Legal Dilemmas Facing White House Counsel in the Trump Administration: The Costs of Public Disclosure of FISA Requests

Not every presidential administration can forge a new brand of government lawyering. Historically, government lawyering has swung between two poles: (1) dialogic lawyering, which stresses reasoned elaboration, respect for institutions, and continuity with unwritten norms embodied in past practice; and (2) insular lawyering, which entails opaque definitions, disregard of other institutions, and departures from unwritten norms. Because President Trump regularly signals his disdain for institutions, such as the intelligence community, and unwritten norms, such as prosecutorial independence, senior lawyers in the White House have added a new mode of legal representation that entails ad hoc adjustments to President Trump’s mercurial decisions and triage among the presidential decisions they will try to temper. Call it: lifeboat lawyering.

Lifeboat lawyering, as practiced by Donald F. McGahn II—the first White House Counsel of the Trump administration—and others, involves improvising adjustments to presidential policies or slow-walking action despite President Trump’s urge to take more drastic actions, like firing Special Counsel Robert Mueller. In this respect, those practicing lifeboat lawyering echo the familiar virtues of dialogic lawyering and preserve the legitimacy of the administration in the face of critics who contend that it is out of control. As we shall see, however, lifeboat lawyering’s ongoing improvisations are themselves difficult to control and sometimes veer dangerously close to the excesses of insular lawyering.