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Last week, Fred Fielding got the nod again — he’s heading back to the White House Counsel’s Office. That makes three times for Fielding: counsel for Presidents George W. Bush and Ronald Reagan and deputy counsel for President Richard Nixon. On the occasion of Reagan’s death, Legal Times interviewed Fielding about the experience of advising a president. Fielding was on call when Reagan was shot in March 1981, when the president fired striking air traffic controllers in August 1981, and when he exercised the 25th Amendment in July 1985. The following edited excerpts first ran on June 14, 2004.
Q. What were the biggest, most overarching issues that you had to face as Ronald Reagan’s counsel? A. Well, I was in charge of judicial selection because the president had, for the first time, brought the judicial selection process into the White House — and gave me that responsibility. The PATCO [Professional Air Traffic Controllers Organization] strike was of significance. The assassination attempt, of course, was significant legally because it dealt with the potential use of the 25th Amendment. And subsequently, we did have the first exercise of the 25th Amendment when a cancer surgery was needed. Other than that, there were so many continuing, day-to-day issues. They ran the gamut of his constitutional responsibilities. Executive privilege was always an issue. Presidential pardons were always an issue.
Q. Everyone says that the genius of Ronald Reagan was his ability to delegate, his ability to find the right people and to let them do the job without micromanaging them. Is that something you saw? A. I think that’s valid. Some people use it as praise. Some people use it as a criticism. But I think the proof is in the pudding. It worked — it worked very effectively. For instance, on paper you would have never thought that [White House Chief of Staff James] Baker, [Deputy Chief of Staff Michael] Deaver, and [Counselor to the President Edwin] Meese could have cooperated — they each had such different functions and backgrounds. And yet he had the idea to put them together. And it worked like a charm the whole first term. . . . The other thing about that administration was that if there were mistakes made, or if there were problems that arose, they were dealt with right away. That, to me, was the essence of my job — to make sure that if a problem occurred, we identified the problem and we dealt with it swiftly. You figured out what you ultimately were going to do, and you did it that afternoon.
Q. When executive privilege came up and the assertions were challenged, did you have to be fairly strong in asserting it and defending the privilege? A. Yes, because the privilege is obviously very important to the running of an executive office. We made sure early on — and I drafted it at the request of the president — that executive privilege could only be exercised by the president. So somebody out in the departments and agencies couldn’t try to hide something by saying, “Wait a minute, that’s executive privilege.” And we set up a whole process for clearing any request for executive privilege. . . . The president felt very strongly about executive privilege. And the reason he felt strongly about it was consistent with the reason that he felt strongly about executive power: that is, that he was very conscious of the power itself, and he was very conscious that anything he did would either set a pattern or create a precedent for his successors. And even in the 25th Amendment exercise, that was the one thing that he was so concerned about — it wasn’t the turning over of power, it was that. I discussed this with him the night before his surgery. I told him about the 25th Amendment again — we had discussed it before — and we went through all of the ramifications. And I still wasn’t sure what shape it would take. I stayed up half the night drafting three different letters. Then I went to the hospital the next day, and we went through it again right before his surgery. It was myself, Nancy Reagan, the president, [White House Chief of Staff] Don Regan — and we went through it again. The president selected the letter that he was most comfortable with, and he signed the letter. And then he said that I “should tell [Vice President] George [H.W. Bush] that this transfer of power did not include the first lady.”
Q. Did he communicate very clearly — by dropping by or sending a message — that something had to be done or had to be done in a certain way? Or did he just basically give you the broader outlines? A. He only dropped by my office about four or five times in the whole five-and-a-half years I was there. Instead, usually he would call me down to the office, or I would say I wanted to see him, and we would discuss the issue at hand. He wasn’t a client who demanded certain answers. He was a client who told you where he would like to be — “Can we get there, or if we can’t, how close can we get?” If he didn’t know the answer, he’d say, “What do you recommend?” He was a terrific client in that regard.
Q. Did you have a fine team of younger men and women in the counsel’s office working with you? A. I was blessed by the people I had. I was very proud of them then. I’m very proud of them today. Most of them went on to do more public service in very responsible positions. One, John Roberts Jr., was confirmed to the D.C. Circuit last year [in 2003]. I hired another fellow who was still in law school when I hired him — although all the other people I’d hired were young hot-shot junior partners. And he’s now on the 4th Circuit — Michael Luttig. [Editor's note: Roberts became chief justice of the Supreme Court in 2005; Luttig became general counsel at Boeing last year.]
Q. Were there moments of just intractable conflict between your shop and the Justice Department’s Office of Legal Counsel or some other part of the Justice Department over some important legal issue? A. No, we had a very good working relationship with OLC and with the department. We set up a system so that no contacts could be made with the department except through the counsel’s office — to avoid the inevitable missteps and steps on the chalk line that sometimes happen when White House people get overly energetic about what they think needs to be done.
Q. A lot of people think that Ronald Reagan was, in some ways, a true believer, a conservative ideologue. Did you get that sense, that the president wanted to get certain ideological things done and that was one of the things you were trying to accomplish? A. In the way you state it, no. It was clear that he had views on what he wanted to accomplish. But I never felt that we had to do something that was too close to the line, or right on the line, or maybe even over the line, just because the client wanted it. I never had that feeling. It was clear on some issues where he wanted to end up. But if he couldn’t get there, he couldn’t get there.
Q. From a policy point of view, what was the most dramatic week or 10-day period that you had? A. Frankly, it was dramatic the whole way through. But one good example of how the presidency operates was the PATCO strike. Here was a situation where the air traffic controllers were threatening to strike. . . . In my briefing of the president, the one thing that struck him — and I could see him visibly react — was when I advised him that these people had taken an oath not to strike. And that to him was a very, very important element, because if somebody took that oath, he could not see how they could then strike. So we had everything in motion. While there were negotiations to try to avoid a strike right up to the end, we worked and coordinated, and we were ready. When the strike occurred, I handed him the papers to sign. And he looked up at me, and he said, “I am doing the right thing, aren’t I?” And I said, “You’re absolutely doing the right thing, Mr. President — unless a plane crashes in the next 48 hours.” Because that’s what it’s all about. There are times when even if you’re legally right, the fates may make you wrong. And that’s what a president has to deal with — that’s the responsibility. That’s why some get gray hair. People don’t realize the responsibility that sometimes goes with the awesome power.

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