Empowered Democrats

White House lacks lawyers to deal with empowered Democrats

The office has been without a permanent leader since October and top deputies are departing, leaving just a skeletal staff in place.

By NANCY COOK and DARREN SAMUELSOHN

The White House counsel’s office is down to a skeletal staff, potentially leaving them unprepared to deal with a flood of subpoenas for documents and witnesses when Democrats take control of the House.

The office has been without a permanent leader since ex-White House senior attorney Don McGahn left the administration in mid-October. His replacement, Pat Cipollone, is caught up in an extended background check that’s prevented him from starting. And in the coming weeks, deputy counsel Annie Donaldson, who served as McGahn’s most trusted aide and as the office’s chief of staff, is expected to leave the administration, according to two Republicans close to the White House. Donaldson is moving to Alabama with her husband, Brett Talley, whose nomination for a federal judgeship the White House withdrew in December 2017.

Amid the leadership tumult, the counsel’s office has shrunk to about 25 lawyers, according to a second Republican close to the administration. That’s lower than its recent high point of roughly 35 attorneys and well short of the 40 people that some expect it will need to deal with a reinvigorated Democratic party eager to investigate the president’s tax returns and business dealings in foreign countries, reopen probes into Russian election meddling and explore the behavior of a bevy of Cabinet officials.

“They only have roughly 20 dedicated White House lawyers and a bunch of detailees who could leave at any time,” one former White House official told POLITICO. “I don’t think anyone who is paying attention thinks they are prepared for a Democratic takeover.”

“Denuded and shrinking” was how a third Republican in touch with the White House described the office’s current state.

Cipollone, the incoming lead attorney, is an experienced litigator and former Justice Department official. But he is still undergoing his background check and working to untangle himself from his law firm business, according to an administration official — meaning he is weeks away from taking the helm. In the meantime, Emmet Flood is overseeing both the White House’s response to the Russia investigation as well as the counsel’s office.

“When the head guy is leaving, it is hard to find replacements,” said the third Republican close to the White House, speaking about the lapse of time between McGahn’s departure and Cipollone’s arrival.

Other key deputies from the counsel’s office have scattered throughout the administration to top legal posts at federal agencies to judgeships, or to the private sector. Under McGahn, many of the attorneys in his office were from his former law firm, Jones Day.

A former George W. Bush White House official warned that Trump needs to be mindful during the lame duck period, when minor scandals can explode if the proper team isn’t in place to deal with Democrats already gearing up on the oversight front.

“The thing you have to be careful about is the transition,” said the official, who noted that when the Democrats took both the House and Senate in 2006, the Bush administration wasn’t staffed to deal with the backlash after the Justice Department ordered the surprising dismissal of seven U.S. attorneys. Democrats swiftly pushed for probes into whether the firings had been carried out for political reasons.

A White House official said the administration is planning “to work with Democrats but prepared for harassment of the president.” The same official declined to give the most current headcount of lawyers inside the counsel’s office.

As soon as Cipollone arrives at the White House, a huge part of his job will involve hiring new attorneys for a White House sure to be under siege from Democrats. In addition to the slate of White House investigations, Democrats plan to press the administration on the behavior of Cabinet heads like Interior Secretary Ryan Zinke, Commerce Secretary Wilbur Ross nand Education Secretary Betsy DeVos.

Jim Schultz, former special assistant to the president and senior associate counsel to the Trump, said he expects Cipollone will try and bulk up his team to about 40 people.

“They’re not there now,” Schultz said. “Certainly by the time the new Congress is sworn in you want your army of lawyers.”

But hiring a bevy of lawyers and former Supreme Court clerks to handle an onslaught of investigations presumes that the Trump White House will respond to subpoenas in a typical fashion; it could just as easily ignore them and claim executive privilege, a move that would ultimately land them in court but would fit with the Trump White House’s atypical approach to governing and politics.

The state of the understaffed White House counsel’s office stood in sharp contrast late last week to the annual gathering of the right-leaning Federalist Society — a nerd prom for conservative lawyers and scholars.

At a gala on Thursday night at Union Station, attendees were jubilant over the confirmation of two right-leaning justices to the Supreme Court under Trump, said two attendees, while the newest Supreme Court Justice Brett Kavanaugh received a standing ovation.

The Federalist Society gathering frequently serves as an informal audition for future judges, or top administration officials. A number of judges on Trump’s short list of potential Supreme Court picks appeared on various panels over the three-day event.

But while conservative lawyers celebrated their ascendancy under the Trump administration, and the right’s remaking of the judicial system, veterans of past White Houses warned that the Trump White House was legally unprepared for the onslaught that lay ahead under a divided government.

“The White House Counsel job is more than a full-time commitment even in ordinary times,” said former Clinton White House counsel Jack Quinn. “Adding one — or more — investigations or an independent counsel inquiry just adds a second job on top, but one that often demands sustained attention and always demands exquisite patience.”