Media reports tell us that White House Counsel Kathy Ruemmler was told on April 24 that the IRS had improperly targeted tea party and other conservative groups, according to an Inspector General audit. She did not tell her client, President Obama, about the fact. [ UPDATE: Law professor and esteemed legal ethics authority Richard Zitrin correctly points out that Ruemmler’s client is the office of the President, not the President himself. So far, I have yet to be convinced that this changes the analysis below.]
There is no way to spin this that doesn’t look bad for either Ruemmler, Obama, or both. The news media has been typically inept in explaining this ethical point. If Ruemmler, on her own, decided to withhold the information to “protect” the President, she was violating her ethical duties, as well as her duties to the President, his office, and the country. If she was following his directive in keeping him in the dark, then President Obama is guilty of the ethical misconduct of contrived ignorance, a device that is almost always accompanied by knowledge of wrongdoing and irresponsible leadership. Which was it?
“It’s inexcusable, and Americans are right to be angry about it, and I am angry about it,” the President told the nation in his first comments about the IRS scandal. “I will not tolerate this kind of behavior in any agency, but especially in the IRS, given the power that it has and the reach that it has into all of our lives.” If he was really angry, that must mean that this was outrageous conduct that he knew nothing of and would want to address as soon as possible. How is that consistent with his lawyer’s decision that he would be better off not to find out about the matter until the rest of the country knew? It isn’t. Either she served him badly, or he was lying—lying––to the country, because he had made it clear that he didn’t want to know about such things, so he could not be held responsible for them. If you see a third explanation, please reveal it. I don’t think there is one.
Lanny David, the former White House lawyer, virulent Democratic partisan and brave, if sometimes astounding, defender of his friend Bill Clinton during the Lewinsky mess, has weighed in against Ruemmler, writing,
“If Ms. Ruemmler did know about this IRS story and didn’t inform the president immediately, then, respectfully, that must mean she didn’t appreciate fully the mammoth legal and political implications for the U.S. government as well as the American people of a story involving IRS officials abusing power and possibly violating criminal laws.”
(Davis also muses, “It is also hard to understand why some people in the media who apparently knew about this fore-knowledge by the White House counsel and her failure to tell the President, missed this story and its significance.” He can’t be serious. That would require that the news media 1) know something about legal ethics and 2) hold the White House responsible for actually doing its job.)
The rules of professional conduct governing lawyers make it pretty clear what a lawyer in Ruemmler’s position is obligated to do–-keep her client informed. Rule 1.4, Communication, commands,
a) A lawyer shall:
(1) promptly inform the client of any decision or circumstance with respect to which the client’s informed consent, as defined in Rule 1.0(e), is required by these Rules;
(2) reasonably consult with the client about the means by which the client’s objectives are to be accomplished;
(3) keep the client reasonably informed about the status of the matter;
(4) promptly comply with reasonable requests for information; and
(5) consult with the client about any relevant limitation on the lawyer’s conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law.
(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.
These words can’t be stretched to include withholding information the client needs to do his job and will be “angry” about once he learns it, unless the lawyer is following the explicit directions of the client about what he doesn’t want to know so he can have plausible deniability—and then the lawyer, ethically for her but unethically for the President, is being recruited in the strategy of contrived ignorance. The rules only permit a lawyer to withhold information when “the client would be likely to react imprudently to an immediate communication.” We can all agree, can’t we, that this option is not available to White House Counsel? “We better not tell the President because he’ll do something rash and stupid..you know how he is.”
This isn’t the excuse being attributed to Ruemmler anyway. The Post: “She shared the news with White House Chief of Staff Denis McDonough and other senior White House aides, who all recognized the danger of the findings. But they agreed that it would be best not to share it with President Obama until the independent audit was completed and made public, in part to protect him from even the appearance of trying to influence an investigation.”
Uh-uh. Can’t get there from here, Kathy! McDonough isn’t your client, the President is. He can’t tell you what your client needs to hear about his own representation. He can’t tell you what you should or shouldn’t tell the President. The presumption is that if it is something he cares about—do we get angry about things we don’t care about?-–President Obama must be told, immediately. His lawyer, Ruemmler, has a clear ethical duty that McDonough cannot cancel or over-rule…unless, and here it is again, Obama told Ruemmler that he didn’t want to know about such matters, “such matters” meaning unethical or illegal conduct by others in his administration in the interests of advancing his objectives, a.k.a. contrived ignorance.
I hope this is just a case of a botched lawyering job by Ruemmler, and not contrived ignorance by the President—we all should. Contrived ignorance by leaders is the unmistakable brand of a knowingly unethical management structure and culture: “Just do what you have to do to get the job done; don’t tell me about it, don’t ask for permission, and most of all, don’t get caught!” I tell my ethics classes in companies and bar associations that when they hear a supervisor say anything like that, or sense that this is the message employees are getting, their job is to either fix the culture or find another job. Contrived ignorance is how you get Watergate burglaries. It is how Thomas Beckett gets murdered in the cathedral. It is what the Nazi judges used as their defense in the second round of the Nuremberg trials (as portrayed in the Anny Mann film “Judgment at Nuremberg”) , claiming that they enforced the corrupt legal system without understanding the part they were playing in atrocities, because they didn’t want to know. It is how unscrupulous corporate executives squeeze managers into employing unfair labor practices, and then tell authorities that “what they did was certainly not consistent with our policies. We knew nothing about what was going on!”
Sure they didn’t.
How can we tell if Ruemmler was failing her own ethical obligations by not telling the President what was going on in the I.R.S., or following his legal but unethical directive to keep him in the dark? We can’t. If she did the former, she should be fired, as Davis insists. If she did the latter, and the President doesn’t want his unethical strategy to be discovered, she could be fired anyway, as a sacrifice to the cause.
If she isn’t fired, and this President fires nobody, apparently, Obama will be endorsing a culture of contrived ignorance and/or incompetence throughout his administration. Intentionally? As has happened so often with this horribly managed administration, it will be difficult to discern whether we are watching ineptitude or corruption. It is becoming increasingly difficult, however, to make the argument that this is an accident.
[For an objective review of the entire I.R.S. debacle, go here.]