- The Washington Times - Tuesday, July 21, 2009

Stung by a string of embarrassing personnel moves at the outset of the administration, President Obama has significantly beefed up the number of lawyers working in the White House compared to previous administrations.

Administration officials insist the bulking up of the Office of White House Counsel is temporary, but some lawyers from the George W. Bush administration said they suspect one reason for the personnel shift may be a bid to centralize power.

Secretary of State Hillary Rodham Clinton last week went public with the frustration many in the new administration feel just staffing up. Mrs. Clinton complained that she has been unable to fill the top position at the U.S. Agency for International Development, saying that a “ridiculous” vetting process has prompted several people to reject the position.

“The clearance and vetting process is a nightmare and it takes far longer than any of us would want to see,” she said, speaking to State Department employees.

There are 41 attorneys in the Office of White House Counsel, according to information provided by the White House, compared to 26 at the end of President Bush’s second term —a 57 percent increase.

The increase is largely the result of the president’s decision in February to move the vetting and clearance process directly under White House Counsel Gregory B. Craig, following a number of embarrassing disclosures that forced some of Mr. Obama’s nominees for top posts to withdraw. The new administration has also been dealing with a stunning series of crises, from the plunging economy to federal bailouts of banks, auto companies and other firms.

Former Senate Majority Leader Tom Daschle, Mr. Obama’s first pick to head the Department of Health and Human Services and lead his health care reform effort, had to withdraw because of tax problems, as did Nancy Killefer, Mr. Obama’s choice to be the government’s “performance czar.”

Treasury Secretary Timothy F. Geithner was one of a number of other Obama appointees who faced embarrassing financial revelations before finally being confirmed.

Timothy E. Flanigan, who served as deputy White House counsel under Alberto R. Gonzales at the beginning of the Bush administration, said although “there is an initial ramp-up that’s needed” at the beginning of any administration, the Obama White House is using far more lawyers for their vetting and appointments than the Bush White House did.

“We never had that many people involved in the clearance or vetting process,” Mr. Flanigan said.

Clearances were done by “one lawyer and myself who were reviewing all the FBI files,” he said. “Nobody else. Then we had two or three, maybe four at one point, working on financial disclosures. We did have non-lawyers backing them up, and it wasn’t work that we were shifting off to other offices in government.”

Obama administration officials said that 18 of the 41 lawyers in the counsel’s office are there to either screen potential nominees for Senate-confirmed positions, or to help shepherd them through the process of being confirmed.

“Given that the president wanted to move quickly to ensure that the administration was fully operational with qualified nominees and appointees in place — and given the amount of litigation and legal issues this administration inherited from the previous one — the White House counsel’s office is similar in size to the counsel’s office at the end of the Bush administration,” said White House spokesman Ben LaBolt.

The White House counsel’s office said that they had 19 lawyers doing “core” White House legal work, which is fewer than the 22 core business lawyers at the end of the Bush administration.

But the Bush White House had a higher number of attorneys in its last two years than it did for most of Mr. Bush’s two terms. The office went from 16 attorneys in 2004 to 24 in 2005 after Democrats took control of Congress and embarked on a blitz of investigations of the executive branch.

The Obama administration is not dealing with the same influx of probes because Democrats are in firm control of both houses of Congress.

The White House acknowledged that it has a bigger vetting and appointments operation than past administrations.

Yet even with the larger number of attorneys, the onerous demands on nominees and appointees have drawn complaints from the highest circles of the Obama administration.

But a White House official said that the Obama administration has set a brisk pace on nominations. Out of 499 Senate-confirmable positions, the White House has formally nominated 371 people and announced their intent to nominate another 17 people.

Only 199 of those nominees have been confirmed, said a White House official who provided the information on the condition that they not be identified and said that Mr. Obama has submitted more nominees than any of the last four presidents at this point in their presidencies.

An independent analysis released Monday by Congressional Quarterly found Mr. Obama actually ahead of the pace of his predecessors in getting his nominees for top agency posts approved by the Senate.

The White House Transition Project, funded by the Pew Charitable Trust, found that 40 percent of the top administration posts had been filled by the Fourth of July recess, and Mr. Obama had sent nomination papers to the Senate for just over 50 percent of the top jobs.

The survey found that the White House is spending an average of 57 days vetting potential nominees, compared to an average of 37 days for Senate approval. Even so, posts that remain unfilled six months into Mr. Obama’s term include a Pentagon undersecretary, the head of the Transportation Security Administration and three-fourths of the top lieutenants to Mr. Geithner.

The Obama White House has also brought a handful of attorneys that traditionally were on the payroll of other offices, such as the National Security Council, onto the White House payroll, the administration said.

Two of the lawyers — Andrew Kline and Andrew Mergen — are working exclusively on the Supreme Court nomination of Judge Sonia Sotomayor.

Legal experts with experience in the executive or legislative branches said there may be good reason for the expansion.

“It could simply be the most expeditious method to get intellectual or political talent in the mix. It could be a function of Obama needing to staff up quickly without ‘parking’ anyone at specific agencies or going through an extensive confirmation process,” said Ray Shepherd, former counsel to the Senate Permanent subcommittee on Investigations, who now works at Venable, LLP.

But former Bush lawyers were more suspicious.

“This is a hugely bloated operation compared to the one in the Bush White House, especially at an equivalent point in the administration and in light of the Democrats’ complete control of both houses of Congress,” said one attorney who worked early on for the Bush White House counsel’s office.

“I wonder whether it’s part of a conscious effort to bring more control over legal policy throughout the government inside the White House. As a general rule, that wouldn’t be smart and could come back to bite them,” the attorney said.

Mr. Flanigan also expressed concern that the White House may be trying to exercise undue influence over the government’s legal decisions that could chip away at the authority or input of lawyers at the Justice Department’s Office of Legal Counsel (OLC) and other legal offices at agencies outside the White House.

“The significance is that you get a much more politically sensitive legal analyst of issues rather than a straightforward, ‘What are the legal problems going to be?’ ” said Mr. Flanigan, who ran OLC under former President George H.W. Bush.

“The White House is a very difficult place to practice law in,” Mr. Flanigan said. “The issues are politically charged and they come at you with a velocity and volume that are breathtaking. If you’re going to protect the president, you need to rely on places like the Justice Department, where they can step back from the political storm and stress and give you a purely legal opinion, as opposed to having someone from [the Office of White House] political affairs leaning in saying, ‘I’ve got to have this answer.’ ”

Indeed, six months after Mr. Obama took office, his nominee to lead OLC, Indiana University professor Dawn Johnsen, has yet to be confirmed. Republicans are blocking her nomination based on her work in the past for abortion-rights groups.

The Justice Department said that OLC continues to have the full authority and input it has always had into the president’s decision making. OLC has traditionally been the office that tells the White House what the president has constitutional authority to do, and the limits of this power.

“The Office of Legal Counsel continues to be the primary source for authoritative legal advice to the president and the executive branch agencies,” said Justice spokeswoman Tracy Schmaler. “We look forward to the arrival of the assistant attorney general once she is confirmed by the Senate.”

• Jon Ward can be reached at jward@washingtontimes.com.

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