Cover Story

The Lawyers Who May Run America


It’s the guessing game that has Washington, D.C., buzzing: Which lawyers will be appointed to senior government positions by the next president?

Should John McCain win the race for the White House, the following attorneys are favorites to join his administration, according to dozens of interviews with people who know the candidate well. We’ve matched each to the job for which they are most often mentioned.

In the event of a McCain victory, consider it the morning line on the capital’s new establishment.

For a look at the lawyers who may join an Obama administration, click here.

ATTORNEY GENERAL

A.B. Culvahouse Jr.

Currently: Chair, O’Melveny & Myers
Law school: New York University (1973)

A.B. Culvahouse Jr.
Courtesy O’Melveny
& Myers LLP

Culvahouse moves behind the scenes on the inside of insiders’ Washington. He was President Reagan’s White House counsel from 1987 to 1989 and advised the president during the Iran-Contra investigation. He was Robert Bork’s handler in his unsuccessful bid for confirmation to the U.S. Supreme Court. He headed the search for McCain’s running mate, and he was agile enough to handle last-minute vetting of Sarah Palin and win a hotly contested third four-year term as chair of O’Melveny & Myers. Though he cut his political teeth as legislative assistant to Repub­lican icon Howard Baker, the McCain campaign marks Culvahouse’s first foray into a presidential campaign. Democrats in Washington respect him and he has private access to a lot of ears on Capitol Hill.


George J. Terwilliger III

Currently: Partner, White & Case
Law school: Antioch (1978)

McCain has said little about how his Justice Department would look, but he did say he wanted to go after online predators and child pornography, as well as human traffickers. The sense is that he wants more prosecution of individuals and, without saying it directly, perhaps less of organizations and corporations. And Terwilliger, on the short list for attorney general, could carry out that mission. He was No. 2 at the DOJ in the early 1990s and was briefly acting attorney general. He headed the BCCI international banking fraud investigation as well as a task force that investigated the savings and loan industry.

Now head of the white-collar practice group at White & Case, Terwilliger was a leading opponent of Justice Department policies designed to squeeze otherwise privileged information from corporations under investigation. He has a global clientele involved in financial fraud and corruption cases, and he is frequently consulted by Washington officials who find themselves facing investigation. Former Attorney General Alberto Gonzales retained Terwilliger last fall to represent him in a probe of political influence at the DOJ.


Larry Thompson

Currently: General Counsel, PepsiCo
Law school: Michigan (1974)

For most of his career, Thompson has floated easily between public service and corporate clientele. As former deputy attorney general, he’s best known as the author of the 2003 Thomp­son memorandum, which authorized prosecutors to minimize criminal charges for corporations willing to waive attorney-client privilege and other controversial concessions in white-collar crime inves­tigations. Thompson was considered for a Supreme Court nomination during the second Bush administration, but now some say the former prosecutor may be tapped to lead the McCain Justice Department. Thompson left a partner position at Atlanta’s King & Spalding in 1986 to become U.S. attorney for the Northern District of Georgia. He returned to King & Spalding, only to leave again for the DOJ, where he supervised the prosecution of Enron officials.


WHITE HOUSE COUNSEL

Ted Olson

Currently: Partner, Gibson, Dunn & Crutcher
Law school: California at Berkeley (1965)

At 68, some might think Olson would be tired of Washington service. He’s been U.S. solicitor general, argued dozens of cases before the Supreme Court and lost a wife in the most public way possible—in the terrorist attacks on the Pentagon in 2001.

But when Republicans feared the march of conservative jurists might end with a maverick McCain in the White House, Olson came to the rescue at McCain’s request. The Federalist Society stalwart was named co-chair of McCain’s justice advisory committee, a clear signal that McCain’s judicial picks would stick with the program. As a result, Olson will be a serious candidate for White House counsel, at least for the first two years. He was assistant attorney general heading the Office of Legal Counsel in the Reagan administration. McCain would be tempted to make Olson his choice for attorney general, but the memory of Olson’s successful argument in Bush v. Gore still gnaws at Democrats. With Olson at the White House, McCain would have one less fight.


Trevor Potter

Currently: Partner, Caplin & Drysdale
Law school: Virginia (1982)

Trevor Potter
Courtesy Caplin &
Drysdale

Potter, a former chair of the Federal Election Commission, is hands-down one of the top lawyers in the country on the delicate intersection of politics, law and money. He has both a long history with McCain and the resumé necessary to handle the sometimes indelicate intersection of politics, law and policy. He was the founding president and general counsel of the Campaign Legal Center, a bipartisan nonprofit devoted to the defense of the McCain-Feingold campaign finance reforms. Potter was general counsel to the McCain campaign in 2000 and is currently general counsel for his 2008 campaign. He’s adept at matching the ideal and the practical. Just weeks after McCain dropped out of the 2004 presidential race, throwing his support to President Bush, Potter was dispatched to Florida to help Ralph Nader in his fight to get on that state’s ballot.

Potter was general counsel to the Reform Institute, which he helped McCain create in 2001 and which McCain chaired. The group is nonpartisan, though it has provided jobs and high-paid consultancies to some of McCain’s closest allies.


SOLICITOR GENERAL

Maureen Mahoney

Currently: Partner, Latham & Watkins
Law school: Chicago (1978)

Legal historian David Garrow has called Mahoney “the female John Roberts.” She runs the appellate litigation group in the Latham & Watkins D.C. office—considered by many to be one of the best in the nation. When she first argued before the Supreme Court in 1988, some of the justices passed each other notes on the bench praising the newcomer’s skills. She clerked at the Supreme Court for William H. Rehnquist when he was an associate justice and served as deputy solicitor general during the George H.W. Bush administration. She was nominated to a federal trial court in Virginia, but her name was withdrawn after Bush lost his bid for re-election. In 2005, she was on nearly every short list for a high court slot after the Harriet Miers nomination went down in flames. And Ted Olson, who McCain has said will co-head a judicial nominations advisory panel if he’s elected, is known to think highly of her.

About the only conservative strike against her is that, in 2004, she successfully argued on behalf of upholding affirmative action policies at the University of Michigan—and let it be known that she agreed with the result.


Viet Dinh

Currently: Professor, Georgetown Law Center
Law school: Harvard (1993)

McCain is said to be impressed with Dinh’s life story: He’s a Vietnamese refugee who graduated magna cum laude from Harvard University just 12 years after his escape. Although he is on many lists for the high court, a stint as solicitor general might be his warm-up for a second or third Supreme Court opening. The 40-year-old Georgetown Law Center professor moves easily in the nation’s capital, with a ready charm and keen wit that rivals that of Justice Antonin Scalia. And, like Scalia, he’s a bit of an individualist.

He clerked for Justice Sandra Day O’Connor and was named assistant attorney general in the Bush administration. As head of the Office of Legal Policy, Dinh helped produce the USA Patriot Act. But upon leaving the Justice Department in 2003, he criticized the Bush administration’s detention of Jose Padilla, an American citizen arrested in the U.S. as an “enemy combatant” and held, for a time, by the U.S. military with no access to a lawyer and no formal charges brought against him.


SECRETARY OF STATE

Joe Lieberman

Currently: U.S. senator, Connecticut
Law school: Yale (1967)

If former Democrat Lieberman started a club with McCain, they might call it Mavericks R Us. And Lieberman, now an independent, may need a club to which he can belong. A day after he called out Obama at the Republican National Convention, Democrats said Lieberman would no longer be welcome in the party’s weekly Senate caucus lunches.

Look for Lieberman to be McCain’s secretary of state. They are simpatico in their tough take on foreign affairs. After the 9/11 attacks, Lieberman was quick to back the invasions of Afghanistan and Iraq. And like McCain, Lieberman has urged the exclusion of Russia from the gathering of the leading industrialized countries known as the Group of Eight until “it is capable of being a law-abiding member of the international community.” Joining the McCain administration probably would be a final political iteration for the man who was the Democratic VP choice in 2000—Lieberman will be a maverick to another herd.


SECRETARY OF HOMELAND SECURITY

Frank Keating

Currently: CEO, American Council of Life Insurers
Law school: Oklahoma (1969)

Keating’s qualifications to run Homeland Security go well beyond the fact that he was a two-term governor of Oklahoma. He became an FBI agent right out of law school and was later tapped by President Reagan to be U.S. attorney for the Northern District of Oklahoma. He became assistant Treasury secretary, supervising what were then the department’s law enforcement agencies: U.S. Customs, Secret Service and the Bureau of Alcohol, Tobacco and Firearms. He’s been No. 3 at the Justice Department as associate attorney general and No. 2 at Housing and Urban Development for the first President Bush.

And he knows firsthand the threat of terrorism beyond the borders of Washington and New York. In April 1995, just three months after he was sworn in as governor, Timothy McVeigh destroyed the Alfred P. Murrah Federal Building in Oklahoma City with a fertilizer truck bomb.


ASSISTANT ATTORNEY GENERAL, OFFICE OF LEGAL POLICY, DOJ

Reginald Brown

Currently: Partner, WilmerHale
Law school: Harvard (1996)

Reginald Brown
Courtesy WilmerHale

Brown’s tenure as associate White House counsel in the Bush administration earned him a reputation for crisis management. At WilmerHale, Brown has burnished that reputation, representing clients who face investigation by Congress or prosecutors, or both. Those clients have included a foreign official under investigation in the U.N. “food for oil” scandal, executives accused of compensation abuses, a defense contractor involved in a corruption investigation and a congressman with an ethics problem.

Brown knows the ins and outs of the regulatory structure. He’s a member of the Federalist Society and he served on the Lawyers for McCain national steering committee.


SECRETARY OF DEFENSE

Lindsey Graham

Currently: U.S. senator, South Carolina
Law school: South Carolina (1981)

Graham became somewhat famous in 1998 for helping make President Clinton somewhat infamous—as a leader in Clinton’s impeachment in the House and as one of the managers of his unsuccessful trial before the Senate. As a colonel in the Air Force Reserve and a member of the Senate Armed Services Committee, Graham seems a strong possibility to head the Pentagon. Graham is one of McCain’s closest advisers—he has been nicknamed McCain’s “mini-me”—and the 2008 campaign’s co-chair.

Graham, 53, spent six years on active duty in the Air Force, mostly as a JAG prosecutor. As a reservist last year, he became the only member of the Senate to serve on active duty in Iraq. Graham was a successful plaintiffs lawyer in South Carolina—he used his portion of a med-mal award to finance a successful run for the state legislature in 1992. Ten years later, after four terms in Congress, he was elected to the Senate, filling the post left open by the retirement of 100-year-old Strom Thurmond.


DIRECTOR OF THE FBI

Asa Hutchinson

Currently: Partner, Venable
Law school: Arkansas (1975)

Hutchinson, 57, was a freshman congressman from Arkansas when he bucked the strong-arm leadership of Newt Gingrich and pushed for campaign finance reform. Not long after, in 1999, he went further and walked over to the Senate lawn to stand before cameras with Sens. John McCain and Russell Feingold, supporting their campaign reform legislation. It was a bold move to help gain a few more votes needed in the Senate—among them Tim Hutchin­son, Asa’s older brother. McCain appreciated the effort, and he hasn’t forgotten it. Hutchinson left Congress in 2001 to head the Drug Enforcement Administration and two years later was named head of Homeland Security’s biggest division, the Border and Transpor­tation Security directorate. He left in 2005 to join Venable and made an unsuccessful run for governor of Arkansas.


TREASURY SECRETARY

Robert Portman

Currently: Of counsel, Squire Sanders
Law school: Michigan (1984)

Portman’s squeaky-clean reputation is such that when he announced in June 2007 that he was leaving Washington for Ohio to spend more time with his family, it was accepted as his actual reason. He’s said to be contemplating a run for governor there, so it would take quite a prize to bring Portman back to the capital—or a dire need, in an administration facing a global financial crisis, for an official with his diverse background and formidable skills. Portman was a congressman for 12 years before being tapped as U.S. trade representative. He barely had time to get his diplomatic passport stamped before being asked to take over a controversy-plagued Office of Management and Budget. He served in the first Bush White House as director of legislative affairs. While in Congress he was respected on both sides of the aisle. He’s not an economist, but he has lots of experience in dealing with changes in the global marketplace.


CHAIRMAN OF THE SEC

Andrew Cuomo

Currently: Attorney general, New York
Law school: Albany Law School (1982)

Cuomo’s ears surely perked up when McCain mentioned the New York Democrat and attorney general as someone he might nominate to head the Securities and Exchange Commission. Cuomo has been eyeing another run for governor in 2010, which would be a stepping stone back to the national stage.

But he might get to run McCain’s SEC. McCain and others couldn’t help but notice, as financial markets teetered in September, there was Cuomo calling short-sellers “looters after a hurricane” and squeezing big settlements from banking and investment firms over misleading valuations of certain debts.

The 50-year-old Cuomo got attention before that by knocking down Eliot Spitzer’s political plans—even before the call-girl scandal. Then-Gov. Spitzer’s administration came out ugly in a probe by Cuomo into improper political use of state police surveillance.

President Clinton appointed Cuomo as assistant secretary for HUD in 1993 and he was promoted to HUD secretary four years later. If nominated to head the SEC, Cuomo might get some tough questioning about his role at HUD in working with Fannie Mae and Freddie Mac on loosened lending standards.


SECRETARY OF AGRICULTURE

John Engler

Currently: President, National Association of Manufacturers
Law school: Thomas M. Cooley (1981)

Engler was 22 years old when he was elected to the Michigan House of Representatives, and 11 years later he was a member of the state Senate when he graduated from the Thomas M. Cooley Law School. Engler went on to become a darling of Republicans nationwide as governor of Michigan, cutting both taxes and welfare. His is the kind of life story that appeals to McCain.

Engler is a likely choice for secretary of commerce. McCain has forgiven a lot of transgressions by Bush supporters in the 2000 presidential elections and surely does so with Engler, whose greatest political failure was not delivering Michigan to Bush that year.

Engler has been head of the National Association of Man­ufacturers since 2004. The job requires the skills of a governor, dealing with competing interests among what should be kindred constituencies. NAM’s membership includes a lot of small, regional concerns as well as the biggest corporations.


SECRETARY OF COMMERCE

Mitt Romney

Currently: Investor
Law school: Harvard (1975)

Sometimes the surest way to know who wants a job in Washington is to look at the ones who say they wouldn’t take it. And more.

Romney went to work for McCain after the primar­ies, and he later showed no disappointment when not picked for VP. Then he offered dismissive quips when queried about the Cabinet: Knowing his father’s frustration as HUD secretary under President Nixon, he said he has no interest in being “soldiered by 27-year-olds in the White House.” Romney sounds like a secretary of commerce in waiting. Having built his own wealth to an estimated quarter to half a billion dollars, he seems to understand commerce well enough. It would keep his 61-year-old hand in politics on the national playing field.

Romney came in as head of the 2002 Winter Olympics organizing committee and turned around a financially and politically hobbled operation. His dual J.D./M.B.A. degrees from the Harvard Law and Harvard Business schools, with high honors, apparently work well together.


U.S. SUPREME COURT

Lillian BeVier

Currently: Professor, University of Virginia Law School
Law school: Stanford (1965)

Lillian BeVier
Courtesy University
of Virginia Law School

BeVier teaches constitutional law at the University of Virginia, and she’s vice chair of the Legal Services Corp. She was mentioned as a replacement for Justice O’Connor, but the nomination ultimately went to John G. Roberts Jr. In 1991, BeVier was nominated to the 4th U.S. Circuit Court of Appeals by the first President Bush, but the nomina­tion was shelved after his ’92 election defeat. BeVier has taught at Virginia since 1973 and was a member of the Rudolph Giuliani campaign’s justice advisory committee.


Miguel Estrada

Currently: Partner, Gibson, Dunn & Crutcher
Law school: Harvard (1986)

In 2001, Estrada was the first federal appellate court nominee to get filibustered by Democratic senators worried about tipping the balance of power on the Supreme Court. Estrada had not been named to the high court—just to the powerful D.C. Circuit. But so sure were Democrats that Estrada was being primed to be the first Hispanic justice, they decided to defeat his nomination before it was too late.

At Harvard, the Honduran-born Estrada was editor of the law review. He clerked for Justice Anthony M. Kennedy and joined the Clinton administration in 1992 as an assistant to the solicitor general. He’s argued 18 cases before the Supreme Court and is co-chair of Gibson Dunn & Crutcher’s appellate and constitutional law prac­tice group.


J. Michael Luttig

Currently: General counsel, Boeing
Law school: Virginia (1981)

Luttig resigned from the 4th Circuit in 2006 to become Boeing’s general counsel. Having been on the court since 1991, he cited the need for more income for his family’s education. But it’s widely believed that he was also disappointed that he was not named to one of the seats that went to Chief Justice Roberts and Justice Samuel A. Alito Jr.

When he was confirmed to the 4th Circuit at age 37, Luttig became the nation’s youngest federal appeals judge. He clerked for Scalia, then a D.C. Circuit appeals judge, and also for Chief Justice Warren Burger. While at the Justice Department, he helped steer Justices Clarence Thomas and David H. Souter through the nomination process. He’s a sure vote to overturn Roe v. Wade, and if McCain wants him for the Supreme Court, look for Luttig to consider student loans and go for it.


Michael W. McConnell

Currently: Judge, 10th U.S. Circuit Court of Appeals
Law school: Chicago (1979)

If McCain is looking for a high court nominee who opposes abortion and still has a chance of gaining Democratic support, McConnell could be his choice. He clerked for Justice William Brennan, served as assistant solicitor general and then as general counsel of the Office of Management and Budget. He teaches at the University of Utah College of Law. McConnell has expressed opposition to abortion, but some say he has enough bipartisan support that his private moral views might not present a barrier to confirmation. Perhaps this is because he’s been outspoken in his criticism of the impeachment of Bill Clinton, as well as the high court’s controversial 2000 election decision in Bush v. Gore.


For a look at the lawyers who may join an Obama administration, click here.


Correction

In “The Lawyers Who May Run America,” Novem­ber, the photo pub­lished on page 10 of the ABA Journal print edition with the profile of Judge Michael W. McConnell was that of John Michael McConnell, the current director of national intelligence.

In addition, should Robert M. Sussman be selected to head the Envir­on­mental Pro­tec­tion Agency, he will become the EPA administrator, not secretary.

The Journal regrets the errors.

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