Commentary Magazine


Topic: Sandy Berger

Of Administration Lawyers and Disdain for the Law

The Obama administration is not the first in which incompetence reigns large, although the botched roll-out of the Obamacare websites followed by the exposure of 21 million current and former employees’ personal data pretty much takes the cake. Still, there is a difference between incompetence driven by the perfect storm of bloated government on one hand, and the prioritization of political patronage over management ability on the other, and casual disdain for the law. Read More

The Obama administration is not the first in which incompetence reigns large, although the botched roll-out of the Obamacare websites followed by the exposure of 21 million current and former employees’ personal data pretty much takes the cake. Still, there is a difference between incompetence driven by the perfect storm of bloated government on one hand, and the prioritization of political patronage over management ability on the other, and casual disdain for the law.

It is the latter, which not only increasingly defines Washington, but is actually being driven by elite lawyers. No, this is not a rant that seeks to criminalize policy debate — that’s another poisonous characteristic of Washington. But, while many good and honest lawyers enter government service and never subordinate their professional responsibility to ambition or politics, increasingly the greatest scandals have lawyers at their center.

Take Sandy Berger, for example. He received a law degree from Harvard University, perhaps the most rigorous law school in the United States. He leveraged that into plum positions in the New York Mayor’s Office, Congress, State Department, and, finally, as President Bill Clinton’s national security advisor. Then, in the wake of 9/11, he stole documents from the National Archives, presumably to protect his former boss from documentary evidence which might tarnish his reputation. From RealClearPolitics:

Contrary to his initial denials and later excuses, Berger clearly intended from the outset to remove sensitive material from the Archives. He used the pretext of making and receiving private phone calls to get time alone with confidential material, although rules governing access dictated that someone from the Archives staff must be present. He took bathroom breaks every half-hour to provide further opportunity to remove and conceal documents. Before this information was released, the Justice Department, accepting his explanation of innocent and accidental removal of the documents, allowed Berger to enter a plea to the misdemeanor charge of unauthorized removal and retention of classified material – no prison time, no loss of his bar license. The series of actions that the Archives and House investigations detail, however, are entirely at odds with protestations of innocence. Nothing about his actions was accidental. Nothing was casual. And nothing was normal.

Then there’s Jake Sullivan, a graduate of Yale Law School (where he is now on faculty) and a member of Hillary Clinton’s trusted inner circle. While he is widely respected both by her allies and political adversaries, his rapid rise comes more through loyalty to his patron than always to the law. Hence, his own potential Sandy Berger problem:

As the House Select Committee on Benghazi prepares for its first hearing this week, a former State Department diplomat is coming forward with a startling allegation: Hillary Clinton confidants were part of an operation to “separate” damaging documents before they were turned over to the Accountability Review Board investigating security lapses surrounding the Sept. 11, 2012, terrorist attacks on the U.S. mission in Benghazi, Libya. According to former Deputy Assistant Secretary Raymond Maxwell, the after-hours session took place over a weekend in a basement operations-type center at State Department headquarters in Washington, D.C… A few minutes after he arrived, Maxwell says, in walked two high-ranking State Department officials. In an interview Monday morning on Fox News, Rep. Jason Chaffetz, R-Utah, named the two Hillary Clinton confidants who allegedly were present: One was Cheryl Mills, Clinton’s chief of staff and a former White House counsel who defended President Bill Clinton during his impeachment trial. The other, Chaffetz said, was Deputy Chief of Staff Jake Sullivan, who previously worked on Hillary Clinton’s and then Barack Obama’s presidential campaigns.

Cheryl Mills, his alleged co-conspirator in the effort to suppress documents outside of established procedures and perhaps the law? A graduate of Stanford Law School.

Then, of course, there is Hillary Clinton herself, who is currently mired in a morass of her own making over maintaining and using a private email server to conduct government business. Clinton, a graduate of Yale Law School, had Sullivan and Mills as her top advisors. Both knew (and corresponded) with her private email, and it was the job of both to know and understand the rules, regulations, and laws governing communications of government officials (government email accounts must be used so that they can be archived as government records). Yet while Clinton, Sullivan, and Mills presumably knew the law (and were incompetent if they did not), they simply chose to disregard it.

The list goes on. Jon Finer, Secretary of State John Kerry’s chief-of-staff and a graduate of the Yale Law School, is currently accompanying his boss in Vienna, but, when he returns, he will likely be called before Congress to explain the State Department’s “total recalcitrance at allowing Congress to investigate” issues relating to Benghazi. A separation of powers exists for a purpose in the U.S. government and, while no one likes an investigation, no secretary of State Department official can simply ignore Congress because they do not like the direction of a congressional investigation. If Congress is playing political football, then it is up to the electorate to hold them to account; it’s not the job of the State Department to unilaterally decide on behalf of the people what is or is not legitimate.

Lois Lerner, director of the Exempt Organizations Unit of the Internal Revenue Service (IRS), may not have gone to an elite law school, having instead received her law degree from the Western New England College School of Law, but every law school teaches students to be incisive and dispassionate about what is and is not legal. That’s different than right and wrong: at times lawyers must suspend moral judgment, for example, to provide defendants with the best possible defense. But Lerner is alleged to have withheld evidence, maybe even destroyed it, to obstruct an investigation into her use of the IRS to target those with whom she politically disagreed.

Politicians regardless of party recruit lawyers as staff because they value their legal education which encourages incisive and careful thinking and because those with legal training can keep officials on the right side of the law as they seek to achieve their campaign promises and fulfill philosophical and political agendas. There is something very wrong not only with Washington but also with elite law schools when those supposed trained to be aware of the intricacies of process and the law appear to treat it with such disdain. Perhaps rather than simply honor title, it’s time that the Yale’s Harvard’s and Stanford’s consider why it is that so many top alumni graduate without internalizing the most important lessons.

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The Silly Attempt to Discredit Bob Gates

In 1948, a diplomatic tell-all appeared on the shelves intended to make a splash. By former U.S. Ambassador to Poland Arthur Bliss Lane, the book title blared “I Saw Poland Betrayed” beside the Polish coat of arms’ imposing white eagle, which seemed almost to be shouting the words. The cover also informs us that “Our Ambassador to Poland resigned to tell this story.”

In fact, the timeline is less condensed than that might imply. The betrayal Lane witnessed referred to the post-Yalta actions of the major powers in which FDR, Churchill, and Stalin sealed the fate of postwar Poland, which would be under the Soviet thumb for decades more. Lane resigned in 1947 after the sham Polish elections made it official. It was a headache for President Truman, one of many he inherited from Franklin Roosevelt. But it was not a surprise: Lane writes in the introduction that his resignation was accepted “with the understanding of President Truman … that I would tell the story as I had seen it.”

Lane’s book was only one in a sea of such memoirs, the latest of which is former Defense Secretary Robert Gates’s account of his time leading the Pentagon in wartime during the George W. Bush and Barack Obama administrations. Excerpts from the book have caused a stir, showing President Obama and Hillary Clinton admitting that their opposition to the “surge” was feigned for political benefit, and that the Obama White House was broadly dismissive of and disrespectful to the American military. And the pushback commenced immediately, today garnering a Politico article attempting to shame Gates for his timing and his candor.

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In 1948, a diplomatic tell-all appeared on the shelves intended to make a splash. By former U.S. Ambassador to Poland Arthur Bliss Lane, the book title blared “I Saw Poland Betrayed” beside the Polish coat of arms’ imposing white eagle, which seemed almost to be shouting the words. The cover also informs us that “Our Ambassador to Poland resigned to tell this story.”

In fact, the timeline is less condensed than that might imply. The betrayal Lane witnessed referred to the post-Yalta actions of the major powers in which FDR, Churchill, and Stalin sealed the fate of postwar Poland, which would be under the Soviet thumb for decades more. Lane resigned in 1947 after the sham Polish elections made it official. It was a headache for President Truman, one of many he inherited from Franklin Roosevelt. But it was not a surprise: Lane writes in the introduction that his resignation was accepted “with the understanding of President Truman … that I would tell the story as I had seen it.”

Lane’s book was only one in a sea of such memoirs, the latest of which is former Defense Secretary Robert Gates’s account of his time leading the Pentagon in wartime during the George W. Bush and Barack Obama administrations. Excerpts from the book have caused a stir, showing President Obama and Hillary Clinton admitting that their opposition to the “surge” was feigned for political benefit, and that the Obama White House was broadly dismissive of and disrespectful to the American military. And the pushback commenced immediately, today garnering a Politico article attempting to shame Gates for his timing and his candor.

The good news for Gates is that it is likely many people who clicked on the article stopped reading a few paragraphs in. That’s because Politico offers the first shaming quote to Sandy Berger. Yes, Sandy Berger–the Clinton administration official who pilfered national-security documents from the National Archives to protect his boss. Here’s what Sandy Berger has to say about a highly decorated public servant who is the recipient of the Presidential Medal of Freedom:

“Cabinet members who don’t leave on principle ought to avoid undercutting the president while he’s still in office,” said Sandy Berger, who was national security adviser during President Bill Clinton’s second term. “I think they have that duty of loyalty to the president. It makes me uncomfortable to see Gates do this.”

Imagine that, you might say to yourself: the world has discovered behavior that makes Sandy Berger uncomfortable. But the larger point is just how difficult it is to tarnish Gates’s well-earned reputation. Gates must be chuckling to himself at being attacked by Sandy Berger.

Berger isn’t the only one quoted in the article, and the story goes on to mention James Byrnes’s post-Yalta memoir, though it is a far less relevant example than Lane’s. We hear from others as well in the story notes of disapproval about the timing of the memoir and the fact that it criticizes those Gates served. Berger’s critique is the least sensible of all: that Gates should have resigned to write this book or waited until Obama was out of office.

But think about that for a moment. Should Gates have resigned “on principle” to tell his story before President Obama’s reelection? How would that have been received? Surely many would have preferred to hear such criticism before casting their vote, but it would have been seen as an attempt to influence the presidential election.

Others in the story echo the claim Gates should have waited until Obama left office. But at that point, someone else criticized in the book might be taking office. How would it look if Gates released the book this time in 2017, just in time to ruin the inauguration of Obama’s successor?

Additionally, we are currently winding down the wars in Iraq and Afghanistan. The decisions have already been made, so this won’t change anything. It just enables the conversation about these changes to include Gates, surely one of the most knowledgeable sources in the country. The book’s actual impact, then, is going to be limited. It will mostly involve keeping the public better informed about the debate we’re now having. The attacks on Gates may have been predictable, but that makes them no less gratuitous or silly.

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