Bernard W. Nussbaum
|Bernard W. Nussbaum|
|23rd White House Counsel|
|Preceded by||C. Boyden Gray|
|Succeeded by||Lloyd Cutler|
March 23, 1937 |
New York City, New York
|Alma mater||Columbia College
Harvard Law School
Background and career
Nussbaum, the first child of immigrant parents, was born in New York City and grew up on the lower east side of Manhattan. He was educated in the New York City public schools and graduated from Stuyvesant High School in 1954. He went to Columbia College in New York as a scholarship student and joined the staff of the college daily newspaper, the Columbia Daily Spectator. In his senior year, he became the editor-in-chief of the Spectator. He was also elected to Phi Beta Kappa. In 1958 he graduated from Columbia and enrolled at Harvard Law School. After his first year he was selected to join the Harvard Law Review. In his final year became Note Editor of the Review.
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 active duty in the United States Army and then was a member of the Army Reserves. 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.
In 1966 Nussbaum joined the New York law firm, Wachtell, Lipton, Rosen & Katz, one year after the firm was founded. After over four decades as a partner, he is now Of Counsel to the Wachtell, Lipton firm. He specializes in corporate and securities litigation. Over the years he was the lead trial lawyer in numerous cases, most notably a number of major corporate cases won by his firm. These include representing United Technologies in defeating a suit by the US Department of Justice which sought to block United from acquiring the Carrier Corporation; representing Hilton Corporation in obtaining an injunction preventing ITT Corporation from haltng a takeover effort; obtaining a judgment on behalf of IBP Corporation ordering Tyson Foods to consummate a multi-billion merger between IBP and Tyson, which Tyson agreed to but was seeking to avoid. In 2004 he won a jury verdict on behalf of the developer of the World Trade Center against a number of insurance companies declaring that what occurred on September 11, 2001 at the Trade Center was, under the insurance policies 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.
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, 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 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 to be phased in over a two and a half year period beginning in April 2012.
In December 1973 Nussbaum left his law firm to serve as a senior member on the staff (led by John Doar) of the House Judiciary Committee (chaired by Congressman Peter Rodino) investigating the Watergate scandal. He was involved in overseeing the fact gathering process (which included analyzing the White House tape recordings made by President Nixon) and in presenting the results of that inquiry to the House Judiciary Committee. 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. 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. After President Nixon resigned, Nussbaum rejoined his law firm.
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 Clinton's 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 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 presure it also did not make political sense to request such an appointment. The President nonetheless decided to ask the Attorney General to appoint an Independent Counsel.
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, 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), but no improper conduct was found.
In 1993 Nussbaum was awarded an honorary LL.D. from The George Washington University National Law Center. He also serves on a number of philanthropic boards of trustees, including the board of The Mount Sinai Medical Center in New York. His first wife, Toby, to whom he was married for 42 years, died of pancreatic cancer in 2006. In 2008 Nussbaum married Nancy Kuhn. He has three children (Emily, Peter and Frank), a stepson (William Kuhn) and four grandchildren.
On January 28, 2011, Nussbaum wrote a letter to President Obama stating he extensively reviewed the Jonathan Pollard file while he served in the White House. Jonathan Pollard is serving an unprecedented life sentence for providing classified information to Israel without the intention to harm the United States. In his letter he 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." 
- Herszenhorn, David M. (2003-05-05). "Dueling Fund-Raising Campaigns Undercut Efforts at Stuyvesant". New York Times. Retrieved 2007-11-02.
- "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.
- Data on Travel Office Head Sought After His Ouster, Letter Shows NY Times, June 6, 1996.
- Report Clears White House In Inquiry Over F.B.I. Files NY Times, March 17, 2000.
- "'Keeping Pollard in jail is a miscarriage of justice’". The Jerusalem Post. 6 February 2011.
- 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.
- "Former White House Counsel: Failure To Release Pollard Would Be A 'Miscarriage Of Justice'". The Yeshiva World. 2011-02-06. Retrieved 2013-12-01.
- url = http://mondoweiss.net/2011/05/obamas-to-do-list-free-pollard-in-may-so-he-can-travel-safely-to-israel-in-june.html
C. Boyden Gray
|White House Counsel