COLUMN-Sealing deadly court files, and Obama and his Cabinet

Tue Apr 15, 2014 2:48pm EDT

(The opinions expressed here are those of the author, a columnist for Reuters.)

By Steven Brill

April 15 (Reuters) - (This is the latest installment in Steven Brill's weekly column, "Stories I'd Like to See.")

1. Sealing deadly court files:

In the wake of continuing disclosures about General Motors' failure to acknowledge critical safety issues related to faulty ignition switches, there's a looming issue that has not been addressed: How litigation settlements negotiated by private parties can result in court-sanctioned cover-ups that endanger the public.

We now know that there were several cases in which the families of people who died in crashes after ignition switches failed quietly received cash settlements from GM.

In return for the cash, the plaintiffs not only promised to withhold the settlement details but also agreed with GM that the court files would be sealed. In some cases, those sealed records included documents and transcripts of pre-trial deposition testimony that contained evidence gathered about the dangers of the faulty switches.

As an editorial in USA Today points out, "Outrageous as it sounds, such secrecy is routine. Powerful companies and institutions regularly suppress information about public risks, ranging from incompetent doctors to abusive priests to defective products."

One reason the secrecy is "routine" is that both parties involved benefit. The plaintiff - and the plaintiffs' lawyers - get a quick cash payout. The defendant gets the case killed without the bad publicity and the wave of suits that could come from a public trial, let alone an adverse jury verdict.

This issue - whether the public interest should trump the interests of private parties that bring suits in public courts - has been around for a long time. But with the stark details of the GM cases now in the headlines - at a time when digital technology would enable the instant distribution of searchable data related to dangers ranging from bad drugs, to killer ignition switches - it's time for someone to take a new look.

What ethical issues do, or should, judges and lawyers face in sealing records like these? Under what circumstances should the law be changed so as not to allow these legal cover-ups? Have any corporations adopted their own ethical standards about sealing records whose public dissemination might help save lives? Could they face punitive damages in future suits for not doing so and for insisting that records be sealed? 2. Obama and his Cabinet:

Knowing that I am writing a book about the trials and tribulations of Obamacare, someone asked me on the day that Health and Human Services Secretary Kathleen Sebelius resigned how close Sebelius' relationship with President Barack Obama had been.

My quick answer was that I didn't think they had a close relationship at all. But, I added, I can't tell if Obama has any kind of close connection with any of his other Cabinet members, either - except perhaps for Arne Duncan, the highly-regarded education secretary, who is a basketball buddy of Obama's from Chicago, and Attorney General Eric Holder, whose wife, physician Sharon Malone, is reportedly a close friend of First Lady Michelle Obama's.

Those exceptions aside, it seems that an important, unwritten story of the Obama years may be the shift of power away from the individual Cabinet agencies and into the White House - enabled by the lack of a real connection between the president and his Cabinet secretaries.

At least from the standpoint of watching how the Obama administration's healthcare policies have developed and been implemented, the president's Cabinet members do not seem to be lead players. In the diaries and meeting minutes that I have examined, covering the beginning of 2009 through the exhaustive negotiations with Congress in early 2010 to get Obamacare passed, Sebelius and her staff were largely second-tier players. Her staff occasionally contributed technical details and data related to proposed provisions in the law, but even that input was typically vetted through, or contradicted by, staffers at the White House or the Office of Management and Budget.

Once the law was passed, Obama's White House staff continued to take the lead on everything from the timing and substance of the technical regulations necessary to implement the law, to decisions made over the past year extending deadlines or defining other details of Obamacare.

White House staffers also controlled the messaging - even if the messengers were spokespeople for the Department of Health and Human Services or its Centers for Medicare and Medicaid Services (CMS) division.

"Still awaiting talking points from WH on this," was how one HHS spokesperson began an email to me mid-morning on October 1, 2013, when I inquired about the website's quick crash. The same spokesperson hastened to remind me that "everything is on background," because the White House had a policy of having people in the Cabinet agencies never talk for attribution about anything outside of prepared press statements.

Sure, newspaper archives going back decades are filled with stories chronicling how the White House was reining in the president's Cabinet. But this might be different.

As Glenn Thrush reported in Politico Magazine last November, in an article entitled "Locked in the Cabinet," "never has the job of Cabinet secretary seemed smaller. The staffers who rule Obama's West Wing often treat his Cabinet as a nuisance."

The thesis I would test in tackling a story about whether this president's disconnect from his Cabinet is different goes back to that question about how "close" Obama was to Sebelius.

Just as paranoids are occasionally on to something real, sometimes clichés have become clichés because they inescapably pop up to explain things accurately. In this case, the cliché is Obama's aloofness: he's too aloof from Congress, too aloof from most of his staff, and, yes, too aloof from his Cabinet to be an effective president.

If Obama is aloof from Cabinet members like Sebelius, whose portfolio will largely define the domestic success of his presidency, then it becomes that much less likely that he, and she, would have had the urge to dig deep into her agency together to make sure Obamacare was being implemented as planned. If, instead, he represented the domineering parent company and she represented the defensive, put-upon subsidiary kept in check by White House aides, then, of course, she would not have been his partner in making sure everything was going right.

Conversely, if they were, if not hunting buddies, at least hard-charging brothers and sisters in combat, who talked all the time and plotted together, she would have certainly felt more of an urge to find out what was going on in her own agency and communicate the hard truths back to Obama. And he would have felt more of the urge to push her to do that - rather than have the regular perfunctory meetings they had in the run-up to the website launch, where she and Obama's healthcare policy aides assured the president that everything was a go.

Perhaps more than any predecessor since John F. Kennedy, when Obama took office he could have attracted any number of superstars to his Cabinet - magnetic, accomplished people with whom he could engage as near-equals.

In fact, he started out going in that direction when it came to healthcare, choosing former Senate Majority Leader Tom Daschle, a noted healthcare policy wonk, to be both his HHS secretary and his White House healthcare policy czar. But Daschle had to bow out before he was even confirmed because of a tax issue. Instead, Obama ended up choosing Sebelius - the governor of Kansas, a former state insurance commissioner, and an early 2008 campaign supporter. And he put her under the direction of policy aides at the White House.

So I hope the next newspaper series, magazine feature or book that takes a critical look at the Obama presidency will examine whether aloof became not just a shorthand description of the president's personality, but something that explains the shortcomings of his administration.

In the Doris Kearns Goodwin early vision of the Obama administration, a heavyweight "team of rivals" would joust with each other and the president over administration policy. That's not the Cabinet or the dynamic we got.

How has the president's apparent lack of strong personal connections to his Cabinet affected the work of his government? How has it affected his ability to recruit the best and brightest, to keep them, and, most important, to harness their talent?

Put simply, how much has been lost by Obama's aloofness from his own Cabinet and his willingness to let White House aides be their minders? (Steven Brill)