{"id":52716,"date":"2016-09-30T11:27:00","date_gmt":"2016-09-30T16:27:00","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/supreme\/legal-commentary\/paul-oneills-insider-account-of-the-bush-administration.html"},"modified":"2016-09-30T11:27:00","modified_gmt":"2016-09-30T16:27:00","slug":"paul-oneills-insider-account-of-the-bush-administration","status":"publish","type":"supreme","link":"https:\/\/supreme.findlaw.com\/legal-commentary\/paul-oneills-insider-account-of-the-bush-administration.html","title":{"rendered":"Paul O’Neill’s Insider Account of the Bush Administration"},"content":{"rendered":"\n
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Paul O’Neill’s Insider Account of the Bush Administration:
Why It Landed Him In the Midst of A Government Investigation<\/span><\/h1><\/td>\n <\/tr>\n

By EDWARD LAZARUS<\/h2><\/a><\/td>\n <\/tr>\n

Thursday, Jan. 22, 2004<\/td>\n\n <\/tr>\n <\/table>\n

\tOnly a few weeks have passed since publication of Ron Suskind’s behind-the-scenes book The Price of Loyalty<\/u>, which recounts former Treasury Secretary Paul O’Neill’s disillusioning experience with the Bush Administration. But already, the book has begun to fade from the headlines with little hope of leaving a lasting mark on the current political debate.<\/p>

\tThis is not because the book lacks insight. On the contrary, Mr. O’Neill seems to have provided the author with a thorough, compelling critique of a White House in which political considerations trump policy analysis with alarming frequency. Also, as is now well-known, the book tells us about President Bush’s deep interest in regime change in Iraq long before 9\/11 gave him the justification for invasion. <\/p>

\tInstead, the flameout of the O’Neill book can be ascribed to the triumph of scandalmongering over substance. O’Neill story has become obscured in the controversy over O’Neill’s character. This has become the standard M.O. for how to deal with troublesome critics: Forget their message; attack their ethics and character. <\/p>

Sadly, it is often a winning strategy.<\/p> <\/b>

The Pattern of Events that Typically Follows Controversial Insider Books<\/p>

\tI can certainly empathize with O’Neill. Not so many years ago, I wrote Closed Chambers<\/u>, a critique of the Rehnquist Court from the prospective of a former law clerk. Like those who would drown out O’Neill’s message, Court defenders tried to distract attention from my central point – that our nine unelected, life-tenured Justices were not living up to their awesome responsibilities – by questioning the ethics of a former clerk’s revealing the inner life of the Court. <\/p>

\tThere is a pattern to how the controversy over an insider account unfolds. A former government insider wants to shed light on aspects of how the government really works that he or she sees as fundamentally flawed. To do so, that person decides either to write, or collaborate with someone else who is writing, a book that tries to describe — with the authenticity and credibility that comes from being an eyewitness — the truth about how the incredibly important decisions that shape our lives are really being made.<\/p>

\tOnce the book is finished, the publisher takes over. The publisher knows that books about policy-making, even well written and important books, are hard to sell unless they can be marketed as something of a “kiss and tell.” Generally speaking, providing a meaningful critique of government does not garner the bookseller’s dream of an appearance on The Today Show<\/i> or 60 Minutes<\/i>. <\/p>

What does get you on those shows, however, is the appearance of having broken a taboo. And so it is that Paul O’Neill and Ron Suskind appeared on 60 Minutes,<\/i> accompanied by what appeared to be at least the cover sheet of a confidential government document supplied by O’Neill. <\/p>

\n\n\tThis hyping of the book provides the targets of the book with their opening for a counterattack. Based on the cover sheet flashed on 60 Minutes<\/i>, members of the Bush Administration have now pilloried O’Neill as a reckless abuser of government secrets. Indeed, O’Neill now faces a government investigation into whether he violated either ethical rules or the criminal laws. <\/p> <\/b>

The Typical Counterattack By the Targets of the Insider Book: Character, Not Substance<\/p>

\tThis type of counterattack accomplishes at least four objectives. <\/p>

\tFirst, the scandalmongering successfully distracts attention from the fairly devastating critique that may have been leveled by the book. Take The Price of Loyalty<\/u>, for instance. It offered firsthand observations of instances in which Bush’s top advisors, and especially Vice-President Dick Cheney, were willfully impervious to facts – whether the subject we the deficit, international trade, the environment, or foreign affairs – when designing policy. Certainly, these contentions deserve attention. Instead, attention has been focused on O’Neill and on that cover sheet. <\/p>

\tSecond, the counterattack may, if successful, mute or even silence the insider who wrote the book. In O’Neill’s case, for instance, the Bush Administration has ginned up an investigation of O’Neill. Now O’Neill must risk waiving his Fifth Amendment rights — and hazard criminal conviction — whenever he speaks publicly. Suskind, too, might be at risk. <\/p>

\tAt this stage, there is no significant evidence that O’Neill did anything wrong. (Indeed, he has denied that he gave Suskind access to any government secrets.) Nor is there any evidence that Suskind’s book reveals classified material. <\/p>

\tYet, as any sane person would do, O’Neill already has hired a lawyer to keep the wolves at bay – and you can bet that lawyer is advising O’Neill to distance himself from the book, and to otherwise keep his mouth shut. O’Neill, of course, is no fool; he has being following this advice to a tee. <\/p>

\tThird, the counterattack may have a powerful deterrent effect. For instance, shredding O’Neill’s reputation deters future ex-Bushies from telling tales out of school. I doubt O’Neill — a veteran of both the Nixon and Ford administration, as well as a successful CEO at Alcoa — thought it even remotely possible that an additional “price of loyalty” would be both the agony of an investigation, and the instant tarring of a reputation built up over decades. But prospective truth-tellers — Colin Powell, for example — now know quite specifically what would be in store for them if they offered a candid, rather than a cagey, memoir .<\/p>

Fourth, and finally, the White House gets personal revenge on O’Neill for his apostasy. Until the investigation is resolved, O’Neill will doubtless be faced with sleepless nights and high legal bills — all for writing a book giving his frank opinion of subjects that are of the utmost importance to the country. <\/p> <\/b>

The Press Should Not Collaborate In the Counterattack On O’Neill’s Book<\/p>

\tGiven the potential benefits of going after O’Neill, one can understand (though not admire) the tactics of O’Neill’s detractors. What is almost impossible to fathom is why the press, and not for the first time, allows itself to be played in this fashion.<\/p>

\tWe live in a neo-Nixonian era in which the processes of government are more secret, and less penetrable, than they have ever before been in the 30 years since Watergate. This is not just a matter of the obvious, such as Cheney’s insistence on keeping his Energy Task Force secret even from the GAO — though that insistence, in itself, is troubling. <\/p>

(Can it really be that the public has no right to know which industry executives attended this meeting, so that the task force’s recommendations can be scrutinized for special interest cronyism? The Supreme Court — including Justice Antonin Scalia, who just returned from a five-day duck-hunting jaunt with Cheney — will tell us next year.)<\/p>

The truth is that the secrecy surrounding the Cheney task force is just the tip of the proverbial iceberg. As Ken Auletta details in the current issue of The New Yorker<\/i>, this White House goes to unprecedented lengths to control the flow of information to the public, including preventing journalists from engaging the President in meaningful dialogue.<\/p>

\tNor is this clampdown limited to the Executive Branch. At the Supreme Court, the justices practically make their law clerks take a blood oath not to reveal anything that happens in those hallowed halls. God forbid that the public would learn, for instance, exactly how five unelected, life-tenured judges, in an unprecedented arrogation of constitutional authority, handed the 2000 election to their ideological compatriot George W. Bush.<\/p> <\/b>

Deterring Insiders From Telling Stories that Are In the Public Interest<\/p>

\tIn the current environment, the public’s best chance for getting a meaningful look at how government decisions are made is through the revelations of disillusioned former officials. The last thing the press should be doing is to become complicit in personal attacks on the ethics of those few brave souls who are willing to put their careers and reputations on the line in order to enlighten public debate and invigorate the process of democracy.<\/p>

\tThis is not to say, of course, that the government has no legitimate interest in keeping genuinely sensitive matters — those that truly touch on national security, for instance — secret. Nor is it to say that former officials should think it their right to spill those secrets however and whenever they see fit; they must be careful not to accuse too quickly, or with too little evidence, and restrain themselves from acting only in cases when serious issues that are in the public interest, ought to be brought before the public’s eyes. <\/p>

\tBut there is a balance to be struck between protecting real secrets and shutting down the channels of public insight into the workings of government. And that balance has shifted dangerously towards the side of a government that in increasingly closed to meaningful public scrutiny. <\/p>

\tIndeed, one measure of how far the balance is off is the willingness of journalists — whose job it is, after all, to penetrate the workings of government — to make their own job more difficult by impugning the integrity of their best sources. In short, right now, we need more Paul O’Neills – and that’s something we are very unlikely to get. <\/p>

\tOnce, Woodward and Bernstein protected Deep Throat, and valued tremendously what he revealed. Deep Throat, depending on who he was, may well have violated confidentiality obligations, ethics rules, and even conceivably the criminal law, to make public what he knew. Nowadays, if a modern day Deep Throat were to be a source for a reporter’s critique of the Bush Administration, he no doubt would be hunted down and investigated within an inch of his life. <\/p> \n\n\n<\/span>\n\n\n

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\n\n\n<\/a>\n Edward Lazarus writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books – most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court. \n

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