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By the end of the Clinton administration, answering subpoenas and deflecting scandal had become business as usual for White House lawyers. But for attorneys working in the Bush White House, the launch last week of a Justice Department investigation into who disclosed the identity of a Central Intelligence Agency officer presents an unfamiliar and unwelcome set of problems. As the DOJ probe proceeds, White House Counsel Alberto Gonzales and his 10-lawyer staff will be tasked with answering investigators’ demands for documents and interviews. It’s time-consuming work, and the lawyers involved will have to make decisions about what to hand over and what to shield — sticky issues for an administration that has been unyielding on assertions of executive privilege. From investigations into Vice President Dick Cheney’s energy task force to the dispute over Miguel Estrada’s nomination to the federal bench, President George W. Bush has staunchly refused demands for internal documents that White House lawyers consider privileged. But with prosecutors looking into an alleged administration leak involving the CIA agent wife of retired U.S. Ambassador Joseph Wilson IV, that commitment may be tested. “This White House has resisted turning over information many times with resolute assertions of executive privilege,” says Howrey Simon Arnold & White partner Dimitri Nionakis, who worked in the White House Counsel’s Office from 1997 until 2001. “The climate right now may be such that there is heavy political pressure to turn material over.” What’s more, recent staff turnover in the White House Counsel’s Office leaves Gonzales’ team short on criminal expertise that may be vital to meet the demands of a Justice Department investigation. Over the past six months, three attorneys with the most relevant experience have all left the White House Counsel’s Office. In March, Associate White House Counsel Bradford Berenson returned to the D.C. office of Sidley Austin Brown & Wood. Prior to joining the White House, Berenson advised the independent counsel in the probe of Secretary of Housing and Urban Development Henry Cisneros. Brett Kavanaugh, who worked with former Independent Counsel Kenneth Starr on the Whitewater investigation, left Gonzales’ office to serve as staff secretary to Bush in July. And in August, Associate White House Counsel H. Chris Bartolomucci, who worked as a lawyer for the Senate Whitewater investigation, left the administration. Bartolomucci returned to the D.C. office of Hogan & Hartson Oct. 1. Berenson, Kavanaugh, and Bartolomucci all had played leading roles in crafting the administration’s response to congressional inquiries related to the collapse of the Enron Corp. Currently, just 10 attorneys work under Gonzales, fewer than during President Bill Clinton’s tenure, when the White House Counsel’s Office ranged from roughly 15 to 20 lawyers. During impeachment proceedings against Clinton, the office had six lawyers working full time on related issues. “It’s very different than the Clinton White House Counsel’s Office, which needed several people whose full-time job it was to comply with investigations,” says John Yoo, a former Bush administration official and a visiting law professor at the University of Chicago. Bartolomucci says recent departures from the office do not leave a vacuum of experience because Gonzales, who sat on the Texas Supreme Court, handled politically sensitive questions about White House ties to Enron. “Judge Gonzales has already gone through this himself. He knows the drill,” Bartolomucci says. Last week Gonzales sent out a series of e-mails directing White House employees to provide his office with all materials relevant to the DOJ investigation. The memos identify White House lawyers Theodore Ullyot and Raul Yanes as contacts. Ullyot, 36, a former partner in the D.C. office of Kirkland & Ellis and one-time clerk to Supreme Court Justice Antonin Scalia, most recently worked in the general counsel’s office of AOL Time Warner. Yanes, 37, who only recently joined the White House Counsel’s Office, was previously a litigation partner at New York’s Davis, Polk & Wardwell. “This type of situation really puts pressure on the resources of the counsel’s office. You’ve got to assign people to gather material and go through it,” says Crowell & Moring partner Beth Nolan, who served as White House counsel from 1999 to 2001. “By the time I became White House counsel, we had a team of lawyers who had litigation experience and knew their way around a grand jury subpoena.” WHEN THE FBI COMES CALLING The Bush administration has weathered a handful of controversies and congressional inquiries since coming into power, but until now has not faced a criminal probe. Last week, Bush pledged to be fully cooperative, saying he welcomed the investigation. But cooperating with prosecutors and agents of the Federal Bureau of Investigation may mean waiving claims of executive privilege — something the current administration has been reluctant to do. While executive privilege does not cover conversations between White House staffers and members of the media, it can shield discussions between senior presidential advisers. Executive privilege issues may be particularly salient in this case, because Wilson’s work for the government was so closely tied to the administration’s national security objectives. Wilson — an outspoken critic of White House policies in Iraq — claims that his wife’s name was revealed to reporters by senior administration officials in an effort to discredit him. “Anytime an inquiry is made into communications between a president and his advisers or between the president’s closest advisers, then the issue of executive privilege necessarily arises,” says Charles Cooper, a partner in D.C.’s Cooper & Kirk. He adds, “It’s the president’s privilege to waive. He’ll have to make those decisions in terms of the interests that are at stake before him.” In past disputes, Gonzales has counseled Bush to assert executive privilege and to stand firm on his claims. In 2002, the White House went to court rather than turn over records related to Cheney’s energy task force. This year, the administration refused to provide the Senate Judiciary Committee with deliberative memos written by D.C. Circuit nominee Estrada while he was a Justice Department lawyer. Bush even asserted executive privilege to shield documents from Republican members of Congress that might have helped his own party. The documents sought by Rep. Dan Burton, R-Ind., related to the Justice Department’s investigation into possible campaign finance violations by the Democratic Party in the 1996 election. “What Bush has done is draw a line in the dirt, and he hasn’t yielded,” says Cooper, who served as a senior Justice Department official during the Reagan administration. Responding to a criminal investigation may require a more pragmatic approach, say former White House lawyers. Invoking executive privilege, even where there are legitimate reasons, is likely to be perceived as evasive and hurt the president’s image. Legal considerations may give way to the president’s political interests at a time when Bush’s poll ratings are hurting. “The assertion of privilege by the White House in the face of allegations of misconduct by high-ranking White House staffers is just not going to be politically tenable,” says Neil Eggleston, co-chair of the white-collar defense group at Howrey Simon. Eggleston represented the White House in attorney-client and executive privilege litigation against Starr’s office in 1998 and 1999. Even Bartolomucci says that requests from the Justice Department will receive different consideration than congressional subpoenas. “When you’re answering to another branch of government, it’s more appropriate to assert privilege,” he says. “In a criminal investigation, executive privilege carries less force.” Over the years, courts have upheld the president’s limited right to withhold certain documents from judicial or congressional scrutiny. Where that privilege collides with other legitimate governmental interests, judges employ a balancing test to determine which will prevail. To overcome most executive privilege claims, prosecutors must show only that the material sought is relevant and cannot be obtained through other means. Cooper — who supports the administration’s firm stance on privilege — concedes that a desire to bring the investigation to a speedy conclusion is likely to outweigh all but the most compelling instances of executive privilege. “If investigators seek information [Bush] believes cannot be compromised, I have no doubt he will not allow that information to be risked,” Cooper says. “For anything else, he’ll be tempted to waive privilege — either to exonerate an individual under scrutiny or identify any individual involved.”

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