(The opinions expressed here are those of the author, a
columnist for Reuters.)
By Steven Brill
April 15 (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
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
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
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
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
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
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
Put simply, how much has been lost by Obama's aloofness from
his own Cabinet and his willingness to let White House aides be