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Timothy Flanigan has never sought the spotlight. On the morning after the 2000 presidential election, Flanigan flew down to Tallahassee, Fla., to join the legal team backing George W. Bush. But while other prominent Republican lawyers made the rounds on cable news shows, Flanigan worked in a cramped office writing appellate briefs. After the Sept. 11, 2001, terrorist attacks, it was not White House Counsel Alberto Gonzales, but Flanigan — then Gonzales’ deputy — in the Situation Room screening presidential orders to shoot down commercial airliners. But Flanigan never drew attention to his role. As the president’s pick for the No. 2 job at the Justice Department, Flanigan may have precious little time left in the shadows. With Gonzales on the short-list to fill the current Supreme Court vacancy, Flanigan could even be propelled into the DOJ’s top spot — at least temporarily. The deputy attorney general serves as the Justice Department’s chief operating officer, directly overseeing the FBI, the DOJ’s Criminal Division, and 93 presidentially appointed U.S. attorneys nationwide. In addition, the deputy is often called to serve as the department’s diplomat in interactions with other Cabinet agencies, Congress, and the White House. Although not yet scheduled, Flanigan’s Senate confirmation hearing may take place next week before Congress breaks for its August recess. Flanigan will no doubt face questions about his role in controversial legal memos drafted after Sept. 11 that gave the executive branch sweeping powers in the war on terror. While Flanigan served as deputy White House counsel, administration lawyers signed off on the detention of enemy fighters outside of the Geneva Conventions, the trial of suspected terrorists by military commissions, and the use of aggressive interrogation tactics not approved under existing military regulations. “One area we don’t know enough about is his role in developing national security policies,” says one Democratic staffer to the Senate Judiciary Committee, who spoke on the condition of anonymity. Flanigan’s lack of prosecutorial experience has also been questioned by Democrats. “This is a position that benefits from practical experience,” Sen. Patrick Leahy (D-Vt.) said in a statement after Flanigan was nominated in May. “In the confirmation hearings for Mr. Flanigan’s appointment, we will need to examine whether this growing deficit in practical prosecutorial experience in the top ranks will affect the department’s performance.” Flanigan’s supporters dismiss the criticism. “I was both deputy and attorney general, and I didn’t come from a law enforcement background,” says Verizon Communications General Counsel William Barr, who served as attorney general under President George H.W. Bush. “I don’t view it as important or problematic that he doesn’t come from that background. “He has a good feel for the department as an institution, and he has an excellent character and temperament for the job,” Barr continues. “Tim is a very open and approachable person. He doesn’t have a big ego. He listens to people, and at the same time, when there is a decision that has to be made, he doesn’t shy away from doing that.” Flanigan declined to comment for this article, citing the pending confirmation hearing. FAMILY MATTERS Flanigan, 51, currently serves as Tyco International’s general counsel for corporate and international matters. He left the White House counsel’s office in late 2002 to join the company as it tried to recover from a string of corporate scandals. Joining the beleaguered company was financially lucrative for Flanigan. According to his financial disclosure form, Tyco paid him more than $1.4 million in 2004. After less than two years with the company, Flanigan has stock options worth roughly $1 million. For some families, such money might appear excessive, but Flanigan is the father of 14 children, ranging in age from 11 to 29. After scrounging up college tuition for three kids on the far more modest salary of a White House lawyer, Flanigan needed to replenish the family’s dwindling savings. A devout Mormon, Flanigan met his wife, Katherine, when they were students at Brigham Young University. He planned to become a teacher and enrolled in a master’s program in history, but grew disenchanted. In 1978, he entered law school at the University of Virginia. After graduating, Flanigan joined New York’s Shearman & Sterling. He left the firm for a year to serve as senior law clerk to then-Chief Justice Warren Burger. Flanigan then rejoined Shearman, and in 1987 he opened the firm’s D.C. office. The Flanigans never hired a nanny to help care for their growing flock, says daughter Liz Davis, 25. “Growing up in our house was fun and crazy,” Davis recalls. “Mealtimes were a production. My mom had a chart on the fridge with all the kids’ dinner jobs.” Tending to livestock was another way the children were taught responsibility. For an entire summer the family kept a small herd of goats and drank only goat milk, Davis says. AN UNPOPULAR OPINION In 1990, Flanigan again left private practice and joined the Justice Department’s Office of Legal Counsel, where government attorneys answer legal questions for the executive branch. At the time, J. Michael Luttig — now a judge on the U.S. Court of Appeals for the 4th Circuit and an oft-mentioned candidate for a seat on the Supreme Court — headed the small but influential office. Luttig and Flanigan were law school classmates and close friends. In 1992, when Luttig was nominated to the 4th Circuit by President George H.W. Bush, Flanigan took over. Flanigan’s tenure as head of the OLC was relatively brief, but not without controversy. In the summer of 1992, with the economy in recession and the months ticking down to the presidential election, Bush supporters were pressuring the administration to reduce capital gains taxes by adjusting the taxable profits made on the sale of stock and other property to account for inflation. The theory advanced by the U.S. Chamber of Commerce and other conservative economists was that indexing capital gains for inflation would jump-start the economy, create new jobs, and help Bush win a second term in office. Before moving forward, the White House sought a formal legal opinion from the Justice Department. Flanigan, in his role as head of the OLC, determined that the proposed action was illegal. Conservatives lashed out. One Washington Times columnist wrote, “The Justice Department’s lawyers are determined to defeat the only measure Mr. Bush can take that could rescue the economy and his presidency.” But if Flanigan ostensibly helped to bring down one Bush, he worked to install another. After the 2000 presidential election, Flanigan, then a partner in the D.C. office of White & Case, was one of the first lawyers on the ground in Florida to assist the candidate’s legal team. For five weeks he worked out of makeshift offices in the Republican Party’s Tallahassee headquarters. “These were not exactly well-appointed facilities,” says Patton Boggs partner Benjamin Ginsberg, legal counsel to the Bush-Cheney campaign in 2000 and 2004. “Each and every time I went in to see Tim, he was the picture of calm.” COOL UNDER FIRE One of Flanigan’s trademarks as a lawyer, say former colleagues, is his ability to remain calm in a crisis. He is also known for his broad smile and mischievous sense of humor. Many lawyers who have worked with Flanigan say they have never heard him raise his voice or dress down a subordinate. “I’ve always been able to count on Tim,” Gonzales said in a May 2005 interview with Legal Times. “He’s always been there as a steady hand to provide good advice.” Flanigan’s composure was tested the morning of Sept. 11, 2001. Gonzales was giving a speech outside Washington, and so it was Deputy White House Counsel Flanigan in the Situation Room providing legal input as the administration planned its immediate response to the day’s devastating events. The questions ranged from the weighty — Could the president order the shoot-down of a commercial aircraft? — to the mundane. In the following days and weeks, Flanigan made sure that White House lawyers stayed on top of the issues facing the president and were included in high-level decision-making. When Flanigan felt that the legal team was being underused, he made personal visits to White House Chief of Staff Andrew Card and deputy Joshua Bolton until the counsel’s office was back in the loop. Flanigan worked with lawmakers to hammer out a congressional authorization for the use of military force against those behind the attacks, and was the administration’s lead negotiator on the USA Patriot Act. He saw his mission as finding every tool available to the president that might help protect America from future attacks, says former White House lawyer Bradford Berenson, a partner in the D.C. office of Sidley Austin Brown & Wood. “There was a dramatic sense of urgency and a strong feeling that we’d never be forgiven if we didn’t use every power at our disposal,” Berenson says. “Other concerns were just going to have to be secondary until everything that could be done had been done.” Those who know Flanigan say he was always mindful of the tension between protecting civil liberties and combating terrorism. “Very early on after September 11, when we were grappling with issues, I remember Tim being the person raising questions and saying, ‘What are our obligations under the Constitution?’ ” says Paul, Hastings, Janofsky & Walker of counsel Laura Flippin, a former associate White House counsel. “ Four years later, I think we’re still addressing those questions, and I don’t think Tim has ever stopped thinking about them.”
Vanessa Blum can be contacted at [email protected].

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