Commentary Magazine


Topic: Greg Craig

Conflict — What Conflict?

Some might find it off-putting that the “most ethical administration ever” (or is that the Congress?) would see its White House counsel Greg Craig representing the administration’s juiciest and most fortuitous target, Goldman Sachs. How can this happen? Politico reports:

“A former White House employee cannot appear before any unit of the Executive Office of the President on behalf of any client for 2 years—one year under federal law and another year under the pledge pursuant to the January 2009 ethics E0,” said a White House official.

The official also said that the White House had no contact with the SEC on the Goldman Sachs case. “The SEC by law is an independent agency that does not coordinate with the White House any part of their enforcement actions.”

Well how do we know there was no coordination? In fact, the entire Goldman strategy is that this was a political set-up from the very beginning:

An attempt to discredit the Securities and Exchange Commission by painting the case as tainted by politics because it was announced just as President Barack Obama was ramping up his push for financial regulatory reform, including a planned trip to New York on Thursday.

“The charges were brought in a manner calculated to achieve maximum impact at point of penetration,” a Goldman executive said.

Among the points Greg Palm, co-general counsel, plans to emphasize on the call is “how out of the ordinary the process was with the SEC,” the executive said. The SEC usually gives firms a chance to settle such charges before they are made public. Goldman executives say they had no such chance, and learned about the filing while watching CNBC.

So if the White House was meddling, or doing so with intermediaries, and this is central to Goldman’s defense, what is Craig doing litigating against the U.S. government?

Some might find it off-putting that the “most ethical administration ever” (or is that the Congress?) would see its White House counsel Greg Craig representing the administration’s juiciest and most fortuitous target, Goldman Sachs. How can this happen? Politico reports:

“A former White House employee cannot appear before any unit of the Executive Office of the President on behalf of any client for 2 years—one year under federal law and another year under the pledge pursuant to the January 2009 ethics E0,” said a White House official.

The official also said that the White House had no contact with the SEC on the Goldman Sachs case. “The SEC by law is an independent agency that does not coordinate with the White House any part of their enforcement actions.”

Well how do we know there was no coordination? In fact, the entire Goldman strategy is that this was a political set-up from the very beginning:

An attempt to discredit the Securities and Exchange Commission by painting the case as tainted by politics because it was announced just as President Barack Obama was ramping up his push for financial regulatory reform, including a planned trip to New York on Thursday.

“The charges were brought in a manner calculated to achieve maximum impact at point of penetration,” a Goldman executive said.

Among the points Greg Palm, co-general counsel, plans to emphasize on the call is “how out of the ordinary the process was with the SEC,” the executive said. The SEC usually gives firms a chance to settle such charges before they are made public. Goldman executives say they had no such chance, and learned about the filing while watching CNBC.

So if the White House was meddling, or doing so with intermediaries, and this is central to Goldman’s defense, what is Craig doing litigating against the U.S. government?

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Another About-Face?

In a remarkable and entirely welcome reversal, the Eric Holder Justice Department has retreated in its effort to pursue ethics charges against Bush administration lawyers who authored memos on enhanced interrogation. Newsweek reports on the internal probe by the Justice Department’s Office of Professional Responsibility (OPR):

While the probe is sharply critical of the legal reasoning used to justify waterboarding and other “enhanced” interrogation techniques, NEWSWEEK has learned that a senior Justice official who did the final review of the report softened an earlier OPR finding. Previously, the report concluded that two key authors—Jay Bybee, now a federal appellate court judge, and John Yoo, now a law professor—violated their professional obligations as lawyers when they crafted a crucial 2002 memo approving the use of harsh tactics, say two Justice sources who asked for anonymity discussing an internal matter. But the reviewer, career veteran David Margolis, downgraded that assessment to say they showed “poor judgment,” say the sources.

A draft report prepared in the waning days of the Bush administration by OPR was roundly criticized by departing Attorney General Michael Mukasey and his deputy Mark Filip. As I reported previously:

One former Justice official with knowledge of the matter says, “It is safe to say they had a number of concerns about the draft report both as to the timing and the substance” of the work by OPR. There is, this official reports, “institutional unease by senior career people” at Justice that good faith legal work may place attorneys in peril. “The department won’t be able to attract the best and the brightest. You really want lawyers who will give candid legal advice.”

But the question remains why, and why now, the department has come to its senses. Newsweek pointedly observes: “A Justice official declined to explain why David Margolis softened the original finding, but noted that he is a highly respected career lawyer who acted without input from Holder.” One can speculate that some group of career attorneys, with no love lost for the Bush administration, nevertheless found the prospect of disbarring two of their own for good-faith legal work to be a bridge too far in the partisan wars. And it may be that as the wheels come off the ideology-driven Holder-Obama approach to terrorism (e.g., widespread criticism of the handling of the Christmas Day bombing, reversal of the decision to try KSM in New York), this was one more ill-conceived crusade that the Obami did not need.

Finally, for those who like a bit of Washington intrigue, consider that the White House counsel was until recently Greg Craig, who in his pre-Obama days as an adviser to Sen. Kennedy found the Nicaraguan Sandinistas to be deserving of our support, later helped return Elian Gonzales to the clutches of Fidel Castro, and advised in some capacity Pedro Miguel González, the Panamanian terrorist the U.S. government believed to have murdered two American soldiers. (Yes, that’s a story in and of itself, one that the mainstream media found no interest in reporting.) Craig, often cited as an enthusiastic backer of the “Not Bush” anti-terror policies, is now gone, a victim of the failed attempt to close Guantanamo. Perhaps his departure has removed a powerful advocate for this sort of unseemly mischief. If so, good riddance.

Regardless of the reason, the news that Yoo and Bybee will not be hounded from their profession is positive and long overdue. (The potential loss of their professional licenses has been hanging over them for well over a year.) The notion that lawyers providing detailed legal analysis and a comprehensive review of existing law could later be strung up by state bar associations is nothing short of chilling. As I previously wrote, Ronald Rotunda, a professor of law at Chapman Law School and a specialist in ethics who was consulted by the Justice Department on the OPR’s investigation, found the entire effort to prosecute lawyers for their opinions baffling:

“I can’t imagine you would discipline someone who goes through everything methodically.” He explains, “If you don’t like the particular policies, then change the policies.” He draws an analogy with the attacks on free speech during the Vietnam war and McCarthy eras in which lawyers with particular views were demonized and threatened with loss of their professional licenses.

Well, perhaps some sanity has been restored to the Justice Department. If so, we can finally turn our attention from waging war against the prior administration to determining how to uproot the failed policies of this one. Then on to steering an approach to combating terrorism that is both effective and enjoys the support of the public.

In a remarkable and entirely welcome reversal, the Eric Holder Justice Department has retreated in its effort to pursue ethics charges against Bush administration lawyers who authored memos on enhanced interrogation. Newsweek reports on the internal probe by the Justice Department’s Office of Professional Responsibility (OPR):

While the probe is sharply critical of the legal reasoning used to justify waterboarding and other “enhanced” interrogation techniques, NEWSWEEK has learned that a senior Justice official who did the final review of the report softened an earlier OPR finding. Previously, the report concluded that two key authors—Jay Bybee, now a federal appellate court judge, and John Yoo, now a law professor—violated their professional obligations as lawyers when they crafted a crucial 2002 memo approving the use of harsh tactics, say two Justice sources who asked for anonymity discussing an internal matter. But the reviewer, career veteran David Margolis, downgraded that assessment to say they showed “poor judgment,” say the sources.

A draft report prepared in the waning days of the Bush administration by OPR was roundly criticized by departing Attorney General Michael Mukasey and his deputy Mark Filip. As I reported previously:

One former Justice official with knowledge of the matter says, “It is safe to say they had a number of concerns about the draft report both as to the timing and the substance” of the work by OPR. There is, this official reports, “institutional unease by senior career people” at Justice that good faith legal work may place attorneys in peril. “The department won’t be able to attract the best and the brightest. You really want lawyers who will give candid legal advice.”

But the question remains why, and why now, the department has come to its senses. Newsweek pointedly observes: “A Justice official declined to explain why David Margolis softened the original finding, but noted that he is a highly respected career lawyer who acted without input from Holder.” One can speculate that some group of career attorneys, with no love lost for the Bush administration, nevertheless found the prospect of disbarring two of their own for good-faith legal work to be a bridge too far in the partisan wars. And it may be that as the wheels come off the ideology-driven Holder-Obama approach to terrorism (e.g., widespread criticism of the handling of the Christmas Day bombing, reversal of the decision to try KSM in New York), this was one more ill-conceived crusade that the Obami did not need.

Finally, for those who like a bit of Washington intrigue, consider that the White House counsel was until recently Greg Craig, who in his pre-Obama days as an adviser to Sen. Kennedy found the Nicaraguan Sandinistas to be deserving of our support, later helped return Elian Gonzales to the clutches of Fidel Castro, and advised in some capacity Pedro Miguel González, the Panamanian terrorist the U.S. government believed to have murdered two American soldiers. (Yes, that’s a story in and of itself, one that the mainstream media found no interest in reporting.) Craig, often cited as an enthusiastic backer of the “Not Bush” anti-terror policies, is now gone, a victim of the failed attempt to close Guantanamo. Perhaps his departure has removed a powerful advocate for this sort of unseemly mischief. If so, good riddance.

Regardless of the reason, the news that Yoo and Bybee will not be hounded from their profession is positive and long overdue. (The potential loss of their professional licenses has been hanging over them for well over a year.) The notion that lawyers providing detailed legal analysis and a comprehensive review of existing law could later be strung up by state bar associations is nothing short of chilling. As I previously wrote, Ronald Rotunda, a professor of law at Chapman Law School and a specialist in ethics who was consulted by the Justice Department on the OPR’s investigation, found the entire effort to prosecute lawyers for their opinions baffling:

“I can’t imagine you would discipline someone who goes through everything methodically.” He explains, “If you don’t like the particular policies, then change the policies.” He draws an analogy with the attacks on free speech during the Vietnam war and McCarthy eras in which lawyers with particular views were demonized and threatened with loss of their professional licenses.

Well, perhaps some sanity has been restored to the Justice Department. If so, we can finally turn our attention from waging war against the prior administration to determining how to uproot the failed policies of this one. Then on to steering an approach to combating terrorism that is both effective and enjoys the support of the public.

Read Less