HH: Joined now by Politico’s Josh Gerstein, who is really diving into Obamacare. He’s even tangling with the beast that is federal contracting law. Having been the general counsel to two federal agencies, Josh, I do not envy you this task. Are you a lawyer?
JG: I am not a lawyer, but I’ve spent altogether too much time talking to lawyers in my day job.
HH: Oh, my God, it’s the worst possible subject to be…does Harris hate you? Did he send you to the government contracts desk/
JG: No, not at all. You know, I actually enjoy some of these things. I think that there are sometimes some good stories hiding in these totally obscure tribunals like the Court of Federal Claims, or the Court of Civilian, the Board of Civilian Contract Appeals. And some of the numbers, when you look into the paperwork in these places, the numbers of zeroes that are in there are just staggering after you…
HH: You sound like the guy who would hang around the Merit Systems Protection Board for fun. But in any event, at the White House two days ago, the President said about the Obamacare rollout…
BO: It’s really good.
HH: And he said other things. He sounded like, as many people have said, the ShamWow guy with his 800 number. Is there any regret among the Obama team as to how this is being handled by the White House?
JG: Well, there has certainly been sort of a helter-skelter aspect to how candid they’ve decided to be. You know, right after the rollout began, there was a very cutesy kind of aspect to the questions about transparency that people were asking about, you know, how many people are actually enrolling. They said well, we’ll report that on a monthly basis or something, which sounded very dubious for a campaign which had the absolute state-of-the-art technology that could figure out every time you opened your email from the Obama campaign or forwarded it to anybody, which one of their emails was producing the most yield in donations on a real time basis. The notion that they couldn’t tell you in real time how many people was enrolling seemed a little bit absurd. And they’ve sort of, I don’t know, it seems to me it’s steered all over the map on those questions over the last couple of weeks. It seemed over the weekend, they were steering towards maybe full disclosure pushed by Robert Gibbs as some sort of a way to get them through this difficult period, and then there were no answers yesterday, and then today, the finger pointing. And then by today, they were saying well, we’ll have a daily briefing on what the state of the website is. So…
HH: Yeah, it’s the five stages of dying is what they’re going through. And the trouble is 300,000 people got notices in Florida this week that they don’t have any insurance come January 1, and the adverse selection spiral has begun. I was just talking about it with Megan McArdle. And do they quite yet grasp that this is the Titanic?
JG: They, I think, are aware of this adverse selection problem. I didn’t hear the previous segment, but they’re acutely aware that the people that really want insurance because they need it, because they have an acute medical problem, are going to stay on the website 24/7 if need be in order to get signed up. And the marginal people, the people in their late 20s or early 30s who are in pretty good health, who might buy insurance because they don’t necessarily want to go broke or be saddled with a lot of medical bills, but don’t really foresee themselves having a lot of medical bills, those people could be turned off. And enough mockery from the Daily Show on this subject, and you’re really off to the races in terms of trying to keep the balance where it needs to be. So they’re definitely aware of that. The question is, you know, what they can really do about it in a practical sense. If they could snap their fingers and fix the website, they would. But right now, they’re not really in a position where they can do that.
HH: Now if I was young and in Washington, and working as a reporter, I would figure out whoever the lawyers were for the senior contractor on this, because all night long, they’re going to have pizza brought in as they try and advise their clients on tomorrow’s hearings. Do you expect the 5th Amendment to be invoked tomorrow, Josh Gerstein?
JG: No, I don’t. I mean, right now, it seems like there is almost a political alignment, right? I mean, the Republicans in Congress seem to be intent on running a storyline that is the White House was pushing political goals, or trying to advance some kind of improper political agenda during the planning process for this website, and that’s how it all got screwed up. And now, we’re going to get these contractors to tell us that.
HH: Oh, that’s interesting.
JG: Now if…
HH: I think Joe Pitts is going to be reading back testimony to them on their guarantees of delivery that they’re going to have to admit they were under pressure to make, or they’re going to have to say nothing. I think you might get the 5th tomorrow, Josh. You might be under…
JG: Yeah, I mean, I think it is possible, and there’s going to be a lot of different agendas up there. Obviously, the contractors, without having representatives from HHS there, are going to have a lot of latitude to throw mud towards HHS or the administration. So it may have been a tactical mistake for the White House to not send anybody up there. But I do think at the end of the day, there’s going to be a lot of pressure. More than $600 million dollars supposedly spent on this project, it could go much higher than that as they’re sort of panicking, telling people about the problem.
HH: Oh, I hope you go back and, please go back tonight and find Henry Waxman quotes on toilet seats costing hundreds of dollars and hammers costing thousands of dollars, because I don’t think Henry’s going to be that outraged tomorrow.
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HH: Josh, 12 minutes ago, NBC News tweeted out that NBC News has learned the White House intends to delay the dealing requiring every American to buy health insurance by as much as six weeks. The first question is from what do they derive their legal authority to issue such an edict?
JG: You know, I don’t know the answer to that, but it’s been the case up to this point, as you know, that they have decided that they have these abilities to regulations to issue delays. They issued one for businesses, and now it wouldn’t be surprising to see them go ahead and delay this penalty for individuals. I mean, they may say because they get to decide whether insurance is affordable or available to you, they can just decide that up to a certain point, it isn’t adequately affordable or available. But I don’t know. I haven’t heard, yet, what their rationale is for doing this. I assume it’s primarily political responding to Democrats falling in with this call on Capitol Hill, and not really legal at its core.
HH: Does it not follow that if they can delay it six weeks, they can delay it sixty weeks or six months, or sixty years, that it’s in fact a rule by decree?
JG: Yeah, I think it does, that does follow, that they could waive it sort of on an indefinite basis. I don’t know at some point if they have to go and make formal regulations as opposed to just temporary edicts. I can’t really dig down enough into the details to tell you about that.
HH: Is that a question worth, I’m very curious about that. Does that strike you as a question worth asking, because his indifference to law has been part of the conservative critique? And obviously, you’re not the conservative, I am. But his preemptory rulings and his make it so, Captain Piccard kind of ruling, is part of our critique of his administration. Does it intrigue you at all?
JG: It does intrigue me, mainly because of the question that people have raised. Someday, he won’t be the one sitting in that chair. And if the person that’s sitting in that chair as president or as secretary of HHS doesn’t like this legislation, how much of it can they waive through regulation or deliberate non-enforcement. I think that’s certainly a valid question. There may be ways to answer that. Maybe people can enforce, this is a form of an entitlement program, and people may be able to enforce their rights to the entitlement program, even if the government can’t place penalties on people. But I think it’s certainly a valid question to ask.
HH: Josh Gerstein, yesterday, I argued, and I wrote a Townhall column about that this morning, that while it is not Watergate in its substance, it is Watergate-like in its opportunity for journalists to make a career here. You know, there’s issues of the security of the data. There’s issues about the Spanish website not rolling out and whether that was an intentional holdback. There’s issues about the tech surge, the 24/7 tech surge that the President promised. And he said volunteers are flying in. That’s not legal, as well you know. And of course, the old reliable inquiry, what did the president know and when did he know it. Is there that sense in your newsroom or other places that this is the story of a decade, and people are rushing to dive into it?
JG: I don’t know about the story of the decade, but certainly of the second Obama term. We have felt from the outset that the implementation of Obamacare was going to be the main storyline, I think, of the second term. A lot of the, you know, there’s all these stories that are often written about because this or that has happened, the President policy agenda for his second term, his legislative agenda, has been derailed. I’ve always felt those stories were nonsense, because I never felt that there was a clear policy agenda for the second term, at least a plausible one, and that it was only the implementation of Obamacare that was really going to be significant in terms of establishing Obama’s legacy. So clearly, I think this rollout is a critical story, and perhaps, I don’t know if you can say the most critical. The collapse of the economy at the beginning of the first term, the President’s first term, the recovery from that probably a pretty significant event. But certainly, the second half of his presidency, I think, this is going to be the defining storyline. And it may be that the events of the last few weeks pose to be a very significant part of that story.
HH: One of the critiques of the Manhattan-Beltway media elite is that they don’t push hard on stories that are injurious to the President, like Benghazi. Fair in this instance? Have they been as aggressive in searching out the truth on the Obamacare fail as they would have been, for example, on the Bush failure to secure Baghdad in the aftermath of the invasion of Iraq?
JG: I think people have gotten fairly aggressive in the last couple of days. You know, whether, up to this point, people were entirely aggressive? I don’t know. How much of this could have been reported before October 1st, it’s hard to say. But I have been surprised…
HH: Is that because of politics, Josh? Is that because of the politics of the media?
JG: I don’t think that’s the reason. I mean, that may be an element in individual people’s decisions about what to push. But I was, I thought it was interesting yesterday, or the day before, you had a Washington Post reporter covering the White House, sort of expressing clear exasperation at the briefing, at Jay Carney saying you know, you’re referring all our questions to HHS. Is that with the expectation that they’re going to answer them? Or you’re just kicking the questions over there where nobody’s going to answer?
HH: But it’s been five years. I just wonder where has the White House press corps been for five years on this story. By the way, do you see the fingerprints of Valerie Jarrett on this?
JG: You know, it’s possible. I mean, she’s clearly still a player there in the West Wing, and it’s, I don’t think it’s been clearly established, yet, from inside the White House who is involved in pulling strings in this particular rollout. So far, the official White House line is sort of HHS was handling this whole thing, and we were sort of monitoring it from afar.
HH: Do you believe that?
JG: No, I don’t believe that. I mean, unless they’re really dumb, and I don’t think they are, they, I would think, would share the analysis that this is also critical for the President’s legacy, and for his second term, any assessment of his second term in office.
HH: All right. So this is hard question, Josh.
JG: So if they really weren’t paying attention, that’s almost political malpractice.
HH: This is a hard question. Is the President lying to us about what he knew and what is going on here? In that Rose Garden speech, the Sham-Wow speech of Monday, was he lying?
JG: I don’t think so. I mean, I think that he has a tendency to sort of take things that people tell him at face value. And I wouldn’t be surprised if the assurances he was given turned out to not be valid.
HH: You mean, you think he believes…
BO: It’s really good?
HH: Do you think he believes that?
JG: No, I don’t think that he believes that.
HH: Well then, he’s lying.
JG: I don’t know what his entire statement there was, but…
HH: But then, he’s lying.
JG: I don’t believe…
HH: If he says…
BO: It’s really good.
HH: And he doesn’t believe it, what is that, Josh?
JG: Well, you know, he has a variety of things here in Obamacare that he points to as successes. At least some of them, I think, he can say justifiably, because he does think people support them, the whole keeping people, young people on plans up to age 26. I mean, a lot of these individual elements of Obamacare remain popular, and that’s what the White House is going to point to, even as there are signs that the ship is cracking up here on what may be a pretty significant iceberg.
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HH: Josh, did you vote for Obama for president?
JG: I’m not going to get into my personal voting predilection.
HH: Okay, I was just going to ask you if you were disappointed in him.
JG: Well, I can tell you this in whether I’m disappointed in him, which is I think, one of the issues I cover is transparency. I mentioned that nearer the top of our conversation.
JG: And I would say certainly in that area, he, you know, campaigned as what I would say is a radical on transparency, and has definitely not delivered anything close to what he set forth in the 2008 campaign on that.
HH: If you believe in transparency, though, why won’t you tell us who you voted for?
JG: Well, I’m talking about government transparency. I’m not talking about everybody’s medical records being available to the general public or what have you. I’m talking about whether the federal government, and the state and local governments, ought to operate in a transparent way in terms of their policies.
HH: I agree, but if it’s of value, and I value it, and I always tell people who I vote for, and some reporters tell me, and some reporters don’t, but why won’t you if you value transparency? Why is it good for the government but not for the media?
JG: Because I just think there’s different sets of responsibilities that government is operating with government funds, and there’s, I think, a beneficial nature for the general public to have that kind of information? I don’t think they necessarily know exactly who every government official voted for, any individual voted for is anything of the same order, how the policies are being set or determined.
HH: Would it matter if 90% of the White House press corps, though, voted for Obama? Would that explain why we’re surprised by what was obvious to many of us would happen, that the iceberg was out there and the ship hit it? Maybe that’s because 95% of the White House press corps are all Obama supporters?
JG: I don’t think 90% of the press corps is surprised by this. I mean, I think a lot of us are not terribly surprised. I’ve never thought that they were as good at executing on policy as they were at spinning about policy. And I’ve never thought that the Obama White House or senior officials sort of relish the details and nuances of policies in the same way some officials in prior administrations did.
HH: Gosh, this is fascinating. It’s a giant spin machine, though. I mean, it’s just…I’d love to keep you over the break. I don’t have another guest. And if you’ve got time, Josh, this is important, because I think it’s not just an Obamacare fail, it’s a media fail. It’s a journalism fail. The reason I asked you to come on is you’re one of the few guys who’s actually gotten into government contract stuff of this. It’s as though the zombies have taken over the Beltway-Manhattan media elite, and they’re all surprised to learn that that which we were saying for five years ago in conservative media is not only true, it’s true with a vengeance. It’s true with an axe. It’s true with a devastating impact on Americas. But if you can stay, please do. It not, come back again soon.
End of interview.