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The Things Bob Bauer Was Doing before Taking over Ethics

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The White House Ethics Czar, Norman Eisen, has gotten himself nominated to serve as Ambassador in one of the greatest places on earth, Prague, Czech Republic. To replace the function of Ethics Czar, the White House has announced that White House Counsel Bob Bauer will take over, and Steven Croley (who worked on the campaign) will lead a team of six to oversee ethics.

Ethics wonks are mixed about whether this arrangement will meet the high standards Obama set when he came into the White House. POGO’s Danielle Brian takes Bauer’s appointment as a good sign that ethics will continue to be a priority. OMB Watch’s Gary Bass is happy the White House worked so quickly to implement a plan to replace Eisen. But Sunlight Foundation’s Ellen Miller views the appointment of Bauer–who has a history of supporting bad ethics habits–as a setback.

This concern is magnified manifold when Eisen’s key successor – Bauer — can hardly be described as having the DNA of a ‘reformer.’  This is the man who invented the rationale for the acceptance of “soft money’’ – unregulated (chiefly corporate) funds that flooded elections to the tune of $1.5 billion between 1992 and 2002, and the man who sided with arch conservatives in their defense of lack of transparency.

[Update: CREW has concerns as well.]

I’ll leave it to the ethics wonks to decide whether Bauer can do the job–on ethics–well or not. And FWIW, the one time I’ve seen Bauer’s work close up (during an election-related suit here in MI in 2008), I thought he was the kind of fighter Dems need more of.

But I am worried about what this says about the Administration’s focus on two other critically important functions. You see, when Bauer took over for Greg Craig, he was hailed as the kind of guy who could solve two problems Craig had failed to: judicial confirmations and closing Gitmo.

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Elena Kagan and Lindsey Graham on the Global Battlefield, the Sequel

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This exchange is one of the most telling from the entire Kagan hearing today (note; we’ve edited this exchange for length; here’s the full exchange; also, while you’re watching, keep an eye on the body language of the bearded man sitting behind Kagan, White House Counsel Bob Bauer).

It’s striking, first of all, because Lindsey Graham plays the role of the cross-examiner and his delivery largely overwhelms Kagan. As they go on, Kagan manages to reclaim her ground–on the issue of whether or not the entire world is the battlefield of the war on terror. But even there, the difference in her various answers suggests troubling things about her stance on habeas.

After prompting Kagan to deliver the standard justification for detaining enemy combatants during war and rewarding her with a condescending compliment, Lindsey starts by getting Kagan to agree that the war on terror will never end.

Lindsey: [Speaking of her rote recitation of the basis for indefinite detention] That’s a good summary. The problem with this war is that there will never be a definable end to hostilities, will there?

Kagan: [Nodding] That is exactly the problem, Senator.

What a breath-taking exchange! Rather than challenge Lindsey on his slippery definition (referring to “hostilities” rather than war), rather than challenging him on the premise, Kagan simply nods in agreement. One minority party Senator and the Solicitor General sat in a hearing today and decided between them the state of hostilities under which the Executive Branch has assumed war-like powers to fight terrorism will never end.

The police state will continue forever.

Perhaps sensing the danger, Kagan notes that the Hamdi decision envisions such an indefinite war might require a different approach to detention, perhaps a review to ensure a detainee’s continuing dangerousness. This thrusts Kagan not into the realm of legal review, but the policy disputes between the White House and Lindsey (again, the watchful eye of Bob Bauer here is worth noting).

Our excerpt jumps here (after Lindsey makes his pitch for just such a program).

Lindsey comes back by getting Kagan to personally endorse the stance she embraced in her Solicitor General role, arguing against habeas rights for Bagram detainees.

Lindsey: You argued against expanding habeas rights to Bagram detainees held in Afghanistan, is that correct?

Kagan: I did, Senator Graham.

Lindsey: As a matter of fact, you won.

Kagan: [pushing back with apparent discomfort] Uh, in the DC Circuit–

Lindsey: [interrupting] And you probably won’t be able to hear that case if it comes to the Supreme Court, will you?

Kagan: Well, that’s correct, and the reason–

Lindsey: [interrupting again] Well, that’s good cause then we can talk openly about it.

Kagan: [laughing] Uh, if I could just say, the Solicitor General only signs her name to briefs in the Supreme Court, authorizes appeal, but does not sign Appellate briefs, but I determined that I should be the Counsel of Record on that brief because I felt that the United States’ interests were so strong in that case based on what the Department of Defense told our office.

Lindsey: Right. I want every conservative legal scholar and commentator to know that you did an excellent job in my view of representing the United States in that case.

Lindsey then gets her to reiterate that she signed that brief because of the seriousness of the issues for the government. He interrupts again:

Lindsey: Well, let me read a quote: “The Federal Courts should not become the vehicle by which the Executive is forced to choose between two intolerable options: submitting to intrusive and harmful discovery, or releasing a dangerous detainee.” Do you stand by that statement?

Kagan: Senator Graham, can I ask whether that statement comes from that brief?

Lindsey: Yes it does.

Kagan: No, I uh, that statement is my best understanding of the very significant interests of the United States government in that case, which we tried forcefully to present to the Court and as you said before, the DC Circuit–a very mixed panel of the DC Circuit–upheld our argument.

Lindsey: Right. You also said “The Courts of the United States have never entertained habeas lawsuits filed by enemy forces detained in war zones. If Courts are ever to take that radical step, they should do so only with explicit blessing by statute.” You stand by that?

Kagan: Anything that is in that brief I stand by as the appropriate position of the United States government.

Lindsey: [while she is speaking] Fair enough.

Throughout this exchange, Lindsey basically had Kagan cornered, not wanting to disavow a document she had signed in unusual circumstances, but seemingly recognizing the risk of adopting these harsh statements as her own. Read more →

Negotiation 101: How to Get Corporations to Do What You Want

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I just got back from driving across the rust belt – Syracuse, Buffalo, Cleveland, Toledo, MI – and am catching up on all the interesting conversations you’ve been having this week while I was celebrating my mom’s birthday (thanks, once again, to bmaz for watching the liquor cabinet while I was gone). So for the moment I want to make one quick comment.

The WSJ has a story describing how BP heroically pushed back against two of the Administration’s most onerous demands: that it pay for the costs of the moratorium on new drilling, and it pay to restore the Gulf to its natural state, rather than the state it was in when the Deepwater Horizon disaster struck.

BP PLC, despite being put under pressure by the U.S. government to pay for the oil-spill aftermath, has succeeded in pushing back on two White House proposals it considered unreasonable, even as it made big concessions, said officials familiar with the matter. BP last week agreed to hand over $20 billion – to cover spill victims such as fishermen and hotel workers who lost wages, and to pay for the cleanup costs – a move some politicians dubbed a “shake down” by the White House. Others have portrayed it as a capitulation by an oil giant responsible for one of the worst environmental disasters in history. A more accurate picture falls somewhere between.

The fund is a big financial hit to BP. But behind the scenes, according to people on both sides of the negotiations, the company achieved victories that appear to have softened the blow.

BP successfully argued it shouldn’t be liable for most of the broader economic distress caused by the president’s six-month moratorium on deep-water drilling in the Gulf of Mexico. And it fended off demands to pay for restoration of the Gulf coast beyond its prespill conditions.

Now, I know WSJ’s job is to make corporations look good, so I’m unsurprised by this spin. And I’m skeptical the $20 billion will get in the hands of those who need it in a timely fashion.

But it seems to me that the real story is that – for the first time I can think of – the Obama Administration has actually taken a tough approach to negotiation. Normally, of course, Obama starts by ceding on key issues (such as drug reimportation, oil drilling, and real financial reform) and from that incredibly weakened position, further damaging his policy position. Perhaps this time is different because the Administration is under a much greater public opinion threat. Perhaps this time is different because BP is a corporation (though so are the drug companies) not the opposing political party.

But this time is different.

I actually agree with the WSJ that Obama was unlikely to get BP to pay for the moratorium on drilling. But that may have not been the point. It established the window of possibility far beyond what it had been, and made the $20 billion escrow account look reasonable by comparison. And voila! BP at least said they agreed to cough up $20 billion.

It’s called negotiation!

Whoever came up with this novel idea really ought to get a bigger policy portfolio.

Bob Bauer and Scooter Libby Justice

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photo: Bob Bauer (PolicitalActivityLaw via Flickr)

photo: Bob Bauer (PolicitalActivityLaw via Flickr)

Glenn Greenwald has a post hitting on an op-ed Bob Bauer — Greg Craig’s replacement as White House Counsel — wrote supporting a pardon for Scooter Libby. (h/t BayStateLibrul) Glenn focuses on these passages…

Bush’s opposition has braced for a pardon and its rage at the prospect is building.  To Bush’s antagonists on left, a pardon would be only another act in the conspiracy — a further cover-up, a way of getting away with it. But this is the entirely wrong way of seeing things.  A pardon is just what Bush’s opponents should want. . . .Nothing in the nature of the pardon renders it inappropriate to these purposes. The issuance of a presidential pardon, not reserved for miscarriages of justice, has historically also served political functions — to redirect policy, to send a message, to associate the president with a cause or position. . . .

Libby is said to be unpardonable because the act of lying, a subversion of the legal process, cannot go unpunished. Yet this is mere glibness. . .

Now, as it happens, I didn’t write about this when it first came out. And to be honest, I’ve got mixed feelings about it. After all, Bauer did something that few people in DC were doing at the time–pointing to Bush’s own involvement in the leak of Plame’s identity.

A presidential pardon is finally an intervention by the President, his emergence from behind the thick curtain he has dropped between him and these momentous events involving his government, his policy, his Vice President. By pardoning Libby, he acknowledges that Libby is not really the one to confront the administration’s accusers. Now the president, the true party in interest, would confront them, which is what his opponents have demanded all along.

[snip]

But if the President pardons Libby, and by this act makes the case his own, he will have picked up a portion of the cost. Libby will fall back, restored to obscurity. Bush will step forward and take the lead role. He will have to explain himself; he will have to answer questions.

Even though I had already pointed to evidence showing Bush was involved–and may have even ordered OVP’s campaign against Joe Wilson in June 2003, when Bauer wrote this, almost no one would utter the possibility that Bush was somehow in the loop on the Plame outing. I think I remember being mildly grateful that someone would even point out that Bush ultimately bore responsibility for the Plame outing.

That said, I think Bauer was, on two counts, hopelessly naive. Read more →

Michigan Dems and the Obama Campaign Sue for Foreclosure-Related Vote-Caging

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The Michigan Democratic Party and the Obama campaign just finished a conference call announcing that they will sue the Republican Party for its plans to conduct vote-caging operations this fall, based partly on using lists of people in foreclosure to challenge peoples’ right to vote (here is Time’s recording of the call). They are seeking an injunction to prevent the GOP from engaging in these activities this year.

The move arose out of a Michigan Messenger story last week which quoted a county party chair, on the record, as saying he planned to use foreclosure lists as a basis for vote-caging.

The chairman of the Republican Party in Macomb County, Michigan, a key swing county in a key swing state, is planning to use a list of foreclosed homes to block people from voting in the upcoming election as part of the state GOP’s effort to challenge some voters on Election Day.

“We will have a list of foreclosed homes and will make sure people aren’t voting from those addresses,” party chairman James Carabelli told Michigan Messenger in a telephone interview earlier this week. He said the local party wanted to make sure that proper electoral procedures were followed.

State election rules allow parties to assign “election challengers” to polls to monitor the election. In addition to observing the poll workers, these volunteers can challenge the eligibility of any voter provided they “have a good reason to believe” that the person is not eligible to vote. One allowable reason is that the person is not a “true resident of the city or township.”

The Michigan Republicans’ planned use of foreclosure lists is apparently an attempt to challenge ineligible voters as not being “true residents.”

When asked whether they had more evidence that the GOP planned to engage in this kind of voter-caging this year, MDP Chair Mark Brewer and Obama Campaign General Counsel Bob Bauer referred to the changing story among different members of the MI GOP–that stop short of real denials, of similar statements coming from an OH county chair, and of a former MI Republican Counsel, Eric Doster, admitting the party did plan on doing vote caging, though perhaps using returned mail.

The campaign explained the goals of their suit this way:

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