Bernard W. Nussbaum

Bernard Nussbaum
White House Counsel
In office January 20, 1993 – March 8, 1994
President	Bill Clinton
Preceded by	Boyden Gray
Succeeded by	Lloyd Cutler
Personal details
Born	March 23, 1937 New York City, New York, U.S.
Political party	Democratic
Alma mater	Columbia University Harvard University

Bernard W. Nussbaum (born March 23, 1937) is an American attorney, best known for having served as White House Counsel under President Bill Clinton.

Background and career

Nussbaum, the first child of Jewish immigrants from Poland, was born in New York City. His father and mother originally worked in garment factories and his father was later employed by the labor union that represented garment workers, the International Ladies' Garment Workers' Union (ILGWU). Nussbaum grew up on the lower east side of Manhattan, which was home to many immigrant families from Eastern Europe.

He attended neighborhood public schools and in 1951 was admitted to Stuyvesant High School, a specialized public high school in New York City which requires the passing of an entrance exam for admission.^[1] He graduated in 1954, having been a member of Arista, the school's academic honor society, and an editor of the school's newspaper, the Stuyvesant Spectator.

Nussbaum then was accepted at Columbia College in New York. He was awarded scholarships by New York State and by Columbia which made it possible for him to go to Columbia. He joined the staff of the college daily newspaper, the Columbia Daily Spectator and, in his senior year, became its Editor-in-Chief. He was also elected to Phi Beta Kappa. During the summer months he worked as a waiter at hotels in the Pocono Mountains in Pennsylvania and the Catskill Mountains in New York to help pay for his education.

In 1958 Nussbaum graduated from Columbia and was admitted to Harvard Law School. After his first year in law school, on the basis of his academic record, he was selected to join the Harvard Law Review and was given a full tuition scholarship by the law school. In his senior year he became Note Editor of the Law Review, succeeding the late Antonin Scalia, (who would go on to become a Supreme Court Justice in 1986).

Upon completing law school in 1961, Nussbaum was awarded a Harvard University Sheldon Traveling Fellowship enabling him to travel around the world for a year visiting over 30 countries. On his return he served for six months on active duty in the United States Army and was a member of the Army Reserves for six years.

In 1962 he was sworn in as an Assistant United States Attorney in the Southern District of New York, in the office led by Robert Morgenthau. He was a federal prosecutor for over three years and tried a number of major criminal cases.

These included convicting, after a four-month trial, five officials of a federal savings and loan association of perjury. The perjury was committed by the bank officers to cover up the diversion of over $250,000 from the savings and loan association to finance a political campaign for Congress being conducted by the president of the association.

He also won a jury verdict convicting a prominent accountant and investor of bribing and conspiring (with other major investors) to bribe an internal revenue agent.

Following his service as a federal prosecutor, Nussbaum, in 1968, ran for a seat in the New York State Assembly. In a close contest, in a Democratic primary election in Brooklyn, New York, he lost to the incumbent assemblyman.

In 1970 Nussbaum managed Robert Morgenthau's campaign for Governor of the State of New York. He led a group of former Assistant United States Attorneys in conducting a statewide petition drive to place Morgenthau's name on the Democratic Party primary ballot for the party's nomination for Governor, opposing Arthur Goldberg, the former Supreme Court Justice, who was the choice of the Democratic Party leaders.

In a short period of time well over 15,000 signatures of registered Democrats were collected in over 50 New York counties, with the requirement that there be at least 100 such valid signatures in each county. Many of the upstate counties in New York have few residents and even fewer registered democrats. This made the petition drive difficult. The petition drive, however, succeeded and Morgenthau began his primary race against Goldberg.

A third political party, the Liberal Party, then decided to give its nomination to Goldberg. This decision (which would have had the effect of splitting the vote against the incumbent Governor if Morgenthau won the Democratic primary) made it virtually impossible for Morgenthau to defeat the incumbent Governor, Nelson Rockefeller, in the general election. Morgenthau therefore withdrew from the primary race against Goldberg and Goldberg ran as the Democratic/Liberal candidate again Rockefeller in the general election. Rockefeller won.

In 1966 Nussbaum joined the New York law firm, Wachtell, Lipton, Rosen & Katz, one year after the firm was founded by Martin Lipton, Herbert Wachtell, Leonard Rosen and George Katz, four lawyers in their early 30s who in time became among the most prominent lawyers of their generation. The firm at the time had less than 10 lawyers. Today it has more than 250 lawyers and is one of the most preeminent corporate law firms in the United States. After over four decades as a partner, Nussbaum is presently Of Counsel to the Wachtell, Lipton firm. He specializes in corporate and securities litigation.

While in private practice he also served as a member of the adjunct faculty of Columbia Law School, conducting a seminar in trial practice for third year law students.

As a senior litigation partner at the Wachtell, Lipton law firm, Nussbaum represented a wide range of clients including major corporate entities, law firms, law firm partners, government officials, political figures and the judiciary.

Working together with his firm's partners and associates, Nussbaum was the lead trial lawyer in numerous cases tried in various state and federal courts around the country, most notably a number of significant corporate cases won by his firm.

These include representing, in a New York federal court, United Technologies in defeating anti-trust suits brought by the United States Department of Justice and the Carrier Corporation seeking to prevent United from acquiring the Carrier Corporation. The effort by the government and by Carrier to block the acquisition was denied by the court and United was able to successfully acquire Carrier.

(A year earlier Nussbaum and his firm, representing Babcock and Wilcox, a manufacturer of nuclear facilities, defeated an effort by United Technologies to acquire Babcock. This resulted in United retaining Nussbaum and his firm the following year when it sought to acquire Carrier.)

Nussbaum represented Hilton Corporation in a Nevada federal court and obtained an injunction preventing ITT Corporation from blocking a takeover effort.

He won a judgment in Delaware Chancery Court on behalf of his client IBP Corporation ordering Tyson Foods to consummate a multi-billion merger between IBP and Tyson, which Tyson had agreed to but was seeking to avoid. IBP and Tyson then completed their merger, as ordered by the Court.

Representing Multimedia,Inc., a large communication company located in Greenville, South Carolina, he defeated, in a South Carolina state court, an effort by Jack Kent Cooke to force Multimedia to accept his hostile bid to take control of the company. Cooke sought an injunction to block a recapitalization of the company and, instead, require Multimedia to accept his bid. That effort was rejected by the Court and Cooke withdrew his bid. The recapitalization was successfully concluded.

In 2004 Nussbaum won a jury verdict in a New York federal court on behalf of the developer of the World Trade Center, Larry Silverstein, against a number of major insurance companies. After a trial lasting more than a month, the jury found that what occurred on September 11, 2001, when two towers were destroyed by two planes, was not a single event, as claimed by the insurance companies, but was, under the terms of the insurance agreements then in force, two separate events. This significantly increased the amount of insurance due and resulted in a multi-billion payment to the developer for the rebuilding of the Center.

In the course of his career, Nussbaum was also asked to represent a number of major law firms (including Sullivan and Cromwell and Shearman and Sterling) in lawsuits brought against them or certain of their partners. These suits were resolved in favor of his law firm clients.

He represented a senior partner of the Simpson Thacher law firm who was charged with diverting fees owing to the firm. His client ultimately pleaded guilty and cooperated with law enforcement authorities. After lower court hearings and an appeal, a prison term which had been imposed was set aside and his client was not required to serve any time in prison.

In a case which generated one of the most prominent legal ethics controversies of the decade, Nussbaum represented the leading New York law firm Kaye Scholer. The Office of Thrift Supervision, an agency of the federal government, sued Kaye Scholer charging it with improperly withholding damaging information about its client, a large savings and loan association whose failure epitomized the savings and loan industry disaster in the early 1990s. The law firm vehemently denied it did anything wrong in representing its client; it maintained that it had an obligation to represent its client zealously and not to disclose information which would hurt the client.

At the outset of the lawsuit the government froze all the assets of Kaye Scholer. This freeze rapidly put the firm perilously close to collapse. It made it virtually impossible to contest the government's action as the firm might not survive in the interim. At this point Nussbaum was retained to represent the Kaye Scholer firm. In less than a week a settlement was reached which did not require any admission of wrongdoing by the firm and provided for a payment over time, much of which was covered by insurance. This enabled the firm to continue as a respected and successful law firm.

In the mid-1970s, during New York City's fiscal crises, Nussbaum represented the Comptroller of the City of New York. At the time the Comptroller, along with the Mayor and the City, were the subject of an investigation by the United States Securities and Exchange Commission into whether there was fraud in the sale of City securities. After a lengthy inquiry, during which numerous documents were produced and top city officials were required to testify, there was no finding of any wrongdoing.

Recently, because judicial salaries in New York had been frozen for more than a decade (the legislature refused to raise judicial salaries unless its salaries were also raised), Nussbaum represented the Chief Judge of the State of New York and the Judiciary of the State of New York, without fee, in successful constitutional litigation ultimately decided by the state's highest court, the New York Court of Appeals.

The Court of Appeals ruled that holding judicial salaries hostage to legislative salaries was unconstitutional. As a consequence, the Legislature and the Governor agreed to change the system for determining the compensation of judges. Decisions regarding judicial salaries are now made every four years by an independent commission (subject to a legislative veto which is required by the state constitution) rather than by the executive and legislative branches.

In August 2011 the first commission appointed raised the salaries of New York state judges (then $136,700 for trial judges) to the level of federal district judges (then $174,000). The increase was phased in over a two and a half year period which began in April 2012.

In 2015 a second commission was appointed to review judicial salaries for the next four years. On December 24, 2015 the commission, by a majority vote, issued a final report recommending that the salaries of state trial judges be increased to $203,100, the same amount which federal trial judges will shortly be receiving. That increase, once again, will be phased in over a two and a half year period, commencing on April 1, 2016 and concluding in 2018.

Watergate

In December 1973 Nussbaum left his law firm to serve as a senior member on the staff (led by John Doar) of the House of Representatives Judiciary Committee investigating the Watergate scandal.

He was involved in overseeing the fact gathering process. This included analyzing the White House tape recordings made by President Nixon, and interviewing significant witnesses such as John Dean, the President's former White House Counsel, John Mitchell, the former Attorney General in the Nixon administration, and Charles Colson, a former special assistant to the President. He participated in presenting the results of the staff's inquiry to the House Judiciary Committee and in preparing for a trial in the Senate should one be necessary.

While serving on the Judiciary Committee staff Nussbaum met and worked with Hillary Rodham, a recent law school graduate who was also a member of the staff. She introduced him to the man she would marry in 1975, Bill Clinton.

In July 1974 the Committee, by a bi-partisan vote, voted to recommend to the House of Representatives that the President be impeached. Shortly thereafter, in August 1974, President Nixon resigned. After the President's resignation Nussbaum rejoined his law firm.

Two years prior to the 1974 Impeachment Inquiry, in 1972, while he was still at his law firm, Nussbaum represented Elizabeth Holtzman who, in a surprise victory, had defeated senior Brooklyn Congressman Emanuel Celler (the Chairman of the House Judiciary Committee) by a little over 600 votes in a Democratic primary election. Celler brought suit in a Brooklyn state court to set aside that victory.

Nussbaum won that case, which was ultimately decided by the New York Court of Appeals, and Holtzman's election was upheld. As a consequence of that victory, Peter Rodino, a Congressman from New Jersey, was selected to be Chairman of the House Judiciary Committee and led the Committee when it conducted the 1974 Impeachment Inquiry involving President Nixon.

Counsel to President Clinton

In 1993 Nussbaum again left his law firm, when he was appointed Counsel to the President of the United States. During his tenure as President Bill Clinton's first White House Counsel he was involved in a number of major personnel and policy issues facing the administration.

These included the appointment of Janet Reno as Attorney General, the recruitment of a new FBI director, and the selection of approximately 100 federal judges, most notably Judge Ruth Bader Ginsburg to the Supreme Court of the United States.

He was also involved in handling the early stages of the Whitewater matter (an investigation into an unsuccessful Arkansas real estate investment made by the Clintons years before in which they lost money) and the investigation of the suicide of his deputy, Vincent Foster.

Contrary to the advice of others on the White House staff, in the administration, and in Congress, Nussbaum strongly urged the President not to seek the appointment of an Independent Counsel with respect to these matters. He maintained there was no legal basis for such an appointment, as there was no evidence of wrongdoing by the President, either before or after he entered office.

Nussbaum warned the President that the institution of the Independent Counsel, which is responsible to no one, tends to become (especially when it is investigating a President) an uncontrolled, never ending effort to find wrongdoing even where none exists. He predicted conservative judges would replace anyone appointed by the Attorney General with a choice more to their liking. He predicted the investigation would likely last as long as the President was in office and beyond. Consequently, he argued, despite media and congressional pressure, in addition to their being no legal basis, it also made no political sense to request such an appointment.

The President nonetheless, in response to media and congressional pressure, decided to ask the Attorney General to appoint an Independent Counsel and she did.

A few months later three appellate judges, as predicted by Nussbaum, replaced the Counsel appointed by the Attorney General and selected Kenneth Starr as the Independent Counsel. An investigation then took place which never resulted in criminal charges against the President, but lasted for over seven years which, as Nussbaum predicted, was as long as President Clinton was in office and beyond.

The investigation did, during President Clinton's second term, trigger a congressional impeachment proceeding against the President based on subsequent personal conduct having nothing to do with the Whitewater matter or the Foster suicide. The President was acquitted by the Senate, but much of his last two years in office was spent struggling against impeachment.

In his memoir (My Life), published after he left office, President Clinton said the single biggest error he made as President was not listening to Nussbaum and, instead, requesting the appointment of an Independent Counsel. He wrote: "It was the worst presidential decision I ever made, wrong on the facts, wrong on the law, wrong on the politics, wrong for the presidency, and the Constitution." (My Life, p. 574).

Referring to media criticism of Nussbaum's advice, the President wrote: "there would have been no investigation, subpoenas, or grand jury if I had listened to him and refused to give in to the demands for an independent counsel to 'clear the air.' Bernie's real offense was that he thought I should abide by the rule of law and accepted standards of propriety, rather than the constantly shifting standards of the Whitewater media, which were designed to produce the very results they professed to deplore." (My Life, p. 587).

Resignation and subsequent events

Nussbaum resigned on March 5, 1994,^[2] as a result of the Whitewater controversy and the position he took regarding the appointment of an Independent Counsel. President Clinton later wrote: "Bernie Nussbaum resigned in early March; he never got over my foolish decision to ask for an independent counsel, and he didn't want to be a source of further problems ...[he was an] able, honest public servant." (My Life, p. 586). Nussbaum returned to his law firm and resumed the private practice of law.

Following his resignation, the Whitewater Independent Counsel looked into the conduct of the White House Counsel's Office in connection with the so-called Filegate matter (involving the erroneous sending of FBI background files to the White House).^[3] It was determined these files were sent because of an inadvertent error by other government agencies, the files were returned, and no improper conduct was found on the part of the White House.^[4]

Nussbaum has been the recipient of a number of awards from charitable, educations and legal organizations. In 1993 he was awarded an honorary LL.D. from The George Washington University National Law Center. He has served as Vice President of the New York City Bar Association and as President of the Federal Bar Council, a Bar Association whose membership consists of lawyers and judges who practice primarily in federal courts within the Second Circuit. He is a Fellow of the American College of Trial lawyers, a select professional association of trial lawyers from the United States and Canada,

Nussbaum has been a member of a number of philanthropic boards of trustees, including Brandeis University and the Jewish Theological Seminary. He has served as a trustee of the Boys Brotherhood Republic (now part of the Henry Street Settlement), a self-governing youth club on the lower east side of Manhattan. It was created in the 1930s to provide after school activities for underprivileged young boys. As a young boy, in the late 1940s and early 1950s, Nussbaum was a member of that club.

He presently serves on the Board of Trustees of The Mount Sinai Medical Center in New York which encompasses seven major hospitals in New York City and a highly regarded medical school. He is a member of the Board's executive committee, the audit committee, the legal committee and is Chairman of the Board's Graduate Education committee.

Nussbaum is also currently a member of a three-person Independent Review Board appointed in 2014 by the Brooklyn District Attorney. The board reviews decisions made by the district attorney's office as to whether certain individuals have been wrongly wrongly convicted of crimes. That process has resulted in a number of convictions being set aside and persons being released from prison.

In January 2006 his wife Toby, to whom he was married for 42 years, died of pancreatic cancer. They met in 1958 when she was an undergraduate at Brandeis University and he was a first year law student at Harvard. Throughout her adult life she was active in political, community and philanthropic affairs, particularly with non-profit organizations in the Jewish community.

In December 2008 Nussbaum married Nancy Kuhn, who had been a fundraiser for political and charitable organizations. Among other political races, she played an important role in raising funds, in New York State and elsewhere, for the Democratic presidential candidate Walter Mondale during the 1984 campaign. Nussbaum and Kuhn reside in Manhattan, Stamford, Connecticut, and Naples, Florida.

He has three children: a daughter, Emily Nussbaum (who is the television critic for The New Yorker magazine and recently won both the 2016 Pulitzer Prize for Criticism and the National Magazine Award for Columns and Commentary); two sons, Peter Nussbaum, and Frank Nussbaum; and a stepson, William Kuhn. He also has four grandchildren.

On January 28, 2011, Nussbaum sent a letter to President Obama stating that while serving as White House Counsel he extensively reviewed the Jonathan Pollard file.^[5][6] After pleading guilty 30 years ago Pollard was sentenced to an unprecedented life sentence for providing classified information to Israel without the intention to harm the United States.^[7] In his letter to President Obama Nussbaum wrote, "Pollard has been appropriately punished for his conduct, and a failure at this time to commute his sentence would not serve the course of justice; indeed, I respectfully believe it would be a miscarriage of justice."^[5] After serving 30 years in prison Pollard was recently granted parole. He was released from prison on November 20, 2015.^[8][9]

References

1. Herszenhorn, David M. (2003-05-05). "Dueling Fund-Raising Campaigns Undercut Efforts at Stuyvesant". New York Times. Retrieved 2007-11-02.
2. "Letter accepting the resignation of Bernard W. Nussbaum as counsel to the President". Weekly Compilation of Presidential Documents. encyclopedia.com. 1994-03-14. Retrieved 2008-01-03.
3. Data on Travel Office Head Sought After His Ouster, Letter Shows NY Times, June 6, 1996.
4. Report Clears White House In Inquiry Over F.B.I. Files NY Times, March 17, 2000.
5. "'Keeping Pollard in jail is a miscarriage of justice’". The Jerusalem Post. 6 February 2011.
6. "Text: Letter of Former WH Legal Counsel Bernard Nussbaum to Pres. Obama: Failure to release Pollard now "a miscarriage of justice"". Jonathanpollard.org. Retrieved December 4, 2015.
7. Best, Jr., Richard A.; Clyde Mark (January 31, 2001). "Jonathan Pollard: Background and Considerations for Presidential Clemency" (PDF). Congressional Research Service Report for Congress. The Library of Congress. Retrieved March 7, 2007.
8. "Former White House Counsel: Failure To Release Pollard Would Be A 'Miscarriage Of Justice'". The Yeshiva World. 2011-02-06. Retrieved 2013-12-01.
9. Blankfort, Jeffrey (May 7, 2011). "Obama’s to-do list: Free Pollard in May so he can travel safely to Israel in June". Mondoweiss.net.

External links

• Bio page at Wachtell, Lipton, Rosen & Katz
• Profile in Harvard Law Bulletin