Ruling That Hillary Clinton Isn't an `Official' Clouds Her Role
THE federal court order issued Wednesday requiring Hillary Rodham Clinton's health care task force to comply with open-meeting laws will not force any drastic changes in approach.
But this civil case pivoted on a larger question: Just what is Mrs. Clinton's status in the government?
She is clearly not a paid employee. If she were, she would be in violation of anti-nepotism laws passed after former President John Kennedy appointed his brother Robert attorney general.
But is she a private citizen, even though she is supplied with a full staff and offices at public expense, and even though first ladies regularly conduct official business as agents of the president?
US District Judge Royce Lamberth ruled in a lawsuit that Mrs. Clinton did not meet the legal definition of either an "employee" or an "official" of the government. He rejected the White House argument that she is the "functional equivalent" of a White House staff member.
So her presence as a private citizen means that the task force is an advisory commission, subject to formal rules and open-meeting requirements.
The requirements will not be difficult to meet.
The dozens of working groups under the task force are unaffected by the decision, and they have done the work so far.
The actual task force, chaired by Mrs. Clinton and including six Cabinet secretaries and several senior White House aides, has not yet held a meeting.
Not only are the working groups exempt from the judge's order, but the task force can also meet privately whenever it considers its recommendations to the president.
To apply legal limitations on such meetings would infringe unconstitutionally on the president's right to candid and private advice, the judge ruled. So the only meetings affected are meetings of the task force officials for fact-finding or fact-reporting.
White House spokesman George Stephanopoulos said within hours of the decision that the White House intends to comply with the order. This includes registering the task force with the Library of Congress and giving public notice of all meetings.
The task force is almost halfway through its 100-day lifecycle, so it has little time to waste. But the question of Mrs. Clinton's status may continue to arise.
If she continues to serve as an active presidential policy adviser with a West Wing office after the health care proposals are offered, then she could become a "special government employee," according to a senior Bush administration official.
If the Government Ethics Office, for example, found that Mrs. Clinton fit that label, then the anti-nepotism statute could apply.
Many observers doubt that any of these laws were conceived to include the president's spouse. The anti-nepotism law can keep a brother or a daughter out of an administration, for example. "But a spouse is unavoidable" as a routine presidential adviser, says the former Bush official.
The question of whether a spouse is a private individual or a government employee has not arisen, at least in recent years, as a legal issue.
In Mrs. Clinton's case, her function is generally seen for practical purposes like that of a senior White House staff member.
"Even if she's not technically being paid, she's a full-time member of the executive branch," says James Pfiffner, an expert on White House staffs at George Mason University in Fairfax, Va.
Dr. Pfiffner sees no key difference between the tasks a president can appropriately assign his spouse and those he can delegate to a senior aide.
One concern is that spouses have less accountability, since they are neither elected nor confirmed by the Senate. And unlike ordinary White House staff, the spouse cannot be fired in the normal sense.
The Bush official disputes this concern. "Of course she can be fired. She can be taken off the issue. Or her recommendations can be ignored."