January 21, 2001: Bush Legal Team Ordered to Expand Presidential Power, Tighten Conservative Grip on Judiciary

The Bush administration’s legal team meets for the first time. The head of the group, White House counsel Alberto Gonzales, is well known as a staunchly loyal aide to President Bush, and has long ensured that Bush receives the legal opinions he wants. While Bush was governor of Texas, Gonzales routinely prepared briefings for him on death row prisoners appealing for clemency, briefings that usually left out mitigating circumstances that might have led Bush to consider waiving the death penalty. Bush was pleased at Gonzales’s approach, and the White House legal team will quickly come to understand that that same approach will be used in its legal work. One young team member is Bradford Berenson, who made his reputation working with the Bush-Cheney campaign in its fight to win the disputed 2000 presidential election. Berenson is one of eight White House associate counsels. Gonzales tells the gathered counsels and legal staff that most of their work will be in handling the everyday legal tasks generated by the White House, reviewing speeches and letters, making judgments on ethical issues, and the like. But, according to Gonzales, Bush has personally instructed him to give his team two missions as their top priority.
Appoint Conservatives to Judiciary Positions - One is to find as many conservatives as they can to fill the numerous vacancies on the federal courts, vacancies left unfilled because of Senate Republicans’ refusal to schedule hearings for Clinton nominees. Now, Gonzales tells the legal team, they are to find as many conservative “judicial restraint”-minded lawyers as there are judgeships to be filled, and to get them confirmed as quickly as possible. This is an unsurprising mission, as most in the room expect the Republicans to lose control of Congress in 2002—as, historically, most parties who control the executive branch do in midterm elections—and therefore have only a limited time in which to get nominees named, vetted, and confirmed by friendly Congressional Republicans.
Find Ways to Expand Presidential Power - Gonzales’s second mission is more puzzling. The lawyers are to constantly look for ways to expand presidential power, he tells them. Bush has told his senior counsel that under previous administrations, the power of the presidency has eroded dramatically. (Ironically, some of the losses of executive power came due to the Republican-led investigation of former President Clinton’s involvement in Whitewater and his affair with a White House intern, when Secret Service bodyguards and White House attorneys were compelled to testify about their communications with the president, and Congressional Republicans issued subpoenas and demanded information from the White House.) It is time to turn back the tide, Gonzales tells his team, and not only regain lost ground, but expand presidential power whenever the opportunity presents itself. Berenson will later recall Gonzales telling them that they are “to make sure that [Bush] left the presidency in better shape than he found it.” Berenson will later remark: “Well before 9/11, it was a central part of the administration’s overall institutional agenda to strengthen the presidency as a whole. In January 2001, the Clinton scandals and the resulting impeachment were very much in the forefront of everyone’s mind. Nobody at that point was thinking about terrorism or the national security side of the house.” Berenson does not learn until much later that much of the direction they have received has come, not from President Bush, but from Vice President Cheney and his legal staff, particularly his chief counsel, David Addington. [Savage, 2007, pp. 70-75]