David B. Wilkins, faculty director of the Center on the Legal Profession and Lester Kissel Professor of Law at Harvard Law School, recently sat down with Jeh Charles Johnson, a partner at Paul, Weiss, Rifkind, Wharton & Garrison LLP who served as the secretary of Homeland Security from 2013 to 2017 during the Obama Administration. The following interview is an excerpt from the latest issue of The Practice, a digital magazine from the Center on the Legal Profession at Harvard Law School. Both the issue and the following interview focus on the idea of “crisis lawyering.” Read the full interview here.
David Wilkins: Thank you, Jeh, for taking the time to talk to me today. As the lead article of this issue of The Practice lays out, crisis lawyering is not when a client has a crisis — a client may have a crisis, but the lawyering itself might be very straightforward and very well-defined. Take a death penalty case, for example. That is clearly a crisis for the client. But the lawyer, more often than not, has pre-established ways and procedures — and explicit training — for dealing with the cases, at least if that lawyer has experience. What we’re talking about in this issue are situations in which there is no established script and where law is inevitably intertwined with lots of other considerations. Why we are so honored to talk with you is because, roughly speaking, you have built a career around this kind of lawyering, particularly in the government context. So, I wanted to start by asking: Does that kind of definition or understanding of crisis lawyering make sense to you? And if so, how in the world did you think about moving from being a lawyer at Paul, Weiss doing litigation to doing that kind of work in government?
Jeh Johnson: I have lived crisis lawyering now in a number of situations. So, just to frame my experience, I spent four years as the general counsel of the Department of Defense (DoD) during President Obama’s first term. And then I spent a little more than three years as the secretary of Homeland Security, where I was more the client than the lawyer — but with a lawyer’s way of thinking about problems and crises. There is nothing really in private law practice, even at a terrific firm like Paul, Weiss, that can adequately prepare you for certain moments in national security.
Yes, we bring to the job of being the senior lawyer for the Department of Defense our basic legal tools and skills and our learning from the law books that we got in law school — writing skills, communication skills, the ability to think logically. But there are certain things for which one can never be adequately prepared in private law practice or from a law school education. When I was general counsel of the Department of Defense, we were fighting in effect, three wars — in Afghanistan, Iraq, and the so-called War on Terror. My deputy at DoD warned me, “Listen, when you get in this job, you’re going to have to make some very, very difficult decisions at very short notice.” I said, “Okay.” But, I didn’t fully internalize it until it actually happened.
About three weeks into the job — it was a Friday night; stuff always happens in the Pentagon on Fridays for some reason — these two guys from the basement of the building who worked in special ops came into my office in a big hurry. They have what is referred to as the “baseball card.” It’s a PowerPoint slide and it has a picture of a terrorist. It has the terrorist’s known affiliations, his known activities, his terrorist plotting, his last known location, and the munitions that we intend to use to take him out through targeted lethal force, the collateral damage assessment, and so forth. It’s called the “baseball card.” They brought it to me and explained what the situation was. I listened and said, “Okay, that’s very interesting.” My deputy then chimed in, explaining: “They are waiting for you to tell them it’s okay to kill him. And we have 35 minutes before it’s light in that part of the world.” No legal education can adequately prepare one as a lawyer for that moment. It is literally a life and death situation because the terrorist that we’re targeting may well be an eminent threat to American personnel.
Crisis lawyering often comes down to one’s own basic legal instincts about what is right.
The overarching point is that when it comes to what crisis lawyering is, there’s often a very short fuse on a decision and you’re not going to have time to go to Westlaw and do a lot of legal research as you’re trained to do. I’m not going to have time to go to five associates and ask them to spend a week to write a memo. It often comes down to one’s own basic legal instincts about what is right. And you have to be mature enough to trust your own legal instincts in a crisis to say, “I think this is okay” or “I think this is a problem.”
I would also say that it is key to have in close reach — shouting distance — three or four people who you trust to advise you — as the lawyer — in a crisis. You have someone who is steeped in the particular area of the law. You have to have someone who’s a little more aggressive or a bit of a risk taker. You have to have someone who’s risk adverse. And then you have to have somebody who is thinking about the political and public affairs aspect of whatever decision you’ve been called upon to make. If you have the right composition and the right mix of those people, out of that advice comes brilliance, hopefully. But you have to have the right set of people — and not people who all think the same because that’s a waste of time. You need four people who will come at a problem from different perspectives. In my experience, whether it’s a counterterrorism operation, whether it’s a hurricane, whether it’s a cyberattack, whether it’s a terrorist attack on the homeland, or any range of other things I dealt with while I was in public life, you need that team.
Wilkins: Just to build on that, another theme in this issue of The Practice is the importance of the team, and how that team often has to be far broader than just lawyers. One of the challenges I’d like you to reflect on is how, as a lawyer, do you understand the right sets of skills in other disciplines that are important to making a decision? How do you prevent the team from operating under their professional silos: “I’m the lawyer and I’m arguing the law side.” “I’m the engineer, and I’m arguing the engineering side.” Or, “I’m the political person, and I’m arguing the political side.”
Johnson: I’m going to give you two answers, the first from the perspective of a general counsel and the second from the perspective of a secretary of Homeland Security and the client.
First, when I was at DoD as the general counsel, you have a lot of civilian career lawyers who are highly specialized in their narrow field of expertise. I had a lawyer who specialized in the law around missile launches. I had a lawyer who specialized in the law of space. I had a lawyer who was a maritime law expert. I had a lawyer who knew the Vacancies Act backward and forward. They’re all very, very good at what they do. And very often, when you go to such a lawyer, they know everything there is to know about their subject.
You ask them a question, and their answer was frequently, “Well, we’ve always done it that way,” but if you challenge them with a problem that is slightly five degrees to the right or left of their expertise, you could run into some difficulties. So the way I tried to tackle the most difficult legal problems for the Department of Defense was to rely both on the career lawyers who were steeped in that particular area as well as by bringing in younger lawyers as special assistants who were just hungry to learn national security law and were incredibly smart. I found each group would challenge and educate the other. When I got into DoD, I called Jack Goldsmith and I said, “Jack, who’s the smartest recent law student you had that really understands national security law that I can hire?” And he gave me one name: Chris Fonzone ’07, who had been one of his students. He clerked for Stephen Breyer, and he was just recently confirmed as general counsel to the Office of the Director of National Intelligence. So, we brought in Chris and a collection of four or five others. One was a Stanford Law grad, Harvard undergrad. Another was a Yale Law grad with a Harvard PhD. Incredibly bright kids who were prepared to tackle the most difficult legal issues informed by the career expertise. As the general counsel of DoD, that’s how I wanted my advice to come to me from my team.
At the Department of Homeland Security, I found that it was important to have your general counsel — but also public affairs, congressional affairs, and substantive experts — to understand the likely impact of a big decision that you’re going to have to make.
Second, when I became secretary of the Department of Homeland Security, I found that lawyers think we’re the most important cog in the wheel. We think that our advice is the most important advice that a client can receive. At DHS, I found that it was important to have your general counsel — but also your public affairs person, your congressional affairs person, your substantive expert, and others — to understand the likely impact of a big decision that you’re going to have to make.
So, if there was an immigration issue, you rely on people from ICE, from CBP, from USCIS, from public affairs, congressional affairs, from your chief of staff, and your lawyer. Frankly I found that once I became the client — the secretary of Homeland Security — that lawyering was just one of several considerations in the mix. It helped that I was a lawyer myself. But the most dangerous sentence that comes from a service secretary or a cabinet secretary who’s got a law degree is, “I know I’m not supposed to practice law, but…” And so, once I became a client, I found that congressional affairs, public affairs, and your legal adviser were all critically important.
Wilkins: I’m teaching students — many of whom are only going to practice law for parts of their careers and some never in their careers — what difference does it make that they are lawyers? How do they think about carrying the values of being a lawyer into new, non-legal roles? Notwithstanding your last point, when you became the client — when you became the secretary of Homeland Security — what, if any, relevance was there that you were a lawyer, not just technically, but “attitudinally”?
Johnson: To be honest, a legal background can sometimes be a limitation on the ability to lead and to make decisions. We lawyers want all the facts before we come to a conclusion. In your class, you’ve seen me hand out hypotheticals to your students: Here’s an opportunity to take out a terrorist. We need a legal decision.
The lawyer has to say red light or green light, and as you know, law students will often say, “Well, I need to know more.” Or, “What about this?” “Shouldn’t we consider that?” “I need to know these five additional facts.” “I have more questions.” And then I say, “Nope, this is it. This is all you have. And you have to make a decision — now.” So, lawyering skills sometimes can be a limitation on the ability to lead, which is why I go back to what I said previously: In certain situations, you have nothing but your own good instincts to guide you toward a decision.
When I’m sitting in the Situation Room with the president during a meeting of the National Security Council, hopefully I’ve got the full scope of the facts so I understand the issue before I walk in. But sometimes you don’t have those things. Sometimes you’ve got to decide or provide a reaction right there in the moment, and you don’t have your advisers with you. The president is trusting the members of his cabinet to bring their own good judgment. Therefore, you have to trust your own instincts about certain things. Legal training is not training to lead: It’s training to advise and to advocate and to represent. But it’s not necessarily training to lead.
As part of this, there have also been times when I was working on something that was super-classified, like for example, the bin Laden operation, where I’m the senior lawyer in a department of 12,000 lawyers. I have to do my own legal research and try to figure out how to access Westlaw or LexisNexis or whatever, to figure out the circumstances under international law where you can enter someone else’s country without consent. So occasionally the lawyer at the top has to go into the toolbox himself to find the right instrument.
I also used to be a trial lawyer and in the course of my career as a trial lawyer I learned echocardiography, I learned the advertising practices of a tobacco company, I learned how Wall Street analysts rate a stock, buy or hold or sell. I’ve learned all that backward and forward. We lawyers have to learn the subject as well as the client. When you’re running an organization of 230,000 people and 22 components, you don’t have time to do that and you have to be prepared to rely upon others one rung down, two rungs down, three rungs down to know the subject and to give you the big picture and communicate it effectively. If you’ve been trained as a lawyer and you’ve practiced law for a long time, that doesn’t come naturally. And many lawyers are very uncomfortable doing that, but it’s indispensable to being a good leader in my judgment.
Wilkins: Which is, I think, incredibly valuable, and thank you for raising that because it shows not only as a senior lawyer that you have to acquire a lot of new skills, but also those core skills of lawyering are still there when it’s important enough.