JOHN DEAN
John Dean served as Counsel to the President of the United States from July 1970 to April 1973. Before becoming White House counsel at age thirty-one, he was the chief minority counsel to the…more.
After a scandal-free first term, and only a few months into his second term, President Barrack Obama is suddenly faced with a series of burgeoning scandals. It’s a trifecta: Benghazi, IRS, and the AP’s phone logs. But a close look shows that these supposed scandals are all smoke and no real fire. While Congressional Republicans, Fox News, and other anti-Obama wags will try to keep them smoking, no high-level officials in the Obama Administration are going to get burned. And the broader public will tire of watching the smoke. There is nothing Nixonian or Watergate-like about any of these purported scandals, and those claiming otherwise are remarkably ignorant of history.
As I wrote in my 2004 book, Worse Than Watergate: The Secret Presidency of George W. Bush, having experienced Watergate firsthand and having studied virtually every presidential scandal before and after Watergate (out of personal curiosity), I have some understanding of the nature and dynamics of scandals. (Incidentally, I found the actions of Bush/Cheney to be worse than Watergate because their use of secrecy to take the United States to war in Iraq on the false pretense of pursuing weapons of mass destruction, and their use of torture, a crime against humanity, were way beyond scandal.)
Notwithstanding the plentiful material that is available on American political scandals, few American scholars study our scandals. Indeed, I may be as much of a “personally experienced” expert on political scandals as can be found, so I am offering a few of my thoughts on Obama’s growing problems, while also drawing upon the thoughts of a academics who have studied them.
Although all scandals have much in common, each has its own unique DNA, so they must be addressed separately. But let me begin with an analysis of the common characteristics of all modern political scandals.
The Nature of Modern Political Scandals
UK academic Robert Williams (University of Durham) undertook a study for Political Scandals in the USA (1998) noting that “[a]ttempts to classify scandals have been fraught with difficulties” because they are difficult to define. Yet this definitional problem is less of a problem with “political” scandals, for such scandals, by their very name, involve those within the political process.
As Williams notes, political scandals “tend to involve the use of public office for private benefit and/or the abuse of power in the pursuit of policy goals.” In addition, many such scandals have involved election finance. More specifically, he notes: “although every political scandal is different, they all usually involve allegations of violation of the political process and the illegitimate exercise of power.” I would add that they frequently involve sex as well.
Another UK scholar, John B. Thompson (University of Cambridge), I believe has even more perceptively analyzed modern scandal in his work Political Scandals: Power and Visibility In the Media Age (2000). In examining the etymology of the word scandal, Thompson comes up with a modern working definition: The modern scandal “refers to actions or events involving certain kinds of transgressions which become known to others and are sufficiently serious to elicit a public response.” More specifically, modern scandals provoke a response by the mainstream (non-partisan, as well as both right- and left-leaning) media.
Viewing scandal in these terms, Thompson found that they all had common characteristics: (1) the transgression violated widely held values, norms or moral code; (2) typically there is an element of secrecy; (3) non-participants are offended by the transgression; (4) and this disapproval is expressed publicly by denouncing the actions or events; and, in most cases but not all, (5) the disclosure and condemnation of the actions or events damages the reputation of those responsible. Most importantly, however, Thompson found that modern political scandals are “mediated,” meaning that the news and other media take the disclosure of the transgression, and make it an issue for public discussion. In fact, if the media ignores a reported transgression, it will not likely become a scandal.
With this background in mind, let’s look at the three scandals that have erupted to confront the Obama Administration, taking them in the order they have arisen: The Benghazi scandal, the scandal regarding the IRS’s targeting of conservative organizations, and the scandal over the Department of Justice’s subpoenaing the telephone records of reporters and editors at the Associated Press.
The Benghazi Scandal
As readers will doubtless recall, on September 11, 2012, the American diplomatic mission at Benghazi, Libya, was attacked, and ten people were injured, along with four who were killed, including U.S. Ambassador Christopher Stevens. Following the attack, on September 12, Secretary of State Hillary Clinton announced the death of Ambassador Stevens, and President Obama, joined by Secretary Clinton, denounced the attack from the Rose Garden at the White House. On September 16, U.N. Ambassador Susan Rice, appeared on virtually all of the Sunday TV talks shows in Washington, and provided the Obama Administration’s analysis of the situation.
For example, on CBS’s “Face The Nation,” Rice responded to a question of whether the attack was preplanned as follows: “We’ll want to see the results of that investigation to draw any definitive conclusions,” Rice began. “But based on the best information we have to date, what our assessment is as of the present is in fact what began spontaneously in Benghazi as a reaction to what had transpired some hours earlier in Cairo where, of course, as you know, there was a violent protest outside of our embassy . . . sparked by this hateful [anti-Muslin] video. But soon after that spontaneous protest began outside of our consulate in Benghazi, we believe that it looks like extremist elements, individuals, joined in that—in that effort with heavy weapons of the sort that are, unfortunately, readily now available in Libya post-revolution. And that it spun from there into something much, much more violent . . . . We do not have information at present that leads us to conclude that this was premeditated or preplanned.”
When Rice was asked whether or not al Qaeda was involved, she replied: “Well, we’ll have to find that out. I mean I think it’s clear that there were extremist elements that joined in and escalated the violence. Whether they were al Qaeda affiliates, whether they were Libyan-based extremists or al Qaeda itself I think is one of the things we’ll have to determine.”
Republicans have taken exception to everything that happened in Benghazi by accusing Susan Rice, Hillary Clinton,, and President Obama each of lying, and the Obama Administration of failing to protect the Americans stationed at Benghazi. Republicans sought initially to make this an issue in the 2012 election, with Mitt Romney accusing President Obama of refusing to describe it as a terrorist attack on September 12th, when, in fact, the President had done exactly that, which resulted in Romney’s eating crow for his false public accusation during the presidential debate.
Most recently, the Republicans have held hearings for Benghazi “whistleblowers“ before the House Oversight Committee chaired by Darrell Issa (R-CA), who has been searching for years for Obama scandals. The news media largely ignored the hearings, which were something of a non-event. Notwithstanding months of effort, accompanied by a full-throated chorus of conservative media outlets, to make this a major scandal, Bill Maher spoke for millions of Americans when he recently said, “I still don’t understand what the scandal is.” Understandably, President Obama recently called the GOP Benghazi focus “a sideshow.”
Viewing this situation analytically, Benghazi is a political scandal ONLY for Republicans. In truth, it is a scandal in search of an offending underlying transgression. Actually, it is more like a GOP conspiracy theory, which keeps evolving as questions are answered by claiming new purported wrong, than it is like a scandal. The GOP motive appears to be to somehow muddy and seeks to harm Hillary Clinton since it happened on her watch as Secretary of State. In fact, I think the GOP is doing Hillary a favor by taking the air out of this issue if she decides to run for president in 2016, because you cannot create a scandal when no one can figure out what the wrongdoing was, and simply inventing new alleged wrongdoings, which distort the truth and are based on the same basic facts, only works for a short time.
The legs on this so-called scandal have been buckling and wobbling for months. I expect the Republicans to soon give it up, since they now have what they believe are better scandals with which to work, particularly the scandal regarding purported abuse of power by the Internal Revenue Service (IRS), an issue all Americans understand.
The Scandal Relating to IRS Targeting of Conservative Organizations
On May 17, 2013, the acting commissioner of IRS, Steve Miller, and the Inspector General of the Treasury Department, Russell George, who recently issued an investigative report,are/were scheduled to testify before the House Ways and Means Committee. They will address the scandal that erupted a week earlier, when Lois Lerner, the director of the Exempt Organizations Division of the IRS, let slip the fact that the IRS had targeted conservative organizations seeking 501(c)(4) exemption from the tax code as “social welfare” organizations. Within hours, it exploded into a scandal.
Lois Lerner, a career federal employee and attorney, is not a person who would be cast as the catalyst of an IRS scandal. She became the face of this scandal when she was answering questions at a meeting in Washington of the tax section of the American Bar Association (ABA). It appears that she did not plan to create the outcry that has resulted, althoughsome have questioned if she made her comment in anticipation of the critical report that was being prepared by the Treasury Department’s Inspector General.
Given the disastrous conference call that followed her comments at the ABA meeting, I doubt that she planned to cause the stir that has resulted. While she is an experienced and capable upper mid-level federal employee, she was over her head in dealing with the news media and the public alarm—and ensuing scandal—that her comments at the ABA provoked.
The IRS is an agency all Americans love to hate. It has had a long history of scandals, although none of recent vintage. The underlying transgression of treating any taxpayer unfairly, and with political bias, is something that is widely understood and inherently offensive. Not surprisingly, it is believed by many—though the facts are still unclear—that this activity was widespread and went beyond the Exempt Organizations Division operations in Cincinnati, Ohio, as some claim. This matter will be sorted out in the Congressional hearings.
This is not, however, as claimed by conservative commentators like George Will, the equivalent of the activities for which Richard Nixon was impeached, and the 1974 House impeachment inquiry did not know a fraction of what Nixon was doing. (For a book-in-progress, I am listening to Nixon’s once-secret recordings, hundreds of conversations relating to Watergate that no one has bothered to transcribe, or maybe even listen to. Nixon’s demands to use the IRS against his perceived enemies were stunning, far beyond anything I even suspected when I was working for him. He only spoke with his two top aides, H.R. Haldeman and John D. Ehrlichman, on this subject—and he wanted to use the IRS as a weapon against those who caused him political problems.)
President Obama is actually fortunate that the Treasury Department’s Inspector General (these IG offices throughout government are post-Watergate reforms) had received complaints from Members of Congress about the granting of 501(c)(4) exemptions, and had undertaken an investigation, which partially leaked after Lois Lerner made her comments about targeting conservative organizations, but has now been released in full. That report indicates that the targeting of conservative groups was an internal IRS decision—mismanagement of the exemption procedure, according to the IG. It was not a result of the Obama White House’s calling for it.
While Republicans will undoubtedly pound the scandal drum about this activity to make it seen to be more than, in fact, it was, this too will not be a significant scandal. The underlying transgression does not appear to have been motivated by partisan politics or pressure, but rather by ineptitude by lower IRS employees, and by IRS management’s failing to correct a conspicuously bad practice. And Attorney General Eric Holder’s FBI investigation of IRS, in which he has made clear that if any IRS officials gave Congress false information then they will be held responsible, along with the resignation of the Acting Commissioner, is taking the oxygen out of this scandal quickly.
The Scandal Relating to the Justice Department’s Subpoenaing AP Telephone Records
The fact that the U.S. Department of Justice secretly obtained the telephone toll records of reporters and editors of the Associated Press (AP) in connection with its investigation of a serious leak of national security information has angered both the left and right, and given the fact that this scandal involves the news media, they are outraged on both left and right. Nonetheless, this is not really a scandal for there does not appear to be an underlying transgression by those in government. Rather, the scandal simply illustrates that newspeople are very unhappy with the policy of the Obama Administration in prosecuting leakers.
This story broke when the AP reported that it had been informed by the Justice Department that it had secretly obtained AP phone records (listing incoming and outgoing calls) of several AP reporters and editors who were involved in a May 7, 2012 story about a CIA operation that thwarted a terror attack in Yemen. The head of the AP sent a letter to Attorney General Eric Holder claiming that the government had sought and obtained information far beyond anything that could be justified by any specific investigation, and demanded the return of the phone records and the destruction of all copies.
Later reports have revealed that the records were obtained after a federal judge approved a subpoena, which was sought pursuant to Justice Department regulations that apply in such First Amendment-sensitive cases, and was approved by Deputy Attorney General James Cole, a seasoned career attorney who runs the day-to-day operations of the department. There is no underlying transgression, no wrongdoing by those conducting the investigation. Rather, there is displeasure among the news media with Obama’s policy of going after those who leak national security information—which they only have access to because they have pledged that they will not provide it to unauthorized parties.
Ironically, many of the members of Congress who are now complaining about the subpoena had earlier called for the Justice Department to conduct an investigation of this leak—which made President Obama look good in breaking up an Al Qaeda plot to kill Americans before the elections—because they believed that the Obama White House was behind leaking the information before the election to help the president. Now they are complaining about that investigation, and an unhappy news media is delighted to cover them.
All presidents are troubled by national-security leaks. No president can govern in a fishbowl, but there is a delicate balance to be struck in dealing with such leaks. The underlying statute prohibiting leaks—the Espionage Act—was written in 1917, and while it is broad enough to cover news outlets that publish leaked information, no president has gone beyond those who leaked the classified information in the first place. Congress hasclearly authorized all presidents to pursue leaks of classified information. In seeking the records of the AP in the investigation that has caused the current outrage, the Obama Justice Department has not gone nearly as far as it might, and called the AP’s editors and reporters before the grand jury to demand that they reveal their source(s) or be jailed for contempt of court. So using a court-approved subpoena is hardly an overreach. In addition, every reporter in Washington who covers national security stories knows that you do not talk to leakers on the telephone, or in places where there are surveillance cameras.
In sum, this scandal is all mediation and no underlying transgression.
The Bottom Line on Obama’s Scandals
If these three purported scandals are handled properly, President Obama should have no problem with dispatching them. How he proceeds from here will determine if he is even tinged by them at all.
Photo Credit: Jeff Kinsey/Shutterstock.com
John W. Dean, a Justia columnist, is a former counsel to the president.
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