No Contest : Corporate Lawyers and the Perversion of Justice in America. Cet article n’est pas disponible.No Contest : Corporate Lawyers and the Perversion of Justice in America

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Lloyd N. Cutler, founding partner of the Washington, D.C., law firm Wilmer, Cutler & Pickering, is not your typical corporate attorney. He is the consummate power lawyer, a man so systematically dedicated to expanding his influence that he could have come straight out of central casting. Born in 1917, Cutler seems to have wanted it all at least from 1962, when he opened Wilmer, Cutler, which now has 230 lawyers and is one of the nation's highest-earning law firms. To say simply that Cutler touched all the bases and made all the right tactical moves is to fail to note bases and moves that he invented. His tracks illustrate both the pathways to power and the costs to society and people that result from the maneuvering of skilled power lawyers, driven by the twin towers of ambition and acquisitiveness.

Cutler wanted to build a law firm that would represent the largest, most powerful corporations in the land. He wanted to take their agendas to the courts, the regulatory agencies, and the Congress. He needed capable attorneys from pedigree law schools and former high officials in agencies such as the Securities and Exchange Commission and the Department of Justice. He needed to have it known that his young firm had a close relationship with the venerable New York law firm Cravath, Swaine & Moore, where he had once toiled as a junior attorney. He sought a high profile at his alma mater, Yale Law School, whose alumni included leading corporate executives, attorneys, and politicians, so he led a fund-raising drive and spent a semester teaching a course at the school on "the limits of regulation." What he needed he got. But there was more.

Cutler had to be more than a lawyer-lobbyist for many companies and trade associations, more than just a corporate attorney. He sought, both personally and for the firm's growth, to appear as a statesman, as a person so influential and well connected that he could, at times, transcend individual contesting parties and represent "the situation," as the legendary Washington criminal defense attorney Edward Bennett Williams liked to describe his own role.1 The concept of the "lawyer for the situation" is associated with Louis Brandeis, who considered himself to have served in such a role in at least one matter before he became a Supreme Court justice in 1916. But this representation was attacked by critics during Brandeis's confirmation process. University of Pennsylvania law professor Geoffrey Hazard, Jr., says the "lawyer for the situation is advocate, mediator, entrepreneur, and judge, all in one. He could be said to be playing God." He adds, "Playing God is tricky business."  Cutler strove to be praised by presidents, senators, and cabinet secretaries, to serve on presidential commissions, to be published regarding his "detached" reflections on governmental reforms, and to become, as one of his clients, The Washington Post, described him in 1994, "a pillar of the Washington legal establishment."

To Cutler, the quests for power and position were of a piece. In a town where "social is political," he was and is a frequent presence in the city's salons. He befriended the reporters, columnists, editors, publishers, and politicians who count for his purposes. He took them to Baltimore Orioles baseball games, appeared at their dinner functions, and ended up representing quite a few of them as clients, including CBS, ABC, the Los Angeles Times, James Reston of The New York Times, and syndicated columnist Joseph Kraft. Officially a member of the Democratic party but aggressively bipartisan when the need arose, Cutler made sure his circle included the Democrats' mother of all political networkers, Pamela Harriman, Republican Secretaries of State Henry Kissinger and George Shultz (both clients), and Katharine Graham, publisher of The Washington Post. He had the right combination of meticulous patience and ego to connect with the powers that be and ride on their shoulders. Cutler's socializing with such influential persons doubtlessly made them less inclined to take seriously the substantive criticisms made about his work.

High-and-mighty society was but one important dimension of Cutler's presentation of self. There had to be more to him than just a wealthy attorney on the make. In 1968, sensing the mood of the street demonstrations, Cutler brought many in his firm down to the District of Columbia criminal courts during the night rioting after the slaying of Martin Luther King to provide counsel to the detainees. The resultant publicity, along with his enduring Democratic party credentials, led President Lyndon Johnson to appoint Cutler to be executive director of the National Commission on the Causes and Prevention of Violence. In 1979, President Jimmy Carter appointed Cutler to be White House counsel. In 1988, during the Reagan administration, he was chairman of the President's Quadrennial Commission on Executive, Legislative and Judicial Salaries, which was designed to take the public heat off Congress and the president on the touchy subject of pay increases. Cutler came through with a very vocal recommendation to raise the salaries of the president, cabinet members, members of Congress, and federal judges by at least 50 percent. Was there a better way to become popular with the branches of government, each of which is crucial to your law firm's success?

Once again, in 1994, Cutler let it be known that he was available for White House service. President Bill Clinton had seen his White House counsel, Bernard Nussbaum, resign in the wake of the Whitewater investigation and the suicide of Nussbaum's deputy, Vince Foster. Clinton needed the reassuring influence of an old Washington hand whose confident voice and friendly, high-level media contacts could be translated into instant political capital. He was looking for, as he put it, "a Lloyd Cutler type."4 The man himself was available, but he laid down distinct terms never witnessed in White House history. He would serve as a "special government employee" (SGE) without compensation for 130 working days, the maximum period permitted under this designation. SGE status was developed years ago to allow federal agencies to bring in scientific or other technical specialists for a short period without obligating these experts to sever all relationships with their employers. It was never remotely applicable to top, sensitive positions like White House counsel. Until, that is, power lawyer Lloyd Cutler conceived of that application.

As an SGE he could remain as a senior counsel to his law firm and continue to draw a salary (Cutler said that his earnings, reportedly $450,000 annually, would be reduced to account for the time spent at the White House), be exempt from some of the more stringent government ethics regulations and would continue working for undisclosed private clients whose needs did not conflict, in his judgment, with his White House duties. Imagine, for a moment, if an experienced attorney for the AFL-CIO retained his position there and at the same time became White House counsel. The corporate and media uproar would be loud and explicit. But few complaints were heard when Cutler, a key legal representative of major corporations, assumed a dual role. Cutler had spent a lifetime laying the groundwork that led the Washington publication Legal Times to write, "Full-time White House counsel have never been able to conduct any outside work, but no one has raised questions about Cutler's arrangement--perhaps partly because of his stature."

Having established this dubious precedent that blurred the separation between the public and the private, Cutler then grandly announced that, though he did not have to, he would voluntarily disclose information about his clients and would voluntarily comply with the Clinton administration's postemployment guidelines, such as a five-year ban on official appearances before the agency he would serve and a lifetime ban on lobbying for foreign interests. Such promises may matter very little, since it is difficult to envision an "appearance" before the White House, and other attorneys at Wilmer, Cutler can continue to lobby for foreign interests attracted to the firm by the Cutler name. Such unenforceable self-restraint nevertheless appeared to impress President Clinton, who described Cutler as a "man of seasoned judgment . . . and the highest ethical standards."

There are three vital functions that a White House counsel is expected to perform: screen nominees for sensitive executive branch positions, supervise the selection of federal judges, and keep the president out of legal difficulties. With this portfolio, on March 9, 1994, Cutler was at large in the White House while his law firm, retaining his name and senior counselship, was on the prowl for more business and more success for its clients.

Cutler's SGE coup was all the more remarkable because his past "seasoned" advice had not always worked out. He was a strong supporter of a controversial Reagan nominee to the Supreme Court, Robert Bork, whom the Senate rejected; he was an unyielding backer, until her withdrawal, of Aetna Insurance Company's general counsel, Zoe Baird, to be Clinton's attorney general, though she plainly lacked the experience and judgment for this top cabinet post; and he advised Clinton not to seek a special counsel to investigate Whitewater, again a losing position as Clinton soon acceded to congressional and public pressure and asked for such an appointment.  So Cutler was at least a three-time loser on crucial matters. But the privileges of power overcome such liabilities.

Some forms of influence in Washington are priceless. One of them is for a law firm to have its senior counsel in the cockpit position at the White House passing on scores of federal court nominees, including an appointee to the Supreme Court. Among a group of semifinalists, Stephen Breyer was Lloyd Cutler's friend and ideological match, especially in their shared oppos...