Category: Features

Over the past year, I have been drawn back to a poem that I first heard when I was very young, namely that of Leisure, by the Welsh poet W.H. Davies. A short piece, it ends with:

A poor life this if, full of care, We have no time to stand and stare.

Taking a step back from the frantic, full-on day-to-day demands of the legal industry is incredibly hard to do. But it can be the most rewarding, and fulfilling. Since I started to try and put this into practice, I have thought about the people I have met in the industry and tried to discover whether they have the same philosophy or if they are totally engrossed in the business of law. Some of the latter individuals are fascinating, passionately engaged in the subject, clearly dedicated to what they do. But I find the conversations often colder, and harder to maintain. They are not as interesting, simply because they often lack that fundamental skill – emotional intelligence.

Having empathy with your clients and your colleagues, trying to understand what makes them tick (and what doesn’t), has always been important, but it is too often forgotten. But it is what brings the best out of people, and is also one of the fundamental drivers of good leadership. The key to this is something that lawyers are, in my experience, often not so good at. As I say to my six-year-old constantly: you were born with two ears and one mouth for a reason – you need to listen twice as much as you speak.

This brings me back to my first point, taking time to ‘stand and stare’ and, in particular, understanding the value of sitting back and hearing someone else speak. I have tried to attend more conferences and events in the past 12 months, to try and soak up what is being said, and to exchange views with others in the industry. And before I get into this, I have seen a growing trend towards dismissing conferences, especially ones that are involved in tech and the dreaded i-word, as not ‘breaking out of the echo chamber’. There is some truth to this – it can be slightly deflating to turn up and hear the same legal luminaries preaching to the converted for the umpteenth time.

But dig a little deeper and there is tremendous value to be gained from these events. And yes, I know it is hard to take time out from the constant workload, but the working life of GCs can be massively enhanced by stepping away from the office and engaging with the wider community. You have to make time, and sometimes you have to invest, but the benefits are there for all to take.

I was invited to Legalweek at the end of January in New York, which discussed the business of law, diversity and inclusion, information and data. My approach to the event was simple: I listened and I engaged. When I arrived at each session, I put down the phone, didn’t check my emails when the speakers and panel discussions were taking place, and wrote copious notes. But I also put my head up and looked around the room – who was in each session, did I know them, could I see what organisation they were from.

At the end of each session, I spoke to the panel speakers and to others in the audience. Some I knew very well, some I knew only slightly and some I had never met. As a result, I had conversations about subjects I would not normally have encountered, made new connections, and some of those conversations are now following up into potential collaborations.

In short, at a time when most of the legal industry is obsessed with the aforementioned tech and i-word, blockchain, machine learning and the like – I went back to basics. I went back to human. A word kept cropping up time and time again in the sessions: trust. Trust is at the heart of all of our interactions in the legal industry, and trust is built on relationships. And relationships, as everyone knows, have to be worked at or they die. So, you need to invest in those relationships to get the best out of them, and to keep them going, even if there is no immediate outcome or need.

But here’s the thing: out of all that investment in listening to the panellists, talking to the other delegates and speakers, and engaging with the content, I gained something else. I learned something. In fact, not just one thing, but an absolute stack of ideas – new ways of working and a host of practical ways to make changes. From the theoretical to the here and now, the conference gave me a new insight into a range of potential solutions in the industry. All of us are magpies, stealing the best ideas here and there to shape into our own way of working. By taking some time out of the office, these events can help shape your thinking.

The things that I would be thinking about as a GC from that event are:

• How does ‘VUCA’ affect the efficiency of my team?
• Can I use the techniques I heard about to reduce the legal cost of my M&A transaction to a tenth of the price?
• How can understanding the ‘4Ps’ marketing concept change how I interact with outside counsel?
• Why are ALSPs are no longer ‘A’?
• How do I insist my outside counsel budgets my legal work appropriately and, subsequently, how to reward/penalise?
• How does Prudential’s ‘Spotlight’ programme actively track diversity in its law firms?
• How can I use origination credits to my advantage?
• What communication skills are needed with the C-suite to ensure they see legal spend is optimised?
• I have the data I need to improve my legal department – so how do I extract it for analysis?
• I don’t want ‘more for less’, I want ‘better for less’. But how?

I can tell you, the answers (or at least the right questions to ask at the start) were all there. The downside is that not enough GCs are there to hear it. True, there are some bad events out there, but look around and you will find huge value in attending the right conferences/seminars/workshops. Many will probably say they can’t afford the time to do it – after all, ‘time is money’ according to Benjamin Franklin. But looking at the above questions, realistically, can you afford not to?

‘If you have something that you don’t want anyone to know, maybe you shouldn’t be doing it in the first place,’ – Eric Schmidt, CEO, Alphabet Inc.

The issue of data privacy has been an increasingly prevalent one for corporates and, subsequently, their general counsel in recent years. When the European Union’s General Data Protection Regulation entered into force in 2016 ahead of its 2018 implementation, businesses the world around were put on notice: the rights of the individual with respect to personal data – its collection, storage and use – were now subject to stringent protections designed to safeguard the end user against corporate interests.

But while the boundaries between business prerogatives and the right to privacy have grown increasingly clear, how companies – particularly those working in tech – handle requests for data from the government and law enforcement remains opaque, particularly with new – or, legally speaking, untested technology.

‘Uncertainty with technology is a real problem for civil liberties, because oftentimes what you’ll see is law enforcement trying to engage in a novel kind of search – or novel kind of information request – that’s never been done before,’ explains Esha Bhandari, staff attorney with American Civil Liberties Union’s (ACLU) Speech, Privacy, and Technology Project.

‘The lack of precedent apparent can be used to their advantage – almost an ask first and then see whether or not a court, or the subject of the request, pushes back. That creates a problem when you have the government or law enforcement pushing to try out new types of technology or search requests. The ambiguity in the law is used to their advantage because that particular fact pattern hasn’t explicitly arisen before.’

In such cases, the prerogative for protection of users often falls on the company faced with the request. In the first instance, advising on a matter like this will typically fall on the shoulders of the general counsel, who will be tasked with balancing the rights of the individual with those of the public at large – represented by those tasked with governing the general populous – as well as that of the business itself.

But in a world in which data and the broad-based learnings that can be derived from it become progressively more sophisticated and prominent, determining what constitutes the public’s best interest – particularly in the face of a distinct lack of judicial guidance – has become nebulous at best. When that decision falls on corporate institutions instead of an independent judiciary, weighing the costs of doing the right thing against corporate imperatives like shareholder primacy becomes even more difficult.

This very issue came to the fore in the wake of the election of President Donald Trump, when law enforcement served subpoenas on a deluge of digital companies in an effort to obtain information which could lead to the identification and arrest of those involved with protesting and causing unrest in the run up to his inauguration.

‘It really harkens back to the question of, “Are we really living in a place where America’s own government is going to be spying on political dissidents?”,’ posits Stephanie Lacambra, criminal defence staff attorney at the Electronic Frontier Foundation (EFF).

‘It shouldn’t really come as a surprise given the practice of spying on dissidents goes back through many decades, from the civil rights movement to the Black Panthers. But what’s different now is that these requests are using technology to achieve their goals. In the information age, spying takes a different colour.’

DISRUPTJ20

In 2016, following the election of Donald Trump, a group called DisruptJ20 began posting online to organise protests to disrupt his 20 January inauguration the following year – relatively mundane stuff in the murky and anonymous online world. But when the US Department of Justice demanded access to all of the information held on the group by their webhost, DreamHost, it became a point of moral principle for the Los Angeles-based company and its general counsel, Chris Ghazarian.

‘Originally, we received a subpoena from the DOJ in January demanding information about the owner of the DisruptJ20 website. We reviewed the subpoena and everything seemed normal, so we produced the information,’ explains Ghazarian.

‘Fast-forward to July and this time we’ve been served with a search warrant, again, the target being DisruptJ20. The warrant we were served with wanted all of the information that we had about the website, not just subscriber information, email address or email content, they wanted our entire database of what we held on DisruptJ20.

‘That amount of information would be huge – we have our own logs that we keep internally for our systems, which include things like HTTP logs and the IP addresses of our visitors. Those IP addresses were the central issue of our case.’

While DreamHost regularly receives orders for information from law enforcement, the scope and depth of the request was unusual – prompting a deeper look from Ghazarian and his team.

‘The first thing we did when we received the warrant was to look over it with our compliance analyst, who told me about the scope. We went over it together and agreed that it was a very overbroad warrant, which was seeking a tonne of data,’ he says.

‘We reached out to the US attorneys that were working the case to have a conversation, because the warrant was overbroad and turning over that amount of information was a ridiculous request. We do this often when we take in court orders or government requests: we spend a lot of time on them and that usually involves reaching out to the appropriate agency or firm or whoever it is if we feel that it’s overly broad. But in this case, when we reached out, they were silent.’

What followed a week later was a motion to compel from the superior court in Washington DC, a common tactic used in discovery proceedings to force a non-complying party to turn over the requested information when they have either refused or the response received is deemed insufficient.

‘That didn’t sit well with us because, historically, we’ve been staunch supporters of privacy. We’ve always taken a strong stance against overly broad requests or similar issues when they arise with law enforcement,’ says Ghazarian.

‘We’ve maintained a strong relationship with all of our law enforcement agencies in the US. We’ve had agents back and forth all the time, we talk to them frequently. Never before had we had an issue like this, where we’re facing a motion to compel and the other side isn’t willing to play ball. So we took a step back, looked at the case up and down and realised we had something very interesting on our hands.’

OVERSIGHT OR OVERREACH?

With an unusual case afoot and significant privacy issues in play, DreamHost prepared to take the unusual strategy of starting a blog to alert the public just what was going on – a move Ghazarian says he was comfortable with after confirming that there was no gag order associated with the warrant.

‘What was particularly unique about this case was that we were dealing with so many people who had innocently visited the website and were going to have their information turned over to the government,’ Ghazarian explains.

‘The government claims that they don’t do anything with the information they don’t use – essentially that any information they didn’t need to look at would be deleted. But in reality, everything is digital, so you can never truly confirm whether something’s been deleted or not. You couldn’t do that with paper in the past, and in the digital age it’s so much harder. When you’re sending a file over the internet, there’s no way you can be absolutely sure that something hasn’t been copied or screenshotted. There’s no real audit trail.’

‘If we were to turn over this information, we would basically be handing over the browsing habits and identities of tens of thousands of people. We had 1.3 million IP addresses associated with DisruptJ20 over the course of the time span in the warrant. But the individual logs tell you a lot more than just that: the amount of time you spend reading each page, the photos you looked at or other links you clicked on originating from that page – everything is recorded. So you’re handing over an entire logbook to the government and that’s disturbing. Very disturbing.’

Of particular concern with the warrant was the content of the site and its underlying purpose – to organise peaceful political protest – which brought to the fore First and Fourth Amendment issues and concerns about whether the request was constitutional.

‘Freedom of speech and freedom of association were really implicated by the breadth of the request that was made,’ says Bhandari.

‘The warrant was specifically requesting information about people who had visited a website discussing organising a protest that was oppositional to the administration. What happens to our rights for freedom of expression, freedom of speech and freedom of association when all of our communications can potentially be seen, stored and analysed by the government? ’

‘Freedom of association was one of the issues we really honed in on and the fact that this can potentially be a very interesting issue if the government is taking action that can suppress that freedom,’ adds Ghazarian.

‘If you found out that your browsing habits are turned over to the government because you visited a political website, then the next time you want to read about politics or visit a political website, you’re probably going to think twice about whether or not you want to click on it – particularly if you know that there’s a blacklist of all of your information going straight to government from a webhost or ISP (internet service provider).’

DREAMHOST v DOJ

Because of the seriousness of the issues raised in the warrant, as well as DreamHost’s commitment to protecting the privacy of its users, the decision was made to challenge the order in court. Ghazarian retained a Washington DC-licensed external counsel and together, they began putting together DreamHost’s defence.

‘We filed our first argument late on a Friday night. I can remember working until after midnight, drafting the argument, books open all over my office, whiteboards littered with nodes and sites – it was a real throwback, like going back to law school,’ says Ghazarian.

‘Then, after the weekend, we posted our first blog post live on Monday. It was a very short blog which explained the request that we had received and what we were doing to fight against it. I went to bed that night and had no idea what was about to hit me on Tuesday morning.’

After the blog went live on Monday, the media went into overdrive – with Ghazarian tasked with fronting up and representing DreamHost – truly thrusting the issue and case into the public consciousness.

‘I’d never had anything like this happen during my career. I was in shock. I passed the bar in 2015, had barely been practising for two years and then suddenly I’m being asked to get ready to appear live on television to be interviewed by Anderson Cooper on CNN! Nothing can prepare you for that,’ says Ghazarian.

‘That was the day that everything really went public. It was crazy, but putting our case in the public eye – despite the pressure that came along with it all – the amount of support we received showed that we were doing the right thing. We had no intention of making this a front-page story, we just wanted to show what was happening behind the scenes and the type of things we do for every single one of our customers and ever subpoena or request that we receive.’

The likes of the ACLU and EFF were quick to offer their support, with more than 100 organisations signing on to a joint public letter to then attorney general Jeff Sessions expressing concern over what they saw as an infringement on American values.

‘When we were involved in the case, we had a number of companies, senators and congressmen who were all lobbying for us directly to Jeff Sessions,’ says Ghazarian.

‘We also had a number of major tech companies publicly come out to back our decision to fight this order. We received a ridiculous amount of support, offers of donations, connections. I was getting calls left and right from so many people in politics and I’d hear the name and be like “Oh my god, I’ve heard this guy on the news so many times”, or you’d Google their names and find out a senator from some far-flung state would be offering their assistance.’

The outpouring of support and assistance, both publicly and behind closed doors, in addition to the wall-to-wall media coverage ignited significant public debate – mounting pressure on the DOJ to justify the legality of its actions specific to this case, as well as its overarching operating procedures. Facing a public relations nightmare and the prospect of a very public, potentially uphill battle in the courts, the DOJ retreated.

‘Two days before the hearing, there was breaking news on TV that the DOJ had pulled back their request for the information from DreamHost in terms of the IP addresses, and reissued their warrant with different language,’ says Ghazarian.

‘That was literally the biggest issue we were fighting for – the IP addresses. So now we’re in a position where the DOJ is publicly doubling back. They issued a public statement, with a corresponding filing, saying that they were never interested in finding out IP addresses or browsing habits of users and they would gladly not pursue those things.’

‘What was particularly interesting about that was that we had evidence on the record of us reaching out to them to explain the extent of their request, specifically the IP address issue – yet they claimed that they had no idea this information would be included. So, in our follow up filing, we pointed out that they knew this, included emails and other evidence to back that up. But the bottom line was, at this point, that was a huge win for us.’

IN YOUR DEFENCE

While pulling back the request for the IP addresses was indeed a significant win for DreamHost, at the time, they still remained involved in an active dispute with the DOJ over the remaining information requested in the warrant.

‘We filed a further response to the DOJ, alerting them to the fact that even though they had retracted the request for IP addresses, there were still a lot of other issues that needed to be talked about,’ says Ghazarian.

‘Our hearing was pushed back by two days at the request of the DOJ, so I flew out to Washington DC for our rescheduled hearing and our day in court. What first stood out – it was surreal really – was the sheer amount of press in attendance. Half of the room was dedicated just to the media and it was at capacity.’

Ruling on the case, Chief Judge Robert Morin of the Superior Court of Washington DC ruled that the DOJ’s request was a valid one and enforced its motion to compel – with some major changes and safeguards to limit the exposure of sensitive and private user information. Delivering his final order, Chief Judge Morin wrote:

‘Because of the potential breadth of the government’s review in this case, the warrant in its execution may implicate otherwise innocuous and constitutionally protected activity. As the court has previously stated, while the government has the right to execute its warrant, it does not have the right to rummage through the information contained on DreamHost’s website and discover the identity of, or access communications by, individuals not participating in alleged criminal activity, particularly those persons who were engaging in protected First Amendment activities. Accordingly, the court deems it appropriate to incorporate procedural safeguards to comply with First Amendment and Fourth Amendment considerations, and to prevent the government from obtaining any identifying information of innocent persons to the website DisruptJ20.’

‘We were fine with this result – to be fair, most reasonable people understand that we weren’t fighting this warrant in order to prohibit the government from obtaining information from DreamHost. At the end of the day, this was a government-issued warrant and they wanted information regarding the case pending against the protestors. We deal with hundreds of these a year, but there’s a proper way to go about these requests,’ Ghazarian explains.

‘Our issue was that the DOJ was casting an ultra-wide net, and would have obtained a tonne of data that violated internet users’ privacy.We knew at the end of the day we would have to turn over some information – we didn’t want to play hardball with that aspect. We just wanted to cut down the legal request to what we thought was reasonable – not overbroad or overreaching.’

What was interesting about the ruling though, something which surprised Ghazarian, was that the final order to turn over information and how that would be carried out was to be negotiated between DreamHost and the DOJ. Rather than having to hand over the information there and then, the negotiation process went on over the following three months, with DreamHost and the DOJ both submitting a proposed order, after which the judge made a final ruling.

‘When that ruling came in, it was one of the happiest days of my legal career. I remember sitting there, going through the order line by line. We had requested a number of protective measures because of the sensitivity of the information requested,’ says Ghazarian.

‘For most of our arguments and requests, the judge had agreed. Anything that was private information – names, addresses, phone numbers, emails – had to be redacted. So we handed over heavily redacted documents to the DOJ, who were then required to identify what information from that production they wanted to use, then identify the agents who were working on the case and with the information, then appeal to the court and justify to the judge why they needed any of the information they were requesting. Then finally, if they wanted any of the information to be unredacted, they needed to show probable cause for it.’

PROTECTING THE FUTURE

The publicity that surrounded the case brought attention to the issues inherent with the DreamHost case, and the underlying constitutional considerations will likely have the most lasting impact. While the courts’ decision to restrict the ability of both the government and law enforcement to access private user data goes some way in terms of establishing judicial guidance moving forward, whether that will stand up to further checks and tests on the power of law enforcement with respect to data remains to be seen.

‘In terms of future precedent and impacting future issues that come up under these categories, our case helps set a great foundation,’ says Ghazarian.

‘In fact, shortly after our case, Facebook had their own issues with the DOJ over DisruptJ20 and they used some of our arguments that we filed in court in their own case.’

While the likes of major companies like Facebook or historically strong advocates for privacy rights like DreamHost have both the will and resources to contest orders that are seen to overreach, clearly that isn’t the case for all companies.

‘It’s certainly important for companies to take on some of these issues and offer to fight these requests, but it does take companies having the wherewithal to recognise requests that are problematic, then having the resources and will to be able to challenge it. This also means that smaller companies will often not have the ability to fight back. So we live in an asymmetrical world where we don’t quite know everything that the government is doing with regards to requests for data, because it’s guaranteed that there are a number of these requests that never see the light of day, because the company didn’t have the ability to fight back,’ explains Bhandari.

‘If DreamHost had not stood up for its users the way that it did, then this issue quite literally would have gone under the radar. All of this subscriber information would have been turned over to the government and the timeliness with which users would be notified would have been left to the discretion of the courts. Had the government asked for a gag order to prevent DreamHost from notifying users that their data had been compromised and provided to law enforcement, then there’s a good chance that the users would never have even found out.’

That raises the question of whether a legislative response is required to enshrine rights to digital privacy and protection. While California (see boxout) has taken steps to make the process of accessing data more transparent – in particular eliminating any discretion for companies dealing with requests from law enforcement and putting the onus in the hands of the judiciary; codifying requirements and tests to justify access; and spelling out clear requirements for notifying individuals when their data has been accessed – it remains the clear exception. Other states have moved to provide updated protections in their own jurisdictions, but in the absence of an update to federal legislation, which remains outdated and stagnant, the rights of the individual when it comes to their data will continue to fall to the conscience of corporates.

There can be few legal roles in the US of as much significance and substance as White House counsel. And when Beth Nolan jettisoned film school for law school, she had no idea that her eventual career, including serving as White House counsel for President Bill Clinton – the first female to ever take on that role – would be almost the stuff films are made of.

But the path to what could be termed the ultimate general counsel role was not an obvious progression for Nolan. Eschewing private practice thanks to an interest in public policy law, she found herself as a junior attorney with the US Department of Justice (DOJ), tasked with working on government ethics.

‘I was really disappointed when I was given that assignment if I’m honest,’ she recalls. ‘The Office of Legal Counsel is known for handling the weightiest questions of executive power and executive privilege and I felt like I was going to be advising whether somebody can accept the free gift of tickets to a tennis tournament.’

But Nolan’s initial reservations turned out to be unfounded, and her burgeoning passion for ethics would go on to shape the course of her career. After four years at the DOJ, Nolan began teaching at George Washington University, where she taught constitutional law, but wrote about government ethics and lawyering.

‘That’s the specialty that was eventually of interest to President Clinton in the White House when I first started as an associate. There were scores of constitutional scholars but there weren’t that many people who really knew government ethics, and so that changed the trajectory of my career and my life,’ she reflects.

APPLIED ETHICS

Of course, at the time, as a recently tenured associate professor at George Washington, Nolan still didn’t know that. After volunteering for the Clinton Presidential Transition team, she was offered a role running the government ethics programme at the White House.

‘My original four years in the Justice Department were during the Reagan administration. There had been eight years of President Reagan, followed by four years of President Bush. So there weren’t that many Democrats who had government experience in government ethics laws, particularly some of those that had come through from the Ethics in Government Act of 1978,’ explains Nolan.

‘I was somebody who was teaching it, writing about it and had prior government experience actually doing it. So I got called to the attention of the people in the White House, went to meet with them and was offered the job.’

Putting academia to the side, Nolan was given a leave of absence to return to government. And although she’d spent the past eight years focused on government ethics – the realities of her new position would set in almost immediately.

‘I think I had a misconception that I would still have time to think about theory. I had this image of myself as being tucked away in some basement of what’s now the Eisenhower Executive Office Building working in my office on difficult issues,’ she says.

‘Instead, it’s a rodeo ride. I remember having to slow down to take a breath. When I look back at it, I remember having to tell myself – as a friend advised me to – “Stop and take a picture in your mind.” I really tried to do that.’

Nolan spent two and a half years doing conflict of interest counselling and vetting non-judicial presidential nominees and appointments, before returning to teaching – anticipating spending the rest of her career in academia. But then the former ‘vetter’ found herself on the other side of the equation.

‘In the spring of 1996, I was asked if I wanted to return to the Justice Department as the nominee for assistant attorney general for the Office of Legal Counsel. Sometime in the start of President Clinton’s second term I was nominated, and I waited a year before I got a confirmation hearing,’ she explains.

‘I had my confirmation hearing, waited a year and still hadn’t had a vote on my confirmation hearing – it was caught up in politics. I of course respected the Senate and their prerogative, so I just waited and waited.’

But in another twist of fate, as one door closed, another door opened for Nolan. In the summer of 1999, she was invited to return to the White House, this time as White House counsel.

FOLLOWING MR SMITH

The White House counsel is the chief legal adviser to the president (in their official capacity) and the White House staff. A non-statutory position, unlike the statutory standing of the attorney general role, the White House counsel is there to advise as the President wishes, meaning that each Presidential incumbent can have a counsel who fulfils different roles, depending on their relationship.

‘But in a well functioning, modern White House, I’d say there are some things that you would expect the White House counsel to always do: to serve as a liaison to the Department of Justice; to coordinate legal issues with other departments and agencies in the executive branch; to help respond to congressional inquiries and investigations; and then to provide advice and counsel to help the White House staff stay fully within legal boundaries as they execute on their policy agenda,’ explains Nolan.

Like any general counsel role, this involves handling multiple constituencies – although, in this instance, those parties are Congress (both the House of Representatives and the Senate) and other executive agencies, all of which have interests that might be incompatible in any particular moment – in a mission-driven environment.

‘The mission of the White House may change a great deal depending on who the President is, but some of the mission has been pretty consistent over time too. Ultimately, it’s to do what is seen as being in the best interests of the American people or the nation.’

And of course, not many general counsel roles involve an interview with the President of the United States!

‘That moment does stick with me, particularly because the meeting was in the main floor of the State Rooms of the White House itself, not in the West Wing,’ Nolan recalls.

‘I think if people had seen me going through the halls of the West Wing to the Oval Office to meet with the President, there might have been speculation. So instead, it was in the White House itself – which is just majestic, and you have such a sense of history.’

That sense of history is significant, not just from the perspective of the long-standing history of the institution itself, but for those who came before Nolan and laid the foundations for her to be selected and assume the role of White House counsel.

‘I came in as a successor to Chuck Ruff, certainly not as his replacement, because no one could ever have replaced him. But I’d had the opportunity to work with him, as well as John Podesta, who was the chief of staff, and with Cheryl Mills and Bruce Lindsey, who were the deputy White House counsels. And, to be frank, if Cheryl Mills hadn’t already decided that she was going to leave government, she would have gotten the White House counsel position and I wouldn’t be talking to you about this at all,’ admits Nolan.

‘Funnily enough too, being nominated as the assistant attorney general for the Office of Legal Counsel and not receiving confirmation actually helped me significantly. Had I been confirmed, then it’s likely that this opportunity would never have arisen for me, but it also meant that, as a result of that process, I had already been thoroughly vetted.’

TAKING THE REINS

Despite coming in after the impeachment proceedings against President Clinton had concluded, Nolan entered into a highly charged political atmosphere, replete with investigations alongside the day-to-day role, itself stuffed with with plenty of variety to keep her busy.

‘I remember one day where there was an urgent national security matter that we had to attend to, followed by another urgent call about the implementation of the Easter Egg Roll! Sometimes it really was just like that,’ she says.

‘What I learned was that you have to really love and embrace every kind of real issue and question that arises during your role. I was very fortunate, as I had a really great staff of lawyers who did that – it wasn’t always just down to me or my personal obligation.’

The day-to-day workload also encompassed matters of executive privilege, questions about political activity, nominations and appointments, conflicts of interest, congressional investigations, independent counsel investigations, as well as the everyday business of running a government agency. But despite the absorbing nature of the role, Nolan retained a fangirl’s appreciation of government fostered by her days as a student – and teacher – of its apparatus.

‘I had the privilege of being there at the start of the administration and then at the very end – albeit in different roles. But the machinery of government transition never failed to awe me – that at 12 noon one person is President, and at 12:01 another one is, and almost the entire White House staff changes in that minute. To someone who loves and taught constitutional law and focused on government issues in my research, there was really no better opportunity to be a witness to the way our government works than those moments of transition,’ she says.

‘[At the end of an administration] you don’t leave things. It’s not like at the Justice Department, where one administration leaves and another comes in but there’s a vast group of civil servants who continue on – there, it’s only the top layer that changes and all the documents and records and files remain. In the White House, everything goes. It’s not tossed – it goes to the National Archives and then, in many cases, to the Presidential Libraries. But it’s not in the White House – you come into empty filing cabinets and computers that have nothing on them, and a staff who largely have no idea what they’re doing.’

That means that each new administration and its staff – and subsequently its counsel – have the opportunity to shape their own role and agenda, though, in large part, the role of the White House counsel in particular will, by its very nature, be one that is as reactionary as it is prescribed.

‘I think, in the 2000s, national security matters have played a much more prominent role. I certainly had to handle my share of national security matters, but that focus on terrorism in the 21st century, I think has certainly changed the White House counsel’s job,’ says Nolan.

‘During my time in the White House, we were dealing with multiple congressional investigations. This White House is just starting to face that now, whereas in the first two years they didn’t really have to deal with that at all. That’s going to shift the role for the current White House counsel. But, in large part, I think in any general counsel position there’s certain bread and butter things you have to do. Sometimes it’s going to be more bread and butter, other times it’s a lot more cake and jam!’

I BEG YOUR…

Another potentially significant aspect of the White House counsel role – albeit one that could potentially be handled differently by every White House – is the thorny issue (even to this day) of the presidential pardon. The US Constitution allows for the President to issue pardons, or official forgiveness, to felons convicted of a federal offence. President Clinton issued a large number of pardons on his last day in office, sparking controversy.

‘We certainly handled pardons at the end of the administration in a way that was different from the way they’d been handled before, because the President really wanted to be sure that he was able to exercise his pardon power, and the rate of pardon recommendations coming out of the Justice Department was very slow. Although we tried to get people alerted that we wanted a faster process early on, things just didn’t proceed that way. We ended up in the White House reviewing some pardon applications directly, still working as closely as we could with the Justice Department,’ Nolan explains.

‘We would review their recommendations, in some cases we disagreed with their recommendations, and we’d advise the President that in some cases we agreed. We’d give the President – and also the chief of staff was involved in some of these as well – our best advice about whether or not to grant a pardon. But ultimately, it’s the President’s power – I read my copy of the Constitution and I didn’t actually see the counsel to the President being given any authority in this.’

One pardon in particular that stoked the flames of controversy, causing a federal prosecutor to be appointed to investigate its legality, was Clinton’s pardon of Marc Rich. A financier and commodities trader indicted on charges of tax evasion and trading with Iran while the country was under embargo, Rich had fled the US.

‘I did testify about that after I left the White House – the President waived any privilege with respect to that pardon. I testified at the time that I did not recommend that you grant that pardon. I didn’t see anything improper about him granting the pardon, I just, as a matter of policy, didn’t think it was a good exercise of the authority. But, as I said, I had no doubt about the question of policy on who got to make that decision,’ says Nolan.

‘Congress and the US attorney all were interested enough to investigate the exercise of the pardon power – so it wasn’t treated as a hands-off issue completely. In fact, my very first day as counsel to the President, I was delivered a subpoena from Congress to testify about pardons that the President had granted before I even became counsel. So Congress has, in other times, not been shy about investigating or reviewing the exercise of the pardon power. I never felt tested as I didn’t see anything improper. I think that the President likely has the authority – Congress can complain about it – but it will be interesting to see if there are other limitations that get explored over time.’

WHITE HOUSE TO IN-HOUSE

After leaving the White House at the change of the administration, when President Clinton handed over the proverbial keys to President Bush, Nolan chose to tread a different path. Following a career spent working within the government apparatus, she pursued a brief tenure in private practice.

‘When I left the White House, I thought to myself that I really liked being a general counsel and knew that this type of role was a strong fit for me. But I also realised that while I’d had government jobs and academic jobs, I didn’t have any experience on the private side,’ says Nolan.

‘That’s why I chose to go into private practice, so I could get that exposure to a broad range of clients and legal issues, but perhaps most importantly, I needed to get some experience on the business side.’

Nolan would join Crowell & Moring as a partner, where she spent five years working in the firm’s white-collar and securities litigation practice – a period she credits with instilling the requisite broad-based knowledge to successfully assume a commercial in-house role.

‘Gaining that experience was really valuable for me, but I felt a strong desire to be a part of a team, not just an adviser to a team, but a member of the team with ownership of the matters on which I worked,’ she explains.

‘I also wanted a job where I felt aligned with the mission, so when the opportunity to return to George Washington University as general counsel arose, I knew it was one that resonated with me. I’d been a law professor there ten years earlier and it really hit the objectives that I was looking for. I think having served as a faculty member who had been through the tenure process only enhanced my ability and service as the general counsel.’

The opportunity to come back and serve as the chief legal adviser to the university that served as the springboard for her professional life ties the career of Nolan together with a bow that is almost too perfect – perhaps the final stop in a career which has truly come full circle.

A MOMENT OF REFLECTION

Looking back, Nolan exudes a sense of pride in being the first woman to serve as White House counsel, and in having played a role in felling a professional barrier for women. Since her appointment, two more women – Harriet Miers and Kathryn Ruemmier – have served.

‘But I think the feeling I had in the moment was mostly very personal. It was a mix of pride and excitement and sober awareness of the responsibility,’ she says.

‘And then I look forward, and what I look forward to is the day where there are no more firsts, and it’s not remarkable that a woman is appointed. I think we keep moving along that path. We’re not there yet, and I had that opportunity to be a first, but I’d love it if there were no more firsts.’

Now with the benefit of experience on her side, reflecting on a life in law which has spanned the pinnacles of government, academic, private practice and in-house functions, Nolan says that there’s no secret solution for success – but did offer some sage advice for the next generation:

‘I can only say what worked for me, and the important thing to consider is that what works for one person may not work for another. What worked for me is that I followed what interested me, I tried to know myself well enough to know exactly what that is,’ she says.

‘To add to that, I think one of the really important things is to figure out how you can be yourself at your job and, if that isn’t working, you have to focus on what needs to change. I’d say sometimes that’s the job, sometimes that’s you and sometimes that’s a combination. But use disappointment as a tool to learn and grow and, perhaps most importantly, don’t forget to enjoy the ride.’