Transcript: Kathy Ruemmler

Updated
 

The Oath with Chuck Rosenberg 

Kathy Ruemmler: The Counsel 

 

Chuck RosenbergWelcome to The Oath. I’m Chuck Rosenberg, and I’m honored to be your host for another thoughtful conversation with a fascinating guest. Kathy Ruemmler grew up in a small city in Washington State. After graduating from the University of Washington and Georgetown Law School, Kathy became a federal prosecutor, first as an assistant United States Attorney in the district of Columbia, and later as one of the lead prosecutors of the massive Enron scandal in Houston as part of the Enron Task Force. Kathy handled two of the biggest cases to emerge from that massive corporate fraud scheme, including the successful prosecution of Enron Chairman Ken Lay, and Enron CEO Jeff Skilling. The Enron cases were critically important for many reasons, including that it demonstrated the ability to hold senior corporate executives individually and criminally responsible for their fraud. Kathy later served as White House Counsel to President Barack Obama and shares with us some remarkable reflections from her tenure as one of the youngest people ever to hold that crucial job.  

 

Kathy Ruemmler, welcome to The Oath.  

 

Kathy Ruemmler: Thanks Chuck, so great to be here.  

 

Rosenberg: Tell us about where you’re from where you grew up.  

 

Ruemmler: I grew up in a small town in south eastern Washington state, called Richland. It’s part of a community of three towns, actually, that people refer to as the tri cities. I always say it’s never a good sign when you have to pick three cities together to create a community. But that’s what they did there. I was born and raised there. I was born in 1971, my parents moved there in 1969. It’s a very interesting place because the town of Richland was actually created by the federal government for purposes of supporting a nuclear production facility, very large one called Hanford, which a lot of people have heard of. The army came in and they started building these houses that were all sort of government issue houses and they had letters that were assigned to them. They called them alphabet houses, so the very first house we lived in, the house in which I was born, is referred to as an “A house,” and it was just a square duplex. So, we had neighbors who lived right next door, and then we moved across the street to an “H house,” moved up in the world to a slightly bigger house. It was about, I think, eleven hundred square feet.  

 

Rosenberg: Was each successive letter a bigger or better house? 

 

Ruemmler: Not necessarily, they just had kind of different floor plans, and you know, some were slightly larger, but you know, these were extremely modest homes, but it was a really great community of lots of scientists–  

 

Rosenberg: Were your parents connected to Hanford in some way?  

 

Ruemmler: My dad was a computer engineer, so he worked out in the area, we call those very kind of Simpsons-esque, and my mom worked at a place called Battelle, which is a research laboratory. They both worked kind of around nuclear issues, around radiation, all of it. They couldn’t really talk about it very much because it was all government contract and classified. My dad passed away in 2012, but they were there until that time and then my mom moved a few years ago to Scottsdale, Arizona, so she got tired of that eastern Washington tough winters.  

 

Rosenberg: And you went to high school at Richland High School, I was reading this, and you had a couple of very famous alumni, you included from that high school, Jim Mattis 

 

Ruemmler: That’s right.  

 

Rosenberg: Several years before you.  

 

Ruemmler: That’s right.  

 

Rosenberg: And Hope Solo from the women’s national soccer team a couple of years after you.  

 

Ruemmler: That’s exactly right. It’s funny because I am a huge fan of Secretary Mattis. 

 

Rosenberg: Aam I. 

 

Ruemmler: And I’ve never had a chance to meet him.  

 

Rosenberg: Nor have I.  

 

Ruemmler: We know a number of people in common, so one of these days, I’m just going to email him out of the blue and say: “hey fellow bomber…” we–it’s the Richland bombers, which is, of course, a little odd. Our high school symbol was the mushroom cloud, still is to this day. And we had, at the high school, which I’m sure Secretary Mattis and both Hope Solo would remember, there is a tiled bomb in the main kind of area of the high school.  

 

Rosenberg: Of course, to welcome people. 

 

Ruemmler: Welcome people, right, and this is a big bomb in the floor. And the rule was: only seniors can step on the bomb. And if you’re not a senior and you step on the bomb then you know you get stuffed into the locker. Everybody else had to walk around the bomb. But the seniors could walk on the bomb.  

 

Rosenberg: What do you do after high school? 

 

Ruemmler: I went to college at the University of Washington and I was an English major there. And so, I went to the big city in Seattle, I loved it. Seattle is a great place, and then went straight from there to law school at Georgetown. 

 

Rosenberg: And why to law school, Kathy, what drew you to that?  

 

Ruemmler: I just was drawn to it from a very young age. I read a lot. I was a voracious reader as a kid. I was not a particularly great student, particularly in high school. I was kind of a slacker, I guess I would say, which sometimes people find hard to believe, but it’s absolutely true if you asked my mother. She was praying that I would just graduate from high school. 

 

Rosenberg: She would confirm that for us.  

 

Ruemmler: She would definitely confirm that. I had never met a lawyer before I went to law school as a very first time. So, I didn‘t have any experience with it, but  

 

Rosenberg: You grew up in a community of engineers and contractors.  

 

Ruemmler: Exactly.  

 

Rosenberg: Not lawyers.  

 

Ruemmler: Not lawyers, right. I just would never–we didn’t have any lawyers in the family and I’m at–as you know culturally, you know, engineers and lawyers were sort of oil and water. I didn’t have a particularly great impression certainly from my dad about lawyers, but from a very young age, it’s just something that I was sort of set on doing. I think I’d kind of come across lawyers and fiction and thought the idea of using your words and your brain to advocate and fight for something was really appealing.  

 

Rosenberg: I’ve had a lot of people told me that To Kill a Mockingbird and Atticus Finch was really the first lawyer that they had ever met.  

 

Ruemmler: Yes. Have you seen the play? It’s fantastic.  

 

Rosenberg: No, I have not. 

 

Ruemmler: No, it’s true. I mean, I can’t remember whether Atticus Finch was the first, but certainly, I have great memories of reading that book and one of several sort of inspirations for me to go to law school.  

 

Rosenberg: When did you figure out, Kathy that you wanted to be a prosecutor, not just a lawyer, but a prosecutor?  

 

Ruemmler: I wasn’t sure I wanted to be a prosecutor. Why was sure that I wanted to learn how to try cases and to be a first chair lawyer. I actually applied to the U.S. Attorney’s Office and the Federal Public Defender Service.  

 

Rosenberg: Which was unusual, you should explain that 

 

Ruemmler: Yeah, it is unusual because I think generally people are drawn to one side or the other. And I had started my career at a white-collar criminal boutique law firm, and so I started on the defense side. I always loved criminal law, and so going to the Federal Public Defender Service was sort of as appealing to me, at the time, as going to the U.S. attorney’s office. And I made the decision, which is not particularly sophisticated a reason, I got an offer from both the D.C. U.S. attorney’s office as well as the Federal Public Defender Service in Baltimore. It was a hard decision, and ultimately, I decided I didn’t want to drive all the way to Baltimore but you know sometimes when you’re in your 20s those are the kinds of things that dictate his decisions and that’s how I ended up at the U.S. attorney’s office.  

 

Rosenberg: So, quite literally, it came down to logistics and  

 

Ruemmler: Logistics.  

 

Rosenberg: and traffic.  

 

Ruemmler: Logistics and traffic and how I wanted to spend my morning every morning: whether I wanted to drive to Baltimore, or whether what is the drive to the to the U.S. attorney’s office. I loved being a prosecutor. Chuck, you know being an AUSA is one of the greatest jobs you can have and having that day to day authority and decision-making responsibility where you can just do the right thing every day is–it’s a fantastic feeling. Oftentimes, without compromise when you’re a line assistant. 

 

Rosenberg: Can you explain that, without compromise,” because I don’t know that people fully appreciate how true that is.  

 

Ruemmler: Yeah. What I mean by that, is that the vast majority of assistant U.S. attorneys who are just doing cases every day, that no one ever sees, they’re not written about, they’re not publicized. There’s a whole different set of rules for cases that are highly publicized. You have an enormous amount of autonomy and discretion in decision making and so if you don’t think that a case should be brought, or you think that a case wasn’t investigated properly, or is legally deficient in some way, or just–it just isn’t right, or isn’t fair you generally have the discretion within certain parameters to decide to dismiss the case, or at least advocate to your supervisor very aggressively that the case should be dismissed.  

 

Rosenberg: I used to say, and I still believe that you can sometimes do justice by going very hard, and you can sometimes do justice by going soft, and you can sometimes do justice just by not going at all.  

 

Ruemmler: Yeah, that’s exactly right. I remember when I was a young prosecutor, very junior prosecutor in the D.C. U.S. attorney’s office, and that office has so many cases that can feel, particularly when you’re dealing with, you know, misdemeanor cases, and manypeople don’t understand that the D.C. U.S. attorney’s office which is a federal office. But it also has a local element to it because of the unique nature of Washington D.C., much like a district attorney’s office in another city, in Manhattan, or San Francisco, or something.  

 

Rosenberg: They’re really two sides to ityou know, a federal court side on the Superior Court side.  

 

Ruemmler: That’s exactly right. And when you start in the office, it doesn’t matter who you are, or how great you think you are, how smart you think you are you start out on the local side in D.C. Superior Court the volume of cases is really great. You know a lot of narcotics cases, shoplifting cases, simple assault cases, bar fights, that type of thing. And I remember early on, standing up to take a plea from a defendant, and the defense lawyer was ready to have this this defendant enter a plea to some type of narcotics offense.  

 

Rosenberg: A guilty plea.  

 

Ruemmler: Guilty plea. I started reading what we referred to as: the Gerstein—it was basically the police report, and realized that there was an insufficient basis to charge this particular defendant with possession of the drugs.  

 

Rosenberg: People may be surprised, but because of the volume in superior court, it’s not unusual to see the police report on the morning of the plea.  

 

Ruemmler: Exactly, or literally as you’re, in this case, you know, you, you’re sort of opening the file and reading it right as the defendant is about to enter a guilty plea. And I read it and I said, “Your Honor, may I have a moment?” And I pulled the defense attorney aside and I said, you know, “there’s not even probable cause here.” You know, I just dismissed the case. And that’s what I mean by, you know, having that discretion. The defense attorney, who is clearly just mailing it in, right, was about ready to have his guy plead guilty to something that we as the government couldn’t prove. And that was a great lesson for me early on in my prosecutorial career. You have to scrutinize cases that law enforcement brings to you, you have to scrutinize them aggressively, and sometimes you, as the prosecutor, have to be the, the person that ensures that justice is carried out, and you can’t just. Rely on the adversary system of defense counsel to do it.  

 

Rosenberg: And to your earlier point, Kathy, that’s absolutely doing justice: getting rid of a case that should never have been brought.  

 

Ruemmler: That’s exactly right.  

 

Rosenberg: Did you remain in Superior Court?  

 

Ruemmler: I did untilI had a very unusual prosecutorial path, Chuck, I think, as you know, I stayed in superior court for about two years and I loved it because I got a lot of trials. It was just great.  

 

Rosenberg: Did you enjoy being a trial lawyer? 

 

Ruemmler: I love, and still love, being a trial lawyer. It’s, I think, probably one of the most challenging things that a lawyer can do, is do a trial and to do it well. You know, having that experience on relatively simple cases, but just getting a lot of volume of trials was invaluable experience. So, I was sitting in my office one day in the U.S. attorney’s office and I got an email out of the blue from a woman named Leslie Caldwell, who, at the time, was the director of the Enron Task Force, and she asked me whether I would be interested in coming in meeting with her to talk about working on Enron.  

 

Rosenberg: How did Leslie know of you, or you of her?  

 

Ruemmler: I was recommended to Leslie by a woman named Alice Fisher, who, at the time, was the deputy assistant attorney general in the Criminal Division, working with Michael Chertoff, who is the assistant attorney general the criminal division. And she subsequently went on to become herself, the assistant attorney general for the criminal division during the George W. Bush administration. So, she had recommended me to Leslie really unbeknownst to me at the time, I found that out later. I did go and I met with Leslie Caldwell and I met with Andrew Weissman, and another prosecutor named Sam Buell, and I interviewed with them and they said: “would you like to come on detail to work on Enron for six months?”  

 

Rosenberg: So, the change in your prosecutorial life was from bar fights and assaults on small drug cases and shoplifting in Superior Court in DC to Enron.  

 

Ruemmler: Exactly. And I almost didn’t do it for that reason because I had read about Enron, obviously. So, this was in 2003, the company had filed for bankruptcy at the end of 2001. Of course, there was enormous press coverage around it. And the thing that really stuck in my mind, most fraud cases are the equivalent of algebra, and Enron was the equivalent of advanced calculus. That was the thing that stuck in my mind and I thought: oh my gosh, how in the world–I was never even good at math. How am I going to do this case?  

 

Rosenberg: What types of fraud cases would you have had in Superior Court?  

 

Ruemmler: The only case that I recall having that was even remotely a quote unquote: white collar case or fraud case,” was a check fraud case  

 

Rosenberg: So, relatively simple. 

 

Ruemmler: Relatively simple, yes, it was much more the equivalent of, you know, two plus two equals four.  

 

Rosenberg: You said yes. 

 

Ruemmler: I said yes.  

 

Rosenberg: And you moved to Houston. 

 

Ruemmler: Yes.  

 

Rosenberg: And what you were told it would be a six-month detail. I have a feeling that didn’t entirely turn out to be the case.  

 

Ruemmler: Yes, that’s right, almost four years later. So, I ended up working on the Enron case for almost four years, and I worked on two trials. Also, there were investigations connected that the first trial I did was a case against four very senior bankers at Merrill Lynch. 

 

Rosenberg: Was that the Nigerian Barge case? 

 

Ruemmler: It was the Nigerian Barge case 

 

Rosenberg: Explain that.  

 

Ruemmler: So, the Nigerian Barge case was a really interesting fraud case. It was a part of the overall Enron story, but it was one transaction that involved Enron asking Merrill Lynch to make an equity investment in these electricity-producing power barges that were moored off the coast of Nigeria. It was a very unusual transaction for a variety of reasons. One, is that investment banks, banks like Merrill Lynch, generally don’t like to put their own equity at risk. At the time, Nigeria was in the throes of civil unrest, and the power purchase agreement between the country and these bargesthese huge barges that are supposed to supply power, had not even been agreed to yet. In December of 1999, Enron was desperate to meet its earnings targets. And so, people within the company were literally kind of scouring to see what deals can we close in order to generate earnings so we meet our targets. And this was one out there is a possibility. Realistically, it was many, many months from being ready to have a real deal. So, what Enron did is that they shopped it to several of their vestments banks who were reliant on Enron for investment banking fees. They first went to Lehman Brothers, and Lehman Brothers–it’s kind of quaint now–and people even remember Lehman Brothers. But Lehman Brothers passed on the deal and then they went to Merrill. Merrill agreed to do the deal with no due diligence in a matter of days. I think it was first brought to Merril December 22nd, or something.  

 

Rosenberg: What Merrill was essentially doing was helping Enron book revenue.  

 

Ruemmler: That’s exactly right. What was wrong with that is that they had a secret oral side deal where the Enron executives agreed to take Merrill out of the deal at a guaranteed rate of return within six months. And that’s exactly what happened. Now, what that did, is that it transformed, essentially, what they booked as an earnings event into really, just a, in the words of Merrill Lynch, as you know, internal documents a relationship loan essentially Merrill just loaned Enron money.  

 

Rosenberg: Why is that a fraud? 

 

Ruemmler: It’s a fraud because that’s not how they booked it. All the pretty documents that wanted to document the deal showed that this was an equity investment that Maryland had made and their equity was at risk, meaning they can lose the money. The reality of the transaction, which everyone understood, that was reflected in e-mails, and witness testimony, was that this was just essentially a loan from Merrill that they got a guaranteed 15 percent rate of return on, that they knew they were going to get their money back. And so, it was a relatively simple transaction to explain to a jury. It was very emblematic of the types of schemes that Enron concocted to manipulate their earnings. One of the key documents in that case were handwritten notes by Merrill Lynch executive, was listing risks of the deal and said: reputational risk aid abet Enron income statement manipulation.  

 

Rosenberg: As a prosecutor, we would refer to that as good evidence.  

 

Ruemmler: It was very good evidence. Yes, the documents were very powerful in that case. It was, at the time, was a front-page Wall Street Journal prosecution. The trial lasted about six weeks, as I recall, this was in 2004.  

 

Rosenberg: And with whom did you try it? 

 

Ruemmler: I tried it with two colleagues: an assistant U.S. attorney from San Francisco, named John Hemon, who’s a fantastic prosecutor still in the office out there, and then another great alumni of your former office, Matt Friedrich.  

 

Rosenberg: Of course, I know Matt well.  

 

Ruemmler: Yeah, both of whom are very dear friends and so it was a very hard-fought case.  

 

Rosenberg: Good lawyers on the other side.  

 

Ruemmler: Good lawyers on the other side high profile case five of the six defendants were convicted and then it had a sort of a messy journey on appeal. 

 

RosenbergWhy is that, Kathy?  

 

Ruemmler: One of the things that we charged was honest services wire fraud. Honest services wire fraud has had a kind of tortured history in the courts, and essentially, the general wire fraud statute makes it a criminal violation, a federal criminal violation to deprive a person of money or property  

 

Rosenberg: Something of value.  

 

Ruemmler: Something of value by using the wires. You know, that, that’s the Federal jurisdictional hook is that there has to be some interstate commerce.  

 

Rosenberg: Phone, computer. 

 

Ruemmler: E-mail, e-mail, write e-mails, and nowadays, e-mail or text is kind of the standard way that you do it. So, what’s interesting about the just the general wire fraud statute which is, many people would say it’s a sort of federal prosecutors best friend, it is a broad statute, but it doesn’t have any kind of de minimis limitation on it. So, if it’s something of value that’s 50 dollars but you’ve used the federal wires in order to fraudulently obtain that 50 dollars from somebody, you can technically be charged with federal wire fraud.  

 

Rosenberg: Theoretically, although federal prosecutors would tend to stay away from a case that small.  

 

Ruemmler: That’s exactly right. But, the system has relied on prosecutorial discretion with honest services wire fraud. Essentially, it’s the same concept, but rather than something of tangible value, like money or property, the deprivation is the honest services of an individual. And so, the theory that we put forward in that case, was that the Enron executives owed a duty of honest services, a fiduciary obligation, to the shareholders of Enron, and that by engaging in this fraudulent activity, and the Merrill Lynch bankers assisting them in that, that the shareholders were deprived of those honest services.  

 

Rosenberg: And that seems logical except as I think you’re about to point out, the courts have wrestled with that concept of honest services fraud, and whether that type of crime is cognizable under the wire fraud statute.  

 

Ruemmler: That’s exactly right. It’s had an interesting history because starting way back, and you may remember the year that the McNally case was decided by the Supreme Court 

 

Rosenberg: Being old enough to remember way back, Kathy.  

 

Ruemmler: I don’t remember what year it was, but basically, the McNally case was a reaction to prosecutors kind of expanding this concept of money or property deprivation to intangible services, and the Supreme Court said: “we don’t think that’s OK.” And so, Congress said—well, in response to the McNally case—“well, we’re going to actually pass a specific law that makes it clear that a deprivation of intangible, honest services, is a violation. 

 

Rosenberg: That will happen from time to time: Congress will respond to a Supreme Court case by changing the underlying statute.  

 

Ruemmler: That’s exactly right. With the barge case, we felt, based on existing 5th Circuit law–with obviously Texas is in the 5th Circuit–that we were on very solid ground there. It went up on appeal, it was reversed in a split decision, 2-1 decision with someone in dissent. Interestingly, you note all three of the judges agreed that there was clearly a fraudulent transaction and that we had proved it was a fraudulent transaction and the question was: what’s the proper way to charge it? And so, they sent it back down to the district court. There was also an honest services element in the, what we called the big Enron case,” which is the case that was charged against Ken Lay and Jeff Skilling and that one ultimately went all the way up to the Supreme Court.  

 

Rosenberg: I’m going to ask you to talk about that, but I can see already, Kathy why this wasn’t a six-month detail of Houston 

 

Ruemmler: Yes.  

 

Rosenberg: So, what happened to the Nigerian Barge case when it was remanded from the 5th Circuit, back to the trial court in Houston? 

 

Ruemmler: So, it was going to be retried. There are, sort of, different stories with each defendant. But the bottom line is that one defendant was also convicted on obstruction and perjury grounds and those convictions were upheld. They remain standing today. And then, there were resolutions reached by my successors at the department by–these cases, as you know, have such long lives by the time it was resolved, which I think was in 2010. I had gone to private practice, gone back to the department, gone over to the White House. So, I was in a very different role at the time.  

 

Rosenberg: You also mentioned Jeff Skilling and Ken Lay explain who they are. Well, and Mr. Lay’s case he’s passed away. Explain who he was and who Jeff Skilling is and what their roles were in Enron.  

 

Ruemmler: They were, at different points in time, respectively, the CEOs of Enron, which at the time it filed for bankruptcy, was the seventh largest company in the U.S., in terms of their revenues, is a very large company.  

 

Rosenberg: What did they do? 

 

Ruemmler: That’s a great question and that was a big part of contention in our prosecution. The way that Jeff Skilling described the company, he said, it was a logistics company, that they were sort of an intermediary for essentially in the gas and power business, but they also had some sideline businesses, they got into broadband, they got into retail energy provision of services to businesses that failed really spectacularly, and actually formed the basis of a significant part of our indictment against the two CEOs. But in truth, I think what we proved at trial, what really Enron did is it was a gas and power energy trader. And the reason why Jeff Skilling, in particular we alleged and proved, wanted to create this other narrative of it being a logistics company or an inner mediator, was that traders, just a pure trading company, because it’s quite risky, the stock price tends to be  

 

Rosenberg: Volatile.  

 

Ruemmler: volatile and trade at what they call a much lower multiple, much lower price to earnings multiple because it reflects the risk involved. Some days are up, some days they’re down. This volatility and what the market really then was looking for was sort of steady growth. And so, what Skilling’s kind of plan in particular was, okay, I’m going to construct this narrative that this company is actually growing year over year at sort of a steady 15 percent, it’s a stable company, the earnings are smooth every quarter. And in order for them to achieve that narrative, when the reality of the company was it was a speculative trading house, was they had to sort of concoct all of these accounting, manipulative activities to create a picture of the company that was very different than the reality. 

 

Rosenberg: That was false.  

 

Ruemmler: That was false. 

 

Rosenberg: And that’s the fraud. 

 

Ruemmler: And that’s the fraud and that’s a crime under the securities laws, and so that’s this the case that we tried and that’s the case that we proved.  

 

Rosenberg: I remember reading a book by two wonderful reporters called The Smartest Guys in the room,” about the Enron scandal. And even as a federal prosecutor and even as someone who had handled white collar cases, I was struck by the complexity of the fraud. In some ways, it’s incredibly simple. It was designed to conceal what they really were from the trading public and from the markets. You know, on the other hand, some of the transactions were very complex. How did you learn that stuff?  

 

Ruemmler: It was really hard. And we could not have done it without cooperators without insider.  

 

Rosenberg: And I imagine with some very good agents some very good agents who were the agencies involved.  

 

Ruemmler: Investigation and prosecution primarily the FBI. We had such a different time because today regardless of how big the white-collar case is I don’t know you could get the resources that we were able to get. But we had I believe you know roughly around 40 agents most of whom were CPS. We had some really fantastic agents working on that case. It was a full time no distractions. This is all any of us did. Slept it we breathed it. It was an all-consuming experience. We needed people on the inside to really explain to us where in a very complex transaction the problem was. And without those guides you know we had. Those were the cooperate those were the cooperators people who we were able to persuade that they had their own exposure which they of course they did and to plead guilty and to work with us in explaining the case and one of the cooperators I worked with really closely was the former treasurer of the company. He had been very involved in designing some of these complex structures.  

 

Rosenberg: Who was the treasurer? 

 

Ruemmler: His name was Ben Glisan. There was a particular transaction that they referred to at Enron as Raptor.” There were actually–there was like raptor One, two, three, and four. And it was unbelievably complex transaction. He Bengalis and did something that is very unusual in these types of cases. He basically pled to a five-year conspiracy offense with no cooperation deal. He just said I’m just going to plead and gonna to do my time.  

 

Rosenberg: And why would he do that? 

 

Ruemmler: Because he made an assessment that his kids were out of age they were reasonably young that he could be of more value to them if he got this over with earlier and was there for them and accessible  

 

Rosenberg: Than fighting it for years.  

 

Ruemmler: Fighting it for years. We weren’t entirely satisfied that he was mentally in a place where he would be an effective cooperator for us and one of the things that’s really challenging about white collar cases is that people go through lots of different stages of, sort of, denial and rationalization. I’ve seen it happen with a number of individuals where it’s hard to accept that, you know, you committed fraud and that’s not how it felt to them necessarily when they were going to work every day.  

 

Rosenberg: Lots of times, I saw people would rationalize each small decision as being what they needed to do at the time, until you’re too far down the road and you look back at all these small decisions and they constitute a very big fraud.  

 

Ruemmler: That’s exactly right. And it’s hard to come to grips with that. You really have to, sort of lay, yourself bare, you have to just come to terms with all of it to be a very effective witness for the government, you have to just be willing to just tell it exactly how it is, in terms of your own culpability as well. And so, that’s a process, usually, for most people.  

 

Rosenberg: Was Ben Glisan, the treasurer of Enron, ultimately able to do that?  

 

Ruemmler: He was. We spent a lot of time, I think, reflecting when–after he was sentenced. I would go to the prison to meet with him so that he could explain to me how this Raptor transaction worked. You know, I sit down with him we–we’d have sort of a secret place because obviously, you know, he didn’t we didn’t want the other inmates to know that he was meeting with the government. So it’s was all done in a very clandestine way and we worked with the Bureau of Prisons. And I’d sit down with him. He was at a federal facility. The first place he was I was in Bastrop, Texas and then he moved to Beaumont. He would explain it to me. And I would say: “OK,” I drive back to Houston is about two and a half hours, I’d say: I got it. And then I wake up the next day and I’d say it’s gone. So, it really took a process of just staying at it. It was like learning a different language.  

 

Rosenberg: I remember cases where I would do the same thing I would hear it. I understood the words. And then I realized I couldn’t explain it to anyone else. And that I didn’t actually understand it and I would have to just do it again.  

 

Ruemmler: Right. That’s right. And it’s easy. You know, what–what’s difficult for people to understand is because you’re talking to a jury of course has no background on this whatsoever, there’s no way that they could possibly understand the complexity. But if you, as the prosecutor, don’t understand the complexity, you’re never gonna be able to explain it in a way that they can understand it. You’re going to be killed by the other side if you don’t really understand the complexity. So, one thing I’ve always said about juries is that they may not necessarily understand exactly all of the nuance and the complexity, but they know who is getting the better of the other.  

 

Rosenberg: Did Ken Lay and Jeff Skilling go to trial? 

 

Ruemmler: They did. They did.  

 

Rosenberg: And you were part of that trial.  

 

Ruemmler: I was  

 

Rosenberg: With whom? 

 

Ruemmler: Sean Berkowitz, who is my partner now, later in life.  

 

Rosenberg: Sean was an AUSA in the Northern District of Illinois.  

 

Ruemmler: That’s right. He worked with Pat Fitzgerald, who I know you’ve had as a guest on. He was a great prosecutor and a guy named John Houston was the prosecutor in the Central District of California. And we sort of, you know, wax up the case as you do. John gave the opening statement I gave the closing argument and Sean gave the rebuttal and did that was about a four-month trial, very intense. You know, there were three completely packed courtrooms with journalists. So, there is the main courtroom and then two overflow rooms.  

 

Rosenberg: Well, you probably don’t remember this, Kathy but I was detailed to Houston for about a year and actually sat and watched you try that case.  

 

Ruemmler: Oh, you were? Well, I, I knew you were there because of course you’re incredibly helpful to us and getting us some office space and things like that which we were eternally grateful for.  

 

Rosenberg: The Houston U.S. Attorney’s Office, which I temporarily ran, was recused from all of the Enron cases. And so, that’s why people like you and John and Sean and Matt were brought in from other parts of the country to handle that matter.  

 

Ruemmler: That’s right. There was a story in The Houston Chronicle that referred to us as the: Evian-drinking carpetbaggers,” or something, you know, which we all thought was not very nice. 

 

Rosenberg: Were you drinking Evian?  

 

Ruemmler: No, of course not.  

 

Rosenberg: Were you carpetbaggers? 

 

Ruemmler: Yes, we were. We were. And you know, Houston’s one of those places that’s pretty parochial, like a lot of districts around the country and but the judges were very fair to us and it was a really hard fight case. It was one of those once-in-a-lifetime cases. Difficult to explain. And we were under enormous pressure and I think back now I turned 35 during the trial. And so, I was the youngest member of the team. And I remember coming back to DOJ after we got the guilty verdicts, in that case, and there was a very senior prosecutor in the asset forfeiture money laundering section, and she said to me: I just have one question for you: how did you not just stay in the fetal position every day?” And it was you know, it was such she was–it was a very genuine question. She’s like: “how did you cope with that kind of pressure?” And the answer is just that you just do because you have to. When you step into the well of the court and the world’s watching and you just have to hope that you know the case better than anybody and trust your gut.  

 

Rosenberg: We started this conversation talking about AUSA is toiling in Superior Court in the District of Columbia in anonymity, where nobody knows and nobody cares. And we are now at the point where literally the entire country was watching you and your teammates work in the highest profile fraud and corruption case in the United States  

 

Ruemmler: Yes. The day that I gave the closing argument of course, there are no cameras within the federal courts, but there are cameras every single day outside in front of the courthouse. I mean, just 20, 30 cameras. 

 

Rosenberg: Banks and banks, walls and walls  

 

Ruemmler: And walls and so you know walking in, and and I think I’d probably, probably gotten about two hours of sleep at most. Doing a closing argument in a four-month corporate fraud trial is not an easy thing and the judge had imposed these very strict time limitations on us. So, it’s like, how do you cover all of that? The defense called almost 30 witnesses in the case, the defense called more witnesses than we did and so for the prosecutors who were listening know that that’s a pretty extraordinary thing. It doesn’t happen very often.  

 

Rosenberg: Right.  

 

Ruemmler: So, there was a lot of evidence to address in closing and you know how to get through it and I walked into court and I remember there is a picture of me you know on the front page of The New York Times above the fold walking into courts doing a closing argument. Just to kind of keep it real, my father said to me later that evening that he thought my lipstick was too dark.  

 

Rosenberg: So, what was it like walking in that day to deliver that closing argument? 

 

Ruemmler: It was surreal. We felt like the weight of the world was on our shoulders. At some point, I won’t say who, but there is a senior leader at the Justice Department who said, you know, this is a I can’t lose case. And we felt that, you know–  

 

Rosenberg: But I will say which is unfair because we can lose any case.  

 

Ruemmler: That’s right. This was a case that could have been lost. I mean it was a really complex case. In any case of that profile is just different. Judge acts differently, the juries act differently, the media coverage just makes the parties sometimes act differently. There were things that were being written about in the press that we could see that the defense was responding to. It’s much less controlled kind of trial than you have in something that’s not being scrutinized. And so, you know, on the one hand, we did feel this enormous pressure. On the other hand, I will say that I think after we submitted the case to the jury, we all felt like we’d sort of left it all on the field.  

 

Rosenberg: You did all you could.  

 

Ruemmler: We did all we could. And also, this is where he had done violent crimes before when I was in Superior Court. It was good perspective because I thought, you know, what if they’re acquitted? And, of course, they were convicted, but if they’re acquitted, the community’s not going to be not safe. Oftentimes, as a prosecutor, you know, when you’re dealing with very violent offenders, that’s a concern you have, is that you worry that if someone is acquitted of a very violent offense, that it could have real consequences for the safety of the community subsequently. And I remember thinking to myself that’s not an issue. Ken Lay and Jeff Skilling aren’t going to commit securities fraud again after this.  

 

Rosenberg: How long was the jury out?  

 

Ruemmler: The jury was out for about five days. 

 

Rosenberg: Deliberating.  

 

Ruemmler: Deliberating.  

 

Rosenberg: And you should explain: that’s a period of agony as a prosecutor, or a defense attorney, or as a defendant it is absolute agony.  

 

Ruemmler: It’s, it’s, it’s indescribable agony because you don’t know when they’re going to return a verdict what the verdict is going to be. If they’re asking questions of the court. Everyone’s trying to decipher and read tealeaves and understand, you know, what it is that they’re struggling with. Oftentimes, you know, they will ask to see particular pieces of evidence. They’ll want to ask for transcripts of witnesses, particularly a four-month trial, right. You think about that. It’s hard for jury to kind of remember everything. And people have different ways of coping. My way of coping was very sadistic, which is that I would read back over transcripts of examinations that I had done and beat myself up about questions that I wished I could have asked better.  

 

Rosenberg: Kathy, we all do that. The greatest closing arguments I ever gave in my prosecutorial career were driving home alone in my car. 

 

Ruemmler: After the fact.  

 

Rosenberg: After the fact.  

 

Ruemmler: You know, I think we all do that to our side.  

 

Rosenberg: You just say: “gosh, I wish I could just do it again.  

 

Rosenberg: Ultimately, both men were convicted.  

 

RuemmlerThey were. The judge, Judge Sim Lake, who is a really excellent, superb judge in Houston. This case was unusual in so many different respects, but there were separate counts that had been charged that had been filed against Ken Lay, bank fraud charges that Mr. Skilling really had no connection to. And so, those counts had been severed from kind of the main case, and Lay had actually waived his right to a jury trial. 

 

Rosenberg: On the severed counts. 

 

Ruemmler: On the severed counts. So, what the judge did as soon as the case the big conspiracy case was submitted to the jury–so, while they were deliberating, he said: we’re going to do the bench trial,” that took, as I recall, you know, about three days, so the jury is out for five days. The judge is hearing this evidence on these bank fraud charges against Ken Lay while the jury is deliberating. And so, there was an extra element of we’re waiting for the jury to come back. And also, this other trial is going on it’s a trial to the court. The jury comes back, delivers its verdict, you know, multiple counts against each of them. 

 

Rosenberg: Of conviction.  

 

Ruemmler: Of conviction, and then the judge, sort of, without skipping a beat, says: OK now I’d like to render my verdict. And then he goes through and finds the defendant guilty on the multiple counts of bank fraud. Not a good day for Ken Lay.  

 

Rosenberg: We’ve talked about this on the show with other prosecutors that while you’re happy and justice has been done, the mood in a courtroom after a verdict like that is not celebratory.  

 

Ruemmler: No, it’s very somber, it’s serious, it’s heavy. And if you don’t feel that as a prosecutor and you don’t feel, sort of, the weight of the seriousness, of the power, and authority that you have as a prosecutor, then you shouldn’t be a prosecutor. We felt relief. We felt obviously satisfied and happy about the fact that we had accomplished what we were setting out to accomplish. It wasn’t so celebratory. One very bizarre experience, and it’s the only time I’ve ever had this, you know, as a as a prosecutor, or even as a lawyer, we went to the local sandwich place for lunch after the verdict, and we walked into the sandwich place, and everyone in the restaurant started applauding us.  

 

Rosenberg: How did that make you feel? 

 

Ruemmler: It is mixed. You know, I mean it, it was it was great on one hand, and on the other hand you know, it’s there’s so much mental exhaustion, and, and again it’s just this heavy feeling it’s very kind of you know somber feeling of–we felt like that was extremely righteous case. And, and they needed to be held accountable for the fraud. But, you know, it’s also it’s a sad thing. There were so many people affected by what happened at Enron. 

 

Rosenberg: Thousands and thousands of employees lost jobs and pensions and investments investing public lost money.  

 

Ruemmler: Yes, exactly.  

 

Rosenberg: There was another bizarre turn in the case, because prior to sentencing, Mr. Lay passed away from natural causes.  

 

Ruemmler: He did, that was a huge shock, huge shock, and it was only–it was about five weeks after the verdict. I remember vividly I was driving down Massachusetts Avenue from my house to the Bond Building, which is one of the DOJ buildings, as the building in which I worked. 

 

Rosenberg: In Washington D.C.  

 

Ruemmler: In Washington D.C., and I got a call in the car from one of Ken Lay’s defense attorneys, saying you know, he died, and I said I almost drove off the road. I mean, it’s just absolutely shocked. We–I didn’t understand or appreciate that he had had no significant health problems. It was really heart-breaking news, you know, because regardless of what you think about his conduct, which I believe was fraudulent and criminal, I also–the human side thought that for the last years of his life to be dealing with that kind of stress was, was really you know, tragic.  

 

 

Rosenberg: He was a human being  

 

Ruemmler: Is a living being with a family, that was hard. And then there was this sort of strange conspiracy theories that arose about whether or not he in fact had died and you know, whether he had really just fled to Venezuela and faked his death, and you know, all of the, the strange things that go along with a case of that profile.  

 

Rosenberg: Kathy, what did you do after the Enron trial ended?  

 

Ruemmler: I went to private practice for a couple of years actually at Latham and Watkins, which is my current law firm. And then, President Obama was elected. I was asked by Eric Holder and David Ogden, who were the nominees to be the attorney general and the deputy attorney general respectively, to come back into the department in a job called the PADAGChuck, you know what that job is.  

 

Rosenberg: Explain what, that–what it is, and what it stands for 

 

Ruemmler: There is only one PADAG at the department. It’s the principal associate deputy attorney general.  

 

Rosenberg: That’s a mouthful.  

 

Ruemmler: It’s a mouthful, but DOJ people know that’s what everyone refers to it as PADAG. You are right hand man to the deputy attorney general.  

 

Rosenberg: I always described it as the number one person to the number two person.  

 

Ruemmler: I think that’s a very apt description. It’s a very apt description.  

 

Rosenberg: And the number two person in the Department of Justice, the deputy attorney general, is essentially the man or woman serving as the chief operating officer, running the department on a day to day basis.  

 

Ruemmler: That’s exactly right. It’s a lot to manage. I mean, you’re technically managing all of the law enforcement agencies: the FBI, the ATF, the Marshal Service, the DEA, as well as all of the components of the Justice Department. 

 

Rosenberg: And all of the U.S. attorneys offices. 

 

Ruemmler: And all the U.S. attorneys offices. And one of the things that that I spent a lot of my time on in that job is talking to the various U.S. attorneys and interviewing each of the potential nominees. David Margolis, you know well, who is a career veteran the most senior career official at DOJ who’s a very dear friend of mine and yours, he and I interviewed virtually all of the nominees to be U.S. attorneys so  

 

Rosenberg: They’ve served the department for half a century. He was a mentor to both you and me, Kathy, and the countless others.  

 

Ruemmler: Yes.  

 

Rosenberg: He passed away and I miss him every day.  

 

Ruemmler: I do too. I do too. We used to have dinner once every couple of months or so. I would always try to convince him to eat something somewhat healthy to no avail.  

 

Rosenberg: Many of us tried, many of us failed. 

 

Ruemmler: Yes, exactly, exactly.  

 

Rosenberg: But you didn’t stay in that paid role for too long.  

 

Ruemmler: As you know, I think the average tenure in that job it’s a really tough job. And you don’t make a huge number of friends in that job because it’s a tough job. But it’s, I think the average tenure, actually David Margolis told me was, you know, between a year and 18 months, and I was in it for a year and then I was cajoled into moving over to the White House as deputy White House counsel when Bob Bauer became White House counsel in January of 2010.  

 

Rosenberg: Actually, the second time he worked in the White House.  

 

Ruemmler: That’s right. That’s right. I had worked as associate counsel to President Clinton at the very end of his term. So, from basically from 2000 to 2001 so that the interesting book ends there is that I left the White House on January 19th of 2001, and then I did not go back in to the White House, didn’t step foot into the White House again until January, think January 21st of 2009. Of course, I worked at the Department all throughout the Bush administration, but as a career prosecutor, it was interesting for me to see kind of both sides of the end of an administration, and also the very, very beginning of an administration.  

 

Rosenberg: How long did you remain deputy White House counsel?  

 

Ruemmler: About a year and a half.  

 

Rosenberg: What did you do in that job?  

 

Ruemmler: So, I was the right-hand woman to go to the White House counsel, to, to Bob Bauer, who’s an absolutely brilliant lawyer and has been an enormous mentor to me remains extremely close friend of mine. You know, together we ran the office the office has an enormous number of responsibilities  

 

Rosenberg: How many lawyers would be in a typical White House counsel? 

 

Ruemmler: We hadI think, roughly around 25 to 30 lawyers and people generally had various areas of responsibility and we had different teams. So, one team, for example, just worked on national security issues, one team just worked on judicial nominations, one team just worked on sort of domestic legal policy issues.  

 

Rosenberg: And when you talk about 25 to 30 lawyers, those are the men and women in White House counsel’s office.  

 

Ruemmler: That’s right.  

 

Rosenberg: In the White house. You also have lawyers throughout the executive branch that you can call upon.  

 

Ruemmler: That’s exactly right. In every agency, there are general counsels in each agency, and so, I would be talking to them on a whole variety of different subjects constantly. 

 

Rosenberg: Department of Commerce one day, State Department the next . 

 

Ruemmler: That’s right. That’s exactly right. And from the president’s perspective, you know, he conceptually understands that there are all these lawyers working across the executive branch, but in his mind, there’s basically one, who needs to figure out what the right answer is.  

 

Rosenberg: And that was Bob Bauer, but that was ultimately you.  

 

Ruemmler: It was ultimately me, right. So, I was promoted to White House counsel in June of 2011 and Bob decided that he was gonna go work on the re-election campaign for the president. He is a brilliant, and one of those respected election law lawyers that sort of what he does. So, he went back to do that and strongly encouraged the president to promote me to the White House counsel and it was a pretty big leap of faith for President Obama because I did not have a prior relationship with him, I had not worked on the campaign, and my background was pretty unusual for a White House counsel coming from DOJ, and being a prosecutor, and I was young. I just turned 40. It’s young in a relative sense, you know, for that job. The president I had worked together when I was deputy counsel, but not really closely. It was definitely a leap of faith on his part to promote me and I believe just as a historical matter and it’s kind of unusual. No other deputy counsel had been promoted to White House counsel. So, that’s not typically the way that it works.  

 

Rosenberg: You were young, you had an unusual background, you didn’t have a personal relationship with the president, but they saw something obviously.  

 

Ruemmler: I’d had the opportunity over that year and you have to work closely with a number of the president’s senior advisers with the chief of staff Rahm Emanuel, David Axelrod, with David Plouffe. You know, obviously with Bob, and I think they trusted my judgment and had, in a more kind of up close and personal way, had seen my skill as a lawyer.  

 

Rosenberg: When you are White House counsel, who is your client? 

 

Ruemmler: The president of the United States, and not Barack Obama. 

 

Rosenberg: Explain that.  

 

Ruemmler: When you are the White House counsel, you are representing the office holder, the person who embodies the presidency and the office itself. You’re, you’re not representing an individual person. And it’s really important to keep that in mind because there are, you know, things that come up from time to time that clearly may impact a president in his personal capacity, that, you, as the White House counsel, should not properly be representing him on. That’s both because you’re a federal government employee, or your salary is paid for by the taxpayer. You ultimately have a duty to the Constitution and to the public  

 

Rosenberg: To the oath you took.  

 

Ruemmler: Tthe oath you took. There are institutional reasons why that’s true but they’re also just practical reasons including that there is not a traditional attorney client privilege between the president and the White House counsel.  

 

Rosenberg: What do you mean by that? 

 

Ruemmler: What I mean by that is that if I represent a client today…  

 

Rosenberg: Let’s say you’re my lawyer.  

 

Ruemmler: Yes. Anything that you tell me, I am absolutely obligated ethically to keep that confidential. And, and that’s an obligation that attorneys understand and respect and it’s sacrosanct. And there are some limited exceptions in which it can be breached, but they’re limited. When you’re the White House counsel, that same type of privilege doesn’t apply to your relationship with the president. There are different privileges that may or may not apply, but it’s not in attorney client privilege. I guess the best example I could give you is that, you know, if a president were to say to me as the White House counsel that he had authorized something that was illegal. I would actually have an obligation as the White House counsel to disclose that to the Department of Justice, whereas in a relationship with a private client, when I’m representing you, if you told me that you had authorized something that was not lawful, I would be obligated to keep that confidential and not disclose it. In that job, you have to be very conscious of what confidences you can properly keep. And if there are certain matters, the easiest example I would give is, you know, if a president were contemplating, you know, getting divorced or something a purely personal matter. That’s not something the White House counsel you know can or should advise on.  

 

Rosenberg: You would advise the president to get private counsel for that.  

 

Ruemmler: I would, yes.  

 

Rosenberg: But we should point out that for President and Mrs. Obama, that was strictly hypothetical 

 

Ruemmler: Oh, yes, of course, absolutely. You know, where it has come up historically or in the context of criminal investigations. We didn’t have any of those, which I’m grateful for during the Obama administration that wasn’t by accident, as very much by the exercise of prudence and design in fact that President Obama’s probably has more integrity than anyone I’ve ever met, and a very high standard of ethics, but historically, there have been investigations with respect to white houses. We saw that during the Clinton administration and President Clinton had private counsel, David Kendall, at Williams actually represented him along with others. President Trump, likewise as we saw, you know, also had private counsel those distinctions are important. They’re not sometimes is kind of black and white and clear cut as you might expect it’s tricky to figure out the lines. I was very grateful I didn’t have to navigate that for President Obama.  

 

Rosenberg: You said that President Obama was a man of tremendous integrity and that was my impression of him. What else did you observe working for him?  

 

Ruemmler: He is really funny. He’s probably like the coolest person that I’ve ever met. In the sense that  

 

Rosenberg: cooler, even than me? 

 

Ruemmler: Well, you’re pretty cool, Chuck. He’s cool in the sense that he’s just, you know, he’s really level headed. He doesn’t lose his temper. I don’t know if it’s his Hawaiian roots, but I often say, you know, he’s chill. That does not mean he’s not intense. He’s quite intense. He’s confident and therefore able to make very level-headed decisions.  

 

Rosenberg: Is he a demanding boss?  

 

Ruemmler: Yes. Yes, he is. But there are sometimes demanding bosses who are erratic and that’s why they’re demanding because you’re not quite sure what demand is going to be placed on you.  

 

Rosenberg: Yeah, I think that’s an important point. Well, when I worked for Bob Mueller at the FBI he was demanding, but he was not mercurial. He was very linear. You knew what the expectations were, he was never erratic, he was always polite. It was civil a man of high integrity. But he was demanding.  

 

Ruemmler: Yes. That’s exactly the same with President Obama. He was demanding in the sense that he, you know, demanded you know your stuff, demanded competence, he demanded rigour, but he never lost his temper. He didn’t drive people in sort of mercurial ways. He didn’t try to create strange competition among staff. I mean, he’s a very kind of straight ahead guy. And he worked really, really hard. So, one of the things that I think people were who worked closely with him were so impressed about, is that you would send a memo in to him. He would get a big stack of memos every night. And then, President Obama’s a bit of a night owl, so he would do his reading late at night. You’d get the memo back the next day always with comments. And invariably, every single time, he would find the soft spot in the memo, he would go right to the heart of the issue, either request follow up or say, I don’t really–this doesn’t really make sense to me, or it sounds like, you know, maybe that this argument on the other side is a little stronger than this memo suggests, extremely rigorous analytical thinker.  

 

Rosenberg: But that’s precisely the kind of demanding you want in a president of the United States.  

 

Ruemmler: Yes, it is.  

 

Rosenberg: Did you enjoy working for him? 

 

Ruemmler: I did. I did, he was a fantastic client. I consider him to be a dear friend and he is–t was great. Really, I felt so fortunate to have the opportunity to work with him I learned so much.  

 

Rosenberg: You were the one who brought him bad news on occasion, but you were also the one who brought him good news on occasion. What I have in mind was the time that the Supreme Court of United States upheld the Affordable Care Act.  

 

Ruemmler: Yes.  

 

Rosenberg: You knew it, but he didn’t.  

 

Ruemmler: That’s right. That’s right. Very last day of the term in June of 2012. So, we are in the heat of a presidential election cycle. President is running for re-election for a second term. The stakes are high, not just because of this historic legislation that we strongly believed was not only great policy and changed the lives of many people, but was constitutional and soundly so, but it was a bit of a nail biter. One thing that the people who don’t, sort of, work in this world I think find hard to believe is that you don’t get a tip off from the Supreme Court. The president of the United States finds out what the Supreme Court has done when the rest of the world finds out.  

 

Rosenberg: And in some cases, just after the rest of the world. 

 

Ruemmler: Just after the rest of the world, right. To bring people back to that time, this was a 5-4 decision, the majority opinion was written by the Chief Justice: Justice Roberts, Justice Kennedy was in the dissent. And the reason why that was significant is because most people that conventional wisdom is you know certainly at the time that Justice Kennedy was the swing vote on the big cases of the day, and that he would likely be the swing vote in this case. The speculation was that Justice Kennedy was going to be the key decision-maker in that case as he had been in a number of significant cases where the court was divided, and his questioning at the oral argument in the case had been not terrific for the government. It sort of suggested that he was skeptical that the Affordable Care Act was consistent with Congress’s power to legislate in this particular area. That’s really what was at issue. Did Congress have the power to force people? To pay for health care, or pay a penalty? That’s kind of was the key mechanism of the act. We didn’t know until the Supreme Court decided, we knew they were going to decide on the last day of the term, we knew it was going to be probably somewhere between ten and ten thirty in the morning.  

 

Rosenberg: And you knew it would be close. 

 

Ruemmler: And we knew it would be close. Going back to our conversation about Enron, that’s the sort of second time in my life where I felt the weight of the world on my shoulders because this was really an important case for us. Justice Roberts came out on the bench. I was in the West Wing and we had sort of the command central set up there. But he came out on the bench and he first started talking about the commerce clause, challenge to the act, and the number of reporters had basically run out because he, you know, in the media world, it’s the need for speed and being first.  

 

Rosenberg: And they can’t report from inside the court.  

 

Ruemmler: They can’t, exactly. So, they’re sort of run out and reported that NBC did not report this, but CNN did, and and I believe Fox did, reported that the court had actually struck it down and that was incorrect because what the chief justice was doing was first talking about how he believed that this exceeded Congress’s authority under the commerce clause, but was permissible under their ability to impose taxes. But you had to wait for him to get to that.  

 

Rosenberg: You had to listen to the whole story.  

 

Ruemmler: You had to listen to the whole story. And no matter how many times it seems that you would think that we learned our lesson about you need to listen to the whole story, people don’t listen to the whole story. So, there was this dissonance because there were certain outlets that were reporting that it was struck down. It was painful. We had to kind of wait for the whole story when I felt that there was enough confidence that I could go and tell the president that in fact, the act had been upheld. I ran downstairs. My office is one floor above the Oval Office, and he was standing in this outer chamber of the Oval Office where there are TV screens and he was looking at it with this very kind of puzzled look on his face.  

 

Rosenberg: He thought they had lost.  

 

Ruemmler: He thought they had lost and I ran in and I gave him two thumbs up and I said: we won. And he sort of looked at me with a confused look looked, back at the TV, and then you could see he sort of thought to myself Okay well I’m going to go with my counsel over Fox News, and then gave me a big hug and it was a it was a really–there was a great moment.  

 

Rosenberg: That picture, that hug, went viral.  

 

Ruemmler: Yes, it did. It did. It did. It was, it was a really gratifying moment. We’d put a lot of blood sweat and tears into, you know, making sure that we defended that law as aggressively as we could and, and Don Verrilli, the solicitor general, had argued the case and had gotten, I think, some unfair criticism from pundits about how the argument had gone. I was there in court, so I saw it. I thought it was very unfair and unfounded and he got the last laugh because during his rebuttal argument, he really, really hammered on this point about Congress’s ability to impose a tax, and how that was a second basis on which the court could uphold it. 

 

Rosenberg: Which was precisely the point on which Chief Justice Roberts seized and he was the deciding vote.  

 

Ruemmler: That’s exactly right.  

 

Rosenberg: Do you miss public service, Kathy?  

 

Ruemmler: I do. I do although I look at what’s going on now, and I don’t wish to be part of that. It’s sad to see how acrimonious it has become. And when you–when I was working as the White House counsel, you know, I had important relationships of trust with members of Congress across the aisle, and who I talked to frequently on lots of important matters. I hope that that’s happening now, but I’m not sure whether it is. A number of those people who I worked with, you know, have since left Congress and I think it is just so polarizing and the rhetoric has gotten so mean. 

 

Rosenberg: Mean and heated.  

 

Ruemmler: Mean and heated. Yeah, we’re always going to have policy disagreements. Why it has to be devolve into personal attacks? I don’t quite understand.  

 

Rosenberg: Well, I am incredibly grateful for the service that you rendered.  

 

Ruemmler: Thanks, Chuck 

 

Rosenberg: And I’m also grateful that you would share some of those stories with us here on The Oath.  

 

Ruemmler: Well, it’s been such a pleasure. It’s great to see you.  

 

Rosenberg: It’s great to see you too, Kathy.  

 

Ruemmler: Maybe we’ll go back to the line and start, you know, prosecuting people again. You never know.  

 

Rosenberg: I miss my days as an AUSA. 

 

Ruemmler: I do too.  

 

Rosenberg: Well, thank you Kathy.  

 

Ruemmler: Thanks so much, Chuck.  

 

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