'Enduring' Legal Principles Will Trump Politics at DOJ, Says Former Skadden Lawyer Mary L. Smith
ALM Media
Updated
Mary Smith, as an enrolled member of the Cherokee Nation, will be one of the first Native Americans to serve as an officer of the American Bar Association when she becomes its secretary this month.
A University of Chicago Law School-trained attorney, Smith clerked at the U.S. Court of Appeals for the Eleventh Circuit, and has been a lawyer at the White House, 1997-2001, the U.S. Department of Justice, 1994-1996 and then 2010-2012, Skadden, Arps, Slate, Meagher & Flom, 2001-2005, Tyco International, 2005-2007 and the Indian Health Service, from 2015 until last January, when she left with the administration turnover. There, as principal deputy director, helping to provide health care for 2.2 million people and oversaw a $6 billion budget.
The National Law Journal talked with Smith about what's ahead for the DOJ, the White House, the U.S. Securities and Exchange Commission, Indian affairs and health care mostly all topics the Trump administration has placed center stage, and about which this Cherokee lawyer has significant knowledge and experience.
The interview has been edited for clarity and length.
NLJ: What do you, as someone who served both in the DOJ as a trial lawyer in the appellate division and as a member of the senior leadership team of its Civil Division think are the critical issues for people at [the agency]?
Smith: I know there's a new administration now, but again, I've served in [DOJ] two stints during my career, both as a career trial attorney, and also as a political appointee. The one thing I do know from my time there is that there's a lot of really great attorneys there who have a sense of public service and ascribe to the rule of law. From a corporation standpoint, dealing with the Department of Justice, I like to think that it doesn't change materially depending on who's attorney general, or who's in the White House. It could be a policy decision to prioritize certain types of prosecutions, but once you get down to an individual case level, you're guided by the law and the facts.
NLJ: If you, as someone who served as associate counsel to President Bill Clinton, from 2000-2001, had to list the five things that should make us worried about the White House Counsel's Office, what would they be? Or that give you comfort about the White House Counsel's Office?
Smith: I guess the one important thing is that the White House counsel represents the presidency, not the individual, and you have to navigate that path. I guess the other thing that I know from my time in the White House, that there are very detailed protocols on communications with [DOJ], with regard to investigations. Those are two areas that I think are important to remember when you're serving in the White House Counsel's Office. I do know that it's a very unique point in time, given that it's been confirmed in congressional testimony that there is an investigation of the current president's campaign. When you're faced with a situation like that, that is a very unusual situation. I think it probably makes for very difficult navigation for attorneys in the White House and [DOJ] ...
NLJ: Based on your time at Skadden, and then at Tyco, what issues do SEC policymakers need to tackle?
Smith: I think [the issues] may take slightly different forms, given different technology, different things. There may be different kind of financial constructs ... At a bottom line, a lot of what the SEC and [DOJ] is looking at is fraud, or criminal activity. That may take different forms, but there are some guiding principles, regardless of changes of some of the details. The security laws are based on disclosure, and so it's always better to disclose material facts, and also to adhere to accounting principles, and avoid committing fraud. Those principles are enduring.
NLJ: Was there anything you learned at the Indian Health Service that serves as a guiding principle understand what the health care policy should be for the much broader population?
Smith: Everyone wants access to quality health care, and I think all Americans want to make sure they have access to doctors and other medical professionals, and that was no different at IHS. During my time there, I focused efforts to deliver quality health care, provide better accountability, and really ramp up our quality efforts to ensure that we were providing quality health care to the people that we serve, and I think that's true for all Americans.
NLJ: Did it give you a strong opinion about third-party payment? Networks? The kind of policy debates that are taking place right now?
Smith: I think the first question that should be asked for any reforms in health care is just simply: Are people going to be better off? Are they going to be receiving better care? I know that the Senate bill out there right now, the House bill, and for both of those bills the answer is a resounding no. There's gonna be millions of people who lose health care, and that would be disastrous. That, to me, is the most important consideration.
NLJ: Given your background at the DOJ, Tyco and Skadden, what would you as a company insider encourage the other leadership, including the CEO, to keep cognizant about in terms of the Trump's administration's regulatory changes and the likely speed of those changes?
Smith: As a member of the senior team, I would encourage the company's leadership to stay abreast of the regulatory environment that impacts the company. It would be important for the company to assign responsibility for monitoring the regulatory environment and assess whether that responsibility should reside inside or outside the company or a combination of both. There is quite a lot of activity happening at all of the federal agencies right now, and it is important to stay on top of [it]. In terms of the speed of the changes, it depends on where the proposed regulatory action is in the regulatory process and whether there is already a final rule or even a notice of proposed rulemaking. The best way to manage risk is to stay prepared and to be proactive.
NLJ: Do you know which direction you want to go in terms of what you do next?
Smith: I think my experience leading an essentially multibillion-dollar agency gave me a better understanding of the challenges that large corporations face, and the decisions that CEOs and other leaders need to make. It made me a better lawyer, and it made me a better manager of resources.
NLJ: Tell us a little about your Native American background.
Smith: I did not grow up as a Native American or on a reservation. I grew up in Chicago and I didn't grow up knowing much anything about my culture at all, other than just a few stories that my grandmother told me. My dad actually passed away the year after I graduated law school, and my dad had never filled out the paperwork to join the Cherokee Nation. It was only after my dad's death that I became more interested in that part of my heritage.
NLJ: Do see Indian affairs being a part of what you're doing next?
Smith: My background is very varied. I've worked on a number of different things, and I certainly care deeply about Native American issues, and I feel passionate about improving the lives of Native Americans. What I'm looking to do next is to go into the private sector, hopefully, in a large public company, and utilize my legal regulatory experience.
