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Kelley part of attorney removals

Maddie Hanna | Wednesday, March 28, 2007

As controversy continues to brew around Attorney General Alberto Gonzales’ handling of the recent U.S. attorney firings, a Notre Dame law professor has quietly found his way to the center of the investigation.

“Late in the afternoon on Dec. 4, a deputy to Harriet E. Miers, then the White House counsel and one of President Bush’s most trusted aides, sent a two-line e-mail message to a top Justice Department aide,” begins a March 14 article in The New York Times. “‘We’re a go,’ it said, approving a long-brewing plan to remove seven federal prosecutors considered weak or not team players.”

That deputy is William K. Kelley, who left the Law School in the spring of 2005 to take a presidential appointment. Since then, he has served as White House deputy counsel in what Notre Dame law professor Richard Garnett called “a position of great responsibility.”

“We’re good friends,” Garnett, who is at the University of Chicago this semester as a visiting professor, said Tuesday. “He has not, as you can imagine, said a word to me about this stuff.”

This “stuff” is the escalating Congressional investigation of Gonzales, who is accused of covering up his role in last year’s dismissal of eight U.S. attorneys. Criminal charges haven’t come into play, since “the U.S. attorneys are appointed by the president. They serve at the will of the president,” Notre Dame law professor Jay Tidmarsh said Tuesday.

That means “it’s not a mystery” that when a president comes into power, he replaces the attorneys as he chooses, Tidmarsh said – it’s legal, and expected. But while political considerations may play into the initial appointments, the recent firings have raised questions.

“There’s potential taint involved in someone replaced for political, rather than performance considerations,” said Tidmarsh, who explained that Gonzales’ denial of involvement in the situation has generated concern. “This is always true: It’s the cover-up, not the actions, that get someone in trouble.”

Last week, a House Judiciary subcommittee authorized subpoenas for several Bush aides, including White House political adviser Karl Rove, Miers and Kelley. Tidmarsh said his understanding was that the subpoena was issued, but not yet served. Bush has denied Congressional requests for formal testimony from the aides.

Garnett said he could not analyze the situation or Kelley’s chances of being called to testify, because he did not want anyone to mistakenly believe Kelley had spoken to him about the investigation.

Kelley’s executive assistant in the White House counsel’s office did not return Observer phone calls Tuesday.

While Kelley’s role in the controversy is still hazy – “Years as a lawyer lead me to be very skeptical of one e-mail,” Tidmarsh said – that may be due partly to the nature of his job.

“The counsel’s office in the White House has a really broad portfolio,” Garnett said. “They’re not the personal lawyers for people in the White House.”

Instead, the counsel advises the president on a wide range of legal issues. The deputy counsel’s job entails “advising the Counsel and the President on decisions to sign or veto legislation, ethical and conflicts questions, executive appointments and judicial selection, Presidential pardons, and lawsuits against the President in his official capacity,” according to the fall 2005 issue of Notre Dame Lawyer magazine.

“I’m sure there are a thousand things that pass across Professor Kelley’s desk on a daily basis,” Tidmarsh said.

But despite the position’s heavy workload and the stress of a Congressional investigation, both Tidmarsh and Garnett said there were clear reasons – besides prestige – that a law professor would take this job.

“It is certainly an important position in government – I think many lawyers feel a call to public service,” Tidmarsh said. “For Professor Kelley, I think that certainly is true.”

Garnett said Kelley was “honored and pleased” to take the job, given the importance of the appointment.

Kelley, a tenured member of the Notre Dame faculty who has been at the University since 1995, clerked from 1987 to 1988 for former federal judge Ken Starr on the U.S. Court of Appeals for the District of Columbia. The next year, he clerked for Chief Justice Warren E. Burger and Associate Justice Antonin Scalia.

From 1991 to 1994, he served as assistant to the solicitor general at the Department of Justice in Washington, D.C.

Kelley’s appointment to deputy counsel “was kind of natural,” Garnett said. “It probably wasn’t all that surprising. … He would have been on everybody’s list.”

Kelley is the second Notre Dame law professor to serve in President George W. Bush’s administration. Professor Jimmy Gurule worked as the Treasury Department’s undersecretary for enforcement from 2001 to 2003.

Those kind of appointments, said Associate Vice President for News and Information Don Wycliff, make professors “more valuable faculty members.” And that’s why the University was willing to grant Kelley a leave.

“In cases where a faculty member is invited to do something special that adds to his or her credentials … essentially what they can do is go to their dean and request a leave of absence, an unpaid leave, and negotiate the terms,” Wycliff said Tuesday.

When Kelley received the appointment, “his first concern was fulfilling his obligations to the class he was then teaching,” Dean of the Law School Patricia O’Hara said in an e-mail Tuesday.

“I encouraged him to accept the appointment, and I recommended approval of a leave of absence from the University,” O’Hara said. “With my permission he made arrangements to complete the course by teaching the class sessions on an accelerated calendar.”

O’Hara said the Law School would benefit from Kelley’s return.

“Professor Kelley is an outstanding teacher and scholar in the areas of constitutional law, administrative law and federal courts, as well as a valued colleague,” she said. “I am hopeful that he will choose to return to the Law School for the start of the 2007-2008 academic year.”