WASHINGTON — As they watched President Obama lumber into controversy over mandating contraception coverage last winter, some White House staffers were banging their heads against the wall. The lawyers had done it again.
Tensions between operatives and the lawyers hired to protect them from legal trouble are a constant in politics. But as President Obama's beleaguered aides look for someone to blame in an escalating series of scandals, former political, communications, and policy officials complained to BuzzFeed that one culprit is a balance that has tilted too far toward the lawyer, allowing avoidable controversies to boil over.
Two former White House officials laid some of the blame for the Benghazi mess on the counsel's office, led by Kathyrn Ruemmler. They say that staff led by Ruemmler shut down their attempts to head Republican questions off at the pass. And a veteran of Obama's first term told BuzzFeed Wednesday that the same dynamic had produced, in the past, a similar pattern: A slow-walk until an issue "explodes in our face."
The worries about the Obama White House counsel's office derailing scandal prevention before it can start are not universal. One former White House official recalled working smoothly with the counsel's office and described a collaborative process that generally resulted in all parties being satisfied. And everyone says the lawyers in the White House counsel's office are among the smartest in the business.
A White House official called Tuesday's report on the Benghazi timeline "off base" Tuesday, and declined Wednesday to participate in a broader story on tensions between political staffers and the White House Counsel's office. But that tension, which has boiled in the background for years, helps explain some of Obama's current quandary.
In the case of contraception, some in the White House saw conservative and religious outrage over Obamacare's contraception coverage requirement coming a mile away: Weeks before the mandate was officially rolled out in January of 2012, they pushed hard to seek a compromise that would allow religious employers who found contraception objectionable to avoid paying for it. Others thought large religious-run organizations like hospitals and universities shouldn't be allowed an exception to the contraception mandate. On their side was the White House counsel's office. As reported by the Los Angeles Times last November, any talk of a compromise plan was scrapped due to Ruemmler's objections. Eventually, after a conflagration in the press and on Capitol Hill following the announcement of the original mandate, President Obama stepped in personally and overruled the counsel's office, pushing his staff to find the compromise some had advocated for in the first place.
A former White House official who watched the political bellyflop told BuzzFeed the counsel's office overreached its mandate, taking a political stand with those in the White House who opposed a compromise plan and wrapping that opposition in legal advice.
"This has happened several times before, including on the contraception issue. First, we get an inkling of a crisis. Next, Counsel's office, led by Kathy, develops and sells an opinion that there is no legal way to address the crisis. Finally, when it explodes in our face, we have to walk Kathy's advice back and find a way out," a former administration official said. "I am sure she's a competent lawyer and she's a really great person, but when she has too much sway on major strategic decisions that are more politics than law, the president is left holding the bag."
Of course, after an embarrassing moment like the first couple weeks of the contraception fight — which Democrats eventually spun into a winning narrative that dominated much of the election — someone will always come forward with the "I told you so." And "blame the lawyers" is a common refrain across Washington, regardless of the partisan side.
But every modern president has to balance the need to be on the political playing field with the need to protect his White House from legal challenges. How that balance works can be the difference between an administration slipping past controversy and one getting mired in "scandal."
"At some level, right, that's the lawyer's job — to be over-cautious and constantly try to protect their client from legal exposure. I do think there is sometimes the challenge of looking to win the legal battle and then lose the broader war, the communications war, the political war," said Chris Lehane, a political strategist and lawyer brought in to the Clinton White House counsel's office as part of a small team that handled the legal-political balance during the Clinton scandal years.
From his current digs in San Francisco, Lehane said observing the Obama White House gave him the sense they don't have the kind of special unit in the counsel's office Clinton did. "Every White House is run differently, and every White House is run somewhat consistent with how the person at the top wants it run," he said. "And my perspective is that this is a president who has a small group of advisers who he trusts and works closely with and a lot of the activity really does end up going through a relatively small cohort of folks."
Lehane praised the Obama counsel's office decision not to inform the president of the upcoming IRS Inspector General's report, saying such a move would have put the president at political risk with no discernable reward.
"That was protecting their client," he said. "That was a smart call."
But he said Obama might want the kind of unit in his counsel's office Clinton had in his, a group focused solely on wrangling the negative stories swirling around the White House at the moment. "What's unclear to me is whether there's a group of people sitting in a room that includes the political people and the legal people and they're executing against a strategy that's designed to serve the best interests of the building and the president," he said. "Typically, in these situations every single decision should not be because it's the legally cautious thing to do."
As the White House continues to figure out how to deal with the scandals it faces — Press Secretary Jay Carney told reporters Wednesday there are "legitimate criticisms" of the way the IRS story was handled for one — the White House counsel's office could play a major role in determining if Obama can get things back on track quickly or will be forced to settle in for a long haul of Congressional investigatons and media inquries.
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