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…






Morning all. Who has the coffee?