Thank you for sharing!

Your article was successfully shared with the contacts you provided.
They are both Republicans, both committed public servants, and both share responsibility for advising the president on critical matters of law. But White House Counsel Alberto Gonzales — a moderate on many volatile issues — and the staunchly conservative Attorney General John Ashcroft come from very different wings of the GOP. It’s no surprise then that President George W. Bush’s two top lawyers have frequently clashed over key policy and personnel issues. According to six lawyers with close ties to the White House and the Justice Department, the relationship between Gonzales and Ashcroft — though courteous — has been marked by political jockeying and policy disputes virtually from the very beginning of the administration. On the policy front, the White House and the Justice Department have locked horns over constitutional questions related to gun control, affirmative action, and the war on terrorism. Smaller squabbles have reportedly erupted over DOJ announcements and policy decisions that caught White House lawyers off guard. Most recently, friction between the two men and their camps played out with Ashcroft’s refusal to accept Gonzales’ pick to head the Justice Department’s Office of Legal Counsel: Deputy Assistant Attorney General John Yoo. Yoo worked closely with the White House to formulate the administration’s legal response to Sept. 11. According to several sources with direct knowledge of the situation, he was vetoed for the top OLC post by Ashcroft for being seen as too closely aligned with Gonzales. In April, the Justice Department and the White House compromised and agreed on the nomination of University of Virginia law professor Jack Goldsmith III. Tension between the White House counsel and the attorney general is hardly unique. Past administrations have seen similar rivalries develop between the president’s two senior lawyers as a result of their overlapping roles. Former DOJ and White House aides are quick to characterize feuding between Gonzales and Ashcroft as institutional and ideological, not personal. Because the war on terrorism has raised so many novel and controversial legal issues, even small disagreements have at times strained relations. One former administration lawyer sums up the dynamic between Gonzales and Ashcroft this way: “Ashcroft and his staff are wary of the White House counsel and think he tries to exercise too much control. On the other hand, the White House probably feels that the attorney general does not coordinate enough with them and can at times be a loose cannon.” A White House spokesman says the president has “confidence in the job Attorney General Ashcroft and Judge Gonzales are doing for the American people.” Ashcroft’s deputy chief of staff, David Israelite, declines to comment on any specific incidents, but calls the overall relationship between the attorney general and Gonzales “one of mutual respect.” “The attorney general respects Judge Gonzales both for his legal skills and also for his service to the president,” Israelite says. “Their relationship has worked well in an extremely difficult environment with the war on terrorism.” Former Justice Department and White House lawyers describe a slightly less harmonious relationship, one characterized by traditional Washington turf battles and complicated by the ideological differences between Gonzales and Ashcroft. Gonzales has the stronger personal relationship with the president, dating back to Bush’s days as Texas governor. One of eight children, 48-year-old Gonzales grew up in poverty. He graduated from Harvard Law School in 1982 and became the first Hispanic partner at Houston’s Vinson & Elkins, where he spent nearly 13 years. After being elected governor of Texas, Bush hired Gonzales in 1995 to serve as his general counsel. Gonzales went on to serve as secretary of state from 1997 until 1999 and then as a justice on the Texas Supreme Court. “Al Gonzales does not come from a movement conservative background. He comes from a Republican background, from a business background,” says former Deputy White House Counsel Timothy Flanigan. “What he cares about, he learned in Texas. He didn’t learn it at Federalist Society meetings.” Meanwhile, 61-year-old Ashcroft is more the true conservative ideologue. As a former U.S. senator and two-term governor of Missouri, he enjoys the larger public persona and an independent political base. At times, the White House has been leery of Ashcroft’s political ambitions, say several former administration lawyers, suspecting that the attorney general might one day make a run for the presidency himself. Gonzales’ political future also raises awkward issues. In the event of a Supreme Court vacancy during the Bush presidency, Gonzales is considered a possible nominee to the high court. However, the attorney general’s right wing supporters — who consider Gonzales insufficiently conservative — would likely expect Ashcroft to argue internally against a Gonzales nomination. BRIEF BATTLE Perhaps the most significant ideological rift between the current White House counsel and the Justice Department arose over the administration’s Supreme Court brief in the University of Michigan affirmative action cases. According to news reports at the time, the conservatives in the Justice Department, including Ashcroft and Solicitor General Theodore Olson, supported taking a hard stance against racial preferences, while Gonzales was among those who counseled the president to take a more moderate position. The amicus curiae brief ultimately filed by the administration stopped short of rejecting race as a legal consideration in university admissions. Other disagreements between Ashcroft and Gonzales have been more about style — particularly the White House’s desire to control message — than about substance. For instance, an early source of contention between the White House counsel’s office and the AG’s staff was a letter sent from Ashcroft to the National Rifle Association reversing a Bill Clinton administration position on the Second Amendment’s right to bear arms. In response to an NRA inquiry, Ashcroft wrote that he believed the Constitution guarantees the individual right to own firearms, not solely the collective right to organize an armed militia. White House lawyers say they did not object to Ashcroft’s views so much as they resented the attorney general committing the administration to a legal position without seeking White House approval. In June 2002, Ashcroft’s announcement of the apprehension of al Qaeda dirty bomb suspect Jose Padilla caused a similar stir. The attorney general announced the arrest in a live television appearance from Moscow, and the production was criticized for being overblown and alarmist. Competition between Gonzales and Ashcroft for control over legal policy decisions has repeatedly flared up during discussions over who to place at the helm of the OLC, the office responsible for providing the executive branch with legal opinions on constitutional and administrative law questions. Early in the administration and again this year, the OLC post sat vacant while Gonzales and Ashcroft tussled over various candidates. Disputes between the Justice Department and the White House have often played out in the OLC, which works under the attorney general but counts the White House counsel as its most important client, says Crowell & Moring senior counsel Beth Nolan, who served as White House counsel from 1999 to 2001 and as acting OLC chief from 1997 to 1999. “Both the White House counsel and the attorney general see the head of OLC as his or her lawyer,” Nolan says.”Generally, they are working together but sometimes they have different goals.” Early on in the Bush administration, both Gonzales and Ashcroft identified the head of the OLC as a critical Justice Department appointment, say former administration lawyers. After reviewing potential candidates, Gonzales’ office was backing Gibson, Dunn & Crutcher D.C. partner Douglas Cox, a former OLC official with close ties to former Deputy White House Counsel Flanigan. The Justice Department was pulling for Paul Clement, a partner in the D.C. office of Atlanta’s King & Spalding and a former Ashcroft Senate staffer. Ultimately, the two camps reached an impasse, each side rejecting the other’s choice, and were forced to discard both candidates. (Clement was later appointed principal deputy solicitor general.) In March 2001, the White House and the Justice Department settled on Columbia Law School Professor John Manning, a former OLC staff attorney. The administration was again sent back to the drawing board when Manning withdrew his name several weeks later. In July 2001 Ashcroft and Gonzales finally compromised on University of Nevada law professor Jay Bybee, a former OLC staff attorney and college classmate of Flanigan. “The importance of that position was such that we needed someone very tough and very experienced. Someone from the AG’s former Senate staff would not necessarily meet those requirements,” says Flanigan, now general counsel for corporate and international law at Tyco International Ltd. It was not simply a question of finding a candidate with sufficient legal acumen, however. The White House was concerned that any lawyer with political allegiance to Ashcroft might issue opinions that placed the attorney general’s policy interests above the president’s. The potential for conflict came to a boil after Sept. 11, as the war on terrorism forced the administration to confront dicey constitutional questions related to the president’s war powers and at times to choose between traditional law enforcement tactics and military options. Such questions would typically be handed off to the OLC for review. In some instances, say lawyers familiar with the situation, the Justice Department would be vigorously pushing for criminal prosecution while the White House pressed for more-flexible options. In the immediate aftermath of Sept. 11, with Bybee not yet at the Justice Department, Yoo, a top OLC official and law-of-war expert, became the administration’s go-to lawyer on national security questions. Among the controversial issues the University of California at Berkeley law professor was asked to tackle were the appropriate designation for al Qaeda and Taliban detainees and the president’s authority to hold terrorism trials before military tribunals. Yoo gave the president wide berth in both areas. When Bybee was nominated for a seat on the U.S. Court of Appeals for the 9th Circuit in May 2002, leaving the OLC’s top post vacant yet again, Gonzales’ office threw its support behind Yoo. Ashcroft’s pick was longtime counselor Adam Ciongoli. Events unfolded very much as they had in 2001. Ashcroft vetoed Yoo for being too closely connected to Gonzales’ shop. Ciongoli was deemed unacceptable by the White House counsel’s office for his deep ties to the AG. In April, the sides settled on international law professor Goldsmith, who was then working as an adviser to the Pentagon general counsel. “Jack Goldsmith is a great choice. I would have been honored to serve, but knowing Jack will hold the position, I have no regrets,” says Yoo, who will teach law at the University of Chicago in the fall before returning to Berkeley’s Boalt Hall. “It’s important that the head of OLC has the full confidence of both the attorney general and the White House.”

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.