MEMO TO WHITE HOUSE - LAWYER UP!!!
By: Josh Gerstein - Politico.com
November 4, 2010
Democratic strategists say President Barack Obama needs to act fast to
make sure that one of the most tangible consequences of the Republican
takeover of the House an army of GOP committee chairman seeking
confidential executive branch deliberations doesn t swamp the
day-to-day work of the White House.
Veterans of the contentious battles of the Clinton administration warn
that the Obama White House is entirely unprepared for the level of
scrutiny it is about to experience. They ve already been complaining
that they re beleaguered by Congress, said one veteran Democratic
strategist. I don t think [White House aides] have the slightest idea
what they re facing.
Legislative gridlock may be the least of the White House s worries over
the next two years if its staff must respond to dozens of subpoenas
seeking details on the implementation of the health care reform law,
stimulus spending and the personnel issues that arise in every
There s no question that just dealing with the subpoenas in and of
themselves, finding the documents, the simple act of going around the
White House collecting and organizing the documents, that s an enormous
effort and of course inevitably lead to fights with the Hill, said
Mark Fabiani, a lawyer who handled President Bill Clinton s response to
Whitewater and other controversies that congressional Republicans
sought to investigate.
Just managing the investigations, the inquiries and the subpoenas can
consume a lot of the rest of what the White House is doing, he said.
Sources say that White House Counsel Bob Bauer reached out in the past
couple of weeks to possible candidates who could join an enhanced team
of lawyers, spokespeople and legislative affairs personnel dedicated to
responding to requests from the newly emboldened GOP House and others
A White House spokesman had no comment Wednesday on any staff changes
or hiring to accommodate Republican inquiries. However, one official
said the White House would do what s necessary to respond to
"We will of course support Congress in meeting its legitimate oversight
responsibilities, said a White House aide, who asked not to be named.
It's our hope that the administration and Congress can work together
to ensure that this important function is not abused to score political
points or for other improper purposes."
Some Democratic operatives pointed to the restructuring of Clinton s
staff after the Republican victory in 1994 as a model for the Obama
White House. The plan, devised by then-deputy chief of staff Harold
Ickes, called for personnel exclusively dedicated to handling
In very broad brush, what we tried to do was to wall off or to some
extent insulate the rest of the White House from what we called damage
control, Ickes said. It was a blizzard of subpoenas and document
production work that that really could have diverted attention.
Fabiani said the net result of the Clinton White House s approach was
to help smooth dealings with Congress and divert press questions about
By quarantining them, you don t allow them to infect the daily press
briefing because there s always someone else to answer those questions
and you don t allow them to infect the other relationships you have to
maintain on the Hill, he said.
After spending months stoking stories about their newfound ability to
police the Obama administration and put the brakes on key policies like
health care reform, Republicans noticeably moderated their tone after
Tuesday s GOP victory.
The incoming chairman of the House s main investigative panel, Rep.
Darrell Issa (R-Calif.) sounded downright conciliatory, insisting that
his oversight efforts would be aimed at helping Obama govern
I want to prove the pundits wrong. My job is not to bring down the
president. My job is to make the president a success, Issa said during
an election night conference call with reporters.
As for potential investigative targets, Issa talked about using the
House Oversight and Government Reform Committee to police the new
financial re-regulation law and federal food safety efforts.
But in another interview this week, Issa acknowledged, when asked, that
he is interested in looking into a familiar GOP target the defunct
liberal group ACORN.
I think it's very important that we look at ACORN as something that
occurred, he told MSNBC Wednesday. It was criminal activity, and it
used government money and nonprofit money both to do politics.
While some ACORN employees have been charged with or admitted to fraud
in submitting voter registration forms, a conservative-led video sting
operation against the group last year has not resulted in any criminal
Issa has said little in recent days about pursuing what he contends was
an illegal White House job offer to Rep. Joe Sestak (D-Pa.) in an
effort to persuade Sestak to drop out of a Senate primary challenge of
the White House s preferred candidate, Sen. Arlen Specter. The White
House denied any wrongdoing, and outside experts disputed Issa s
interpretation of the law.
However, the California Republican turned up the heat a bit on the
White House by saying he expects answers to all his outstanding
inquiries which apparently includes the Sestak controversy well
before the GOP formally takes over in January.
The likely chairman of the House Judiciary Committee chairman, starting
in January Rep. Lamar Smith (R-Texas) was similarly restrained,
perhaps bowing to an effort by House leaders to keep the focus of the
newly elected GOP team on jobs and the economy.
A longtime hawk on illegal immigration, Smith will be in a position to
demand records of any Obama administration efforts to ease immigration
enforcement if comprehensive immigration reform bills remain stalled in
Congress. Smith also plans to use his panel s power to slow or block
any renewed efforts by Obama or Attorney General Eric Holder to bring
Guantanamo prisoners to the U.S. for detention or trial.
Oversight is not a game of cat and mouse between Congress and the
White House as the media often paints it, Smith said in a statement
e-mailed to POLITICO Wednesday Oversight is the legitimate and
necessary work of Congress to improve the operation and function of the
executive branch and ensure that federal agencies are operating in the
best interests of the American people.
I am committed to working with the Justice Department to ensure that
our laws are equally enforced, criminals are prosecuted and American
communities are kept safe, Smith said.
Among the other Republicans looking to use their new posts to press
intrusive investigations: Rep. Ron Paul (R-Texas), who is expected to
chair the Financial Services Subcommittee on Domestic Monetary Policy.
When it comes to the executive branch or the Federal Reserve, we
should insist on answers, Paul told Fox Business News Wednesday. I
think there is going to be a very serious effort because the attitude
in the country has changed. The Congress is changing.
Paul called the Fed s leaders dictators and said he wouldn t shy away
from using subpoenas if the central bank or administration doesn t
comply with requests for information.
The likely investigative face-off with Congress could be particularly
awkward for Obama, since he campaigned on a promise of transparency and blasted the Bush administration for excessive secrecy. A high-profile battle over executive privilege would be so uncomfortable for the Obama White House that it seems all but certain that GOP lawmakers will try to draw him into one.
However, some Democrats say Obama would be wise not to take the bait
and, instead, should embrace the transparency he pledged in 2008.
Documents Republicans want could be posted en masse on the Internet,
draining some of the drama from any inquiries.
Most documents end up being turned over. It s just the way it is.
Ultimately, you re forced to turn things over. If you don t realize
that now, you ll find out soon enough, Fabiani said. It s a
tremendous opportunity to use the technology and use your promise to
turn things around on the other side.
If Darrell Issa wants every note and every document memorializing the
discussion about the shocking idea that Joe Sestak might be talked out
of running in a primary and might be offered a position in the
administration, just turn it over, said another former Clinton scandal
spokesman, Lanny Davis.
Davis said the task of responding to congressional probes requires a
political lawyer with a media ear, and that Bauer isn t quite the
Bob is a great lawyer, Davis said, but where handling politics and
the media is necessary, I think he d probably be the first to admit
it s not his strong point.
Davis said one obvious candidate to head such an effort would be the
White House s current legislative affairs director, Phil Schiliro, who
once served as chief counsel to one of the House s most prolific
investigators, Rep. Henry Waxman (D-Calif.).
I d take Phil Schiliro right in and name him special counsel, Davis
Lobbying restrictions and intense scrutiny of personal finances have
already made it difficult for the Obama administration to recruit
experienced candidates for top posts. Talk of investigations and
potential legal bills has the potential to make even more people shy
away from joining the administration.
However, Ickes said he doesn t think many people will be scared off
even if they should be.
Nobody ever thinks it s going to happen to them, said Ickes, who
added that he was subpoenaed 31 or 32 times to testify under oath and
appeared before six federal grand juries. The White House still is and
traditionally has been a very attractive place to work for people who
are interested in public service.
There are some clear differences from the Clinton era. That White
House s burden was increased by a series of criminal investigations of
various officials, including Clinton. Many were triggered by or pursued
under the independent counsel law, which expired in 1999.
But Davis said Republicans also run their own political risks if
they re perceived as being overly partisan, pointing to the experience
of some of the bigger GOP players from the '90s.
Remember what happened to Al D Amato. Remember what happened to Fred
Thompson. Remember what happened to Dan Burton, Davis said. The
American people don t have much patience for this nonsense. It can be
great theater and great fodder for the press. But I think Republicans
may be walking into a trap. They re like kids in a candy store: They
can t resist.
Sen. Al D Amato (R-N.Y.) was voted out of office in 1998 after
conducting high-profile hearings into the Whitewater scandal in 1995
and 1996. After conducting hearings in 1997 into alleged Chinese
fundraising for the Democratic National Committee under Clinton, Sen.
Fred Thompson saw the Senate slip back into Democratic control, forcing
him to give up chairmanship of the Senate Governmental Affairs
And Burton, after using some odd tactics to investigate Clinton, was
pushed aside in 2003 as chairman of the House Government Reform and