Bernard William Nussbaum (March 23, 1937 – March 13, 2022) was an American attorney, best known for having served as White House Counsel under President Bill Clinton.
Background
Nussbaum, the first child of Jewish immigrants from Poland, was born in New York City on March 23, 1937. His father and mother originally worked in garment factories. His father was later employed by the labor union that represented garment workers, the International Ladies' Garment Workers' Union (ILGWU). Nussbaum grew up on the Lower East Side of Manhattan, home at the time to many immigrant families from Eastern Europe.
He attended neighborhood public schools. In 1951, he was admitted to Stuyvesant High School, a specialized public high school in New York City which requires the passing of an entrance exam for admission. He graduated in 1954, having been a member of the school's academic honor society, and an editor on the school's newspaper, the Stuyvesant Spectator.
Nussbaum then was accepted at Columbia College in New York. He was awarded scholarships by New York State and by Columbia which made it possible for him to attend Columbia. He joined the staff of the college daily newspaper, the Columbia Daily Spectator and, in his senior year, became its editor-in-chief. He was also elected to Phi Beta Kappa. During the summer months he worked as a waiter at hotels in the Pocono Mountains in Pennsylvania and the Catskill Mountains in New York to help pay for his education.
In 1958, Nussbaum graduated from Columbia and was admitted to Harvard Law School. After his first year, on the basis of his academic record, he was selected to join the Harvard Law Review and was given a full tuition scholarship by the law school. In his senior year he became a note editor of the Law Review, succeeding future Supreme Court justice Antonin Scalia.
Upon completing law school in 1961, Nussbaum was awarded a Harvard University Sheldon Traveling Fellowship. This fellowship enabled him to travel around the world for a year visiting over 30 countries. On his return he served for six months on active duty in the United States Army and was a member of the Army Reserves for six years.
Early career
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 more than three years and tried a number of major criminal cases. These included convicting, after a four-month trial, five officials of a federal savings and loan association of perjury. The perjury was committed by the bank officers to cover up the diversion of over $250,000 from the savings and loan association to finance a political campaign for Congress being conducted by the president of the association. He also won a jury verdict convicting a prominent accountant and investor of bribing and conspiring (with other major investors) to bribe an internal revenue agent.
In 1966, Nussbaum joined the New York law firm, Wachtell, Lipton, Rosen & Katz, one year after the firm was founded in January 1965 by Martin Lipton, Herbert Wachtell, Leonard Rosen, and George Katz, four lawyers in their early 30s who in time became preeminent in the legal profession. In 1966, the firm had less than 10 lawyers. As of 2022, it has over 250 lawyers and is one of the most successful corporate law firms in the United States.
In 1968, Nussbaum ran for a seat in the New York State Assembly. In a close contest, in a Democratic primary election in Brooklyn, New York, he lost to the incumbent assemblyman.
In 1970, Nussbaum managed Robert Morgenthau's campaign for Governor of New York. He led a group of former assistant United States attorneys in conducting a statewide petition drive to place Morgenthau's name on the Democratic Party primary ballot for the party's nomination for governor, opposing Arthur Goldberg, the former Supreme Court Justice, who was the choice of the Democratic Party leaders.
In a short period of time, well over 15,000 signatures of registered Democrats were collected in over 50 New York counties, with the requirement that there be at least 100 such valid signatures in each county. Many of the upstate counties in New York had few residents and even fewer registered Democrats. This made the petition drive difficult. However, it succeeded and Morgenthau began his primary race against Goldberg. A third political party, the Liberal Party, then decided to give its nomination to Goldberg. This decision, which would have had the effect of splitting the vote against the incumbent governor, Nelson Rockefeller, if Morgenthau won the Democratic primary, made it virtually impossible for Morgenthau to defeat Rockefeller in the general election. Morgenthau therefore withdrew from the primary race. Goldberg ran as the Democratic/Liberal candidate against Rockefeller in the general election and was defeated.
In 1972, Nussbaum represented Elizabeth Holtzman who, in a surprise victory, had defeated senior U.S. Representative Emanuel Celler, who at the time was chairman of the House Judiciary Committee, by a little over 600 votes in the Democratic primary election. Celler brought suit in a Brooklyn state court to set aside that victory. Nussbaum won that case, which was ultimately decided by the New York State Court of Appeals, and Holtzman's election was upheld. As a result of that victory, Peter Rodino, a senior congressman from New Jersey replaced Celler and became chairman of the Judiciary Committee which later successfully conducted the impeachment inquiry involving U.S. President Richard Nixon.
In the mid-1970s, during New York City's fiscal crises, Nussbaum represented the Comptroller of the City of New York. At the time the comptroller, along with the mayor and the city, were the subject of an investigation by the United States Securities and Exchange Commission into whether there was fraud in the sale of city securities. After a lengthy inquiry, during which numerous documents were produced and top city officials testified, there was no finding of any wrongdoing.
While in private practice he also served as a member of the adjunct faculty of Columbia Law School, conducting a seminar in trial practice for third year law students.
Nixon impeachment inquiry
In December 1973, Nussbaum left his law firm to serve as a senior member on the House Judiciary Committee's impeachment inquiry staff, led by John Doar, which conducted the impeachment investigation involving President Richard Nixon. Nussbaum participated in overseeing the fact gathering process. This included analyzing the White House tape recordings made by President Nixon, and interviewing significant witnesses such as John Dean, the President's former White House Counsel, John Mitchell, the former U.S. Attorney General in the Nixon administration, and Charles Colson, a former special assistant to the President. He played a role in presenting the results of the staff's inquiry to the House Judiciary Committee. In July 1974, the committee, in a bi-partisan vote, voted to recommend to the House of Representatives that the President be impeached. Shortly thereafter, on August 9, 1974, President Nixon resigned. At the conclusion of the impeachment inquiry Nussbaum rejoined his law firm.
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. She introduced him to the man she would marry in 1975, Bill Clinton.
White House Counsel under President Clinton
In 1993, Nussbaum again left his law firm, when he was appointed Counsel to the President of the United States.Bernstein, A Woman in Charge, p. 251. During his tenure as President Bill Clinton's first White House Counsel he was involved in 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, including Judge Ruth Bader Ginsburg to the Supreme Court of the United States.
He was also involved in handling the early stages of the Whitewater controversy, an investigation into an unsuccessful Arkansas real estate investment made by the Clintons years earlier, and the investigation of the suicide of his deputy, Vincent Foster.Bernstein, A Woman in Charge, pp. 364-365. 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 those 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. He warned the president that the institution of an independent counsel, who is responsible to no one, tends to become an uncontrolled, never ending effort to find wrongdoing even where none exists. He predicted that conservative judges would replace anyone who was 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 and congressional pressure, in addition to their being no legal basis, it also made no political sense to request such an appointment.
The President, nonetheless, in response to media and congressional pressure, decided to ask the Attorney General to appoint an independent counsel and she did. A few months later, as predicted by Nussbaum, three appellate judges replaced the counsel appointed by the Attorney General with Ken Starr. An investigation then took place which never resulted in criminal charges against the President, but lasted for over seven years, until after the end of the Clinton presidency. It did, however, result, based on subsequent personal conduct (involving a White House intern) separate from the Whitewater matter, in Clinton being impeached by the House of Representatives in December 1998. He was ultimately acquitted by the Senate, but the impeachment proceeding subsequently affected future presidential elections, first involving Vice President Al Gore and later Hillary Clinton.
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."Clinton, Bill 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 into 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."Clinton, Bill My Life, p. 587
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."Clinton, Bill My Life, p. 586
Nussbaum returned to his law firm in late 1994 and resumed the private practice of law.
Allegations of obstruction of justice