Political Hay

Rahm’s Subpoena Dodging White House Strategy?

Pew study exposes internal "no notes" Clinton legal policy: Obama's Sestak defense?

By 6.1.10

"We did not take notes. We were subject to subpoena. People were very careful not to put things down in writing." 
-- Charles Ruff, White House Counsel to President Bill Clinton, 1998-1999

"We just never put anything in writing. At least I did[n't]. All the habits I learned as a good litigator where I took detailed notes about what was going on I threw out the window."
Abner Mikva, White House Counsel to President Bill Clinton, 1994-1995

They didn't take notes. To avoid subpoenas.

So say two Clinton White House Counsels in a long forgotten but newly explosive ten-year old academic study uncovered over the weekend. A study that may come back to haunt ex-Clinton aide Rahm Emanuel, now the Obama White House Chief of Staff at the center of accusations involving Congressman Joe Sestak and Emanuel's former boss -- ex-President Bill Clinton.

For the lawyers who ran the Office of the White House Counsel under President Clinton, the same White House where now Obama White House Chief of Staff Rahm Emanuel was a senior political and policy aide, the rule was as simple as that. No notes, don't write things down. Keep very few records. Why? The reasoning was short and sweet: No notes, no written record -- nothing to subpoena.

Coming in the wake of a call on Sunday by California Congressman Darrell Issa for a criminal investigation into the Sestak Jobsgate scandal and the role of the Obama White House, the revelation is certain to launch a new round of demands for an independent investigation into Emanuel and the activities of the White House Counsel's office itself. The office is run by former Obama personal attorney Robert Bauer, the husband of ex-Obama White House Communications Director Anita Dunn. Bauer succeeded Obama's first White House Counsel, Greg Craig. Craig was a Special White House counsel to Clinton and represented Clinton during his impeachment trial -- exactly the time the Clinton White House "no notes" policy was in effect, as recounted later by then-Clinton White House Counsel Charles F.C. Ruff. Ruff died of a heart attack weeks after the Pew study was released.

At issue today: the record keeping of the Obama White House and whether potentially incriminating actions such as those involved in the Sestak Affair are simply -- and deliberately -- not noted by White House lawyers for fear of subpoenas. Subpoenas that could potentially reveal a deliberate cover-up of illegalities in the Sestak affair. Illegalities involving both Emanuel and his former boss, Bill Clinton.

The startling information, uncovered over the Memorial Day holiday weekend, was discovered in an obscure ten-year-old academic study of the Office of the White House Counsel. The revelations were buried deep inside the study, which was funded by the Pew Charitable Trusts and released on November 1, 2000, while Bill Clinton still served in the White House. The release and academic nature of the study conducted by three professors, coming as it did in the heated days at the close of the controversial Bush-Gore campaign, precluded it from getting any serious attention at the time. The Pew study had interviewed nine former White House Counsels representing every presidency from that of Gerald Ford to Clinton. Research into the views of others was provided as well.

Serving in the Clinton White House at the time this "no notes" strategy was in effect was Emanuel, now at the center of the swirling allegations of the job-for-a-political favor scandal that is Jobsgate. Emanuel, who ran the Clinton White House Political Affairs Office and later served as a senior advisor on policy and strategy, would presumably have been well aware of this particular policy demanded by the Clinton White House Counsel's Office.

Now the discovery of the study, combined with Issa's new call for a criminal investigation that would involve the FBI, raises a startling new series of questions around the role of the embattled Obama White House Chief of Staff. So too will it direct attention to the activities of both current and former Obama White House Counsels Bauer and Craig.

The questions:

 Has Emanuel, fearing subpoenas to the Obama White House staff as did Ruff and Mikva in the Clinton era, re-instituted this "no notes" policy at the Obama White House in his role as White House Chief of Staff?

 Has a "no notes" policy been discussed with Obama White House Counsel Robert Bauer?

 Has Bauer re-instituted the Clinton White House "no notes" policy?

 Was a "no notes" policy discussed or instituted by Bauer's predecessor as Obama's White House Counsel, Greg Craig? Craig, it should be remembered again, was also serving as a Clinton White House Special Counsel during the period this "no notes" policy was in effect.

 Is this "no notes" policy why it took Obama White House Counsel Bauer from late February to the Friday before Memorial Day to construct a careful two-page report on the Jobsgate issue?

Jobsgate, first reported here on February 22 as a potential federal crime, three days after Sestak's initial revelation to Philadelphia Comcast anchor Larry Kane that he was offered a job by the White House, has launched increasingly louder calls for an independent investigation.

The realization that the Obama White House Counsel's office may be deliberately repeating the strategy of the Clinton White House -- no paper trail, nothing for investigators to discover -- will certainly increase the pressure for the independent investigation being demanded not only by Issa but by Republican Senators. So too could it launch demands for a congressional change in the law -- forcing a White House policy that requires its Counsel's Office to do exactly what Clinton's White House Counsel deliberately refused to do. What Abner Mikva -- a Clinton Counsel and former federal judge -- accurately noted are "the habits" of "a good litigator": take notes and keep a written record.

According to the Pew study, the Office of the White House Counsel was created by Franklin D. Roosevelt to do, in FDR's words, "legal stuff" for the president. The first occupant was Judge Sam Rosenman, an FDR loyalist from Roosevelt's days as Governor of New York.

Once upon a time the office was fairly innocuous, its inhabitants almost always anonymous beyond official Washington. This being government, however, the job grew -- and grew, its influence mushrooming.

The study does not note that the office burst into public consciousness in a serious way in the Nixon years. Richard Nixon's White House Counsel was, famously, a young California lawyer named John Dean. And the scandal was called Watergate.

Things did not go well for White House Counsel Dean. In fact, John Dean wound up pleading guilty to obstruction of justice and was sentenced to federal prison. He lost his license to practice law, having his sentence of one-to-four years reduced to time served -- four months -- after his cooperation with federal prosecutors. Eventually, like most of his convicted colleagues, he wrote a book -- Blind Ambition. It is a story of, in his publisher's words, "power and brutality and corruption."

Why is Dean's story suddenly important now in the Obama era?

Because John Dean kept notes. Meticulous notes.

Dean provided a detailed play-by-play description of just how the office of the White House Counsel can be abused -- to protect a lie, to plot, to be used to obstruct justice. Or to offer a job. It was John Dean, says Dean, who helped get Watergate figure G. Gordon Liddy his job as the general counsel of the Nixon re-election campaign.

In fact, it was Dean's quite precise revelations of what went on in the Counsel's office during his tenure -- he later wrote that there were "an enormous number of documents" that included "notes I had kept"--that may have encouraged the Clinton White House, like Nixon's the subject of impeachment proceedings, to simply stop keeping the kinds of records that John Dean kept so religiously in the style of a very thorough lawyer. The kind of records that finally brought down the Nixon presidency. And were not in evidence when Clinton was impeached but not removed from office, with supporters insisting the case against him had not been made.

Basing it on the "enormous number of documents" as well as "notes I had kept," John Dean painted a graphic portrait of what the Office of the White House Counsel can look like when its occupants abuse its power -- and records are well and accurately kept. It only vaguely resembles the academic approach taken by the Pew study. The Counsel, if he has the confidence of his number one client the President, has wide latitude within the White House and sometimes outside it. 

 Internal investigations : The Counsel can keep control of internal and sometimes external investigations into the White House. He can define the framework for the investigation -- what to investigate and what not to investigate. He can devote time and resources to investigating with a goal of revealing the truth -- or investigating in order to contain or ignore everything from scandal to simple embarrassment. The Counsel can shape this in part by simply refusing to document and note the substance of the parade of daily activities, meetings and phone calls that involve the Counsel's office. The fact that it took so long -- some ten weeks -- for the Obama White House to report on what happened in the Sestak Jobsgate Affair could lend credibility to the idea it has, under Emanuel's leadership, returned the White House to the Clinton-era "no notes" policy. Which, in the Sestak Jobsgate affair, would protect no less than Rahm Emanuel himself.

 Information and the press: The Counsel can serve as a determinant of the information on White House investigations that will be supplied to the White House press corps by the White House Press Secretary. Dean did this by dealing directly with Nixon press secretary Ron Ziegler. "How should I handle it?" Ziegler once inquired of a non-existent "Dean Report" on Watergate. To which Dean says he responded curtly by saying: "That's what you get paid that high salary for." When Robert Gibbs repeatedly and with increasing evident awkwardness told the press "I don't have anything to add to that" about what was going on inside the Obama White House on the Sestak scandal, he may well have been acting under the instructions of Mr. Bauer. Who in turn is operating under a "no notes" policy laid down by Clinton-veteran Emanuel.

 Scandal containment, witness coaching: "Each day brought threats, dramas and more legal strategies," wrote Dean about his efforts to contain the Watergate scandal. There were "clandestine conversations," "nervous sessions" in which sensitive documents -- FBI reports -- were handed over to Dean. There was "fighting to stall" and "coaching sessions for witnesses." This latter Dean revelation will strike a chord in reference to former President Clinton's visit to the Obama White House the day before the release of Bauer's report -- for a private lunch with the President. Did he see Emanuel? Did he discuss the Sestak scandal? As seen in this video clip taken the next day, Clinton refused to even breathe a word on the subject as it was dominating the news. What role did the White House Counsel's office play in that sudden and uncharacteristic bit of silence from Clinton? And what exactly was said in the phone call from the White House to Sestak's brother and campaign aide Richard Sestak, also made in the days before the Bauer report was released. Was this part of a stalling and witness coaching campaign -- all of which is deliberately un-documented by a "no notes" policy? 

 Firefighting: This is the scramble inside the Counsel's office and as well as other White House offices to put out the "fires" caused by X,Y or Z story in that day's media. The response must be organized, roles assigned -- and if there is a need for a legal voice in the response it is the Counsel's office that supplies it. If in fact no record is kept of this, this leaves the White House with the task of assembling a timeline of events it has consciously chosen with a "no notes" policy not to record. Which could account for the length of time needed to assemble Bauer's report.

On May 28, the Office of the White House Counsel -- which had taken some ten weeks to answer the simple question of whether the Obama White House had offered what Congressman Sestak repeatedly called a "job" to lure him out of a Senate race -- finally responded.

Not answered. Responded. The response used the passive voice. It hinted at "efforts made in June and July of 2009" to dissuade Sestak from the race -- while Sestak insists there was only one brief phone call from Clinton. A glaring inaccuracy like this would also easily result from a "no notes" policy at the White House.

Based on the experience the American people have already had with the Clinton White House Counsel's Office -- where occupants by their own later admission deliberately set themselves up to dodge subpoenas by refusing to keep written records and take notes -- and the Nixon White House Counsel's Office, where detailed records were in fact kept and a presidential resignation followed -- one can only ask:

What's going on in this White House?

Who's keeping the written record?

Is there a written record?

Or is the Obama White House run by Bill Clinton's ex-aide doing right this minute exactly what the Clinton White House did years ago?

Which is to say: nothing. No notes. No written record. No nothing.

Is it any wonder Congressman Issa wants the FBI brought in?

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About the Author
Jeffrey Lord is a former Reagan White House political director, an author, and a CNN commentator. He writes from Pennsylvania at jlpa1@aol.com and @Jeffjlpa1.