Does Obama WH/DOJ Policy Restrict Politicized Communications? Or Not?

Remember those charts that Sen. Sheldon Whitehouse revealed during the USAtty firing hearings?  (You can look here at "Related Files: Justice Dept/White House Contacts" [PDF] on the right hand side, Sen. Whitehouse has put up the whole thing on his website.)

The first chart had a grand total of 7 contacts (4 WH and 3 DOJ) between the DOJ and the White House from 1994 to 2002. It was based on an official DOJ policy that said, in part:

Initial communications between the White House and the Justice Department regarding any pending Department investigations or criminal or civil case should involve only the White House Counsel or Deputy Counsel (or the President of Vice President), and the Attorney General or Deputy or Associate Attorney General.

And then, after a significant policy change in 2002, the next chart showed that there were 458 total contact points (417 WH and 41 DOJ).

It became a political contact bonanza in practice.

I’ve wondered what the Obama WH and DOJ team has done with this, given the glaring example of "what not to do" that was the Bush Administration.

Turns out, there is already a new memo in the works:

In addition to working out the rules of the road for shaping policy, every new administration must also define how the Justice Department and White House counsel’s office will interact in other situations. An important early step is the formulation of a memorandum of understanding that guides who can contact whom, particularly regarding criminal investigations….

In March, Meltzer said the new administration’s version of that agreement was being finalized and that “our office and the attorney general and deputy attorney general see eye to eye about the importance of this policy.”

“When there are matters of great consequence about which the law is anything but clear, the White House may have an entirely appropriate role in the formulation of the position of the United States that the department will advocate,” said Meltzer. “But it is vital to avoid the possibility or even the appearance of inappropriate interference by White House officials in matters before the department.”

That sounds promising.

The USAtty manual still has policy (oddly dated 1998 as its last revision) posted online, FWIW, which allows for some of the same expanded contact that the Bush WH had:

Notwithstanding any procedures or limitations set forth above, the Attorney General may communicate directly with the President, Vice President, Counsel to the President, Assistant to the President for National Security Affairs, or Assistant to the President for Homeland Security regarding any matters within the jurisdiction of the Department Justice. Staff members of the Office of the Attorney General, if so designated by the Attorney General, may communicate directly with officials and staff of the Office of the President, Office of the Vice President, Office of the Counsel to the President, the National Security Council, and the Office of Homeland Security.

There are modifications from the 2006-07 policy.  One which removes "the head of any office within the EOP regarding any matter before the Department of Justice."  The other removes direct contact with OMB.  Most of the remaining expanded contact deals with national security matters.

This takes the political machinery and budget duty abdication out of the loop, but leaves the rest of that political contact infrastructure in place. There were some changes after the hearings exposed this the last few years, and I’m doing a bit of digging to determine whether these changes reflect those — or are newer per Team Obama.

This says to me that either the new memo has not yet become official policy or that the website needs an update.  Or that whatever changes were being touted by Obama officials in the Harvard Law Bulletin were either window-dressing or not quite done as yet. 

I’ve got several queries out, and will let you know if and when I get my hot little hands on a copy of the most recent memo.  More as I get it…

  Spotlight
27 Responses to "Does Obama WH/DOJ Policy Restrict Politicized Communications? Or Not?"
Christy Hardin Smith | Friday June 5, 2009 05:31 am 1

Morning all. Who has the coffee?


OldCoastie | Friday June 5, 2009 05:42 am 2

‘morning, Redd – hold out your cup…


Christy Hardin Smith | Friday June 5, 2009 05:46 am 3
In response to OldCoastie @ 2

I’m only on my first cuppa this morning. I’m not certain I’m fully sentient as yet. *g*


OldCoastie | Friday June 5, 2009 06:06 am 4
In response to Christy Hardin Smith @ 3

it’s only 6am here… so, sentient? me neither…

how’s that Peanut? is she going to be sad that school is almost out?


Christy Hardin Smith | Friday June 5, 2009 06:15 am 5
In response to OldCoastie @ 4

School’s already out for her. She “graduated” from kindergarten on Tuesday this week. And she’s happy to be home at the moment.

But we’ve had nothing but rain all week, so she’s beginning to get some cabin fever. *g*


OldCoastie | Friday June 5, 2009 06:20 am 6
In response to Christy Hardin Smith @ 5

Kindergarten graduation is always big, big fun!

congrats to Peanut…

off and running – have a lovely day…


ghostof911 | Friday June 5, 2009 06:21 am 7

Obama broke new ground in his speech in Cairo. There is optimism that WH/DOJ interaction will be restored to its proper role.


allan | Friday June 5, 2009 06:21 am 8

Not to get all geeky here, but Christy writes

The first chart had a grand total of 7 contacts (4 WH and 3 DOJ) between the DOJ and the White House from 1994 to 2002.

and

the next chart showed that there were 458 total contact points (417 WH and 41 DOJ).

But a better way to measure the number of potential back channel WH-DOJ contacts is
to multiply , not add, the number of WH contacts by the number of DOJ contacts.
So, 1994 to 2002: 4 x 3 =12 possible backchannels.
2002-2008: 417 x 41 = 17097 backchannels,
more than a 1000 fold increase.


Christy Hardin Smith | Friday June 5, 2009 06:23 am 9
In response to allan @ 8

Pretty sure Whitehouse made that point during that hearing, too. You can see how visually shocking that difference is with the two charts above, too.


Christy Hardin Smith | Friday June 5, 2009 06:26 am 10
In response to ghostof911 @ 7

I hope so — my worry is that whatever restrictions and protocols there are between the national security apparatus and the DOJ attorneys isn’t contained in the above policy standard. I’m certain there are particulars and restrictions on what can and cannot be discussed — and I absolutely see the need for clear, immediate communication on a national security matter. But we all know how corrupting that sort of “thumb on the scales” policy approach was from Dick Cheney’s office and I want to know what safeguards have or have not been built into the process at this point.

I think we all ought to be cautious until we know there are some substantial safeguards built in — it’s one of the many reasons I wanted Dawn Johnsen in place at OLC, because her particular specialty (among many others) is limits on executive power under the rule of law.


Christy Hardin Smith | Friday June 5, 2009 06:33 am 11

An example of that, btw, would be what was done at OLC on the torture memos — a results based memo system rather than a true legal analysis of pros, cons, and rule of law issues which would normally have been the course of business there. I want to be certain that DOJ lawyers know that their job isn’t to advocate for the WH — but to stand up and say no on behalf of the rule of law where there is a need to do so under the law.


i4u2bi | Friday June 5, 2009 06:37 am 12

Republicans equal political hacksterism…Republicans equal a bananaesq republic, not democracy. Down with Republicans.


Christy Hardin Smith | Friday June 5, 2009 06:38 am 13
In response to i4u2bi @ 12

Well, to be fair, a number of Democrats are a bit hack-y, too. It seems to be a politics thing across the board.

Which is why we try to shed sunlight where and when we can. None of them like to be in the full sunshine of public scrutiny. *g*


AZ Matt | Friday June 5, 2009 06:39 am 14

Good Morning Christy & Coastie!

Need a laugh? Try this:

Conservatives Are More Easily Disgusted

People who squirm at the sight of bugs or are grossed out by blood and guts are more likely to be politically conservative, new studies find.


Christy Hardin Smith | Friday June 5, 2009 06:39 am 15
In response to AZ Matt @ 14

Politics of the squeamish? Now that’s funny.


Leen | Friday June 5, 2009 06:43 am 16

Damn Christy..thanks for this….
7 contacts from 1994-2002
458 from 2002-2008

Do not have my reading glasses on. Do the charts show how many of those 7 happened during the Clinton administration?


Christy Hardin Smith | Friday June 5, 2009 06:48 am 17
In response to Leen @ 16

That’s actually not the number of actual contacts — it’s the number of contact points (i.e. people authorized to speak back and forth) between the two institutions. In the Clinton Administration, that was the President, the Veep, and folks in the WH counsel’s office. And any other back and forth between EOP offices and DOJ had to go through the WH counsel. For DOJ during those years, it was restricted to the AG, the DAG and the next step down and that was it.

That undercut political considerations and kept it to legal and policy ones — or at least that was the thought, and had been for a number of years.

As you can see from the Bush portion of the chart above, all of those restrictions went out the window — esepcially allowing for so many principals and deputies from the various policy shop offices in the WH to contact DOJ for ANY reason. HUGE change.


AZ Matt | Friday June 5, 2009 06:54 am 18

I saw yesterday that Holder is asking a court to drop convictions for 2 Alaska legilators due to the prosecution not giving the defense all the information they had. What was motivating these guys? Pressure from other Republican politicians in Alaska or DC?


Leen | Friday June 5, 2009 06:56 am 19

thanks will look at charts when I find my glasses


Christy Hardin Smith | Friday June 5, 2009 06:58 am 20
In response to AZ Matt @ 18

This is part of an ongoing series of screw-ups n corruption prosecutions up there. I don’t think DOJ has gotten to the bottom of the wholesale problems in that mess as yet, frankly.

This is tied in with the Alaska legislature corruption — of which Ted Stevens’ son was allegedly involved in taking oil money “gifts” of some kind, if I remember correctly. And, of course, the Stevens’ prosecution itself was a fricking mess.

There are also clean-up issues with the public corruption unit ongoing as well, as fall-out from that case and others. The DOJ was left in an utter mess.


foothillsmike | Friday June 5, 2009 07:01 am 21
In response to AZ Matt @ 18

I believe that Holder has asked that the cases be sent back to the courts and that DOJ wishes to pursue conviction only doing so within the law. The request was that the two be released from prison on their own recognizance.


AZ Matt | Friday June 5, 2009 07:04 am 22

Dang! Obama didn’t make me Ambassador to the Commonwealth of the Bahamas. It went to someone else. Too bad, I have great experience on tropical beaches.
President Obama Announces Intent to Nominate Key Administration Posts


AZ Matt | Friday June 5, 2009 07:05 am 23
In response to foothillsmike @ 21

Yes, that is what I saw at TPM yesterday.


Rayne | Friday June 5, 2009 07:20 am 24

So glad you are covering this issue, Christy. Was afraid it was going to slide by without attention by a blogger whose cred and reach could assure attention at the right levels of power.

I tend to think Team Obama is still trying to figure out a bunch of stuff on the fly, running as hard as they can while strapped with decrepit technology they’d never tolerate in the real world, and then trying to right the wrongs of last eight years. Not an enviable task, somewhat more challenging than attempting a corporate turnaround with a financially challenged organization.

Re: the Peanut — you might consider instituting a weekly trip to the library and a daily reading period. My kids aren’t allowed on any electronics, from TV to PC to games, from 10am – 6pm each day, and are required to read for at least 1 hour at a minimum. Plus we have a project book, one that I read to them at bedtime several times a week. This all works easily for 9-to-15 year olds, might have to start with a smaller scope for a new first grader, but after several years of this the kids not only expect it but love it. When they were younger it was nap time, but now reading time gives us all a break that’s acceptable to their age group (and if they fall asleep coincidentally, so much the better…).

I think this year I’m going to add a new wrinkle: they must read one foreign news article about a current event overseas each day, before 10am, and they must be prepared to discuss it at dinner. The teenager has been doing something like this for her social studies school work this year; I’m amazed at what she’s gotten out of it, and it might keep my mini-wonk son both prepared and on his toes. His fifth grade class reads CNN Student News every day together in the classroom, and he’s generally better informed about current affairs than his dad is by the time they get home.

Don’t know if the Peanut’s school participates in the Accelerated Reader (AR) program, but this is a chance to get a jump on it if they do. AR books are rated by age appropriateness and complexity of content and assigned points. Many school systems in Michigan use AR as a gauge of children’s reading ability and amount they are reading; our school system requires kids to set a goal each grade period, a set level of points appropriate to their reading level, which they must achieve or exceed as part of their curriculum. I’ve encouraged my kids to read ahead during the summer months, requiring them to read only AR-listed/-rated books during their daily reading time, so that they are better prepared when schools starts. (Intramural activities, even if kept to one per season, can really cut into reading time; better to read ahead just in case.) Link above should provide lists/collections of books which Peanut may be reading in the near-term as a first grader. Good luck keeping that bright little mind and busy hands occupied!


Christy Hardin Smith | Friday June 5, 2009 07:34 am 25
In response to Rayne @ 24

It’s worth noting that the Bush Administration didn’t put their new, expanded policy into place until 2002 in terms of communication expansion. So I think the Obama folks get some leeway of time to try and undo the kinks in the system. It’s a LOT to untangle all at once, at DOJ especially.


Rayne | Friday June 5, 2009 07:42 am 26

Yes, but I seriously think there was a concerted effort at hijinx during that 2001-2002 window, especially when you consider what Deadeye was doing with the Energy Task Force. Task Force held nearly all its meetings within first 100 days of Bush/Cheney administration.

What looked like a bug in Bush/Cheney earliest days was probably a feature…especially if you consider all but one of the U.S. Attorneys later released in 2006-2007 were from states with Enron exposures and Native American lands with FERC right-of-ways.

Which makes it all the more important that you do ask the questions now, so that our own team doesn’t make the same bugs, um, features, if they are truly committed to transparency.


Christy Hardin Smith | Friday June 5, 2009 08:36 am 27
In response to Rayne @ 26

No question they were skirting the rules from the get go — energy task force and any number of other areas, including the warrantless NSA spying in violation of FISA laws that ramped up well before 9/11.

Which just makes that later date of “official” policy change all the more squirrelly in my mind. *g*


Sorry but the comments are closed on this post

Close