The White House Counsel and the Adams Affair
The root of the problem is at 1600, not 950, Pennsylvania Avenue.
A good deal of excellent commentary has focused on the clash between Acting Deputy Attorney General Emil Bove and Acting U.S. Attorney for the Southern District of New York Danielle Sassoon over Bove’s instruction to dismiss the prosecution of New York City Mayor Eric Adams. The bottom line is that Bove had the authority to issue his order to Sassoon (as Sassoon recognized); that the Sassoon letter and Bove’s shifting and contradictory reasons for his order to Sassoon make plain that the Bove letters were pretextual cover for carrying out what Andrew McCarthy in the National Review described as the president’s “interest to do a political favor for Mayor Adams”; and that Sassoon, and the lead trial attorney, Hagan Scotten, gave well-founded ethical reasons why they could not carry out the imprudent directive and for resigning or offering to do so.
This is obviously a terrible episode for the Justice Department, the latest step in its transformation into an arm of government that carries out the president’s political will, and the latest piece of evidence that the Trump administration, which pledged to eliminate politics from law enforcement, is using politics to guide law enforcement in an unprecedented way.
In this post, we widen the lens from the Justice Department to the White House. The problem revealed by the Adams episode implicates a major fault line running through this administration with the root of the problem not at 950 Pennsylvania Avenue, but rather at 1600 Pennsylvania Avenue.
The White House’s Personal Connections
President Trump denied that he requested the Justice Department “to drop” the prosecution against Adams. “I know nothing about it,” he said. “I did not.” But he had previously stated that he would consider pardoning Adams. And the White House’s fingerprints were all over the Justice Department-ordered dismissal.
First, communications between Adams and the Trump administration on the matter began with a letter from Adams’s attorney, Alex Spiro, to White House Counsel David Warrington to request a pardon for Adams, according to the New York Times. Spiro is Trump associate Elon Musk’s “go-to lawyer.”
Second, soon after this communication, Bove, at the Justice Department, contacted Spiro and had several communications with him, reports the Times. It is a fair inference, based on the timing, that the Bove communication somehow resulted from the White House contact by Spiro.
Third, Bove convened a meeting on January 31 at the Justice Department with Sassoon and other lawyers from the U.S. attorney’s office, Spiro, and Spiro’s colleague at Quinn Emanuel, William Burck. Burck “has become increasingly close to Mr. Trump, his aides and his political appointees,” according to the Times. He is also, at the same time, the “outside ethics adviser” and apparently an author of the highly unorthodox conflicts policy for the Trump Organization that Bob concluded was designed “very much for the financial benefit of Trump and his family.”
It was at this meeting that, according to the Times, Bove explored the ideas that would be the basis for his first communication to Sassoon: whether the prosecution was hindering Adams’s ability to help with Trump’s immigration crackdown, and whether the prosecution was politically motivated.
This chain of events makes it plausible, if not certain, that the Bove initiative with the New York prosecutors began in the White House.
The Legal Background
Which raises the question: What are the law and norms governing the White House communications with the Justice Department?
Article II of the Constitution vests “the executive Power” in the president and gives him the duty “to faithfully execute[]” the law. The Supreme Court in Trump v. United States interpreted these provisions to mean that the “Executive Branch has ‘exclusive authority and absolute discretion’ to decide which crimes to investigate and prosecute.” The Court also made clear that the president’s decisions on such matters are binding on officials in the Justice Department. The president can organize the executive branch as he wants in terms of giving advice to DOJ.
But for the last 50 years, lawyers, commentators, and the public have viewed such communications as politically dangerous in light of what President Carter’s Attorney General Griffin Bell described in 1978 as “partisan activities” by attorneys general which, combined with Watergate, gave rise to “understandable public concern that some decisions at Justice may be the products of favor, or pressure, or politics.”
As a result, every administration since President Carter’s has constrained its constitutional powers with a policy restricting contacts between the White House and the Justice Department about specific investigations or cases. Across administrations this policy varied in the identity and number of officials authorized to make contacts and other details. But they all sought, in the words of the Trump 1.0 “contacts policy,” to ensure that law enforcement was kept “free from the fact or appearance of improper political interference.”
In addition, federal law prohibits actions to influence, impede, or obstruct “the due and proper administration of law.” The president almost certainly cannot be subject to this statute after Trump v. United States. Presidential subordinates still risk prosecution for obstruction, although the standards for how the obstruction statute would apply in this context remain unknown.
The Role of White House Counsel
The role of the White House Counsel in managing White House-DOJ contacts over prosecutions, and Warrington’s role in the Adams matter, have in our view received insufficient attention. Warrington “served as general counsel for Trump's 2024 presidential campaign” and was “previously also among the highest-paid attorneys on Trump's legal team.” Like every top lawyer in the Trump administration, Warrington is a former personal counsel to Trump.
Warrington received the initial communication from the Adams legal team to the Trump administration. But his influence and his responsibility in the matter go deeper, as is reflected in his issuance of a new White House contacts policy. The policy is not yet public, but its contents have been reported by The Washington Post. Like its predecessors, the policy aims to guard against “the appearance of improper political influence” in law enforcement investigations and prosecutions. But there is at least one choice Warrington reportedly made in the design of the policy that commands close attention, especially in light of the Adams matter.
According to The Post, the new policy provides that the president, vice president, the White House counsel, and a deputy White House counsel may each initiate case-specific contacts with DOJ. But, unlike the Biden policy and the one in effect in Trump 1.0, it also stresses that these authorized contacts may involve any “specific case or investigation, whether criminal or civil” (emphasis added).
Warrington’s decision to make this point explicit is important. As noted, the president has the authority to organize the executive branch on these matters almost completely as he wishes, including having the White House weigh in on the substance of DOJ prosecutorial decisions. But no prior contacts policy had made this point, and all prior policies, and the norms that emerged in practice, sought to constrain the White House from direct involvement in non-national security investigatory and prosecutorial decisions of this sort.
It is impossible to overstate the extent to which the new contacts policy, and the emerging practice around White House control of law enforcement, is a break from the past. Every prior administration since President Ford’s, including Trump 1.0, viewed the Justice Department as uniquely in need of buffering from White House political pressures by a norm of law enforcement “independence.” Not every president or White House was always perfect in respecting this independence, but all (including in Trump 1.0) typically performed well on that score, and they all held up the norm of independence as a genuine, admirable, and important goal.
Trump 2.0 has firmly rejected that proposition. The administration appears to be guided by Trump’s claim in 2017 that he has an “absolute right to do what I want to do with the Justice Department,” a view that Trump v. United States last year affirmed in the round, especially when it comes to control over the law enforcement decisions of the Justice Department. The White House, with the undoubted involvement of the White House Counsel, is eliminating in practice all norms and other restraints that place any distance between the White House and the Justice Department.
In this regard, the new contacts policy’s supposed aim of avoiding “the appearance of improper political influence” in law enforcement is doublespeak for the reality of heavy political influence in law enforcement, just as the Justice Department’s “Weaponization Working Group,” which builds on Trump’s “Ending the Weaponization of the Federal Government” executive order, is in reality a playbook to weaponize DOJ law enforcement like never before.
The White House Counsel’s job has since the 1970s been to assist the president and White House staff in supporting the president’s policy goals by viewing legal and norm-based constraints and factors as principles to be taken seriously and managed—rather than swept to the side by the raw exertion of presidential will. Is Warrington operating in this tradition? Did he warn the president about the risks in the Adams matter: of the political and legal dangers of the appearance and reality of politicizing DOJ, of cutting a deal with Adams through a legal team that includes the same lawyer that monitors the Trump Organization’s highly porous conflicts-of-interest policy, or about the ethical concerns with the Adams arrangement properly cited by Sassoon in her letter?
We do not know, of course. But we might doubt that he did simply because this is not the type of advice that Warrington’s client—whose ideal of a lawyer is his former personal attorney-cum-fixer Roy Cohn—seems interested in from his counsel, or from any administration lawyer. This surmise is consistent with this administration’s broader disinterest, in its executive orders and other actions, in abiding by legal constraints, including ones recognized by past administration lawyers as binding on the presidency. All of the evidence thus far points in the direction that neither the Justice Department nor the White House Counsel is able or willing at the moment to interpose meaningful legal constraints on the president’s will. This is a dramatic change from past practice.
Does the Trump Administration Care?
In an essay on inauguration day, Jack predicted:
There is every reason to believe that Mr. Trump’s personally motivated first-term actions — his insistence on loyalty over other values, his preoccupation with proclaiming and securing his personal power, and his indifference to conflict-of-interest norms — will persist. These inclinations will invariably infect the credibility, and thus the success, of everything his administration does. . . .
Mr. Trump’s obsession with hard executive power and an extreme version of the unitary executive theory will be self-defeating. If his stalwart subordinates carry out his every whim, as he hopes, bad policies will result.
The Adams matter illustrates these points. The unitary executive-friendly Wall Street Journal editorial team listed the costs of the Adams matter last week. One cost is that the administration’s “tolerance of alleged corruption, isn’t a good look to persuade judges ruling on its executive actions.” Another is that the administration is scaring away top-flight conservative lawyers. A third is that the “damaging spectacle” takes a toll on broader public support for administration policies.
Thus far it is not clear that any of this matters to the second Trump administration, including the Justice Department and White House counsel. The administration does not appear to be worried about scaring away non-saluting lawyers, even conservative ones. Eliminating all but the most personally faithful lawyers is the goal. On this view, the resignations of Sassoon and Scotten, along with five attorneys at main Justice, is a win. The administration also seems unconcerned about the appearance of corruption, as reflected not just in the Adams matter, but also in the unprecedentedly permissive conflicts-of-interest policies the administration has devised. And the administration does not seem worried about the political fallout from these developments, either in Congress, where the Republican Party seems firmly under the president’s control, or in court—where the danger seems much greater.
Trump has, in short, succeeded thus far in extending his superpower of “shamelessness”—the power that comes with being indifferent to all negative consequences of willful action—throughout the senior lawyer ranks in the White House and Justice Department. This is a world in which Trump 1.0 Attorneys General Bill Barr and Jeff Sessions would be viewed as squishes; in which the legal advice of Trump 1.0 White House Counsel Don McGahn about constraints on the president’s influence on the Justice Department is thoroughly repudiated; and in which Cohn-like loyalty to the president in the face of growing adverse consequences is as an extravagant badge of honor and, perhaps more poignantly, the price of admission to West Wing influence.
Thus far the Trump administration thinks it can continue indefinitely on this course of legal and norm regime change. That seems implausible to us; but we will see.
Conclusion
Happy President’s Day!