WASHINGTON — Last summer, after deputy White House counsel Vincent Foster committed suicide, Bernard Nussbaum paced frenetically, intently, in the drive between the White House and the Executive Office Building.
Inside, reporters had just finished grilling White House officials about what Mr. Nussbaum had taken from Mr. Foster's office and who was allowed to comb through it before the detectives investigating Foster's death.
When Nussbaum resigned Saturday from his post as the top White House lawyer, he accused his critics of not understanding the role. But to many closely familiar with the post of White House counsel, Nussbaum's judgments were simply baffling.
He was present at many of the activities in the past year that have raised allegations of ethical lapses or misjudgments against the White House. They began with pursuing the nomination of Zoe Baird as attorney general despite her legal corner-cutting with household help and ended with a series of meetings between White House aides and Treasury officials investigating the thrift association at the heart of the Whitewater affair.
These meetings, with their appearance of possible collusion between regulators and the White House on a case that could involve the Clintons, prompted Whitewater independent counsel Robert Fiske to serve six subpoenas Friday night to White House officials.
When Nussbaum took over the counsel's office last year, he inherited a manual of rules drawn up by the previous counsel. One of them, prominently displayed and passed along, was that no one in the office should ever discuss ongoing investigations with independent agencies.
White House aides argue that their meetings with Resolution Trust Corporation officials investigating Whitewater and with Treasury officials were to help them answer inquiries from the press and Congress. This is entirely plausible, according to knowledgeable outsiders, yet the meetings create the suspicion of collusion.
``It's not illegal, but given that there was no possibility for presidential action, it was very foolish,'' says Stuart Gerson, a Washington lawyer and former Bush appointee who served as acting attorney general early in the Clinton administration.
Nussbaum indeed has not been accused of ever crossing the line into illegality, but rather of pushing up to it too hard in defense of his client, the president. His aggressiveness makes sense in strictly legal terms but has created political problems for the White House.
The meetings with RTC officials, for example, put Whitewater back on the front pages, caused Treasury Secretary Lloyd Bentsen to ask the Office of Government Ethics to investigate, and will bring the White House and Treasury aides involved before a grand jury this week.
One theory in Washington legal circles about Nussbaum is that he failed to make the culture shift from New York litigator to political Washington. He was extremely successful in the 1980s in the aggressive, fast-breaking, and high-stakes world of leveraged buyouts and corporate mergers.
``You can play hardball, in a way, and get away with things,'' says one lawyer and former senior government official. ``You don't represent the country.''
The client of the White House counsel is really the presidency itself, and part of preserving presidential power is avoiding even the appearance of any impropriety that could undermine confidence in the office. The counsel traditionally is concerned with not only keeping the president out of legal or ethical trouble but with guarding the autonomy of the presidency.
The trouble with this theory is that Nussbaum is in fact no stranger to Washington. In the early 1970s, he was lead attorney on the staff of the House Watergate committee preparing the impeachment of President Nixon. One of the young attorneys he hired was Hillary Rodham, who later married Bill Clinton.
Protecting the president and his legal rights was certainly Nussbaum's purpose last summer while he kept detectives investigating Vince Foster's death outside Foster's office while he and other aides went through Foster's files. Only months later did White House officials admit that Nussbaum had packed Foster's Whitewater-related files off to the Clintons' private lawyer.
One of the first people to search Foster's office was Hillary Clinton's chief of staff, Margaret Williams. The office remained unsealed for more than a day. ``That's untenable,'' says a former Bush official (not Mr. Gerson) familiar with the counsel's office.
Office not sealed
If the office had been sealed intact, Nussbaum could still have argued for keeping files out of the Foster investigation based on attorney-client or executive privilege. But removing them first raises questions about whether they have remained complete and intact, says the former official.
Foster had handled Whitewater business for the Clintons in the months before they entered the White House, and the files were in his office because of some carry-over work, officials say. But the presence of the files, as well as the removal of them, raised questions with some outside attorneys over a White House counsel performing personal legal work based on events that occurred long before Mr. Clinton became president.