Box 11-JGR/Conflicts of Interest (1)
Topic: On Assignment
Phew, finally finished.
Table of Contents to this entry:
1. Introduction
2. Cast of Characters
3. Descriptive Bibliography
4. Brief review of Fielding Document
5. Conclusion
Introduction
Why on Earth would a Libertarian be supporting a conservative Catholic judge for a spot on the Supreme Court of the United States? Trust, somewhat and the fact that he worked for Ronald Wilson Reagan are the main reasons. You see, I can list my top ten problems and be comfortable saying that the Federal Government can only help with one (the people who want to kill me because I'm a citizen of this country). No way a guy can spend his formative professional years in the employ of President Reagan and not relate to that statement.
And a member of the Federalist Society to boot, it's a good situation that stands to get better. I believe that we've become dysfunctional in this country. We talk about abortion under the guise of a conversation about privacy. I'm pro-choice and I think that given a vote, the majority of people of this country would side with me on many aspects of this debate. But a massive federal government, massive central power interpretation of the constitution for a generation has taken power away from the little guy and put it in the hands of big government.
I can't get a bureaucracy to notice I exist, until they want my money. So the odds of moving one in one direction or another are slim. I have a better chance of winning money at a poker table filled with card sharks. So when I see the chance to get a guy on the court who will interpret the law in the tradition that Reagan envisioned, I want to do anything I can to help.
It is altogether Libertarian to want a Justice who sees the constitution as a whole, complete and functional document, designed to limit, not empower government. How fitting that President Reagan would get a man that he would be proud of at the resignation of one of his most disappointing appointees.
So this effort is an attempt to do just that, help out in some small way. The box that Miriam and I went through didn't have much, but we milked it for all it was worth. We hope that you find this insightful. "The fetching" Miriam gets big credit for going along and providing a massive chunk of this work. Enjoy.
-Bill Turner
My interest in working on this project is not political. I wanted to use some of my research skills and put them to work in a way that might be useful. Besides, looking through somebody else's file cabinet is far more fun than looking through my own.
-Miriam Kotzin
Cast of Characters:
Lloyd N. Cutler - "Lloyd N. Cutler, one of the founding partners of Wilmer, Cutler and Pickering, "maintains an active practice in several fields, including international arbitration and dispute resolution, constitutional law, appellate advocacy, and public policy advice." Brief biography of Lloyd N. Cutler
J. Jackson Walker - Former Director of The United States' Office of Government Ethics.
David R. Scott - Former Acting Director of The United States' Office of Government Ethics.
Fred F. Fielding - Counsel to President Reagan 1981-1986. Also subject of speculation relating to the identity of "Deep Throat."Brief sketch of Fred F. Fielding
Description of documents by Miriam N. Kotzin
box 11 - JGR/Conflicts of Interest (1) Roberts, John G.: Files
SERIES 1: Subject File
5 Items
Document 1.
"MEMORANDUM FOR WHITE HOUSE OFFICE STAFF MEMBERS AND HEADS OF ALL EXECUTIVE OFFICE OF THE PRESIDENT ELEMENTS"
Written by Lloyd M. Cutler
Date: November 13, l980
Subject: "Private Job offers and Post-Employment Conflicts of Interest"
Memorandum summarizes "post-employment conflict of interest (COI) provisions of the Ethics in Government Act of l978, as amended." Memorandum reminds employees that the l978 act supercedes their Letters of Commitment.
Topics include:
1.negotiation for future employment while still working for government.
2. determining need for disqualification based on COI.
3. keeping records on each issue of COI and how it was "addressed and resolved."
Post employment activities and COI: "generally barred from representing a nongovernment party in matters in which the government has had an interest and in which the former employee had been involved while in government." Further restrictions based on level of employment "high level 'Senior Employee'" and degree of involvement in matter.
Reference to an Executive Order (on the missing page 2 perhaps?) that "aims at avoiding even the appearance of conflict."
1. For all employees: "Permanent Bar from Representation in matters in Which Former Employee had Personal and Substantial Involvement" (18USC 207 (a)) [capitalization of memo]. This is the prohibition on " 'switching sides.'" This bar extends to making phone calls lobbying, but not 'general applicability and interest." Once financial interest comes into play, consult counsel.
"Two Year Bar from Representation in Matters Within Former Employee's Official Responsibility" (18 USC 207 (b) Ii) ).
"Restrictions Applicable Only to Former 'Senior Employees'" Two Year Bar on Assisting in Representing (18 USC 207 (b) (ii)). That is, the former employee may not assist through "personal presence" at a meeting.
One Year Bar on Contact with Former Agency (18 USC 207 (c )) Some exemptions for former employees who are elected to office or work for state or local governments or universities,
Prohibition Against Receipt of Compensation for Certain Representational Services (18 USC 203) if they " occurred before any part of Executive or Legislative Branches while he or she was in government service. (emphasis added to point out the touch of non-sexist language of the memo by Cutler In all other places in this memo "he " was used.)
Financial Disclosure Report, covering January 1 through date of termination with 30 day post termination deadline for filing.
And the "Special Rules Applicable to Lawyers"
What's a senior level employee? In this memo it seems to be determined by salary. Nice to know the code is so fine-tuned right down to the half-dollar: $50, 112.50. Now remember that's 1980 dollars, so when tweaked up to 2005 we're talking about a dollar value of about $114,936.93 (though federal salaries may not have kept up with inflation). In J. Jackson Walter's memo, "Senior Employees are at Levels I through V of the Executive Schedule, active duty commissioned officers assigned to pay grade 0-9 or above, and those in senior positions designated by the Director, Office of Government Ethics. For a position to be designated it must 'involve significant decision-making or supervisory responsibility." Further, the position must be in the Senior Executive Service or have a basic rate of pay at least equal to GS-17, Step 1 (or be at pay grade 0-7 or 0-8)
8pp. typewritten; single spaced, p. 2 missing, replaced by typed sheet that appears to be notes for a meeting.
Document 2. United States of America Office of Government Ethics
Office of Personnel Management
Memorandum
Subject: Information on Terminal Financial Disclosure Requirements and Restrictions on Former Government Employees
From: J. Jackson Walter, Director
To : Departing Presidential Appointees
Date Nov. 20, 1980
"contains an overview of the public financial disclosure requirements and post-employment conflict of interest restrictions applicable to those departing from senior positions within the Federal government. It only highlights certain statutes and should not be relied upon for complete legal guidance. For that, you should consult your own attorney or the Designated Agency Ethics Official at your agency for a detailed explanation of these general rules and the practices of particular departments and agencies."
The "switches sides" term again appears in connection with 207 (a), the "life-time disqualification."
Reminder that "During the period preceding your departure from the Government special care may be required to avoid the appearance of conflict of interest with respect to potential employment."
Memo ends with an invitation to ask for assistance. The Office of Government Ethics and the ethics officials of each agency throughout the Executive branch are always pleased to consult with former Government officials and those about to leave Government service and their representatives concerning their responsibilities and obligations with respect to post-employment restrictions. Our experience in resolving numerous such issues is often useful in ameliorating the restrictionsplaced upon individual former officials while fulfilling the requirements of Federal law. ( Emphasis added.)
3 typed pages, single spaced. On the last page a white space of approximately nine lines of type perhaps indicates a change in subject as the memo moves to a discussion of how the law applies not only to individuals but to the firm for which they will work. And it ends with the invitation to ask for assistance.
Document 3
United States of America Office of Government Ethics
Office of Personnel Management
Memorandum
Subject: Applicability of the Conflict of Interest Statutes to Members of the Preident's National Security Telecommunications Advisory Committee
From: David Scott, Acting Director
To: Fred F. Fielding, Counsel to the President
In respnse to query of Aug 26, 1982, "whether the conflict of interest statues, 18 U.S.C. & 202-209, will be applicable to the persons who become members of the President's National Security Telecommunications Advisory Committee&, an entity to be created by the President's issuance of an enabling Executive Order.
By using the commas this suggests these are the only coi statutes there are. The commas here make 18 USC 202-209 in apposition to "the conflict of interest statutes.
Because the language of the pending Executive Order and FCS report of July 1882, says "the members of the contemplated Committee are speaking not in an individual and independent role but rather on behalf of their respective corporate or other organizations" they are therefore not subject to those sections of the code. Scott sites Federal Personnel Manual, Chapter 735, Appendix C, pp. 4-5 . If advice is given in "an individual and independent capacity, in which case he will be an employee of the Government (ordinarily an SGE) and thus subject to the restrictions&Alternatively he may be appointed to advance the views of a non-federal organization or group which he represents or or which he is in a position to speak. In that role he will not be an employee of the Government and therefore will not be bound by the conflict of interest statutes.
One page typed, single spaced.
Document 1 a.
THE MYSTERIOUS PAGE 2 (Was unable to reproduce page layout - BT)
The author of this sheet of notes is unknown, and the typeface does NOT match that of the Cutler document. Larger capital letters appear, indicating the probable use of a computer/ word processor in preparation of this sheet, but with no auto-correct feature. Author claims "ten years of working in field of ethtics[sic] in government."
This page, which is placed as page 2 of the Cutler document concerning conflict of interest, appears to be someone's notes to be used for speaking at a meeting discussing the implications of proposed legislation concerning financial conflict of interest on persons who might enter government service. (In preparing these comments, I draw on more than two decades of experience as a teacher of, among other subjects, public speaking.)
The format of the page is typical of notes used for oral presentation. Attention is given to legibility: all capital letters, lines double spaced, using bullet points (but not a Power Point presentation sheet). At least one typographical error remains uncorrected.
Key words and phrases are underlined. This is a professional presentation technique used to make clear what words are to be emphasized, e.g.,
"CERTAIN TECHNICAL ASPECTS NEED CHANGE
WON'T BORE, EXCEPT - ACT NEVER CONTEMPLATED TRANSITION JERRY-RIG
Other evidence that this was for personal use in speaking is the colloquial opening:
"OUTSET - PLEASE DON'T MISTAKE WHAT I'M SAYING" followed by a series of points to be made.
"- SOME GOOD, NECESSARY, HELPFUL (DEFINITION OF
"BLIND TRUSTEE")
- NOT DENIGRATING IMPORTANCE OF EHTICS[SIC] IN GOVERNMENT
WORKING IN FIELD FOR OVER TEN YEARS
WE ARE SCRUPULOUSLY COMPLYING WITH ACT NOW ON
BOOKS, WITH ASSISTANCE OF THOSE IN THIS ROOM
AT THIS MOMENT AND HISTORY, YOU AND I ARE IN
UNIQUE POSITION TO EVALUATE IMPACT
MUST SEE THAT UNIQUE EXPERIENCE IS NOT LOST
BUT, WHERE ARE WE NOW? HOW DOES ACT IMPACT ON RECRUITING
ATTRACTIVE CANDIDATES?"
The page is numbered 2 at the top, though no other pages are included. The first page was probably a sheet that included information about this meeting, possibly the subject of the meeting and the date. Although subsequent pages may exist, it is possible that they do not, as the last items on the page appear to conclude a rhetorical position against further restrictions.
"DO KNOW CUMULATIVE IMPACT ON ALL REQUIREMENTS, PLUS VOLUMES, TIMES - CONSUMING REQUIREMENT - INDEED TOOK ITS TOLL
It is likely that the author intended to type "time-consuming" requirement.
To what does this refer? Perhaps it is the l978 Ethics in Government Act.
"Prior to the enactment of the qualified trust provisions of the Ethics in Government Act of 1978 [the "Act"], there was no authoritative consensus as to what constituted a properly formulated blind trust. Consequently, there was considerable scope in individual cases to exercise initiative in shaping trust arrangements to achieve results consistent with an individualized perspective. However, the most innovative and important aspect of the trust scheme introduced by the Act involves the relationship of Federal conflicts law to trustee acquisitions. Before the Act, all holdings of a blind trust were often considered "blind" upon establishment of the trust, even though it was obvious that the trust almost certainly still contained the same assets which were placed in it by the Government official for at least some period of time. However, a qualified blind trust certified by this Office pursuant to the Act is blind only with respect to those assets secretly acquired by the trustee upon roll-over of the assets originally transferred to the trust by the Government official." Letter to the General Counsel of an Agency,September 8, l986.
Heck, I'd bet that these weren't notes of the present Supreme Court nominee, Roberts. He's brilliant, but he was born in l955 and received his JD from Harvard in l979, merely one year after the Ethics in Government Act. That most likely leaves him out based on the "working in the field' for a decade. And that page 2 was slipped into the place of a document written in l980, a scant two years after the 1978 Act.
These notes seem to be written by someone NOT in Congress, as in the concluding statement, the author says: 'DO KNOW IT OCCURRED/NEWSPAPER REPORTER ASKED - HOW PROVE WITHOUT DATA-AS MUCH DATA AS CONGRESS DID"
It may be that another blogger is the recipient of the sheet of paper that will reveal the author of this sheet. In "What to do When the White House Calls" Fred F. Fielding notes that that the Reagan Administration was the "first to undergo a full-scale Presidential transition under the l978 Ethics Act." Perhaps the author of this sheet, then, is someone in the Reagan Administration who wanted to see some modification in the 1978 Act.
But how did this page 2 get slipped in here. And what happened to the other page 2? Did anyone check the socks of the fellow who packed these boxes?
Document 4
WHAT TO DO WHEN THE WHITE HOUSE CALLS
A Short Primer on Entering Public Life in the Eighties
Fred F. Fielding, Counsel to President Ronald Reagan
January 1, l983
Mr. Fielding's gracefully written advice to potential nominees--though addressed specifically to those in the eighties, remained poignantly appropriate through the nineties and this decade, too, as those "-gate-listed" (my term) nominees can attest. You (and they) know about whom I write.
Fielding's practical suggestions, many of which can also be found in today's Public Relations textbooks that deal with crisis management and information flow, offer advice about telling the truth, as he says, "it is vital to put his cards on the table as soon as discussions with The White House reach the serious stage, and utterly foolish for him not to do so." (The pronouns referring to the nominee in Fielding's essay are "one" and "he." No "she or he"--not even "he or she.")
In addition to the pre-nomination advice, he also remarks that "The Washington press corps is comprised of highly skilled reporters, for whom the novice is no match. Their job is to find the news; but it is not the candidate's job to create it."
In this essay, Fielding writes about the candidate's being "turned over to the tender mercies of the Office of the Counsel to the President." This portion of the vetting includes the many forms authorizing FBI investigations, an IRS report, financial disclosure and the "Personal Data Statement." This question list, then nineteen items, "covers a very broad range of issues, including financial and business relationships, memberships in political, professional, social and other organizations; involvement in civil litigation or criminal investigations; published writings and public testimony; and any controversial incidents and associations. The last question on the form really sums it all up: "Please provide any other information which you regard as pertinent or which could be the possible source of embarrassment to you, or to the President if possibly known."
In l983 the "full field FBI investigation" was known as "Standard Form 86." I was curious to see if this had any connection with the phrase "to 86" meaning to dismiss or delete--and found a host of possibleetymologies ranging from light filters for film to bar room brawls, but none dealing with the FBI form.
According to some reports Fielding assisted in the first Bush-Cheyney transition team, interviewing potential nominees while he was senior partner at Wiley, Rein & Fielding, a major Washington law firm. Two years later (that's 2002, a good three years ago) he joined another former White House Counsel C. Boyden Gray and other prominent Republicans on the Committee for Justice. formed, according to Gray, to help get White House judicial nominees approved. He also served on the 9/11 Commission.
24 pp. double spaced, typed. Some hand-written editing and typed additions. The penned-in changes are mostly stylistic, but one is substantive, noting that the Reagan Administration was the "first to undergo a full-scale Presidential transition under the l978 Ethics Act." A typed footnote points to the need to examine ways in which to make "easier" the "transition from private to pubic life." This suggests that there be a "deferral of capital gains liability for persons required by conflicts-of-interest rules to divest themselves of significant holdings." And a second typed footnote summarizes four prohibitions in the conflict of interest laws.
The typed additions are not typed on the same typewriter as the article, the possibility is that someone other than Fielding wrote it. The typeface on the second typewriter is slightly smaller, more even and "crisp." I do not know Mr. Roberts' handwriting, and I therefore cannot assume that he is responsible for the editing of this document.
Fred F. Fielding - What to do When the White House Calls. (Bill Turner)
Once in a while, irony is funny. Dipping into the box of goodies provided by the Reagan Library was one such moment. The largest chunk of the box adopted by The Counter Inquisition is a piece by Fred F. Fielding titled: "What to do When the White House Calls, A Short Primer on Entering Public Life in the Eighties."
I wonder if Judge Roberts has even gone back and read this little gem. At any rate, this is practically a field guide to political science and a gold mine for professors and teachers. Much of it is well known, but what makes it stand out is its practical tone and feel. I wanted to spend just a little time hitting the highlights.
The style of the piece is affable and disarming. Fielding strikes me as the sort with whom I'd like to sit down and have a cigar. Perhaps Hugh Hewitt could give a better sense of his character and personality, but judging from this document, he can be wry and engaging as a thinker and quite the pragmatist.
A few lines set out a sense of his approach to politics:
"Remember, potential candidates are, after all, 'our' people." - Page 5, discussing the political realities of the nomination process.
"...the potential nominee will be turned over to the tender mercies of the Office of the Counsel to the President." - Page 5, discussing the transition to a higher degree of scrutiny.
NOW A BLACKED OUT LINE BY JUDGE ROBERTS REALLY DOES GIVE A TINY INSIGHT:
Fielding Writes:
"Like - blacked out - the (illegible) in the recent (illegible) advertisements - end of blackout - we don't like 'surprises'."
Judge Roberts inserts: "most people." - Short, pointed and quick. Where fielding is on a roll, Roberts shoots for concise and accurate.
Back to the highlights:
As previously mentioned, the piece is an overview of entering public life. It is precisely designed as a primer for the best and brightest in the corporate world; a how to not get completely annihilated if your name makes the final cut list.
So much has changed since this was written, that it has a quaint feel about it. It was certainly written for a different corporate atmosphere. Consider the corporate atmosphere for the journalists who cover these appointments as is applicable from a compensation point of view in the Columbia Journalism Review, November/December 1993, "The CEO Factor":
"In 1982, experienced print and TV reporters in top markets earned an average of $ 29,000, while the average media c.e.o., among I I corporations studied, earned $ 923,000. So the average media c.e.o. earned 32 times more than the working stiffs who formed the backbone of his organization.
Last year the top print and TV reporters earned an average of $ 50.000, for a decade-long increase of 72 percent. But the average media c.e.o. earned $ 2,407,000, for a decade-long increase of 161 percent. Thus, while the average media c.e.o. earned 32 times more than an experienced reporter at a major news outlet in 1982, the ratio had widened, ten years later, to 48 to 1.
Recall here that Plato told Aristotle that no member of a community ought to earn more than 5 times the pay of the lowest worker in the community. And reporters, though pitifully paid, are decidedly not the lowest-paid workers in the media community.
But forget Plato. J.P. Morgan, no friend to socialism, thought that c.e.o.s ought to earn no more than 20 times the pay of a worker. More recently, management guru Peter Drucker also weighed in with a c.e.o.-to-average-employee pay ratio of 20 to 1. (There was no income tax to chip away at top pay rates in Morgan's day, but when Drucker offered his ideal ratio, income tax rates were higher than they are today.)" Read the complete article.
Yep, the times they are a changing.
Set aside the corporate ethics and principles tone of the piece, and one wonders if Fielding could have imagined a political environment that would create a verb like "Borking." It is obvious from the tone of this piece, though it is not specific to nor inclined to discuss judicial nominations and nothing about them can be directly deduced from this, Fielding was writing in a different political age.
So the temper and tone of politics have changed and this piece is a wonderful slice of History. That is not to say that everything in the piece is antiquated. Far from that idea, Fielding lays down some excellent groundwork in the practical aspects of managing a nomination process. He is also specific about common sense details that surround the process. Like President Bush's response to the reporter when badgered about the current supreme court appointment and he made a joke about timing, Fielding outlines exactly how a nomination should be managed and moved from start to finish, including bailout options and final conclusions about the end result of a smooth nomination.
No, this is not a scintillating thriller and one is likely to be put to sleep if one prefers the meat of politics to the potatoes of process. But this document is a wonderful look behind the scenes, worthy of a read by the people who are paid to know "how things work."
Conclusions
So we didn't prove that life once existed on Mars, that T-rex was a scavenger, that the Iraq war was planned in 1982, or that Princeton University was built by Aliens (it was, though). What we did find was an interesting little slice of politics in the 1980's. And while we found nothing groundbreaking in these documents as it relates to Judge Roberts' fitness to be on the Supreme Court, we did our part to contribute to the process, tiny though our part may be.
Bill speaking now
The left is asking for more documents. Nothing short of a confession to a crime will satisfy the left wing of the left in general. The extreme left understands what is at stake. The construct that has placed powers previously unknown into the hands of the Supreme Court is in danger of crumbling.
The hysteria grows daily. Look at this page at the Center for Reproductive Rights:
The hysteria grows
Fair play? I'm all for it. Let's have an up or down vote please.
Thanks to Hugh Hewitt for a good blog idea. See all of your entries soon, fellow bloggers.
Box 11-JGR/Conflicts of Interest (1) - PDF FORMAT
Posted by Bill Turner
at 8:11 PM EDT
Updated: August 22, 2005 1:03 AM EDT
