When Is a Lobbyist Not a Lobbyist?

When Is a Lobbyist Not a Lobbyist? By Andrew C. McCarthy
When he’s up for a job in the Obama administration.
NRO, February 06, 2009, 4:00 a.m.

In Chicago, Barack Obama’s M.O. was to talk the talk of a reformer and walk the walk of an old-school machine politician. When he got called on it, he did what machine politicians do: He waxed eloquent about his commitment to transparency even as he stonewalled, obfuscated, and lied.

That is how convicted fraudster Tony Rezko was transformed, before our very eyes, from a guy Obama barely knew to a contributor who may have helped Obama’s political campaigns, then to a bundler who’d actually raised more than $250,000 (some five times the amount claimed in Obama’s initial admission), to a developer who won contracts with Obama’s assistance, to a fixer who helped Obama buy a pricey home the future president couldn’t afford on his own—an ethical lapse Obama finally had to acknowledge was “boneheaded.”

Obama began his administration promising the toughest ethical standards ever imposed by any White House—and, on his first day, issued an executive order restricting the familiar practice of filling government jobs with lobbyists that have private interests in how policy is shaped. The president’s directive is self-consciously reflective of candidate Obama’s scathing condemnation of traditional Washington-style insider-dealing.

Obama would have us believe the order closes the “revolving door” between government and lobbying, whereby the politically connected achieve progressively more influential and lucrative positions by moving frequently between the public and private sectors. In fact, that door remains wide open. Transparency being the order of the day, President Obama’s order is transparently designed to make voters believe he’s going to put the brakes on the gravy train. And to do so he’s dispatching his two top lawyers: tasking the White House counsel and the attorney general with the interpretation and enforcement of the new, stringent guidelines. If you’re keeping score at home, those would be Gregory Craig and Eric Holder, each of whom has been deeply enmeshed in unsavory influence-peddling.

As National Review’s Byron York has reported, Craig has an extensive history of representing leftist regimes hostile to the United States, which led him to lobby the Justice Department on behalf of one Pedro Miguel González, an alleged terrorist. Since 1992, González has been evading an indictment for murdering a U.S. army sergeant in Panama City. When pressed about his client during the campaign, Craig—a lawyerly lawyer if ever there was—explained that he hadn’t really “undertaken to represent” González in legal “proceedings.” You wouldn’t even really call it lobbying. Instead, Craig explained, he had merely sought “to open up a path of communications” between the fugitive and the Justice Department.

Which is to say, the principal interpreter and enforcer of Obama’s celebrated lobbying rules does not believe that a lawyer’s arranging negotiations between an international fugitive and the federal government constitutes “representing” that fugitive or acting as his agent. Just call him a Good Samaritan. The Obama administration’s response to questions about González has been that familiar rallying cry of openness and transparency: “No comment.”

No discussion of lobbying on behalf of international fugitives should get very far without turning to the case of Eric Holder. Beginning in 1999, when he was deputy attorney general, Holder allowed himself to be lobbied on behalf of Marc Rich (at that time, one of the FBI’s most wanted fugitives) by an influential Democratic lawyer, Jack Quinn. Until 1997, Quinn had been the Clinton White House counsel, i.e., Clinton’s Greg Craig. He then left for private practice and, by late 1999, had started his own lobbying firm.

Lobbying Holder put Quinn in violation of President Clinton’s own good-government executive order. Like Obama’s order, Clinton’s was announced with great fanfare on the first day of his presidency. It was duly lauded by the press—especially for the five-year lobbying ban it purported to impose on former administration officials. But in Quinn’s view, that ban didn’t apply to him because—try to follow this—he was not so much lobbying an administration official as he was representing a client in a “judicial proceeding.” This was transparently specious: The Justice Department is not a court and a pardon is not a judicial proceeding—to the contrary, a pardon is an executive exercise designed to undo judicial proceedings. But the hocus-pocus reasoning was good enough for Quinn, and that meant it was plenty good enough for Holder, who helped get Rich his pardon.

So Obama’s guidelines will be interpreted and enforced by these two guys. This should prove fruitful for the many lawyers who inevitably drift from the new administration back into more lucrative endeavors: If they’d prefer their legal representation to be low-balled as something less than lobbying, they can go to the White House counsel; if they’d rather dress up their lobbying as legal representation, the attorney general is their man.

Not every lobbyist is a lawyer—though some non-lawyers, such as Tom Daschle, manage to get themselves paid more than a million dollars a year by top law firms. For what? Certainly not for lobbying. At the well-connected firm of Alston and Bird, known in Washington parlance as a “lobbying firm” because it represents lots of lobbyists, Daschle was retained as a “special policy adviser.”

But if you are paid by the legal agents of lobbyists to instruct lobbyists in lobbying, aren’t you, in fact, a lobbyist? Especially considering the fact that the top asset you bring to the table is your Rolodex? Obama thinks not, since Daschle never legally registered as a lobbyist.

“If you’re not registered to lobby, you can’t be a lobbyist.” Thus decreed Obama White House press secretary Robert Gibbs, a man who is starting to make Scott McClellan sound like Elmer Gantry (a fictional character who, unlike most Obama administration figures, only seems to have worked in the Clinton administration). Gibbs’s kindly diagnosis of Daschle brings us to the fine print of the executive order. To “lobby,” the president says, “shall mean to act or have acted as a registered lobbyist.” Presto: no registration, no lobbyist; no lobbyist, no problem—unless you don’t pay your taxes on the millions you’ve earned not lobbying.

But now that we’ve narrowed it down to registered lobbyists, does that mean that we’ve discovered one category of Washington insiders that is, in fact, banned by the ethical standards Gibbs describes as the “strongest that any administration in the history of our country has had”? Not exactly. The order provides that these very stringent rules can be ignored whenever the scrupulous interpreting authorities decide it is in the public interest. Don’t be alarmed: The administration says waivers will only be approved for extraordinarily qualified officials.

Have you ever heard of an administration that did not portray its appointees as extraordinarily qualified? Already we have the extraordinarily qualified William J. Lynn III, the nominee for deputy defense secretary, who got a waiver despite being, up until recently, a lobbyist for the military contractor Raytheon. William Corr will serve as the No. 2 official at the Department of Health and Human Services regardless of the last year he spent as a lobbyist. And then there’s Mark Patterson. He’s now chief of staff to Timothy Geithner, this ethics-obsessed administration’s tax-cheating Treasury secretary, even though Patterson used to be a lobbyist for Goldman Sachs—the outfit that could have patented the revolving door even before scoring $10 billion in TARP money.

Obama says he’s come to Washington to bring change. So far, he’s changing it into Chicago.

National Review’s Andrew C. McCarthy is the author of Willful Blindness: A Memoir of the Jihad (Encounter Books, 2008).