justice appoints the FISA court. But secondly, when you tell a judge only one side of the story, obviously most judges are for law enforcement. You come in and say, We have to have this; it’s a matter of law enforcement, a matter of national security, they’ll sign the order.

Was that one of the proposals that had been suggested in ’96? 

There was some extension of FISA. I don’t remember what it was, but there was some, and I think we knocked it out. 

Okay, well that was quite a bit, then. 

I’m sure it will show up later on. 

Was this all in response to the [Alfred P.] Murrah bombing?

A lot of it. I shouldn’t be critical of this because reformers do this, too. But law enforcement seizes opportunities like that to put in stuff that wouldn’t pass in a normal period of time. The Patriot Act passed in something like less than 30 days, and I’ll bet even your former boss didn’t read the whole thing before he either voted for it or against it (I don’t know which). It was many hundreds of pages. It went through without real committee hearings, without any of the oversight and concern that a legislative body ought to give it. Here are these fundamental liberties just put aside. 

Anyway, the Murrah bombing was one.

You would have had the World Trade Center bombing in ’93, the Murrah bombing in ’95, so it—

I think it started with the World Trade Center bombing, and the Murrah thing—

Just accelerated it.

You were in the White House when the news came of the Murrah bombing. 

Yes.

What was the general atmosphere? Were you involved in any of those meetings initially?

A little bit. We were all just absolutely stunned, and particularly it came on the anniversary of something.

Waco.

Ruby Ridge?

Wasn’t it Waco?

It was one of them. We were convinced—I have to say all of us were, including Jamie Gorelick and the Justice people—that this was a terrorist group. I don’t know if you remember, but for the first few weeks, we were chasing each other’s tails because everyone was looking for an Arab terrorist. Lo and behold, it was our own, homegrown, corn-fed American-born terrorist. But we literally were losing direction. I think one of the heroes of that whole Murrah investigation was Merrick Garland, who took over for Justice and did a spectacular job bringing people together and getting us on the right track. 

Was there a crisis coordinator in the White House as well?

I don’t think so. The President had a great deal of respect for Jamie Gorelick. He and Janet Reno didn’t always communicate with each other as well as they should, but he liked Jamie and he thought she was very competent—and she is—was and is. Also I think John Schmidt was over there then, whom he respected. I think he felt comfortable that they were on top of it. Then Merrick—whom I don’t think he knew that well—just took such charge of that, clearly coordinated. I don’t think we had anybody, at least I don’t remember anybody in the White House.

Can you tell us about the President’s relationship with the Attorney General?

They didn’t communicate with each other very well. I have great admiration and affection for them both, I like them both. But she felt very uncomfortable around him because she thought that people around him were second-guessing her decisions. You remember her first major decision was Waco. I happen to think that she did what was necessary at the time, and she did it on the advice of the FBI. I always point out when people criticize her that she was brand new in the job, and what else would you want? The FBI says, We have to go in there, they’re going to kill children. You obviously try to do something to avoid it. It turned out very badly, but not because of her decision, and certainly not because of anything she did or didn’t do. 

Anyway, I think from there on in she was ill at ease and felt, aside from everything else, that he didn’t respect the job she was doing because that first major effort had turned out so poorly. Also, if you remember, she came in under strained circumstances. She wasn’t his first choice or his second choice or even his third choice. They didn’t have anything of a relationship.

When John Fitzgerald Kennedy appointed his brother Robert [Kennedy]—none of you were then alive—all us young, active politicians were highly critical of the nepotism of this outrageous act of the President to appoint his brother Attorney General. Over the years, I’ve come to wish a President did have a relationship with at least one lawyer high up in the government who could come in and say, You can’t do this, or What are you thinking about? That was one of the problems I had and I think Janet had even more: neither of us had that sort of relationship with him. I could never have gone in and said, Bill, you can’t do this, or Are you crazy? or something like that. A President needs that. A President needs somebody who has that close relationship and it either should be the Attorney General or the White House Counsel.

You mentioned that part of the reason, perhaps, that Reno did not have such a strong relationship with the President was her perception that she was not getting support from the White House. Was that your observation? Did you ever hear anything from the President or from senior White House staff to that effect?

Not in words, but I would sometimes end up acting as a go-between. It wasn’t that I objected to being a carrier pigeon, but it just seemed to me that if the President wanted to say something to the Attorney General, he should pick up the phone and call her. If she had something to say to him, she should tell his scheduler, I need to see the President. Frequently I would end up being the message taker. The President never said to me, I can’t get along with that woman. She never said to me, Boy, is he off the wall. But I just felt that they were not comfortable with each other. 

And you didn’t play that liaison role with any of the other Cabinet Secretaries? 

No.

How often did you talk to the Attorney General?

I usually talked to Jamie, because Jamie would sit in on our weekly judicial meetings. In fact, I think I would have a separate meeting with her and my deputy and maybe Merrick Garland or somebody else from Justice on other issues. Remember, we had this problem that Lloyd Cutler had insulated, where there had been supposedly improper contact between the President and Justice on some upcoming investigations. So we were trying to keep a Chinese wall between ongoing investigations and the President’s office. The counsel’s office was supposed to be the keeper of that wall. 

They could tell me, Stay away from that, we’re investigating it, and I was supposed to—obviously, not dissemble with the President, but keep him away from it so there wouldn’t be improper contact. It was understood. Lloyd even wrote a memo that said that the White House Counsel would be privy to this without it being a breach of the separation of prosecutorial—

And with the FBI, wasn’t the White House Counsel the primary contact?

Yes, but that was in theory. No, that’s not true—I would have good contact with the FBI counsel, but not with the director. 

The meetings that you would have with your deputy and the Attorney General and her deputy, were these regularly scheduled meetings?

This wasn’t the Attorney General, it was Jamie Gorelick and her deputy, who I think was either John Schmidt or may have been Merrick Garland. We would have meetings going over general things. I don’t remember whether she was at the judicial meetings, or just Eldie, but she and I would have almost weekly meetings about other things going on that we legitimately needed to have a heads-up on and that we needed to tell her.

For instance, this is trivial, but it’s an example of the kind of things that happened. They were conducting an investigation of some labor leader, and it subsequently led to an indictment. Well, the White House isn’t supposed to know that they’re conducting an investigation because otherwise there could be interference. But on the other hand, Hillary ends up going out to Detroit or someplace and having her picture taken with this guy three days before he’s indicted. Of course that picture came up. Some of the Congressmen were waving it at me one time when I was trying to defend the White House on something. It was those kinds of things that they tried to keep us informed of without breaching the wall. It was a delicate, somewhat fuzzy description.

Can we go back to the Attorney General?

Sure.

How often did you have contact with her? What did the topics tend to be about?

I did not have that much contact with her directly. There were a couple of occasions where she came over to my office about something. There were a couple of occasions when I went over to her office, but I don’t remember a lot of face-to-face contact with her on things. It was usually through Jamie, whom I did see regularly, or through John Schmidt or Eric Holder. He had been U.S. Attorney, but then I think he had gone over to Justice before I left.

Were you involved in any of the nominations to the Justice Department?

I don’t think so. 

I can’t think of any coming up in that year.

I don’t think so, I don’t remember any.

What about the Solicitor General?

I knew him. The Solicitor General has a well-established place within the hierarchy. It’s understood that he or she is supposed to have a certain amount of independence, and they try to exercise it with some discretion. The Solicitor General—who was very good and performed very well for the Clinton administration, as far as I’m concerned—was involved in a couple of race cases, affirmative action cases, where—it wasn’t that he did anything wrong, but he didn’t heads-up anybody at the White House, and the President ended up reading the position of the United States government in one of these very delicate affirmative action cases. You may remember, the President—who as I said was as rock solid on race as on anything—did have some problems with affirmative action, as do we all. I wonder what Clarence Thomas’s law school record would look like if there hadn’t been some affirmative action in place. I don’t know. 

In any event, the President had some problems. He was very irritated with the SG for going ahead without— So we tried to, again—and I think Walter Dellinger did most of this from OLC. He also knew the Solicitor General pretty well. I think Walter tried to make sure that when there was a sensitive case coming up, they would at least let main Justice know and in turn let us know that this was the position the Solicitor General was going to take so that there wouldn’t be any surprises. I remember at one point, he had been at Harvard or Yale, I’m drawing a blank on his name. Who was the Solicitor General?

Was it [Seth] Waxman?

No, no, that was later.

Now I’m drawing a blank because I know who it is. [Drew Days III]

I think he was at Harvard. [Yale.] Anyway, he’s a lovely guy, and at one point his leave from Harvard was expiring, and he called me and said, I will need a letter from the President to extend my leave for me to stay on. So I went in to see the President with this letter. He looked at it and said, Why the hell should I re-appoint him? I knew what was bothering him still was that petition of cert that he read about. I said, Because he’s been a very good Solicitor General, and it happened only that one time. It hasn’t happened since. He grinned and signed the letter. [laughter]

Were there ever any circumstances where the White House had a specific opinion about a position, whether to appeal a case or file a petition for cert or do a friend of the court representing the U.S. government? Any time you weighed in with the Solicitor General, or disagreed?

I don’t think so. There was that one early on that came up either just before or just as I came on. Again, he and Walter Dellinger were good friends. Even though I can’t remember his name, I was sort of a good friend, but he certainly never consulted me about any of the positions. He and Walter may have talked as former law professors together, but I don’t think he ever felt he needed to, and I don’t recall any cases where the White House felt they had to weigh in with a position. There could have been, but I don’t remember it. 

Do you want to talk briefly about the relations between the White House and the FBI?

They were cool. The counsel for the FBI, whose name was [Howard] Shapiro, was a very good guy. I got along well with him, and I think everybody else at the White House got along with him. But Judge Freeh would go up to the Hill and brag about how he snookered the President on something and how he’d done this and got this and so on. It wasn’t even that he was a team player in the sense that he was doing things that he felt an FBI director should exercise independence on as part of his job. He was just, we thought, undercutting the President for his own purposes. I don’t know anybody in the White House who particularly liked him or defended him at that point.

Was there ever any discussion about asking for his resignation?

No, that’s sort of like asking for Kessler’s resignation. You don’t want to take that on—you’d better have some very good reasons. 

I think Reno had complained during Bernie Nussbaum’s time that the White House was contacting the FBI directly without going through the Justice Department.

Yes, but again Lloyd wrote his memo, and Jamie and I had these regular meetings. I don’t think there was ever any problem. That had to do with some allegations that Nussbaum or the White House was somehow abusing the use of FBI files. I don’t remember what it was. Lloyd straightened that out, I didn’t, and from there on in, the only time we would ever look at FBI files was in connection with judicial appointees or Cabinet or sub-Cabinet, and Jamie always knew about it, if she wasn’t involved in it. 

How much legislative work did you spend time on during your period in the White House Counsel’s Office?

Not as much as I would have wished. I would have thought that that would have been one of my more useful pieces of expertise, because I had spent a long time in the legislative process. I’d written a book on it—a couple of books on it—I’d taught it. I got along well with the legislative affairs staff; we had a good working relationship. I really think it was just that the counsel’s office and I were overwhelmed by other events, and I never was able to spend the time on legislative matters that I would have preferred.

Even though you didn’t have the time you wanted to spend on it, what were the key pieces of legislation you did spend time on?

One of them, as I indicated earlier, was the habeas corpus legislation. The other was the securities legislation, where I had done a lot of the lifting. I thought when I left that I’d been very unsuccessful. I’d met with Silicon Valley people. I tried to reassure them. I met with the lawyers representing the plaintiffs’ bar and the defendants’ bar. We tried to work out compromises, but Silicon Valley was hell bent for election, and they seemed to have prevailed. As I said, the one story we tried to plant—that the administration would be against it—blew up in our faces, mine and my assistant’s. At the point I left the White House, I was pretty sure he was going to sign the bill when it was presented to him. The only reason I know that he vetoed it was that at the end Bruce Lindsey made a pitch that this really was bad legislation. 

Again, it was one of those places that the President—though his natural sympathies might be with the plaintiffs’ bar and plaintiffs generally—didn’t have a dog in that hunt. I think he was concerned about why he should be using up a lot of chits on something that he didn’t see as that important. And there were some very key Senators who were for the legislation, including Jay Rockefeller, as I recall, maybe Chris Dodd. I don’t remember. These were close allies of the President generally. I think one of them had called to complain about the story. At one point we had worked out some compromises with some of the house staff, but they were overridden by people who were pushing it. 

This is on the SEC [Securities and Exchange Commission] bill?

Yes. The other one I remember that also ended up in frustration was revisions of the one dealing with toxic wastes, the Superfund. We had met with everybody on that one. We had numerous meetings in the Roosevelt Room and my office, because the act was in terrible shape, still is. Some land has become totally—people abandon it, nobody wants to take responsibility for it because there are lead traces going back to uses a hundred years ago. 

There are some obvious corrections that need to be made in it. We had gotten everybody to agree on it. This was, again, just before I left the White House in ’95. We were going to come through with an agreed bill. There was going to be a great win for Congress, both sides, the President. I think [Robert] Dole was just beginning to make noise about running. Somebody in the Senate said, Why should we give this President credit for that? And they scuttled it. Months and months of labor and real—the way the process ought to work, where people understood what the problem was. One of my biggest problems was keeping the environmentalists reassured that we weren’t gutting the bill. They were very suspicious of any changes, but it needed changes, it still needs changes. I remember how disappointed I was. What a skewer.

Who did you work with when you were working the Superfund bill?

[John] Dingell some. I’m trying to remember who in the Senate. Gaylord Nelson was involved. I think he was already with the Nature Conservancy, and he was one of the people who were helping me keep the environmentalists calm. It wasn’t Senator [Max] Baucus. It was a western Senator. There were a couple of people in the Senate and a couple of the lobbyists and Dingell in the House who were sympathetic. Again, what pleased me so was we had all the special interests in agreement on what would have been very useful reform. As far as I know, they still haven’t cleaned it up.

Anyone from the House Republican leadership?

I don’t remember. I’m sure there was, because if there was anything that was supposed to be bipartisan, it was that, and we did have a good bipartisan group. But we lost it.

You’re credited with taking charge of helping to rewrite the Gun-Free Schools Act. I wanted to get your story on that.

I didn’t. I wish I could claim a lot more credit for it than I can. I was identified as the pro-gun-control person, which, I guess, even in that White House, I was. I clearly think handguns are a menace. The only role I remember playing in it at all—and it shows what a good predictor I am—I was asked at one point, because there had been an earlier Supreme Court case questioning whether it was appropriate use of the Commerce Clause for something else—

It was later that U.S. v. Morrison came in. This was ’95, U.S. v. Lopez. I don’t know what the earlier case was, sorry. 

I was asked whether I thought the way the bill had been phrased was an appropriate use of the Commerce Clause, and I said sure, because—although I don’t remember what they said—it looked to me like the language was very clear, that they were using their power under the Commerce Clause. That’s about all the credit I can claim, and of course it didn’t help. 

Do you remember who initiated the process of revising that piece of legislation?

No. I’m trying to remember which of my associates in the counsel’s office might have.

Was that origination from the White House or from Congress?

I think it was from Congress. The President was all right on guns, but that wasn’t at the top of his list, either. Since he was from Arkansas, I could understand that. I never pushed gun legislation on him. Jimmy Carter was really afraid of the NRA. I think if he had known all the trouble I was going to cause him in my judicial appointment, I wouldn’t have gotten it. I don’t think Clinton feared them, but I don’t think he particularly liked them. I think he thought they were bullies. I’m trying to remember what gun legislation went through. The Brady Bill—that was the end of his first term.

The assault weapon ban was ’94.

Brady Bill was earlier.

Yes, the assault weapon ban—

Ninety-three, ’94.

I thought he felt he had done his bit for gun control by pushing the Brady Bill. 

When Gingrich took over in early 1995, what was your office’s response to things such as the Contract with America, the legislation they were trying to push?

Again, we were so blindsided by what was going on in the House. The guy who later on became head of the Council of Economic Advisors, he was then a deputy.

Gene Sperling?

Sperling, right. He had written a great stump speech for the President on the Contract with America—the Contract on America, that was one of the good phrases—and we all cheered. I thought that the Contract with America was so inherently stupid, I couldn’t believe the American people would buy it. There were some things in there that were so—First of all, they were bad, and secondly they were things I couldn’t imagine Congress going for, like term limits and some of those other things. So we didn’t pay much attention to it. We all made fun of it when the campaign was going on. I could not believe the House would change parties—the Senate maybe, but remember, the Senate wasn’t using the Contract with America. It was strictly Gingrich’s act, and it was very effective, and most of us were not aware that it was going to be. 

I don’t know anybody in the White House who ever predicted that the House was going to go Republican. 

And then once the election came, it was too late to take a—

Again, the President was so stunned, and I think we all reflected him. He really did go out of commission for a couple of months. When Morris came back, that was the first time there’d been tension within the White House staff that I knew of, where the President was being counseled privately by someone. The things you read about [Lyndon B.] Johnson and Nixon having these outside advisors saying one thing while their advisors—I didn’t think that was happening, and I don’t think any of the senior staff thought it was happening. We didn’t always agree with each other, but at least if somebody had something to say to the President, everybody else on senior staff knew what the position was. All of a sudden, here were these midnight meetings going on with Morris that nobody knew about. At least I don’t know anybody who knew what was being agreed upon, what was being said. Clearly the President was being counseled in some different direction than we had, and apparently successfully.

Once Gingrich starts successfully passing his bills in the House, is there a response from the White House, or do you ignore them?

That was a point when Whitewater was really heating up. Starr had questioned the President and the First Lady at least twice at the White House. There still wasn’t anything there, but there was clearly a lot more activity. The Mexican peso crisis was investigated. That took a lot of my time and a lot of other people’s time at the White House. Waco was investigated, which took an awful lot of time. There was one other that I was involved in.

Travel office?

No, that was sort of done. 

Waco was—

Waco was part of my—

Henry Cisneros or Mike Espy?

Espy happened just as I came on, but that was before the takeover. Cisneros must have been late ’94 I think, early ’95.

Sounds about right.

That was an example of the very evil influence, as far as I’m concerned, of Louis Freeh. There was no basis for appointing a special counsel for Henry Cisneros. No criminal activity had gone on there. Basically Freeh persuaded the Attorney General that he had lied to the FBI, and nobody should get away with lying to the FBI. What had he lied about? He had understated the amount he had paid this woman. That was basically the criminal conduct he ended up being accused of. It wasn’t only that he was a good Cabinet officer—was he the third Cabinet officer? 

Ron Brown. And eventually Alexis Herman and Bruce Babbitt also came under—

I don’t think Babbitt ever went to a special prosecutor. The President understandably was saying, What are they doing to me? They’re trying to kill me by a thousand knife wounds. That one was unnecessary and wrong. I don’t think Reno was willing to stand up to Freeh and say, I’m not going to do it. 

Is that part of the lack of a warm relationship between the President and the Attorney General, that she did authorize a number of these investigations?

I’m sure it was in the equation. He did complain about Cisneros, I remember, but he complained about Espy, too, because—and that was Leon and me, the special counsel came later. But it was Panetta and I who insisted he had to resign. 

How much involvement did the White House have when Gingrich started trying to pass product liability legislation?

We were opposed to it, obviously. I’m trying to remember how much the President had to say publicly about it, and whether it was anything more than legislative affairs with a little bit of help from the White House Counsel. And HHS, I remember, had some part of that. I don’t remember the President making a big issue about it. I could be wrong. I don’t remember any speeches he made about the efforts to change product liability laws. 

In an instance like that, now the Republicans control the House of Representatives, it was much harder to find somebody in Congress to talk to. How did you or other people in the White House Counsel’s Office try to communicate your disagreement with parts of that kind of legislation?

Mostly through legislative affairs. It was run by— 

[Howard] Paster?

Paster had already left. It was Paul Carey, the son of the Governor of New York. He died, I think. Anyway, it was a good office. It wasn’t a great office because nobody in there had any real contacts with the Republicans. I don’t how you could have, but they didn’t. Leon and I had some contacts on the Hill, but again, the Republicans we knew were by and large not the Gingrich crowd. I could call Henry Hyde, I could call Jim Leach, but I couldn’t call Robert Walker or some of the others, Delay and those types. 

Frequently we would have to react to what they were doing. We were not at all proactive either in anticipating what they were doing or in trying to ameliorate it to some degree. I do remember, as I said, the habeas corpus, but that took an enormous amount of work to get close to where maybe Hyde might have considered something else, but I didn’t have a client. So the answer is we didn’t respond very well. 

This period strikes me as counter to the way the system ideally works. You were saying earlier that the President has the ability to affect legislation before a bill gets passed. It strikes me that the House Republicans were acting independently and not consulting—

Pretty much. And really, from the end of my year there, ’95, when I left, and pretty much through—the budget fight was the one place where the President was very effective, to everyone’s surprise—well, not totally a surprise. He had some input on welfare reform—nowhere near as much as he could have had or should have had. But other than those, from there on in, I think it was a reactive White House. What bothers a lot of us who are really Clinton admirers is in that whole second term, after he had won this enormous mandate from the American people, very little legislation passed the Congress. Most of the time was spent defending against one scandal after another.

You had said earlier that Clinton seemed to be afraid of vetoes. Is that an accurate perception?

His model was one that I certainly embrace, and that is it’s much better for a President to let his views be known early on and let the Hill know where the President is and how strongly he feels about something and hopefully influence the way the legislation is crafted and the route it follows. I think that’s what he wanted to do, and early on in the first term, I think that’s the way it sometimes happened. But when we lost control of the Congress, and other things began to overwhelm the rest of the White House—not just the counsel’s office, but other places, the Brown scandal, the Espy scandal, the Cisneros non-scandal—there just wasn’t any time for affirmative—

So no threats of vetoes that could be used at this point in 1995, such as If the President isn’t being brought into consideration, he’ll simply veto the legislation? 

I think he made a couple such statements. I can’t remember what the subjects were, and I don’t remember the outcome. I’m not sure they even happened on my watch or whether I remember reading about them after I left. He didn’t do it very often. As I recall, the securities bill was one of the first bills he vetoed, if not the first.

And it was overridden. 

It was overridden. So it just confirmed what he thought. Again, I can’t quarrel with his model. The problem was that after the ’94 election, it’s not a model. It’s sort of like a Virginia Governor trying to work with the Virginia legislature.

You said that he didn’t like to use his chits on many of these issues. What would he have been willing—other than race, which you’ve made very clear is a key issue for him—to use chits on if not some of this legislation or judicial appointments?

He did use a lot of chits on the economic package, as you may remember and, boy, he used them up. Several people lost their seats as a result of that—Marjorie Margolies-Mezvinsky and others. But thanks to Bob Rubin, he was persuaded that that was necessary to do to make the administration a success, and it was. It probably is still the single most important hallmark of legislative activity on the part of the administration. Several other pieces of legislation passed, but nothing that had as demonstrable and monumental effect on society as a whole. 

He was prepared to use them up on the Mexican peso crisis, but thanks to Bob Rubin, we never had to. I’m sure you’ve heard that story from Mr. Rubin or from me. 

Please tell us about your experience. 

Well, the Mexican peso was about to go under. It had been in trouble for some time. They’re our second biggest trading partner, and obviously we couldn’t let the economy go bankrupt. Bob Rubin had devised a very good, fast-track piece of legislation that Congress would pass that would allow us to lend them the money necessary to hold up the peso. We called in all the Republican leaders, Gingrich and Dole, and all the Democratic leaders, and Rubin explained it to all of them. They all agreed that this was a good idea.

Were you in these meetings with the Democratic leadership?

Yes. They all went back to the Hill, at which point Gingrich let it be known—at least, to his credit, he let it be known—that he couldn’t pass the bill in the House. A bunch of his yahoo colleagues insisted that this was an effort of Bob Rubin’s to bail out his Wall Street friends, and therefore they wouldn’t go for it. 

So Rubin went back to the drawing board and figured out how to do it by using Executive Order. Once again, we called in all the leadership, and Rubin explained it. They all agreed that this was the right thing to do. It passed, I mean he did it, and as you know, we lent them the money and they paid it back early. We made a lot of money in interest on the deal, at which point—I think the first call was from Jim Leach, who was a nice guy, an old friend. He said, I hate to tell you this, but we’re going to investigate the peso crisis. I said, What are you going to investigate? It’s been a great success. He said, Well, they still think this was all done to bail out Bob Rubin and his friends.

So we had a big strategy session about how we were going to respond to this—

Who was involved in the strategy session?

Panetta of course. Rubin. I was there, I think Castello was there, maybe Jamie was there. Somebody was there from Justice. No, Al Gore’s brother-in-law, Frank Hunger, a lovely guy, the head of the criminal division, a very nice guy from Tennessee, was there because somehow we thought that this might—I don’t know why, but he was there. 

We agreed that the way to handle this was just kill it with kindness. We were going to turn over everything we had, literally. We backed up trucks to the Treasury building. The peso crisis was going on for many years, it had gone on and on and on. They had to create a separate room over at the House of Representatives to store all the documents we gave them. We just submerged them with documents. This part of the story I’m sure you’ve heard elsewhere because I love to tell it. One day my secretary said, You’re wanted in the Oval, which was a signal that things were not going well with me and the President. I walked in and I grabbed Panetta. I still didn’t know what they wanted to talk about. 

The President said, Gingrich is complaining we haven’t turned over these documents on the peso crisis. I thought we agreed we were going to turn them all over. I said, We did, Mr. President, except the three documents that reflect telephone conversations you had with President Ernesto Zedillo. 

He thought for a moment. He said, All we talked about was golf and the weather. Why can’t we turn those over? Finally, Leon and I persuaded him that that wasn’t a good idea. They investigated for several weeks and found there was nothing there except that Rubin had done a brilliant job, which of course they never said. That was an example of our trying to—

The other was the President wanted to do a campaign on finance reform. He kept talking about it, but he wouldn’t do it solo. He wanted a commitment from the Republicans. Remember he and Gingrich went someplace together and shook hands on something? But it didn’t happen. But the President really wanted it to happen. He really thought this was something that could be done in a bipartisan basis. I guess it was not to be. 

You mentioned about the turning over of documents with respect to the Mexican peso crisis. This might be a good segue into executive privilege. Shortly before you came, Cutler had worked out a fairly comprehensive memo on executive privilege to send all the agencies so there was a cohesive plan, when they could turn things over, and who would authorize it. The memo went out during your tenure. But for things like the Mexican peso crisis, Waco—other Congressional investigations, Whitewater—what were some of the discussions with respect to executive privilege? Were you ever pushing for the President to invoke executive privilege from an institutional prerogative perspective?

No, and neither was Panetta. I recognized it more from my judicial experience. Leon recognized it from his Congressional experience. If the Congress wants something badly enough, you can claim executive privilege from now to Doomsday, but they will get it. And if you don’t believe it, just think of the Nixon tapes. What could be more privileged than conversations between the President’s top advisors and the President? When you’re normally testing privilege and privacy, you’re asked, Was there an expectation of privacy? What could have been expected to be more private than those conversations? (Except Nixon, idiot that he was, was taping them.) But still you would say if there’s something that should be subject to privilege, it would be something like that. And it wasn’t.

Was the White House decision during your tenure to turn over documents, then, a function of the political considerations, or did you come to the conclusion that you could not legitimately invoke privilege?

I think it was more the former, but a little of both. My feeling always was that it probably wasn’t worth the political price you’d have to pay if you did try to invoke it. That was a position Leon pretty much agreed with, and I think he still does. And again, the President was strong on not using up chits unless you had to. Most of these things were not incriminating. We didn’t have anything like the Nixon tapes. Even those billing records, when they were finally uncovered, confirmed Hillary’s story about what a minor role she had played in it. She had all of 60 hours, as I recall, in the whole Arkansas piece of the proceedings. I don’t think there ever was a case where the President felt that there was something that we needed to keep from the Congress when they asked for it.

Was there ever any concern voiced by anyone in the White House—though it would be politically expedient and you would gain your objective by turning it over—that ultimately yielding to the Congress might damage the institutional prerogatives of the Presidency in the long run?

And establish a precedent?

For future Presidents?

As far as I’m concerned, and I think as far as Leon was concerned, to the extent that we had any influence, our bias was all the other way. As far as I’m concerned, as one of the founders said, It’s not the first branch by accident. 

Do you think the fact that both you and Panetta were former members of Congress influenced your perspective on privilege?

I think it does. It still does. When I first started teaching, long before I was in the White House and was on the court, I always sort of pooh-poohed executive privilege. It’s one of those things that scholars love to talk about and academicians get all excited about, but when push comes to shove, how many votes are you willing to give up, how many pieces of legislation, how many judgeships, how many Senators are you willing to give up to try to maintain it? I think that this President said, Not many.

Was the Office of Legal Counsel brought in for some of these discussions on executive privilege?

I’m not sure that Walter Dellinger agreed with us. I don’t remember it coming up. I would suspect—I shouldn’t do this because I don’t know where he is—but most scholars I know, and most academicians, think that there ought to be something like executive privilege, and that there ought to be a position the President can sustain against the will of Congress. I would guess that might be where Walter is, but I don’t remember—we must have talked about it, I’m sure, but I don’t recall that it ever was a particular controversy that he weighed in on. 

The White House did make a number of other privilege claims—and that was after you left—the attorney-client privilege and protective function privilege, neither of which succeeded in the courts. So in that sense it almost damaged the institutional Presidency to lose those judicial battles.

Again, I can’t prove this, but I just think if Congress or the public wants something badly enough, there’s no judge in the entire country who’s going to say that they can’t have it. It’s going to take a very strong President with a very strong political position. Clinton may have been that strong a President, but he didn’t have that strong a political position when this issue was coming up.

Were you interviewed by Kenneth Starr?

I don’t think so. I was present at several of the interviews. I was interviewed in the Espy, independent counsel; I was interviewed in the Brown one, I think, and the Cisneros one. I don’t think I was interviewed by Starr.

You handed over some of the Waco documents.

That was to the House. But again, that was agreed upon. Remember, Leon was very much in agreement with it. The documents sustained our position that this was not some wild-eyed zany operation that had been approved by the Attorney General and the President. It had been thoughtful and considered, and—given the things that were told to us at the time, the facts on the ground—this was what the President and the Attorney General agreed should have been done. The documents sustained all that.

Do you recall any instances where either the White House or any of the agencies or departments—with White House approval, obviously—invoked executive privilege during your tenure?

We had a fight involving Judge Royce Lamberth. I think it had to do with some healthcare meetings or something that had gone on before I came there. But the court litigation was going on after. It seems to me it may have been the open meetings law—

Federal Advisory Committee Act. 

Yes. That wasn’t really executive privilege.

No, but it’s relevant.

It’s relevant. We were trying to uphold a statutory exemption we thought we had—and lost, as I recall. I know there were documents later on that became public that, if there is such a thing as executive privilege, or attorney-client privilege—for example, one was Jane Sherburne’s list of problems. I kept saying people shouldn’t keep notes of what was going on in the White House Counsel’s Office. She made up this to-do list for the Congress, and they loved it. I think they got that after a fight, but I was long gone.

As I mentioned, early in your tenure you issued that memorandum to all the departments and agencies bringing them all under, essentially, counsel control in terms of when they could claim executive privilege. Did you have any pushback or response from anybody in the departments or agencies for centralizing that function?

Not that I ever heard. As you know, the memo itself was done by Lloyd. I think it did go out during my time, but it was basically something that he and some other people in the White House Counsel’s Office had worked on. I don’t know whether it was that my views on executive privilege were known, or that the agencies didn’t take them seriously or what, but I don’t recall anything happening about that. 

There were other memos, either that I originated or that I signed and Lloyd had worked on, that generated a lot more activity, but that one I don’t remember anything at all.

What were some of the other—?

One was this Chinese wall between us and Justice. That was Lloyd’s memo, and there was a lot of testing of it because it’s such a delicate line. 

Who was doing most of the testing?

Justice would complain that something had leaked out and that maybe it came from the White House. Or the President would complain that something was going on that he didn’t know about. What makes it so delicate is, how can the Attorney General of the United States—Robert Bork wasn’t right on many things, but the Attorney General is someone appointed by the President of the United States to carry out the policies of the United States as the President decrees. Now, the Attorney General can do one of two things: do it or resign. But you can’t say, No, I don’t want to do this. So the President wasn’t wrong, and there were tensions there when something would come up. I don’t remember what it was. I think one was the labor leader: why didn’t we know about it? We didn’t know a lot because it was an ongoing investigation. What were some of the other memos?

This everybody got wrong, and I’m not sure even I got it right: the memo on the Hatch Act. That was completely mine. The newspapers played it up as if the importance of the memo was to tell federal employees that they could contribute to campaigns again because of amendments of the Hatch Act. That was in there, and it’s true, the Act was changed. But the thrust of the memo was to tell them all the things they couldn’t do, such as make phone calls from government offices and so on. Nobody paid any attention to that at the time, and I think it was somebody at the Office of Government Ethics, a lovely guy, whom I saw in the mess or something. He said, Boy, I didn’t know you were one of those corruptors who go around telling people how to evade the civil service. I said, That’s not what this does. 

Anyway, much later, when the Vice President and the President got in trouble on it, somebody went back and read the memo, and all of a sudden I was the villain again. But this time I was my party’s villain for telling them they shouldn’t be doing what they in fact did. That was a memo we worked on a long time, and my ethicist at the time was Beth Nolan, who later became White House Counsel. Have you interviewed her? You really should.

We’re hoping to in the spring.

She’s very good. She worked on that memo a lot. I was very proud of it when it went out. I was shocked at the press treatment, and then even more uncomfortable later on when I was the villain.

I guess you came in so close to the November ’94 elections that you didn’t have time to have real sessions with White House staffers about what they could and could not do during those campaigns.

I didn’t. I came in late September. I don’t think our memo came out before the election. I think it was after, revving up for the ’96 election initiative.

Did you have follow-up sessions in the White House moving toward the ’96 campaign?

We had compulsory ethics sessions, which even Cabinet officers had to attend. They used to be very painful. I would have to call the Secretary. Somebody else would call the Assistant Secretary—and even then the Secretaries usually didn’t attend. A good piece of that was about campaigns and what they could and couldn’t do, what they could use government travel for, what they couldn’t. Cabinet officers, aside from Defense and the Attorney General, traditionally go out to campaign for a sitting President. It’s perfectly acceptable, and there’s nothing illegal about it. They’re political appointees. 

But, on the other hand, they can’t use government personnel, they can’t use government travel, and a bunch of other can’ts. The line between them is very tricky. 

Who led the ethicist meetings? Did Beth Nolan?

Beth did, and then Cheryl Mills. They were the two ethicists. 

You would bring in the Cabinet Secretaries?

They were real sessions, and we frequently had somebody from the Office of Ethics there.

Answering questions?

Answering questions, and there were tapes they had to sign that they had listened to. They were both very good. I love to tell this story about Beth. These were Clinton rules, I don’t know if they still apply. The only person who had a car for to and from home was the Chief of Staff. All the rest of us could use government cars only for official business. We had a government car to go up to the Senate for a meeting on the Hill, Beth was with me. I was there and somebody else, I don’t know on what. I lived on Capitol Hill. By the time we finished, it was about a quarter to six, and I had an evening meeting up town. 

I said, Beth, I’m going to have the driver drop me off at home and then my wife will drive me up later on, and I’ll pick up my car. She said, You can’t do that. It was a cold, blustery day in Washington, and it was about five or six blocks from the Senate office building to my house. I said, What do you mean? She said, You know that you can’t use a car for going to and from home. I said, Beth, we’ve been on official business, and it’s cold as hell out there. I can’t go all the way back to the White House. She said, Well, then, I guess you’ll have to walk. I slammed out of the car and walked!

This might be a good time to talk about the organization of the counsel’s office. Did you leave the organization pretty much as you found it? When you came in, did you make any organizational changes?

Not really. Again, I thought the people were outstanding. We had enough staff. I was never big on the number of people you use on something. We had 17 or 18 lawyers and support staff. And we had so many volunteer resources available: there wasn’t a law dean or law professor in the country we couldn’t call up to work on a project if we asked. They were delighted. So I was very comfortable. 

Harold Ickes was very unhappy about the Whitewater investigation. It’s true: once I’d gone through enough of the records to satisfy myself there wasn’t anything there, I did not picture it as being that big a deal. I thought that Starr would pretty much end up where his predecessor had ended up and find that there was nothing there. Ickes didn’t know Starr from a bale of hay, but he must have known the Republican animal better than I did. He understood what was happening. He was adamant that I had to staff up, and I had to do this and I had to spend more time on it. I was reluctant to do that. I didn’t really enjoy that piece of it that much. 

If I ever write anything, I’m going to write The Nothing that Was Whitewater. There literally was nothing there, nothing. They had these massive investigations of these two-bit crooks going on in Little Rock. Clinton knew everybody in Arkansas, he knew cows and dogs and horses, and he knew crooks. It was a bad investment. They lost money on it. They took a tax deduction for their loss, and that was all there was. So once I satisfied myself on that, I just couldn’t get excited about it. 

Harold kept yelling, They’re going to kill us with this. They’re going to crucify us. You’ve got to ramp up, you’ve got to do this, you’ve got to do that. I hired Jane Sherburne, and I have to take the blame for that. But I did not hire her for what she ended up doing. I thought I hired her to supervise the Whitewater investigation. If she worked on it full time and told me what was going on so I could inform the President, I thought that was all that was needed. She and Ickes had apparently agreed that they would need a lot of help, and she started hiring people. They turned out to be pretty good people, most of them. I didn’t have any problem with the people. But there was always this fuzziness about whether they and she were reporting to me or reporting to Harold, and that was a big source of friction.

Did you take that to the Chief of Staff and try to sort it out? 

I did, and he said, Can’t you and Harold straighten it out? I said sure. Then I went to Harold, and we yelled at each other for about 45 minutes. He did most of the yelling. At one point he said, Well, if you can’t get along with her, fire her, expletive, expletive, expletive. I went back to my office, and that’s what I should have done, because we really did have a chemistry problem, and we were on different wavelengths. I might have had the same problem with whoever else was taking over. In fairness to him, I think Harold felt I wasn’t giving it the attention it deserved, and I probably wasn’t. I probably would have if I had seen how serious Starr was. 

In any event, I didn’t fire her. I don’t like firing people. I lived with it. It was not the reason I left. I’m sure it added to how tired and worn out I was trying to cope with it. But that was the only piece of the staff that changed. There were about three or four people who theoretically were on my staff.

Oh, there was one other, and this turned out incredibly well. After I had agreed to take the job, Leon called me one day and said, Ab, the President wants to put Bruce Lindsey in your office as associate counsel. I said, Leon, you and I have talked before about this, and you agreed that I could pick my own staff. Now, I don’t want somebody in my office who’s going to be a separate font of authority who people are going to be able to go to if they don’t like my decisions. He said, Bruce wouldn’t do that to you. I said, Come on, he’s the President’s best friend. Of course he would. He said, The President is adamant. 

I’d had a couple of days there, and I was so uncomfortable about it. I remember calling in Bruce—whom I’d known slightly, but I didn’t know enough. I was trying not to be blunt about it, but trying to make it clear. He anticipated what I was worried about, and he said, Look, you are the White House Counsel. If somebody doesn’t like your decision, they can take it to the President, but they can’t take it to me. If anybody comes to me with complaints about you, I’m going to say ‘Go talk to Ab.’

And for the 14 months I was there, he was absolutely the best deputy I could have had. He was true to his word. It was obvious they would do that. Especially with Jane, every time she went to him, he’d say, Take it up with Ab, not me. 

Could you talk a little bit more about what he did while he was in your office? I’ve always been intrigued by his special projects. 

He did work on special projects—the baseball strike, for example. He was very effective on that, though he didn’t solve it. I don’t remember which it was, but he was working on one of the trade projects with Emanuel. There was a piece of Whitewater that bothered the President more than the deal itself. They were zeroing in on people who had been friends of his or that he had befriended, or had befriended him, in Arkansas. Vince Foster’s wife was one; there was a Betsey something or other?

[Betsey] Wright. 

Betsey Wright. Part of Bruce’s responsibilities was to try to keep those things under control because I didn’t know any of the personalities involved. I didn’t know the President’s relationships with them. He was very busy doing those things. He never loafed on the job. Whenever I asked him to do anything, he would take it on. But I was aware that the President was relying on him to do these other things. The President was very much relying on him to be a companion from the old days, somebody he knew. 

I remember once when I went to Bruce. I asked him to come in, and I said, I wish you could tell the President that this is important or something like that. He held up his hands. He said, Ab, I don’t do that. You have to know I don’t do that. I’m the President’s friend, and if he wants me to talk to him, fine. But I never give him advice. I don’t do that. I think there are only two exceptions to that: one was the pardons. He specifically urged the President not to sign the pardons. The other was—

Was it the Marc Rich pardon?

The Marc Rich pardon. What was the other one? Those were the two times I knew that Bruce intervened in the President’s judgment, and both times I think he was right. Oh, the other was the securities litigation. I think he’s the one who persuaded him to veto it. 

Was there ever any difficulty in terms of your staff resources to have somebody who’s your deputy being tasked with other projects, presumably from the Chief of Staff or the President?

No, because he was an extra. I had the deputy whom I expected to supervise the staff, and Bruce was an added starter. I was very nervous about it at first, as I indicated. I was concerned he would undermine the authority I was supposed to have. He didn’t. He was as good as they come. 

Could we go back to Jane Sherburne briefly? Clearly that must have been a bit of a shock to add someone to your staff and find out that she’s also—

The problem was she wasn’t added to my staff. I asked her to come back to the staff. Harold had kept nagging me, You have to do something about Whitewater. It’s true, nobody on the staff then had any institutional history of Whitewater. Jane had worked on it when she was there with Lloyd. She’d been a partner of Lloyd’s. I think it was Lloyd who told me that she would be interested in coming back. I initiated the lunch, and I urged her to come back, and she said she’d love to. Now what conversation she had with Harold before, during, or after, I don’t really know. Were there some? You bet. I know this much: she never thought she needed to keep me informed of anything that was going on, or take any direction.

So that was the main source of friction—the unclear reporting relationships?

Yes. Her style was not my style. She did not tell me what was going on. But more than that, I don’t think the way she handled Congress was particularly advantageous. It may be my bias. 

How so?

I had a friend who was in Starr’s office, and he tended to be a kind of back-burner discussion pointer. There were a couple of people like that. Henry Hyde played that role for a little while before the impeachment started. I would hear from him about things that Jane had done. He wasn’t anti-Jane or anything, but he would tell me things that Jane had done, met with members of Congress who immediately reported back to Starr. It wasn’t helpful to the White House to have that kind of relationship with Starr. It wasn’t even a direct relationship. She was getting nothing for this except more grief. 

I once remonstrated with her. I said, You should know who you can trust up there. She made some sarcastic remark about somebody. It was Paul Sarbanes, who was on the committee. It had just come out of committee. She said, I’m certainly not going to trust Paul Sarbanes, or something like that. He’s probably one of the most trustworthy people in captivity. It just wasn’t the way I thought she should be doing things on the Hill.

Did you ever consider or was it ever discussed—since Ickes was essentially managing the Whitewater response team—that she would just move over there? 

He didn’t want it. I must confess I didn’t think about it. He wasn’t trying to undermine my authority. He would have been delighted if we could have gotten on. Again, I don’t blame anybody but me. He gave me the legitimate option, If you don’t like her, fire her. Obviously, it’s what I should have done. I certainly didn’t want to go to the President and say, Either fire her or fire me. But there was no reason why I couldn’t have fired her at some point. I don’t know if there would have been any repercussions. I would have had to find somebody else to take it over because by that time it had mushroomed. I accept responsibility for that. 

I read somewhere in here that she provided legal advice to the First Lady. Is that right?

I don’t think so. She at one point told the First Lady that I was a sexist and that’s why I was down on her, excluding her from meetings. She had somehow found out about this contact I had in Starr’s office. I don’t remember how. We were meeting very discretely, I thought. Nobody in the office knew. She somehow found out about it and complained to the First Lady. It’s true, I wouldn’t have brought my own deputy—and certainly not her—to those meetings. 

But I do remember Hillary saying to me, Why are you excluding Jane Sherburne from meetings? I said, I’m not. I didn’t tell Hillary about the contact. We had somebody in the office who held himself out to do whatever the First Lady needed by way of legal work. He loved doing it, and she loved working with him—Stephen Neuwirth. He liked it and she liked him, and I think that that was a good relationship. 

Did it help that you knew someone in Starr’s office?

For a while.

Was it known outside your office that you knew somebody in Starr’s office?

No. In fact, I don’t think I even told James about it. 

Did you protect that information because you thought it would be politically unstable?

I just thought it would be useful to keep it going. And again, he wasn’t confiding Starr’s thoughts or anything. He would occasionally give me a head’s up about something that was going to happen in public so I would know about it a day or two in advance. I left before Monica was even hired, so none of this had to do with Monica. He was long gone, and I was long gone before Monica was there. 

But he told me at one point that one of the bulldogs in Starr’s office—I can’t remember which one—thought it would be a great idea to publicly subpoena the President and the First Lady. He was told this was happening, and he thought it was unseemly. He said to Starr, I bet if you call Ab Mikva, he’ll agree that they should answer questions. Starr called, and I said sure, of course. It was a very nice, discrete interview. He even came in through the back door on a Sunday. It was in the civilized days of Ken Starr. That changed.

Were you involved in preparations of the Clintons for those interviews?

A little bit, yes.

How did that work with David Kendall representing the President, but you also having a role in serving the President?

Part of it is that David is such a superb lawyer and such a superb human being. I don’t know that it could have worked with anybody else. He understood that I had to have a more limited role than he did. I needed to be aware of some things, didn’t need to be aware of others. I was the public lawyer, paid—or at least theoretically paid—by the public purse, and he could be the private lawyer. When I think back on some of the delicate areas we handled, I think, Well, I give him all the credit. He’s a superb human being. They were lucky to have him. 

One area of the counsel’s office that seems to change based on some organizational charts, but would be worth clarifying: during your tenure, the White House security office, Craig Livingstone, was moved under the counsel’s office. How did that come about? Do you have any observations of that change?

Craig Livingstone was one of these things that happen in politics. I don’t say that pejoratively. I think he was at the ’92 convention, and he somehow made himself useful to the Clinton campaign. All of a sudden, there he is in charge of security in the White House. I don’t know what his job had been before. I don’t know that he had any expertise in security. He really did not understand what a delicate job he had or what was expected or needed of him. He was doing all kinds of things that he shouldn’t have been doing—not criminally, but just things that, if you’re a real White House chief of security, you shouldn’t be doing. 

Bernie had somehow used him, I’m not quite sure how. Remember there was an episode where Nussbaum was supposedly getting FBI files. I don’t know what that was all about, and I never really asked. It was before my time and obviously went away without any repercussions. Somehow Craig was involved in that. He was a real sycophant. The minute I was hired, he came up to congratulate me and assure me that he would do anything for me he could. I don’t even know where he is these days. I hope he’s not in jail. He’s not an evil person. But he just was totally over his head. 

I don’t know where it was at the beginning; I think he was responsible to nobody. Early on, I think Joel Klein said, We have to get control over this.

He wasn’t answerable to anybody?

I don’t think so.

He was in White House administration or something like that. 

Joel said, We have to get control over this because he’s a walking time bomb. I really didn’t know what I was doing at that time.

One would think that such an observation would prompt his removal from his security post at the White House, as opposed to relocation.

I really didn’t. Again, I was so new at it. Joel had institutional experience; he’d been there from the beginning. I’m not criticizing Joel on this, because when we worked out that change, I thought maybe we had solved the problem. I didn’t realize Craig still had access to all those FBI files. He still had no clue about how delicate and sensitive those files were. I think I once even gave him a raise. That’s how naïve I was about the job and what he was doing. 

I think when Joel said, Let’s put it under the White House staff, it sounded like a way of controlling something, just in case things went wrong. 

Is that something you then would take to Panetta to get his stamp of approval?

I must have taken anything of an administrative type. There was a woman in Panetta’s office who controlled payroll, and I’m sure I had to get her approval to take it on. I’m trying to remember what Craig did that finally blew him up—and almost blew all of us up.

All the files of Republicans. 

That’s it, yes. 

He requested something like 300 FBI files, many of them Republican Party leaders.

We did have to investigate that discretely and internally, but we never found anybody who had suggested that to him. He had done that completely on his own. I don’t know if he even saw the files or what he did with them, but it was at that point, as I recall, that he had to be up and out. Is it still in the White House Counsel’s Office? I don’t even know that. I don’t think I ever hired his replacement. I think we may have just given it over to whoever, got rid of it. It didn’t belong. There’s no reason for it to be in the White House Counsel’s Office.

Can you tell us a little about your deputy, James Castello, why you brought him in and what his role was in the office?

James had clerked for me, had been one of my early clerks, a very good one. Before that he had worked for Senator Biden for many years on the Hill. He was one of those super graduates of Stanford and just a superb clerk. Joel Klein had been having problems with some of the—I don’t even know who it was in the White House, it may have been the First Lady who had been told that this was a problem. I liked, and still like, Joel. I also needed him because he was the only institutional memory I had. I trusted his discretion. The President liked him very much. He was thinking about putting him on the court—not on the Supreme Court, but on the district court, the court of appeals—but I think Joel discouraged that idea.  

He began to have problems with Jane. Not separate from me—yes, separate from me. He was my deputy, and obviously if she was keeping me in the dark, she was certainly keeping Joel in the dark. We had a meeting where she informed us of something. I was content to lecture her that she should let us know in advance, but Joel stomped out of the room and said, That’s it, I’ve had it. He started negotiating with the head of the antitrust division—not Diane Wood. He worked with Diane Wood. It was a Senator’s wife. 

Anne Bingaman.

Anne Bingaman, who was an Assistant Attorney General in charge of antitrust, which had always been one of his great loves. He told me that he was hoping to go over there as her deputy. I wasn’t ready to throw down the gauntlet to Jane at that point, and obviously never was. Also, at that point I was comfortable enough that I really did want somebody I had known and had complete confidence in, and it was a perfect time for the transition to be made. James was a great deputy. 

When I left, it bothered me because he wasn’t with me more than eight or nine months, I think. I had persuaded him to leave a partner track at one of the big law firms in Washington, a huge New York-Washington enterprise. I felt guilty about it. He said that I hadn’t ruffled him at all because he basically was a public person. He went from working with me to working with Eric Holder in Justice, and he loved it. Now he’s in Austria with his wife, who is bureau chief of the Los Angeles Times. It’s her turn.

Why don’t we take a brief break? We can come back in five or ten minutes and finish up.

When you arrived, was the staffing of the counsel’s office functionally divided? That is, were attorneys assigned to deal with one specific issue area or role?

Yes, but not exclusively. I take that back. They would have beats. For instance, Steve Neuwirth had the First Lady and projects she was interested in and things like that. Beth was the ethicist, along with Cheryl Mills. Cheryl also did some Congressional relations with Carey. But none of them were expected to be so exclusively on that beat that if something came up—for instance, when the Espy thing happened—which was one of the first crises I inherited—I needed all kinds of help. Beth and Cheryl and Joel Klein worked on it. I forget who else worked on it. So they had beats in terms of things they were supposed to be responsible for generally. We had meetings every morning. It was interesting. As I said, I learned so much about why the executive branch is as inefficient as it is and why it has to be. 

We would start off at 7 o’clock with the senior staff meeting. Then we’d have the next staff meeting at 8 o’clock. Then I would come back to my office at 9 o’clock and have our staff meeting. So from 7 to 10, there were these three meetings. Many times we were just repeating what had happened at the last meeting. I would report to them or they would report. Doesn’t that sound silly? 

And that was every day.

Every day, five days a week, sometimes six days. But you needed that minimum of interchange just to keep up with the crises. At 10 o’clock, supposedly you’d start to do the things you maybe had to do, almost none of which were the things that—I used to make a list for myself before I’d leave the office at night of things I wanted to do the next day. And almost none of them were on the list, because all these other crises had developed. It sounds terribly disorganized and terribly difficult to make a decision, and it is. But what would you put in its place? 

Do you want to speak a little bit about the Espy investigation? I don’t know where to start with that. You came in the door and it was just exploding, right?

Beth Nolan and Cheryl Mills had inherited it. I’m trying to remember what had triggered the investigation. 

Acceptance of gifts.

Yes, but I’m trying to remember the news event. I think it was something with one of the consumer groups, maybe [Ralph] Nader’s Raiders. Somebody had complained about Tyson’s chicken, and the agriculture department had given them a pass or something. It turned out that Espy had taken gifts from Tyson, and he had a girlfriend who worked for him who got a scholarship. They had done a preliminary investigation, and they came in and briefed me. I asked them what was the state of play, and Lloyd said—I think Lloyd was still holding my hand— Leon knows about it, and he wants some kind of report from us on what has been going on. 

I took either Cheryl or Beth with me, and we went down to Leon’s office. He had served with Espy. I knew Espy from the House gym, but we didn’t really overlap. I was shocked. I guess I was just too new, and I didn’t know whether they were really that angry by it. How much lifting was I going to have to do to ease him out? Leon was even more upset than I was. He said, That’s outrageous. One of the things that bothered him was the station wagon. I remember he turned to me at one point while Beth (or whoever) was reporting and said, Did you ever use your allowances for a car? I said, No. He said, Neither did I. What the hell kind of business is that? 

It turned out that while he had been on the Hill he had had a car paid for by his staff allowances, and so it was perfectly natural for him to use the Department of Agriculture car with a chauffeur to go on all kinds of personal errands and all kinds of other things that violate statute as well as ethics rules. It was all trivial, but it was an indication that Leon felt as strongly as I did that Espy was not the kind of person who should be in the President’s Cabinet. 

Then whoever was filling both of us in—but mostly Leon, because I had already heard it once—talked about all the substantive things: the scholarship, the Super Bowl tickets, and a whole bunch of other stuff. Leon mentioned the fact that there had been some favorable rulings in favor of Tyson. Obviously there was no tape recording saying, Okay, you give me Super Bowl tickets and I’ll give you a pass, but there was enough there to make it more than just suspicious. Leon said, I’ve heard enough. Let’s call him in. 

On a Friday afternoon, Espy came over to the Chief of Staff’s office. I was there with Panetta and Espy. I’m sure Leon has probably told you this story, but he handled it so well. I should remember that the next time I have to fire somebody. He just listened to Espy say this and that and the other thing. He said, I want your resignation on my desk on Monday morning. Espy said, Can’t I talk to the President? Leon said, If you can get a pass to get in, you can talk to him, but not on my watch. There was no bargaining, no negotiation. He said, Monday morning, I want that resignation on my desk. 

Espy stomped out. Over the weekend, I was at several places, and a couple of people active in the Washington community came up to talk. They said, Can we talk to you about Espy? I said, There’s nothing to talk about. Panetta has made his decision, it’s done. One of them was Vernon Jordan, who was great. I’d known Vernon for a long time. He’s a Washington insider from way back, and he came up to me at some gathering. He said, Has the President made the decision yet? I said, All I know is that Leon Panetta is firm. He said, Then it’s a done deal. I said, Yes, it is. He said, Okay and he walked away. 

He was called before the grand jury later on. It was nice to be able to verify his story, which was that he had asked me, and I had told him it was a done deal.

But it was understood that if Leon Panetta said he was fired, the President had—

Leon was so firm, I don’t know what he would have done if the President had tried to undercut him. I don’t think the President ever would. When the Carns thing came up much later, I had the experience—because I was the one who was pushing that the hardest. The President yelled and was unhappy about it, but I don’t think he would have undercut me any more than—he certainly wouldn’t have undercut Panetta. He made a firm decision based on the merits. 

You’re suggesting, then, that Panetta had not already cleared this with the President?

I don’t know. 

That’s what I’m wondering about, especially with a Cabinet appointee.

That’s what I thought, too. It would be unusual for a Cabinet—

I would guess he must have talked to him. I know the President was not happy. This was particularly true when the Brown case came up. He said, I have two black Cabinet officers and we’re firing them both. What am I going to look like? But again, he never once said anything to indicate that he disagreed with Panetta, or that he thought it should have been ameliorated. If I had to guess, I would say that Leon did talk to the President, or at least told him. We hadn’t yet heard from Espy, and I assume maybe Espy could have said something that would have made a difference. I doubt it. 

Since you mentioned Brown, do you want to take this occasion to talk about—

I was not as much involved in that. Ron Brown had been a man about town for many, many years. Again, I may want to embargo this part, but I remember once teasing Vernon Jordan that he could have had anything he wanted, and there he was playing golf with the President instead of making policy at the highest levels. This was before Ron was investigated. He said, And go through all that crap Ron has to do? Forget about it, I’m a free man.

And it’s true. Being a Cabinet official was a harness Ron Brown could never have comfortably worn. His premature death was fortunate or unfortunate; I don’t know what would have been found. I do know that there was an awful lot of smoke. I don’t think anybody put up any protest when a special prosecutor was named. He did not resign from his office, as I recall. I think he died as Secretary.

Yes.

We all understood that this was not going to be a comfortable period. We did not take any comfort from the notion that he might be able to clear himself. Ron Brown had been around this town for a long time. He had been involved in an awful lot of different activities. 

He had not gotten caught by the FBI at the vetting process.

You see again. I just finished reading a biography of J. Edgar Hoover, which starts out as if it’s going to be a puff piece and ends up making him even worse than I thought he was. I think that anything was possible under Hoover. They could make up things. I think this FBI is not of that ilk. I think that if they say something is so, they probably have what is to them reliable evidence it is so. What they miss is as much a mystery to me now as it was at any time in my career. I think they miss a lot. There are good agents and bad agents, and they can sometimes miss the very obvious. And who knows what else they miss? 

I think that usually when they put an allegation in the file these days, there’s probably credible evidence on which to base it. But don’t assume that’s going to tell you all you need to know about that person.

With which Cabinet members did you work most closely and on what issues?

Probably with Janet Reno and Donna Shalala, and Bob Rubin, of course, because he was here every day.

What issues did you work on with Donna Shalala?

The tobacco issue, the welfare issue some, but I left before it was finally resolved. Peter Edelman was one of her deputies, and he was fighting hard to try to ameliorate some of the worst things in it. What else? There were some other consumer issues, but I can’t remember those. Tobacco. I got to like her very much. She’s a Wisconsinite. She’s not all bad. 

How would you assess her relationship with the White House?

Good, very good. The President liked her, trusted her. She was good at her job, even the tobacco thing. She handled it very well. It wasn’t that she dumped on [David] Kessler, but she let it be known that this was his big issue and that she would back him up on it. I think that was also true on welfare, where she supported Peter’s views. She was a good executive, obviously. She ran a good university and ran it well. Of course she hired a good football coach. And I think she knew how to run a good department, a complicated department. The President liked the way she ran it. 

There was no apparent friction since healthcare had been mostly taken into the White House from the beginning of the administration?

No, because it happened so early. I don’t think she felt that it was an affront to her. That ended up with so many people having egg on their face, I think she was kind of relieved that her face wasn’t included. 

Do you remember, when you were having discussions about the tobacco issue or smoking in general, was there any political consideration about what that issue would do to the Democratic Party? 

Oh, yes. Again, Ickes would mention that often. We were all aware that there were serious political ramifications. If the President did not have an absolute point of view on something, I admired the way he handled these disputes among his staffers. I think it was very much the way Lincoln used to be. He would listen to everybody. I think I said this earlier, when he walked out that day we had all expounded, put in our full pitch on why he should do this and do that on tobacco, I don’t think anybody there knew what he was going to do. Again, I’m not sure that he knew what he was going to do. I suspect I know who had the last word. Really, the only major consideration against doing it was not even—we had pretty well overcome the legal objections. There were going to be problems, obviously, but those were overcome. The problem was what the political fallout was going to be. We weren’t sure it was going to be able to get done, and if it didn’t get done, how much of a political price was the President willing to pay to do a few little gestures? 

Was there consideration, not necessarily of the political price that Clinton would pay, but—

The rest of the party.

House Democrats—

Mainly Senate Democrats. As I said, they led a constant parade into the Oval Office telling him flat out that if he did what there was talk he was going to do, it would be the end of the Democratic Party in the South. 

How was this issue similar to gun control, with the same party-breaking potential?

Partly it was that the President didn’t care that much about gun control. It wasn’t that they didn’t care, but I don’t think it was that high—Kessler had persuaded everybody he could talk to, including the President, that this was really the evil of the age, and that we just had to do something about it.

Is this guns or smoking?

Smoking. Nobody had done that on guns. I’d been pushing that horse for 25 years, and I hadn’t gotten anywhere. Obviously the scientific community and people like Kessler were much more effective on tobacco than any of us were on guns. I think the President recognized that next to healthcare—which he had already struck out on—this was probably the most important healthcare issue he was going to have. 

Getting back to the Cabinet. Did you have much interaction at all with Bruce Babbitt on issues like the Superfund?

We did on Superfund, and he was very good. I also admired his sense of ethics and his public responsibilities. The White House Counsel’s Office was frequently the place where complaints would come about the behavior of somebody high up in government, when the person who was complaining didn’t want to go through channels. There was a very high-rolling executive in the Department of the Interior who came to see one of my associates. She did not want to go to the AG. She did not want to go to the EEOC [Equal Employment Opportunity Commission]. Bruce’s Chief of Staff had apparently been engaging in improper sexual overtures. I talked to the complainant and was satisfied that she was telling the truth. She explained why she didn’t want to take it up through official channels, but she was going to leave if he didn’t leave, because she just couldn’t stand it. 

I called Bruce, just a phone call. I said, Bruce, this is very uncomfortable. I’ll come over if you want me to, but I know you’re busy and I’m busy, and if you don’t mind I’ll talk to you about it. He said, Sure, go ahead. I told the story. He said, Are you satisfied that he did it? I said, Yes, I am. He said, Then he’s gone. And he was gone—quietly, without fanfare. 

That gives a nice lead-in to a question that’s a little off track. I was struck by how many women served in this administration in some fairly high positions, more than any before or since. I wonder about your general sense of the role of women and if they found it a fairly comfortable environment. They certainly were playing in the big leagues. 

This is a part of the President I can’t begin to understand or explain to you. He perceived of women in two different ways. When he perceived of somebody as a professional, she was untouchable and pure gold as far as he was concerned. He trusted women, starting with Hillary. He really trusted the women he gave responsibility to, and he respected their capacities and treated them with respect. 

Think about it. Here’s this guy who for—how long had he been in public office?—had women problems his entire public career. Not once did that happen with somebody who was a professional in his government—at least not that it’s known. Secretaries probably, interns, unknown government employees, hotel room incident, who knows what else, but never people who—He really did respect women. I tried to explain this to my wife. She said, There’s a certain kind of person who does that. Well, you don’t understand. 

While we’re on the subject of women in the White House, how did you view the First Lady’s role? There were obviously a number of occasions on which she had somebody on your staff—Stephen Neuwirth—she worked with. She and Bruce Lindsey were quite close. So can you talk about both her role in things that went on in the White House Counsel’s Office, and also your observations of her role as a policymaker in the White House?

She was a very important role player. Again, the President trusts her, he respects her. He has great confidence in her judgment and her capacities. As I indicated before, she frequently had the last word just because of who she was and where she was and who he talked to last. As you’ve already heard, the President frequently would try to keep an open mind, and she certainly was a big influence on him in many things. 

I don’t know, I can’t think of any issue of any importance at all where they were in disagreement and she didn’t win out. He might start out opposite on something, but as I think back over the year I was there and the other things I know about, when there was any difference of opinion, she prevailed. Not because she yelled at him or leaned on him, but simply because he respected her judgment. I assume you’ve read both their books. Hers is much better than his, I thought. I felt it was very candid of her to describe her reaction to Monica. 

I had always felt that they had a good relationship. My wife and I always disagree, but I would say, I’m not around them that much, but whenever I am there’s so much touchy-feely; they can’t be putting it on. She said, Ah, you don’t know, that has to be a very tense relationship. 

Then we saw Primary Colors. I don’t know if you remember that scene when they’re in the television studio and they’re saying their mea culpa about how they’ve made mistakes but they’re going to work it out. Then they go off the camera and she snatches her arm away. The wife takes her elbow, and so much for touchy-feely. But I really think they had a great relationship, and they have supported each other and complemented each other in so many important ways. From the time he first started running to the time she first got interested in something besides being a [Barry] Goldwater girl. And they still continue. 

How is she to work with?

Hard.

Do you have any examples? Can you flesh that out a little bit?

Again, I didn’t know Hillary before this. I think I’d met her when she was head of the women’s commission. I don’t think she ever had any problems with Lloyd, but I think she was a little unhappy that Bernie—who had been more her friend than Bill’s friend—had been moved out. She had a few concerns about Panetta, not because she didn’t want him there—she was glad he was there, I think she recognized it needed a firmer hand on the tiller—but she hadn’t had any relationships with Panetta. Then Lloyd came in. She got along with Lloyd, but he wasn’t there very long. 

I came in, a perfect stranger. I think she had some problems with my deputy at the time, Joel, though, again, I never mentioned that. Then Jane told her I was really a sexist at heart. We never had a falling out, we never disagreed about anything. As you know, she’s much closer to my political persuasions than he is. I think she would even acknowledge she’s a liberal—or at least she used to be. He would deny that vigorously. Yet, we just never had occasion to be close to each other. I thought her staff was great. I thought Maggie Williams was spectacular. I thought Melanne Verveer was spectacular. But the First Lady and I just—our contacts were usually more formal than not. I don’t think she particularly thought that I was doing a bad job. I just don’t think she thought I was an important piece of the landscape. I have to say that the best thing that I saw about both of them was that they were spectacular parents. I’m amazed. I think Chelsea [Clinton] has come out of the White House better than any White House kids I know, the present President included. 

You mentioned that Stephen Neuwirth was working on a lot of projects for the First Lady. Do you recall what some of those projects were?

Legal services, which she was very much involved in. Originally, national health.

Child welfare-associated legal services perhaps, as well? Child advocacy, for example?

I don’t remember any issues coming up. She’d been very much involved with the Children’s Defense Fund. Again, it was just known that if she would call, somebody at the White House Counsel’s Office—it would probably be Steve. In turn, if there was something that needed to be taken up with the First Lady, he would usually volunteer.

And it was a comfortable relationship to have the First Lady directly calling one of your staff members—

Yes, there was nothing conspiratorial about it. With the exception of that problem with Jane, I really could not have asked for better relationships. By the way, even Harold. Harold is Harold. First of all, he didn’t teach me any new words. And once you know what his manner is, you can adjust to it. I liked my contacts at the White House. I thought they were good people.

And it was generally good morale in the White House? 

Yes. Of course, I left before Monica. I suspect it got very tense after that. There was that two-month period after the Republican election. Then again, I sensed that there was a lot of tension that occurred with the Dickie Morris. Again, I missed most of that because he didn’t start hanging around until about February or March of ’95. 

How did he happen to come in? Do you have any ideas?

Oh sure. When Clinton had lost the Governorship in whatever year it was, he was out for two years and very unhappy and morose. When he came back, he hired Dick Morris. Morris, according to Clinton, bailed him out, brought him back to the Governor’s chair. He thought that the sun rose and set on Dickie Morris, a judgment not shared by many people. But again, Clinton won in ’96 and I think if you ask him, he would say Dick Morris had a lot to do with his getting there. 

You had had a lot of criticism about the White House as an institution before you were working there. After working there, were those criticisms borne out?

Not really. I still think that a President should spend more time—not excluding the Clinton administration—understanding and working with the Congress. I think that Presidents underestimate. Too many Presidents, like too many members of Congress, run against government. So when they come to Washington, they’re going to clean out all the yahoos in Congress, and they make fun of the Congress. You can’t do that. 

The only criticism I have of West Wing is that there wasn’t a single member of Congress in it who was ever portrayed favorably in all the incidents. I think that a President needs to understand the institution better than most of them do. Again, the sad part is that the only one who really understood the institution as far as I was concerned was Jerry Ford, but he came there at such an awful time for him that he couldn’t get anything done. Most of the rest of them came in campaigning against Congress and ended up with unhappy relationships. 

Reagan’s relationship with Congress was not good. He got some things done, but that was because of the huge mandate he had. Nixon’s relationships were not good. Carter’s relationships were not good. The elder Bush was pretty good, but then again, the country started getting so bad, and he was only there one term. 

And he used the veto so heavily.

Yes, he did. This Bush is getting along, he’s had the Congress do pretty much what he wants, but that’s because of the mandate that he had with 46% of the vote and whatever percent he got this time. But I think now that it’s beginning to disintegrate, it’s just disintegrating all at once. 

The biggest criticism that I had, and I still have, is that Presidents should understand that institution and should spend a lot more time and effort trying to work with it. Most of my other criticisms I found were erroneous, such as this inability to make decisions. We don’t really want a President who is too proactive. I think the last time the country was ready for that kind of a government was during the New Deal, when we were so desperate. You have to remember, in spite of whether we praise the New Deal or think of it with such reverence, Roosevelt was elected in ’32, and we didn’t come out of the depression until the war started in late ’39, early ’40. For all those eight years, he was a great cheerleader, but he didn’t do anything. There were some great programs, but they didn’t—my father got a WPA [Works Progress Administration] job, but there were still an awful lot of unemployed and an awful lot of poor people. 

We look back on those wonderful [Dwight] Eisenhower years, partly because Eisenhower didn’t do anything. [Harry] Truman was probably the last activist President who really did some things that changed the country, such as integrating the Armed Forces, the Marshall Plan, combining the services. But he wouldn’t have gotten elected in ’52. I can’t remember, was he eligible? 

He was eligible, yes.

He couldn’t have gotten re-elected.

To follow up on that, did you develop new criticisms as a result of working there?

Not a criticism, but an awareness that nobody should run for President unless you really want it. You really have to want it. Adlai Stevenson, who was my first mentor, my first hero, in retrospect it probably was a good thing that he wasn’t elected President, because he didn’t really want it. He would not have adjusted well. Clinton was, in that respect, the perfect President, he wanted it so badly. If something like Monica Lewinsky had happened to me, I would have turned my face to the wall, and I would not have been able to face anybody. The notion of his getting up every morning and facing his Cabinet and his family and the press and the American people—you have to really want to be President to go through all that. That’s the other thing I learned. 

Then I guess, for all the bad things we say about government and all the complaints we have about it, get a President who has any kind of charisma, any kind of pizzazz, and he can get the best brains in the country to work at a fraction of whatever it is they’re making, whether it’s Bob Rubin or Donna Shalala. It happens. There are still enough people around this place who like government. If you give them somebody who makes them believe again, they’ll come to work. 

Tapping into the idealism. 

How was he able to keep so many of those people on his team, as he did, especially at the Cabinet level, through the two terms in office, particularly with all the problems that you’ve described?

I don’t know. I know some of them were much angrier. I was angry only because I couldn’t remember the geography of the Oval Office. But Bill Daley, for instance, who is one of these straitlaced people—he may have many other problems, but marital fidelity is not one of them. He’s now divorced, but even so, as far as he was concerned, monogamy is the only way to go. He was so outraged that Clinton lied to him. He just was beside himself, and yet he stayed on. I’m sure Bruce Babbitt was dismayed, and he stayed on.

Janet Reno is also a very straight arrow.

Janet Reno is a straight arrow, and yet, a part of it is, he has such enthusiasm for what he’s doing—whether it’s lust or the public trust, that people are willing to stand by him. 

I wanted to ask you about, not as important as the First Lady in this administration, but another very important actor, and that’s the Vice President. How much interaction did you have with Vice President Gore and/or with his staff?

I had known Al Gore from my days in the Congress. He had just been elected a House member. We used to call him Prince Albert at the time because we always assumed he would be President some day. Talk about somebody having the perfect curriculum vitae for being President, it was Albert Gore. I still don’t know why he didn’t make it. In any event, I liked him. I knew some of his staff people quite well. Al was one of these meritocrats who really care about—I don’t think he’d ever hired anybody because it was politically the right thing to do or because he was favoring somebody who helped him a lot. But he recognized talent and brought them on. 

He had a foreign affairs advisor, Leon Fuerth, who had been involved, not really in radical activities, but in a lot of offbeat activities. Al recognized that this was somebody who knew an awful lot about foreign affairs, and Gore took him on. Well, the first thing he did was, Clinton liked Albert Gore and trusted him, and they had a really good President-Vice President, relationship. The stupidest thing Al Gore ever did was to listen to whoever told him that he should distance himself from the Clinton administration in that 2000 campaign. But they had a good relationship and that was important. Gore was involved in every key decision the President made that I knew about—certainly foreign policy decisions, important domestic policy decisions. 

In addition, probably one of the most important accomplishments that Gore couldn’t claim any credit for in the 2000 campaign because they’d already teased him about having invented everything from the Internet, he had this project called reinventing government, which was incredibly successful. He had whittled away a huge hunk of the excesses in public employment, and there are. You can’t run an establishment that big without having supernumeraries all over the place. With this wonderful person he had working for him, Elaine Kamarck, who was his staffer (it was a small staff, only three or four people). But because he was a Vice President, and we would meet once every other week or every three weeks or so, he would call in these Cabinet officers and agency heads and say, Why do you really need six people in your public relations staff? Why can’t you do with three? We had the lowest number of public employees that we had had in many, many years. He saved billions of dollars. 

Because he had already re-invented everything else, he couldn’t claim credit for the one thing he really had re-invented. I was looking at it the other day, and on my calendar, I had re-inventing government meetings. I think we met once a month, on a Tuesday. They were incredibly effective meetings. He would bring in just enough of the people with clout in the White House and enough of the people in the agencies and in the Cabinet who had clout, so that everybody had to pay attention to what he and Elaine were asking for. They just were enormously successful. 

And you attended all those meetings?

A lot of them, I didn’t attend all, but I did many.

Did your office have a relationship with the Vice President’s counsel?

I’m trying to remember who the counsel was. Quinn was Chief of Staff.

I can’t recall. [Kumiki S. Gibson]

He had one who became a federal judge, who used to sit in on our judges’ meetings, a very nice guy. He was very quiet, didn’t say much. I don’t think Gore ever had any independent messages he was trying to deliver at those meetings because the guy was very quiet and pleasant. Then I think he was appointed a district judge.

Did the Vice President’s counsel sit in on your morning meeting in your office?

I don’t think so, no. 

Did you have a close relationship, working relationship, between your office and the legal advisor at the State Department?

Not really, I liked, I’m trying to remember. It was a New York lawyer—

Abe Sofaer?

No, it was after Abe. It would not have been a good relationship with him. It was an African-American, a lovely guy. [Conrad Harper] Anyway, we had a very good relationship whenever an occasion came up that involved an embassy or consulate affairs. He was easy to call and easy to work with. But there was no proactive involvement on the part of the White House because, as I said earlier, Warren Christopher ran the State Department, but he did not run foreign affairs. That was run from NSC. 

So the normalization of relations with Vietnam, for example, which would have occurred during your time, that wouldn’t have gone through the State Department? That would have been more NSC?

I think the policy decision was NSC, and then after that I think it was handled as a matter of routine. I wish I could remember his name. He’s a very pleasant guy, and we would have some conversations every once in a while about embassy affairs, consular affairs, but I don’t recall any major discussions of policy of any kind with their office or with the secretary’s office. 

Were there any members of the Cabinet with whom you had difficult relations, who were not cooperative?

Besides Espy? I don’t think Mr. Espy is yet my friend. Not really. I liked Bob Reich very much at Labor. I liked Donna Shalala very much. I liked Warren Christopher. Again, we didn’t have many dealings, but he is a delightful person. I thought Clinton’s Cabinet were very good people. He didn’t use them in the way Lincoln used his Cabinet, and I don’t know what Presidents do in terms of using Cabinets. I didn’t sit in on that many Cabinet meetings, but I did a couple, just as an educational experience, and they were interesting. Clinton would usually come in for a little while and say hello to everybody. Then Leon would take over, and Clinton would leave. I just never felt that the Cabinet were really acting as advisors. They had their beat and they were supposed to take care of it. When problems came up they would meet one-on-one with the President or with whomever, but the Cabinet was never a council of advisors to the President. I think the senior staff—not that we had that much face time with him as the staff—probably had more than the Cabinet did.

Was it the White House staff who were the policy initiators the majority of the time?

Yes, most of the time. He respected the Cabinet, he trusted them, he let them do the things they were supposed to do. But if there was an initiative, obviously if it was anything important, it had to go through him and he would usually rely on senior staff at the White House to run it and to go through it beforehand. I don’t remember any Cabinet meetings—and again, I didn’t sit in on that many—where they ever talked about a national policy issue. 

Probably a little bit more reporting on what each one was doing, kind of a show-and-tell session?

Yes.

You have spoken of face time several times. Did you have regularly scheduled meetings with the President? 

No.

How often did you see him, say, in an average week? 

Maybe four, five times. He was fun to be with, great fun. I don’t care how long you’ve been around government, it’s exciting to be talking to the President of the United States. But I thought one of the self-restraints I ought to impose—that everybody ought to impose—is not to use—his schedule was incredible. He was working 18 hours a day. You ought not just enjoy yourself, indulge yourself, by wanting to see him. So I tried to do as much as I could through memos, and to ask for a time when it was important, but not otherwise. I think people got a reputation quickly among Betty Currie and his schedulers and others. 

Bernie used to brag about how much time he spent with the President, and probably early on he over-spent it, because I know several times his scheduler would say, We don’t see much of you. That pleased me because I sensed that they would prefer not to see that much of me. I think that most of the Cabinet officers felt that way about it. Also, I had enough to do, and they had enough to do. 

Were you in direct communication with the President, or did you report to the Chief of Staff?

Because Leon didn’t want to be involved, the only things I would talk to the President directly about without at least notifying Leon were Whitewater and Justice stuff that I was trying to give him a heads-up on. Other than that, I would always report at the senior staff meeting, and frequently I would say, I think maybe I ought to talk to the President, or Leon would say, Maybe you should talk to the President about it. 

Did either the Chief of Staff or someone from his staff sit in on the Presidential meetings you had?

No. People sometimes sat in, more than just him and me, but there was never anybody monitoring the meetings—outside of Betty Currie looking in the peephole every once in a while. I think he had a secret signal arrangement with her, I don’t know. If you were taking up too much time, she would probably pop in and say, Mr. President, your next appointment is waiting, or something like that. 

What were your observations of Clinton’s advice-seeking style? What type of advice did he seek from you during these meetings? How did he take in advice from staff?

He was a good listener. He could listen, and there was almost no subject you could come in and talk to him about that he didn’t know how to ask questions about, that he didn’t know something about to probe into what you were trying to tell him. He did not like to be blindsided by your coming in and talking to him about something without having prepared a memo in advance or having given him an opportunity to think about it. But sometimes those occasions arose. He was easy to talk to except when he was mad. When he was mad, he was mad.

Were you ever the subject of his famous temper?

Oh, yes. I think I told you about that Mexican peso thing. The other time was the security story, where he came storming into the senior staff meeting, he was so mad. He had read it, or he had gotten a call, I assume from one of the Senators. Both times, his anger—at least as far as I ever saw it—was one of those flash angers. He’d get red in the face and shout out something, and one minute later he was telling stories and talking about his golf game. It was not an ongoing anger. 

He didn’t brood.

How would you describe his management style? It sounds from what you’ve said like spokes of a wheel, where he’s in the center and all these different lines are coming in.

He had a very good management style. I was there for a little over a year of eight years he had there. What dismayed me was that so many of the skills he had weren’t used because he was spending so much time fending off charges and scandals and so on. Like most people who get that high up, he didn’t like to say no to people. He didn’t like to be blunt. He would never have been able to talk to Espy the way Leon Panetta talked to Espy, which is why I think Leon did it, because he had cleared it with the President, and the President said go ahead. 

He had a good management style. He knew how to attract good talent, and he knew good talent when he got it. Bob Nash was the head of personnel. If you think of this Arkansas Governor who had come up in a state that isn’t renowned for its personnel practices, and where I’m sure patronage played a big role in the way people were hired and fired, I don’t recall one personnel scandal in the whole eight years that Clinton was President. I give a lot of the credit to Bob Nash, who picked most of the people. There were scandals at the Cabinet level, and I’m sure there were some at the lower levels, but there was nothing like you read about in most administrations. It just happens when you hire that many people, some of them are going to turn out to be rotten apples. Nash was that good a person. Most of his Cabinet people were that good.

The President was famous for being extremely well informed on everything, almost to the point of boredom to other people. But he didn’t micromanage, not in the same way people have said President Carter tried to micromanage.

Oh, yes, absolutely not. Carter tried to make sure that everything was being done the way he wanted. Clinton did not. Nixon did. But as long as there was nothing getting screwed up, Clinton was perfectly willing to let everybody handle what was their responsibility. Aside from the occasional flare-up of anger, like that planted story, he was perfectly willing to let people do their job. If they did it effectively—

So even though he knew a tremendous amount, he didn’t feel the need to—

He loved knowing as much as he did. Part of it is that he would be up, I don’t know what time in the morning. I think he was getting four or five hours sleep at the most. The first thing he would do is read all the clips on everything coming over the wire. He literally, every morning, knew more than anybody else in the United States about the crises of the day. 

The person who should write a book (I don’t know; maybe he has, but I haven’t seen it) is McCurry, who was a very good press secretary. He and Leon would meet with him very early in the morning. He must have some marvelous stories to tell about what those early morning sessions were like, because apparently Clinton would just go through the clips, vent his rage, his irritation at whatever was going on that he didn’t like. 

With a President like that who absorbs so much information and knows quite a lot across a variety of policy areas, what did that mean when it came to setting priorities and giving the staff to whom he had delegated all of this work some sense of what they should do in what kind of sequence?

I think there he relied very much on the Chief of Staff and on Bowles. I think Erskine was the chief scheduler—no, he was the Deputy Chief of Staff, but he brought order to the schedule. He made it a much better working arrangement than apparently was in place when Mack McLarty was Chief of Staff. I don’t know who was doing the scheduling. He let Leon and Erskine set priorities unless there was something he was certain about, or that overcame their prescriptions and he felt needed some other attention they weren’t paying to it. Leon and Erskine both worked hard, but Leon was there as early as the President, and long after the President retired to his residence, Leon was still at his desk. I think that the reward he got, besides whatever recognition, is that he knew the President appreciated his efforts. They were allowed to set the priorities unless there was some overriding reason not to. 

It was much better. If you had gone in on any day and said, Mr. President, what are the things you want to accomplish in this session of the legislature, this Congress, or this month? I don’t think he could have told you. I think he was much better at reacting to events and to being told, This is something that needs to be done, Mr. President, and then trying to decide how to do it, whether it was tobacco or healthcare or what. 

I was not that involved, as you know, with the ’92 campaign, so I can’t speak with great authority, but I don’t think there was a real agenda for things they were going to get done when he got to the White House. Healthcare was obviously a big issue, but I don’t know what else. 

The budget: didn’t they have It’s the economy, stupid? 

Yes, and that was one of the early bills, and he and Bob Rubin figured out how to do it in an incredible way. But I don’t think he had a—

A long term.

Yes. For instance, some things came up very much out of order, like gays in the military, which was done much too soon and long before he had a handle on it.

Maybe he didn’t look at his Presidency strategically. 

That’s probably true, but, boy, what a talent. 

You’d answered a question Nancy raised earlier about when Clinton used his political capital, or his political chits. You said he used them on economic policy early on and a couple of other things—areas where he used his political capital with Democrats who were in charge. Was there ever a case where he used political capital with Republicans? Or did he not have any?

He didn’t have much. You have to understand that from the ’94 election on, he was evil incarnate as far as the Republican Party was concerned. The Republicans in Congress had run against him. But he had a few friends—like Jim Leach of Iowa, a moderate, and a couple of the eastern seaboard people. They didn’t hang out with the President, and they weren’t over at the White House regularly. He wasn’t seeking their advice, and they weren’t offering it. 

Also, after the ’94 election, he really lost whatever strategy he had. The only time he ended up using what we’ve been calling political capital was in the closedown of government. None of us thought he had it. I don’t know whether he had political capital as much as government has political capital that none of us realized. I don’t know where you were at that point, but how many of you thought he could win that fight? I didn’t. 

People say, Balance the budget, balance the budget. I’d say, You could balance the budget if you closed down all of the government. Yay! That’s what they wanted done. The idea that he could somehow turn a closedown of government into a plus for the Democrats was inconceivable to me. I don’t know that he knew it or whether Leon knew it. But somehow they did it. But again, it wasn’t because he had any political capital with the Republicans. When they finally caved, it was because of the outcry from the country. 

I want to give you the opportunity to comment on any important areas or events that we didn’t get to, either with respect to your service or your observations of Clinton.

I think that nobody has quite figured out his incredible electability. When you look over the political landscape in ’96—before that, when you look over the political landscape after the ’94 election—if you were just reading about this, knowing what you know about political science and political history, you would say, This is the quintessential lame duck President. He’s going to be there for two years, and then either his party or the country will throw him out. Here they’ve already sent a strong message. They’ve kicked over all the Democratic leadership in both the House and the Senate. It looked like we were being deluged with scandals, with more yet to come—and, in fact, more were going to come. And yet—I was at the ’96 convention, the first one I’d been to in many, many years—it was a love-in. He owned that convention, and he owned that election. 

You can argue all you want that Bob Dole was not the best candidate the Republicans could have put up. But they didn’t put up anybody better, and in any event, Bill Clinton went out there and absolutely mesmerized the electorate. That’s what I think makes Republicans so angry at him, at Hillary. They don’t understand. They had knocked him down and knocked him out, and all of a sudden there he is, cruising to victory in ’96. 

He didn’t take the Congress with him. It wasn’t that people loved the Democrats any more. Somehow he has this incredible personal political charm. I’ve seen it in operation, but I don’t know what makes it happen. He’s terrific in a group like this. We’d all be in his pocket before a half hour is up. But he’s not that great on television. He doesn’t look at the little piece of glass the way Ronald Reagan used to and see 270 million people. (He’s not as bad as I am. I look at a little piece of glass and I see a little piece of glass. He’s a little better than that.) But that’s not his great forum. He’s better in person. And again, he’s better in small groups. But somehow he absolutely captured the American people. You know, if he ran tomorrow, he’d win. 

What do you think his impact has been on the Democratic Party?

He wasn’t a party Democrat. I think that his own political career, his own political stances, were too—not amorphous, but too—

Pragmatic?

Pragmatic and difficult to—

They weren’t etiological. 

You can’t even put a style on them. Kennedy, for instance, created a style. I remember going out with one of those knit undershirts on so I could survive without an overcoat because that was the style in those days, show how virile you were. Clinton didn’t create that kind of style. He has no imitators; there’s nobody on the scene who even wants to be like Clinton, let alone can be like Clinton. One of the real tragedies, as I indicated before, was that Al Gore was persuaded that he should distance himself from Bill Clinton, the best thing that ever happened to the country and to the Democratic Party in this century—and he lost. 

It’s going to be fascinating to see what happens. I assume Hillary Clinton will win re-election handily. But I assume that when she does that, she will try to make a run herself. I don’t know how she will try to use her husband. I assume he’ll do anything she wants him to do; he’s already indicated that he thinks she’d be a better President than he was. 

It will be interesting to see whether his charisma, charm, and captivating personality can rub off on her. So far the negatives seem to rub off on her. There are an awful lot of people who dislike her the way they disliked him and more so. It certainly hasn’t rubbed off on the Democratic Party. If we’re in any better shape than we were in ’94, it’s only because the Republicans are in worse shape. But I don’t see any great people coming out and saying, I want to be like Bill Clinton. I want to run the kind of campaign he did. 

You mentioned you don’t think he was much of a party builder for the Democrats. How about for the Republicans? 

Oh, yes, he did a lot. The Republican Clinton-haters, it’s a crusade for them. They still can get just as exercised about him, which is why I think she has a problem, because it will spill over to her. This part I can analyze. Part of it is he stole some of their program. He took the crime monkey off the Democrats’ back. He’s a law-and-order President. He’s there with all the police sitting around. He took the welfare monkey off the Democrats’ back. 

He took a basically Republican program and put it in. The balanced budget: he’s the first President who’s balanced the budget since Jimmy Carter did it by accident. Here’s this Republican Party who used to preach, Balance the budget, balance the budget, and now they’re the biggest spenders, with the biggest deficit on earth, and who’s the last budget balancer? Bill Clinton. They hate him for it. They hate how he did it. He put in tax increases without letting them be known as tax increases. He did other things thanks to Bob Rubin—they still don’t know how he did it. He’s a Goddamn magician as far as they’re concerned, and it bothers them. 

Absolutely all of that is there, and yet it seems to me there’s something in addition. It’s almost Nixonian in a sense, that visceral hatred he has always seemed to elicit. 

He termed it best. At one point there was a vacancy on the U.S. Court of Appeals, one I think Merrick Garland now fills. This vacancy had come up and we were one vote shy in the Senate. I think it was 51-49, and Bill Cohen, whom I’ve known a long time and was my locker-mate in the House gym, had indicated to me at one time that he would like to end up being a judge. He’s a Republican Senator from Maine. Maine then had a Democratic Governor. As you know, when a vacancy occurs, the Governor appoints to fill the vacancy. 

I don’t think it was my idea. I think whoever had the political desk for Clinton conceived of the idea—I guess I had been talking to him and told him that Cohen had once indicated an interest in the judgeship. He said, If we appointed Cohen to the judgeship and he resigned from the Senate and the Democratic Governor could appoint the Senator, we could take back the Senate. We were all excited about the idea and prepared a memo for the President. In fact, I think we saw him someplace and mentioned it to him—I mentioned it to him, or the political guy mentioned it to him. 

Interesting, he nodded, which he would do frequently when you blindsided him with an idea. Then a day later the memo came back with this left hand NO. I wasn’t that high on it, but I still thought it might be a worthwhile idea. I went to see him on something else. 

He said, If you’re here about that memo— I said no. Don’t you realize what they’d say if I did that? Slick Willie. And he was right, of course; they would have. So he made Bill Cohen Secretary of Defense instead. And we never got the Senate seat. 

You spoke earlier of your decision to leave the White House, so I won’t ask you to repeat that story, but reflecting on your tenure as White House Counsel, what do you consider your greatest accomplishments?

Even though I was there for only 14 months, that was longer than anybody except Chuck Ruff, and Chuck was going through hell, the most incredible experience any White House Counsel could have to go through, the impeachment. It isn’t that the White House Counsel should play that active a role, or proactive a role, but it was just generating too much commotion, and I think I helped bring restore some order. There were too many things going on in the White House Counsel’s Office. The White House Counsel should not be a piece of news in and of itself. 

Bernie had had some problems. Then Vince Foster committed suicide. The White House Counsel’s Office was just too much a source of problems rather than a source of solutions to problems. I like to think that the 14 months I was there and at least until the impeachment started, my tenure restored some order to it. 

I have to tell you this story about my leaving. Everyone assumed that I had found something awful—that I discovered Vince Foster had been assassinated or something. The press sniffed around. It was during the gotcha period. Most of them accepted the fact that I really was leaving mostly because I was just flat-out tired. I was too old for the job. But the Washington Times—which you know, I’m sure—could not accept that. There had to be something there. With their usual careful journalistic capacities, they confused my life with Lloyd Cutler’s life. On the night of my wife’s and my 47^th wedding anniversary, we went out for dinner. The Washington Times had a front-page story: White House Counsel leaves to spend more time with new wife. Lloyd had just remarried. Anyway, I showed it to Zoe, and she looked and she said, Oh, I hope we meet her some time. 

That’s a good story to end on. Judge Mikva, thank you very much for generously giving us a day of interviews. I know you’ve come a long distance to do so. We’re very grateful.

I enjoyed it.