Fred Fielding takes on another client

The Bush White House lawyers up.

Curious choice. Fred Fielding was long suspected by more than a few to be "Deep Throat" before Mark Felt's "memoirs" appeared. But more importantly, if it's true what David Gergen said in a speech to Duke University graduating law students last year, then Bush has chosen precisely the lawyer from whom he's least likely to take advice. Since, to borrow a quote, if George W. Bush ever read the Constitution, he didn't understand it.

Strikingly, John Dean had a deputy general counsel named Fred Fielding who was at first suspected of being up to his eyeballs in Dean’s corruption. But it turned out that Fred Fielding was completely clean. He neither knew nor was complicit. More to that, Fred went on to become General Counsel in a subsequent administration in which I worked and I found that when I went to him asking for legal counsel, he generally phrased his response this way:

“You know, David, it would be technically okay for you to take the following course of action. You have a colorable claim to do it, and if all hell broke loose, you could plausibly make arguments A and B. If that’s what you really want to do, I can’t legally stop you. But can I advise you as a friend and as someone who wants to be respected that there’s a much wiser way to proceed? You won’t find it as convenient and you may not achieve everything you want, but at the end of the day, you can sleep at night and your honor will be intact.”

Frankly, I loved Fred’s advice – he kept me well within bounds, above reproach -- and I watched as Fred’s stature grew over the years. Not long ago, he served as a respected member of the 9/11 commission and his advice on homeland security is sought after by men and women in government and the press. Fred has probably never made as much money as John through selling books or popping up on the lecture circuit; certainly he is not as well known as John. But Fred Fielding has something better: his children will always be proud of him.

Importantly, John Dean didn’t start out as a lawyer who was corrupt. Instead he suffered from what he himself called “blind ambition.” He was looking for short cuts to the top so that he could have the biggest office, the biggest perks, the biggest name. And so he did whatever his client wanted – his fidelity was always to the client, not to the spirit and integrity of the law. He let his client decide what the ends would be; he didn’t question them. His job, as he saw it, was simply to find the means to get there. He was a servant, not a counselor. Bad luck for him, he just happened to work for a client who thought he was above the law – who said once, “If I do it, it must be legal.” I say this with great regret because I worked hard for Richard Nixon, thought for a long time he could not possibly have committed all those crimes, and for years after have wrestled with what happened. Yet I have to agree with what Harry Truman once said: If President Nixon ever read the Constitution, he didn’t understand it.

Now, why bring up memories of Watergate in the midst of your graduation? Most of you, after all, were born well after Richard Nixon resigned and went into exile in California. The point is that the contrasting approaches taken by two young lawyers, Dean and Fielding, represent a pattern of divergence that I first saw back then and has, if anything, become more pronounced in the years since.

Back in the 70s, I saw other lawyers who were just like Dean – men who would do what their client wanted, asked few questions and tried to cling to power – men like John Ehrlichman and Richard Kleindienst, men who ultimately paid a terrible price. In the 80s, we saw a parade of lawyers who signed onto deals committed by corrupt savings and loans. We saw lawyers in Washington who winked at Iran-Contra. More recently, think of the lawyers from one of the most prestigious private firms in the nation who stood by as the managers of Enron looted their company. And who has failed to wonder at the lawyers in Washington today who write briefs for the Department of Justice, arguing that the plain language of Congressional statute does not apply to governmental eavesdropping on American citizens? Who among us has not gasped as we have seen the contorted arguments issued by lawyers that give license to various forms of torture by our military? These are, of course, extreme cases. Still, they illustrate how far lawyers can wander from the highest standards of the profession when their only goal is to do the client’s bidding – to lend a patina of respectability to whatever a client wants to do, good or bad.

Set against them are the other kinds of lawyers we have seen in our midst – men and women more like Fred Fielding. Certainly, we saw other outstanding examples during Watergate itself – leaders like Eliot Richardson and Bill Ruckelshaus who resigned rather than follow the orders of President Nixon to fire the special prosecutor, Archibald Cox. Few who lived through those days will forget that Saturday night massacre. Coming from the University of Chicago during the Ford years, Ed Levi was a model of integrity as Attorney General. During the Carter years, we witnessed Cyrus Vance counsel his president against a military course of action in the Middle East and when he was overridden, he quietly and honorably resigned as Secretary of State. In the Iran-Contra scandal, Attorney General Ed Meese wisely guided the White House into a pattern of self-disclosure as opposed to a cover-up. To this day, Judge William Webster is often called upon to conduct inquiries because everyone knows that he will act in the higher public interest – just as George Mitchell, a former judge, will, too. And we find men and women like this in every big law firm in the country. There is, then, a very different tradition – one that traces itself back to the founders and was a standard for the law all the way through the 19th century, as the country looked to lawyers as wise counselors, people who not only served their clients but were also faithful to the law itself.

If any of this is true, then we should expect a period of very un-Cheney like "Sunshine is the Best Disinfectant" policy in the Bush White House. Should be a period of intelligent discourse on the extent of a president's Constitutional power as the Bush administration cooperates fully with Congressional investigations, presenting their case in good faith to a skeptical Congress.

I'm holding my breath, aren't you?