Legally Speaking: Bobby Burchfield

Bobby Burchfield, Photograph courtesy McDermott Will & Emery LLP.

Bobby Burchfield, co-partner in charge of McDermott Will & Emery’s Washington office, is one of the area’s top trial lawyers, but he’s perhaps best known for his work on behalf of the Republican Party. He has counseled GOP candidates in every presidential election since 1988, when he was asked to join George H.W. Bush’s campaign. During the 2008 race, he was outside counsel to Rudy Giuliani. As the Republican field for 2012 slowly comes together, Burchfield shares his thoughts on Donald Trump, the legal needs a campaign should anticipate, and what it was like to be a part of George W. Bush’s 2000 recount team.

Do you expect to get involved in the campaigns of any of the Republican candidates in the 2012 presidential race?
We’ll see. As you know, the Republican field is still a little bit [unsettled], so I’m waiting to see how that forms, and I would hope to be involved in some way. I’m not committed at this juncture.

And you don’t have a favorite possible contender?
I had done a lot of work with [Mississippi governor] Haley Barbour before, so I was personally a little disappointed that he decided not to run, and I’ve had some contacts with several of the candidates, but I’m waiting for them to make their decisions whether they run before I decide what I’m going to do.

Any thoughts about Donald Trump?
I have a lot of thoughts about Donald Trump, not all of which I would care to express on the public record.

One or two that you’d care to express?
Well, a couple of observations: I will be a bit surprised if he actually pulls the trigger and decides to run. It’s a much different situation running for President than it is having a reality-television show. He will be required to make very detailed financial disclosures, which he says he’s willing to do, but at the end of the day, he’s got to make those and certify that they’re accurate, and that’s a pretty big step when you’ve got the sorts of wealth that he has. The second thing is he has suggested that if he decides to run and if he doesn’t get the Republican nomination, he might run as a third-party candidate. I think that would be unfortunate for the country, and he would confront a different legal regime than Ross Perot confronted when he ran as a third-party candidate in 1992 and ’96. Perot funded most of his campaign, including the Reform Party actions, out of his own pocket, and under the current McCain-Feingold law, an individual can still fund his own presidential campaign, but he could not fund a party apparatus beyond about $93,000. And so Trump could not, for example, pay for petition drives around the country to get a Reform Party-type line on the ballot.

As a campaign progresses, how do its legal needs evolve?
At the front end of a campaign, the obvious questions are about the fundraising restrictions. As the campaign begins to evolve, there are questions that confront the campaign similar to what confront normal businesses. They’re hiring employees, they’re engaging independent contractors, they’re drafting contracts, they’re leasing space. They’re doing all the things that normal businesses do. They’re placing ads. They’re entering arrangements with vendors to produce and place the ads. So we’re typically involved in the normal sort of business contracting issues. Then as the ads are going on the air, we’re often involved in vetting the ads to make sure they comply not just with the regulatory requirements but also to make sure that they are substantiated, that there’s backup for them. And then there are always ethical issues.

Have there been circumstances where you’ve come across an ad that wasn’t up to snuff?
There have been. You’ve got pretty broad protection under the First Amendment for airing ads that are critical of your opponent or that take policy positions that are aggressive. But at the end of the day, there are both legal and political costs to airing an ad that’s untrue. We’ve been involved in vetting ads that our clients wants to run, and we’ve also been involved for our clients in trying to get the opponent’s ads taken off of TV when we think they’re not accurate.

You were involved in the 2000 recount for then-governor George W. Bush. I think we’ve all seen the Kevin Spacey HBO movie about it, but can you describe what that atmosphere was like?
I don’t think I’d let the Kevin Spacey movie rewrite the history on that. I went to Austin on the afternoon of the election in 2000 for what I thought was going to be a party and ended up 24 hours later in Miami with only one day’s change of clothes. I was one of the first out-of-staters on the ground in Florida for Bush. I spent probably 17 or 18 days total down there. It was an amazing experience. A once-in-a-lifetime experience, I hope. I hope there’s never a presidential recount again.

Law firms generally don’t take a political position, but obviously many lawyers in Washington are politically active, and they often host fundraisers at their firms. How do you reconcile the need of the firm to remain nonpartisan with the political activity of individual lawyers?
How long do you have? This one’s a very interesting and very complicated question. There are a number of dimensions to it. The first one is the legal restrictions on hosting a candidate fundraiser at a private organization. We advise ourselves about that all the time, and we advise other organizations about how they can do that. It can be done. It has to be done carefully. The second dimension is whether an organization wants to align itself with one political party or another. Most organizations—and this law firm—try to be nonpartisan. We try to host events for candidates on both sides of the aisle. The third aspect of it is reaction of the individuals within the organization. Whenever one of the partners here wants to host a fundraiser—having run the legal traps, having run the management traps—then the issue becomes trying to get enough enthusiasm among potential donors to actually make the fundraiser a success. So there are a lot of different dimensions, but I think in this town it’s a good thing for law firms to do, both because we are running into officeholders all the time and we have a government-relations practice here. And it’s a good thing to do for democracy, because elections cost money.

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