The Corner

Obama Administration Innocent of Wrongdoing, Obama Administration Concludes

The White House has upped its efforts to insulate the president from the Sestak and Romanoff (and . . . ?) affairs, as Press Secretary Robert Gibbs told reporters today that Obama was unaware that his deputy chief of staff, Jim Messina, had discussed administration jobs with Andrew Romanoff.

The White House response to both affairs has been bizarre at best, and is getting more suspect by the minute. As I note below, there is a decidedly dissonant note sounded by the White House admitting that Jim Messina spoke with Andrew Romanoff about three administration jobs should he decided to quit the Colorado Democratic Senate primary, while simultaneously claiming that no job was offered for him to do so. This is not all that different from me claiming that I talked to the police officer who pulled me over about the prospect of giving him $50 bucks should he decide not to write me those six tickets, but I didn’t bribe him — as if the two events were unrelated, or merely correlated as opposed to causally linked. In the very least it seems a thin legalistic distinction on which to rest the integrity of the administration.

More odd still is the administration’s choice of messengers for this message — not a congressionally appointed independent counsel, not a DoJ lawyer, but Chief White House Counsel Robert Bauer. As former White House lawyers Bill Burck (George W. Bush) and David Rivkin (Reagan, G. H. W. Bush) argue in an op-ed in the WaPo today, this is at best “misguided” and at worst an impediment to a legitimate investigation.

The White House counsel is the president’s principal legal adviser, but the role is not independent of the president or the White House. Unlike the attorney general, who is the nation’s top law enforcement officer, the White House counsel is not confirmed by the Senate and does not supervise career lawyers charged with impartially investigating and prosecuting possible crimes on behalf of the people of the United States. Executive privilege, which restricts public disclosure of certain communications between the president and his staff, is at its peak for advice given to the president by his counsel.

As Burck and Rivkin make clear, White House counsel’s role in investigating allegations of criminal wrong-doing by White House staff is strictly limited to determining whether there is a factual basis for further investigation, a bar they argue is met by the content, if not the conclusions, of Bauer’s memo.

To be sure, the counsel sometimes has to handle allegations of wrongdoing by White House staff members. But when the allegations concern purportedly criminal misconduct — as was alleged by some in recent years in the Valerie Plame affair, the dismissal of U.S. attorneys and the destruction of CIA “interrogation tapes” — the procedures that the counsel must follow are quite strict and the scope of any investigation narrow. The counsel would be limited to conducting a preliminary inquiry to establish whether there is some factual basis for the allegations. The lawyers would follow standard procedure for preserving the integrity of the investigation, including instructing staff members to preserve all relevant documents, not to discuss the matter with each other and to take all other necessary steps to preserve evidence. If there is some basis to believe a crime was committed, even if the evidence may not be definitive or even particularly convincing, the Justice Department would step in for possible further investigation.

Given that the U.S. Code explicitly proscribes “promises [of] any employment, position, [or] appointment . . . to any person as consideration, favor or reward for,” among other things, staying out of any political primary, this standard has been amply met. Indeed, Bauer’s own conclusions establish that there is a factual basis to believe Sestak may have been offered a position as an illegal quid pro quo. Nonetheless, Bauer clearly does not believe that anyone violated the law. And he may well be right. Perhaps the position was offered unconditionally. Perhaps Sestak misunderstood. Perhaps even if it was a quid pro quo, the offer does not satisfy the statutory requirements for criminal liability. But in the face of doubt on these questions, it is not the counsel’s role to make such determinations, particularly when he is opining on the conduct of Chief of Staff Rahm Emanuel, to whom he reports, and a negative conclusion could damage the president for whom he works.

But instead of laying the groundwork for a fuller investigation, Bauer’s inquiry was beset by conflicts of interest and procedural fouls:

This conflict of interest makes Bauer’s numerous lapses in normal investigatory procedure all the more troubling. His report is silent concerning similar job-related discussions last year between Deputy White House Chief of Staff Jim Messina and Romanoff, who is mounting a primary challenge against Democratic Sen. Michael Bennet in Colorado. Any credible investigation would have inevitably focused on whether the alleged job-for-withdrawal scenario was exclusive to Sestak or part of a broader pattern of conduct.

Meanwhile, according to various press accounts, witnesses were permitted to consult with each other directly or through intermediaries. This is a major process error that would horrify any experienced Justice Department prosecutor, because it allows witnesses to influence each other’s recollections or even “get their stories straight.” Once this happens, it is very difficult to discern what actually happened. Even releasing Bauer’s report taints the investigation by telling witnesses the “official” narrative. E-mails or other documents, which cannot easily be altered to fit the story, may now be the only reliable way to uncover what everyone said and intended.

And what are the chances that a more thorough, at-least-nominally independent investigation will be mounted? Before the midterms, close to nil.

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