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Delivered-To: john.podesta@gmail.com Received: by 10.142.49.14 with SMTP id w14cs434137wfw; Mon, 20 Oct 2008 07:12:40 -0700 (PDT) Received: by 10.150.49.15 with SMTP id w15mr12366984ybw.1.1224511960298; Mon, 20 Oct 2008 07:12:40 -0700 (PDT) Return-Path: <Todd.Stern@wilmerhale.com> Received: from mail108.messagelabs.com (mail108.messagelabs.com [216.82.250.51]) by mx.google.com with SMTP id a30si9628033rnb.10.2008.10.20.07.12.39; Mon, 20 Oct 2008 07:12:39 -0700 (PDT) Received-SPF: pass (google.com: domain of Todd.Stern@wilmerhale.com designates 216.82.250.51 as permitted sender) client-ip=216.82.250.51; Authentication-Results: mx.google.com; spf=pass (google.com: domain of Todd.Stern@wilmerhale.com designates 216.82.250.51 as permitted sender) smtp.mail=Todd.Stern@wilmerhale.com X-VirusChecked: Checked X-Env-Sender: Todd.Stern@wilmerhale.com X-Msg-Ref: server-15.tower-108.messagelabs.com!1224511943!56517971!12 X-StarScan-Version: 5.5.12.14.2; banners=-,-,- X-Originating-IP: [216.207.71.29] Received: (qmail 2858 invoked from network); 20 Oct 2008 14:12:37 -0000 Received: from unknown (HELO SVDCPAPPDMZ1.wilmerhale.com) (216.207.71.29) by server-15.tower-108.messagelabs.com with SMTP; 20 Oct 2008 14:12:37 -0000 Received: from SDCPEXCCL2MX.wilmerhale.com ([216.207.71.17]) by SVDCPAPPDMZ1.wilmerhale.com with Microsoft SMTPSVC(6.0.3790.3959); Mon, 20 Oct 2008 10:12:33 -0400 Content-class: urn:content-classes:message MIME-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Content-Transfer-Encoding: quoted-printable X-MimeOLE: Produced By Microsoft Exchange V6.5 Subject: RE: Going into independent agencies Date: Mon, 20 Oct 2008 10:12:32 -0400 Message-ID: <3D4E0DAB0236644193F6AA291205B23B04541CAF@SDCPEXCCL2MX.wilmerhale.com> In-Reply-To: <0DA00BFE3116BB4DB975587B3511F4E0038F6BDD@EXNJMB57.nam.nsroot.net> X-MS-Has-Attach: X-MS-TNEF-Correlator: Thread-Topic: Going into independent agencies Thread-Index: AckxFpA/a/vAJGO0RUq7eyGxZjjATgAgdVKGABpx5+AALcu+gAAAJn+gAADSCKA= From: "Stern, Todd" <Todd.Stern@wilmerhale.com> To: "Froman, Michael B " <fromanm@citi.com>, john.podesta@gmail.com CC: "Varney, Christine A." <cvarney@hhlaw.com>, "Stern, Todd" <Todd.Stern@wilmerhale.com> Return-Path: Todd.Stern@wilmerhale.com X-OriginalArrivalTime: 20 Oct 2008 14:12:33.0072 (UTC) FILETIME=[E51ADB00:01C932BD] I don't have any background on this other than Christine's email, but the email makes me very queasy about doing this. The biggest issue in my mind is whether we'd be breaking new ground in going into the independent agencies. If so, it's not worth it, since it sounds like we'd be liable both to aggravate Congress and to give ammunition to opponents to say that despite all our talk of hope and uplift and transparency and a new politics, we're already giving signs of exerting a heavy hand. The feel has potential of running at cross purposes to some of his larger themes. So worth somebody doing some quick research to see what the historical record is. Clinton didn't do it. What about Bush I and II? Reagan? If it's fairly standard, despite Clinton decision not to, I'd be a lot less concerned. Todd Stern WilmerHale 1875 Pennsylvania Avenue NW Washington, DC 20006 USA +1 202 663 6940 (t) +1 202 663 6363 (f) todd.stern@wilmerhale.com _____ This email message and any attachments are being sent by Wilmer Cutler Pickering Hale and Dorr LLP, are confidential, and may be privileged. If you are not the intended recipient, please notify us immediately -- by replying to this message or by sending an email to postmaster@wilmerhale.com -- and destroy all copies of this message and any attachments. Thank you. _____ For more information about WilmerHale, please visit us at www.wilmerhale.com. -----Original Message----- From: Froman, Michael B [mailto:fromanm@citi.com]=20 Sent: Monday, October 20, 2008 10:01 AM To: john.podesta@gmail.com; Stern, Todd Cc: Varney, Christine A. Subject: RE: Going into independent agencies John/Todd -- Christine points out an issue of importance to the discussion we were having yesterday about Agency Reviews. We should think carefully about the threshold issue whether it's appropriate to go in at all to the independent/regulatory agencies, some of which have law enforcement roles and, if so, what constraints to put on the review to avoid potential problems. -- Mike -----Original Message----- From: Varney, Christine A. [mailto:cvarney@hhlaw.com]=20 Sent: Monday, October 20, 2008 9:43 AM To: Froman, Michael B [CAI]; john.podesta@gmail.com; Stern, Todd Subject: Going into independent agencies See below - have we thought through sending teams into independent (non executive branch) agencies? In 92 we did not for the reasons discussed below.=20 -----Original Message----- From: Varney, Christine A.=20 Sent: Sunday, October 19, 2008 12:09 PM To: 'Froman, Michael B ' Cc: lisabrown3660@gmail.com Subject: RE: Agency Review Teams The actual names for the agencies I know look fine, with one suggested switch. You have Phil Weiser doing both DoJ antitrust and FTC. I would keep Phil at FTC and move Bill Baer (currently listed for FTC) over to DoJ antitrust. I have talked to Lisa about a bigger overall concern with independent agencies e.g. those agencies specifically NOT in the executive branch. At the SEC, CFTC, FEC< and the FTC 90% of what they do is law enforcement - investigate and bring cases. During the Transition (and even in the WH) we can't know anything about that. To the extent these agencies "make policy" it is largely through the cases they bring and to a lesser extent through rulemaking. Rulemaking (a lot of which the FCC does) is governed by the Administrative Procedures Act and any conversations with anyone about a proposed or ongoing rule must be publicly disclosed, recorded, etc. I don't know if there are specific rules about going into independent agencies, but as I recall in 92 at the end of the day we decided the risks of appearing to involve the transition personnel in ongoing law enforcement or rulemaking were just too high and we did not go in. There is also - arguablely - a separation of powers issue as these are not executive branch entities. We concluded that everything we needed to know we could get from people familiar with the agencies and the public record. Obviously we have concerns like this at DoJ, but there are more controls in place there than at the agencies, and it is part of the executive branch. c I would be interested to know if we have done any thinking or analysis on this. Hate to raise a question with out answering it, but this one is worth it.. C =20 -----Original Message----- From: Froman, Michael B [mailto:fromanm@citi.com] Sent: Saturday, October 18, 2008 11:12 PM To: James.Rubin@bcpartners.com; gaylesmithgayle@gmail.com; Varney, Christine A.; fpena@vestarden.com Cc: cbutts.obama08@gmail.com; lisabrown3660@gmail.com Subject: Fw: Agency Review Teams Attached is the latest version of the Agency Review teams. It is a closely held document, so please treat it with the same sensitivity as ours. If you all could take a quick look at the lists for the agencies in your area, that would be helpful. I think the hope is that, while there are no guarantees, some of the people on these lists might make their way into the agencies ultimately. Our role, therefore, is to check whether there is much overlap between the names here and the names were seeing/generating for sub-cabinet positions in each agency. There doesn't need to be total overlap, but if there is a total disconnect, it would probably be better to rectify that now vs. later. I hate to ask, since I just send you another long spreadsheet to check, but if you could do this tomorrow and get back to Lisa (copied here) and myself, that would be great. Thanks. ----- Original Message ----- From: Lisa Brown <lisabrown3660@gmail.com> To: Froman, Michael B [CAI]; cbutts.obama08@gmail.com <cbutts.obama08@gmail.com> Cc: Gips, Don <Don.Gips@level3.com>; Melody Barnes <mbarnes@barackobama.com> Sent: Sat Oct 18 07:41:42 2008 Subject: Agency Review Teams Mike and Cassandra, =20 Attached please find a draft of the proposed agency review teams. The proposed teams were largely put together by the member of our working group responsible for the particular agency, incorporating suggestions from a variety of sources (us, Board, other working group members, policy teams). We encouraged them to think carefully about the optics of the teams since they will be public, and to try to include people of diverse ethnicity, geography, employer etc. without creating unwieldy teams. In the interest of time, we are sending you the list before Don, Melody and I review it -- we are meeting later today to go over it. It is a draft, and we look forward to your input. We will likely turn around another draft after talking today and before meeting with John tomorrow, so feel free to send suggestions even before we meet tomorrow. =20 Best, Lisa =20 Lisa Brown cell) 301-537-3332 "EMF <HHLAW.COM>" made the following annotations. ------------------------------------------------------------------------ ------ This electronic message transmission contains information from this law firm which may be confidential or privileged. The information is intended to be for the use of the individual or entity named above. If you are not the intended recipient, be aware that any disclosure, copying, distribution or use of the contents of this information is prohibited. 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