Crisis Lawyering

Volume 7 • Issue 6 • September/October 2021
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In the Situation Room

A conversation with Jeh Johnson

David B. Wilkins, faculty director of the Center on the Legal Profession, recently sat down with Jeh Charles Johnson, currently a partner at Paul, Weiss, Rifkind, Wharton & Garrison LLP and formerly the Secretary of Homeland Security during the Obama Administration.

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: First of all, David, thank you for inviting me to this important discussion. It’s a discussion near and dear to my heart. 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.

Crisis lawyering often comes down to one’s own basic legal instincts about what is right.

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. The Obama administration didn’t like to use that phrase, but it’s the easiest three words I can come up with to describe what we were doing against Al-Qaeda and all these other terrorist groups. 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.

If you have the right team composition and the right mix of those people, out of that advice comes brilliance, hopefully.

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 both reach out and understand the right sets of skills in other disciplines that are important to making a decision—whether they’re technical things, like cybersecurity or climate change or engineering or whatever—and then once you’re organized, ensure that people just don’t fall back into their silos and their comfort zones, to try to actually get that kind of synergies you were just talking about? 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 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.

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.

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, 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.

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—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”?

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.”

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 a terrorist activity. Here’s an opportunity to take out the 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.

When you’re running an organization of 230,000 people and 22 components, 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.

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 that you have to be the one, whether for security reasons or just because the decision is so important that you have run it to ground yourself in the way that the best lawyer in the world would.

Jeh, this is a perfect segue to where I’d love to go next, which is in your amazing career, you started out, as you said, as a trial lawyer. You became a very senior government lawyer. And then you became a very senior government client. And now you’re back in private practice. One of the things that we’ve seen is that a number of law firms have started creating “crisis management practices.” Not surprisingly, you are advising a lot of senior business leaders and others around how to handle their interfacing with government. I wonder, how are you trying to prepare the lawyers who work with you to effectively help clients in crises of the kind we’re now talking about—where they are facing challenges for which there is no script, and for which, as you just told us, the ordinary practice of law not only doesn’t prepare you for, but maybe you have to overcome in a way to be able to provide the kind of advice that the clients need in this circumstance.

Many good lawyers are Harvard Law School smart, but they’re frozen by an issue. They cannot tolerate any legal risk.

Johnson: One of the things I’ve noticed about the legal market when I came back to it in January 2017 is that the boundaries between what lawyers do and what communications firms do and what public affairs firms do and crisis response firms do—all those lines are getting blurred. When you’re in crisis management mode, you’re not necessarily or exclusively practicing law. A lot of lawyering has to be problem-solving, and a client should be able to look to a lawyer to help solve a problem. This is where, in my experience, there’s a true difference between being a good lawyer and being a great lawyer.

A good lawyer can spot all of the issues in Professor David Wilkins’ law school exam. There are 18 issues here. Can you find all 18 of these and analyze them? A good lawyer can find all 18—and maybe a few more that even David Wilkins hasn’t thought of.

The great lawyer on the other hand can say, “Okay, of the 18 issues in the Wilkins problem, 15 of them are not red lights. They’re not insurmountable. We can manage that risk. The other three are bigger problems, but here’s an alternate course around to get where you want to be to help solve the problem.”

A good lawyer is someone who can help a client see around the corner and anticipate the second-, third-, and fourth-order effects to a problem and a decision.

Many good lawyers are Harvard Law School smart, but they’re frozen by an issue. They cannot tolerate any legal risk. Only through real-life experience and legal instinct—I come back to that term again—can one say, “Yes, this is an issue, but it’s a manageable issue.” The great lawyers understand that you can tolerate this risk and what’s likely to happen. They will say to the client, “You’ll get one nasty letter from Congress and then they’ll move on to something else. So this is not really an issue. We can put this one aside. This on the other hand is….”

The great lawyer is one who can discern the difference between the two and help the client get to the end zone. In the current environment, the lawyer has that role, but very often that bleeds into public affairs or communications. And when a client looks to someone for crisis response or management, very often what they really want is a public affairs strategy, and associates two or three years out of law school don’t really understand how to cobble together a public affairs strategy. In fact, lawyers for a lot of good reasons tend to be very gun-shy about public affairs. They don’t want to talk to the press. So I end up saying, “Well, of everybody in this law firm, I’m probably the most experienced when it comes to public affairs, dealing with the press, how to handle the press, and so forth.” So that’s an acquired skill that doesn’t come naturally with lawyering. But a good lawyer is someone who can help a client see around the corner and anticipate the second-, third-, and fourth-order effects to a problem and a decision.

Wilkins: Jeh, here’s the question: Is there anything you think that we at a place like Harvard Law School or Yale or Columbia or any other great law school should be doing to better prepare students or young lawyers for this new world? In some ways, you’ve already wonderfully said what we do is reward them for finding and analyzing all 18 issues instead of, “There are 18 issues, but 15 of them are not really even worth talking about, so let’s talk about the three that are.” But I wonder as someone who’s training young lawyers yourself, how do you think law schools can better prepare students?

The more law schools are providing opportunities to put students through the rough and tumble of just plain old problem-solving—on the spot problem-solving—the better we will be training people for the road ahead.

Johnson: When I come to Harvard or any other law school where I’m invited, as I said earlier, I like to hand a student a problem and say, “You’ve only got 30 minutes to decide how you’re going to handle this problem on these set of facts. You don’t have time to go look it up on Westlaw. You don’t have time to ask the professor. You don’t have time to get more information. You’ve got to decide based on these facts.” The hypotheticals that I give students are purposefully imperfect because that’s the real world.

I think law schools can better prepare students by giving them the necessary legal skills as well as the framework for how to think about a problem where you can’t research the answer. And then to teach them the competence to rely upon their own instincts for how to reach a best solution. Very often, the answer is not going to be black and white. It’s not going to be crystal clear. You have to give students the training and the confidence to be willing to rely upon their own moral, ethical, and legal compass to reach an answer. And that’s not easy for a 24-year-old, obviously. Hopefully it’s easier for a 64-year-old, but it’s not easy for a 24-year-old.

This is all the more true in a situation where you’re dealing with crises. And it’s true whether you’re a government lawyer for a counterterrorism operation or you’re a lawyer for a newspaper and a journalist is about to write something about a classified program and you’ve got the national security advisor or the president calling you saying, “You can’t publish that, you can’t possibly publish that.” You’re not going to find a case that tells you what to do, so you have to rely on your own instincts. And I think, the more opportunities to put students through the rough and tumble of just plain old problem-solving—on the spot problem-solving—the better we will be training people for the road ahead.

Wilkins: Jeh, this is just enormously helpful. I’m just going to ask you one last question and ask you to look a little bit into your crystal ball of the future, while relying on all your experience. I’ll frame it this way. We are seeing general counsel within companies being elevated to increasingly senior strategic roles. Brad Smith went from general counsel of Microsoft to chief legal officer, to president, and most recently to vice chair. Kent Walker at Google moved from GC to head of global affairs. So did Horacio Gutierrez at Spotify.

Lawyers will be called upon to advise clients on things that are not squarely legal, but involve social justice, public affairs, government relations, crisis response.

We are also seeing the “legal” function itself changing. Brad is interesting because he’s reorganized Microsoft’s legal department around three big themes: How can Microsoft participate in debates around sensible regulatory policy?; How can Microsoft produce products that will satisfy consumers and produce better technology?; and How does Microsoft produce technology that solves the world’s big problems? When talking about this to other GCs, I say, “Just think how little that has to do with the traditional categories that lawyers think about the world. It is not IP. Litigation. Corporate. It’s a whole different way of thinking about the world.” I wonder, as you look ahead to the future of lawyering, where do you see the profession going and where should it be going to be a part of these big trends—whether it’s sustainability, social justice, or all the things that we’ve just been through in the last 18 months?

Johnson: More and more public companies in particular are focused on ESG: environment, social justice, and governance. Indeed, we have established here at Paul, Weiss an ESG practice. As corporate clients take on ESG, and as boards of directors push ESG, lawyers will be called upon to advise clients on things that are not squarely legal, but involve social justice, public affairs, government relations, crisis response, which is what we’ve been talking about here. And that’s not squarely writing a legal memo with a bunch of case sites.

The lines, as I said earlier, between what lawyers do and what consultants do are blurring. Cybersecurity is a typical example where law firms are now developing cybersecurity expertise, along with ESG expertise and crisis response expertise. So when you ask me, where do I see it all going? We’re all becoming strategic advisers on how to solve problems and how to handle a crisis. I suspect that related to that is the fact that post-COVID, more and more of us are going to be working remotely, and the lines between the job during the day and your private life in the mornings and evenings have also been a blur. It’s a brave new world.

I’m sitting here in my office. Over the last year, I’ve been coming for a day or two a week. But many of my colleagues are working from home as we speak. One of the things we’ve discovered over the last 18 months is there’s almost nothing that I do that I can’t do from home. What I’m doing right now, talking to you, I could be just as easily doing from my office at home. And grinding out paperwork, I could just as easily do from home because it’s not paperwork anymore. It’s all electronic. I think all of that is part of a new world for the legal profession that is radically different from when I graduated law school 39 years ago. I think that’s regrettable in some respects, but also exciting in many others.

Wilkins: As a friend of mine said when I asked her, “How’s it going working from home?” about a year-and-a-half ago, she said, “I’m not working from home. I’m sleeping at work.” I do think there’s something deep about that comment.

Thank you, Jeh, for taking the time to talk to me about these critical issues.

 


Jeh Charles Johnson is a partner in the litigation department at Paul, Weiss. He served as secretary of homeland security (2013-2017), general counsel of the Department of Defense (2009-2012), general counsel of the Department of the Air Force (1998-2001) and as an assistant United States attorney for the Southern District of New York (1989-1991)

David B. Wilkins is the Lester Kissel Professor of Law at Harvard Law School, vice dean for Global Initiatives on the Legal Profession, and faculty director of the Center on the Legal Profession.

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Crisis Lawyering Volume 7 • Issue 6 • September/October 2021

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