Tidbits From Time

This article just out from Time has some interesting RWLDGate tidbits.

First, I think that Time may well have buried the lede. Here are the last three sentences of the Time article:

A source familiar with the memo says neither Powell nor Armitage spoke to the White House about it until after July 6. John McLaughlin, then deputy head of the CIA, confirms that the White House asked about the Wilson trip, but can't remember exactly when. One thing he's sure of, says McLaughlin, who has been interviewed by prosecutors, is that "we looked into it and found the facts of it, and passed it on."

The fact that John McLaughlin says the WH asked about the trip is potentially very significant: it tells us that the WH was actively interested in Joe Wilson and looking for information. Not very consistent with the passive role that the WH has suggested in played in all this. It would be interesting to know the time line of McLaughlin's "passed it on" quote, as well as the recipient(s) of this pass-along.

I'd bet a lot that the "familiar" source is Armitage -- as I've noted before, he's my bet for Foggy Throat, the former State Dept official who clearly wants this story to stay alive in the media. The no-contact-til-after-July-6 bit sure looks like Foggy Throat's attempt to steer both Armitage and Powell clear of blame for WH shenanigans; combined with McLaughlin's opening the door to the possibility that the WH heard about Joe Wilson's wife from CIA before July 6, this bit of info would suggest that the WH didn't learn about Joe Wilson's wife from Armitage or Powell.

Second, the Time artcle suggests that the first State Dept memo regarding Plame/Wilson may have been written as a result of Walter Pincus's June 12, 2003, WaPo article discussing Joe Wilson's trip (without using his name). Interesting wording:

The previously undisclosed fact gathering began in the first week of June 2003 at the CIA, when its public-affairs office received an inquiry about Wilson's trip to Africa from veteran Washington Post reporter Walter Pincus. That office then contacted Plame's unit, which had sent Wilson to Niger, but stopped short of drafting an internal report. The same week, Under Secretary of State Marc Grossman asked for and received a memo on the Wilson trip from Carl Ford, head of the State Department's Bureau of Intelligence and Research. Sources familiar with the memo, which disclosed Plame's relationship to Wilson, say Secretary of State Colin Powell read it in mid-June. Deputy Secretary Richard Armitage may have received a copy then too.

The first two sentences suggest that CIA did not actually write a report about Pincus's article -- which did not out or in any way refer to Joe Wilson's wife (unlike the despicable Robert Novak's July 14, 2003, column, which did apparently out her, and which apparently led to the CIA's DOJ referral).

The third sentence suggests by implication -- but does not actually say -- that Pincus's article may have induced Grossman to ask Ford for the possibly key INR memo. The wording of the fourth sentence makes one think that the memo probably says "Plame" in reference to Joe Wilson's wife, though it's not entirely clear. That would be notable, if "Plame" was indeed Joe Wilson's wife's cover name, since one of the more intriguing questions in this escapade is why Novak used the name "Plame" rather than just "Joe Wilson's wife", or Valerie Wilson.

Drip.

Drip.

Update: PGL points out in the comments that the State memo was dated June 10, two days before Pincus's article hit the newstands. Good catch, PGL. Here's another possibility: Pincus, who covers State and intel stuff, may have started calling around a few days before the article hit. You would certainly expect a first-stringer like him to ask guys like Grossman, Ford and Bolton (or their flaks) about a story like this.

Black Eye for MSNBC

David Shuster retracts claim that Bolton testified to Fitz grand jury....Not so good, after insisting it was true for days.....

More on Sunshine

In this post the other day, I linked to a post at DailyKos that
points out that the OSG works for the US Govt, not the President, and that also refers to a Clinton-era 8th Circuit decision (flowing from Ken Starr's suite of litigation), which decision apparently established that there is no attorney-client privilege attached to the OSG's work. This is an interesting issue b/c Scott McClellan asserted the existence of such a privilege (mind you, not Executive privilege, but rather attorney-client) in a July 26 briefing.

I then argued that, quite apart from the positive legal question of whether there is an attorney-client privilege held by the WH, there are good normative policy arguments why there shouldn't be one. The arguments in favor of such a privilege have been making the rounds: you don't want a chilling effect, wherein OSG lawyers might hesitate to give honest advice because of fears (I guess) that their honest advice will prove politically damaging during later confirmation (or other) hearings. I don't doubt this possibility, and I don't think it is likely confined to conservatives or to liberals. Rather, my point in that post was that the OSG does explicitly political work in pursuing an Administration's legal views in the courts, so there is no reason not to have the ultimate oversight -- democratic oversight -- of OSG lawyers' work. I did (and still do) qualify this claim by suggesting that OSG docs should be kept confidential as desired by the appropriate Executive branch officials while specific cases are pending -- only afterwards (like, say, now with respect to Roberts and his OSG papers) should these papers be fair game for the Senate.

In comments to my post, my conservative friend Peter suggested that there is indeed such an attorney-client privilege, and that it is up to the WH to waive it (which I'm sure is true if such a privilege exists). Peter has also cited a well-known letter that all former Solicitor Generals signed during the argument over Miguel Estrada's nomination to the DC Circuit a couple years ago (it attended with Estrada's withdrawal after the Senate refused to vote in the absence of OSG document production). Not surprisingly, the ex-Solicitors General argue that there would, in fact, be the sort of chilling effect I described above.

I don't dispute that contention (surely they know better than I, in any case). But my argument didn't hinge on whether such a cost would accompany a sunshine policy. Rather, my argument is that that cost is worth paying. I think the nominations of Estrada and Roberts are compelling examples of why sunshine's benefits outweigh chilling's costs.

Estrada and Roberts are both lawyers who

1. Were young or extremely young at the time they were nominated
2. Nonetheless have long-lasting ties to the political right, allowing a good deal of cross-party asymmetry in available information regarding their views
3. Have left little in the way of written evidence on their judicial philosophies, either generally or with regard to important past cases
4. Were nominated to important courts having a close balance on key issues

In the absence of other bases on which to form opinions, I think it would be irresponsible for the Senate not to seek relevant documents from work at the OSG, which is, after all, likely to be very telling concerning just the issues about which Senators should be most concerned in evaluating judicial nominees.

Chuck Schumer's NPC speech ably makes the case that the relevance of such documents varies with the amount of other information available to the Senate. If the documents aren't produced, much greater importance will and should attach to Roberts's testimony in the Judiciary Committee.

Again, all of these points are policy, not legal, arguments. (I note that Peter has kindly provided a link to a law article making an opposing normative argument to mine.)

With respect to the legal issues Armando raised on DailyKos, Eugene Volokh has a very interesting post. Basically, Volokh suggests that

1. There are other conceivable privileges here, most notably Executive privilege (which the WH has not asserted to date)
2. The 8th Circuit case referenced above appears to be narrowly focused on criminal, grand jury issues (not surprising given its genesis). Volokh's reading is that the decision, while broad, is not so broad as to imply that there can be no attorney-client privilege in this case. Of course, that doesn't mean that there need be no a-c privilege, but it certainly doesn't forbid one.

This is an interesting legal question, which may well not have a clear legal answer at present.

Doing the Right Thing - not the Right Wing

Does this mean that Bill Frist will lose his chance to participate in "Justice" Sunday II?

Better ask his erstwhile handlers....

Update: But seriously, kudos to Frist for doing the right thing. But even more seriously, not too many kudos. The "discipline" of the GOP's congressional wing has been so strict over the last few years (decade?) that the rest of us are relegated to complimenting them for what they should do anyway. It's big news these days when an important elephant forgets to go along with the WH or the religious right. So here I am, lauding a heart surgeon for supporting legislation that will hopefully give (modest?) help to medical research. Hard not to feel underwhelmed.

(Maybe next he will declare that HIV isn't transmitted through sweat and tears.)

Rauch on the Court

Jonathan Rauch has an engrossing (if quite long) post about the direction of the Court and different strains of judicial conservatism.

It's definitely worth a read, especially the discussion of Cass Sunstein's typology of judicial philosophies, the Kelo case (for which the Court has been criticized for deference to the political branches), and for the role of the courts in the Schiavo case-and-law (which has led to "conservative" criticism of the courts' use of methodological conservatism -- or what might be better described as simply following existing laws and judicial procedures).

Wrong Bolton?

This is a long shot.

But has anyone considered the possibility that W meant to nominate Michael Bolton to be Ambassador to the UN, rather than John Bolton?

I know of no reason why Michael is qualified....but then, there is no reason to think John is, and lots of reasons to think he is not.

Plus, I've heard that former Soviet states have been on W's mind.

Moreover, this President is known for his mangling of the language -- it's not hard to imagine he would say "John" when he meant "Michael".

And, we know that Bush is famously reluctant to admit mistakes. Surely this mistake would be particularly embarrasing: imagine intending to nominate a no-talent ass clown to be UN Ambassador, and then accidentally nominating a no-diplomacy kiss-up kick-down radical with a foggy memory.

Foggy Memory

Now it appears that the State Department has conceded that Bolton was interviewed by the State IG investigating the false Iraq-Niger yellowcake allegations.

Here's what State spokesman Noel Clay said:

When Bolton filled out a Senate questionnaire in connection with his nomination, ``he didn't recall being interviewed by the State Department's inspector general. Therefore, his form, as submitted, was inaccurate,'' Clay said. ``He will correct it.''

What's next, the dog ate Saddam's yellowcake? Rumsfeld lost the WMDs on his way to show them to the Intl community?

State's concession means that flak Sean McCormack was either misinformed or lying earlier today when he said that Bolton's Senate questionairre "answer is truthful then and it remains the case now". I'm guessing misinformed. But why did State wait so long to address this issue, and then get it wrong, coming clean only after a second letter from Joe Biden?

Moreover, it is very hard to believe that someone -- even a loon like Bolton -- would just forget their participation in an investigation that was occurring during the firestorm after Joe Wilson's op-ed hit and the Administration had to (make George Tenet) concede that the infamous 16 words shouldn't have been in the 2003 State of the Union address.

According to Joe Biden's second letter, John Bolton was interviewed by the State IG during the joint State-CIA investigation on July 18, 2003, the same week the despicable Robert Novak published his now-infamous article.

State Says Bolton Did Not Testify

From an AP story released today:

John Bolton, the nominee for U.N. ambassador, has not testified to a grand jury or been interviewed by prosecutors about the leak of a CIA officer's identity, the State Department said Thursday in reply to a Democratic critic.

In paperwork filed with the Senate earlier this year in connection with his nomination, Bolton denied a role in any investigation over the past five years. Sen. Joseph Biden, D-Del., who opposes the nomination, questioned the veracity of that response, prompting the State Department reply.

"That answer is truthful then and it remains the case now," spokesman
Sean McCormack said.

It will be interesting to hear how MSNBC reacts.

Things don't end there, though. The AP story continues:

But after McCormack's statement, Biden, sent a new letter to the State Department asserting Bolton was interviewed by State Department internal investigators in July 2003 on a related matter. He did not say how he knew this and the State Department had no immediate response.

Put Karl on the Mars Rover

MoveOn is holding a Fire-Karl-Rove slogan competition.

Why not help a blogger out and vote for my offering:

Put Karl on the Mars Rover! (Go there and then search for "Put Karl...")

Update: Link fixed....

Update 2: I mean it this time....

Be a Witness

It's definitely worth going to BeAWitness.org to register your displeasure with the MSM's obsession with celebrity stuff while genocide is going down in the Sudan.

The usual excuse you hear is, hey, we're businesses, giving the people what they want -- and the people want to hear about Tom & Katie, Brad & Whoever, the Runaway Bride, MJ, and so on.

Well, here's your chance to tell them you care more about the butchering of innocents than the belaboring of celebrities' foibles. And that it's time the US and the rest of the world got off the sidelines and stepped in.

Sign the petition to the major networks.

"Conspiracy" Theory Hits The Big-Time

Long-time (haha) CCM readers will remember our conspiracy post from July 11. There, I suggested it was possible that

1. Judy Miller got the goods on Valerie Plame/Wilson from one of her "intelligence" sources after reading Joe Wilson's July 6, 2003 NYT op-ed [with the benefit of information on the State Dept memos that's hit the streets since July 11, I would actually think that Kristof's May column was by far the more likely touch-off event].
2. She called someone at the WH -- most likely Scooter Libby -- to discuss.
   
3. Scooter told Rove, and the two of them went on a leak-laced binge around DC.
4. Miller's evidently courageous refusal to talk to Fitzgerald is a convenient way to avoid having to invoke her Fifth Amendment right not to incriminate herself. [Incidentally, I don't -- and didn't -- mean to diminish the importance of reporters' privilege, which is conceptually an entirely separate issue on which I've posted previously.]
   

Now Arianna Huffington has joined the fun, suggesting that every element of that (part of the) theory is now getting serious thought among those in one camp inside the NYT. Josh Marshall has posted on Huffington as well (and I believe he's also suggested that Miller's stand may be partly personal as well).

I've commented on other potentially related issues as well; see this post on Miller, this post on Bolton, my comment on Bolton here, and certainly this one on Foggy Throat.

This whole story really is going to be here for a long time (and I don't just mean CCM!).

Slime and Defend: Orin Edition

Here's the news that Deborah Orin has to offer, in an article posted on FoxNews.com:

WASHINGTON — Outed CIA spy Valerie Plame last fall gave a campaign contribution to go toward an anti-Bush fund-raising concert starring Bruce Springsteen, it was revealed Tuesday night.

It's the first revelation that Plame participated in anti-Bush political activity while working for the CIA.

The $372 donation to the anti-Bush group America Coming Together (search), first reported by Time magazine's Web site, was made in Plame's married name of Valerie E. Wilson and covered two tickets.

Ok, so Valerie Wilson/Plame likes the Boss. Gosh, I wonder why we are are reading about this "anti-Bush political activity". Orin does say that Plame/Wilson said she was "retired" on the FEC form required for the donation, which is true only with respect to her Rove-and-co-induced loss of cover. Bad Valerie.

But I digress from the basic point of the article.

Slime and defend.

Ohio GOP: Can't They Hackett?

If true: Disgusting.

But hardly surprising.

You can take out your frustration by donating to Paul Hackett.

Text of Schumer's Speech Today

Chuck Schumer gave a speech to the National Press Club today. A press release from his office sums it up thusly:

'MODESTY AND STABILITY' ON THE BENCH: HOW JOHN ROBERTS CAN CONVINCE DEMOCRATS TO VOTE FOR HIM

Schumer Outlines Three Potential Pitfalls that Could Throw Comity of Process off Track

How Roberts Answers Questions; Type and Scope of Documents Turned over by White House; and Making Sure There is Enough Time for Thorough and Fair Hearings Affect Confirmation Process

Senator: "Roberts Told Me He's Not an Ideologue, if that Proves to be True, I'll Vote for Him"

U.S. Senator Charles E. Schumer, the ranking Democrat on the Judiciary Subcommittee on the Courts, spoke to the National Press Club at a luncheon today to discuss the nomination of Judge John G. Roberts to the U.S. Supreme Court. In particular, Schumer addressed how Judge Roberts can convince Democrats to vote for his nomination in the coming weeks and months.

The speech is very long, and I confess that I've not read the whole thing. I'm going to add the full text as the first comment below. Here are a couple highlights:

Now, many of us had little doubt that, at the outset of his
second term, this President fully intended to fill his first Supreme Court vacancy with a committed conservative ideologue whose nomination would have immediately antagonized the half of the country that did not vote for him and plunged the nation into a debilitating and divisive debate over the direction of the high Court.

This, after all, was a President who seemed to go out of his way to pick fights rather than pick judges.

Although the jury is still out on Judge Roberts, we know enough about him to know that he is not in the category of the most divisive nominees....

Whether Judge Roberts is in the broad mainstream remains to be seen.

But, after eight days, we can say that Judge Roberts is a serious man for a serious job, and he is clearly worthy of our serious consideration....

What does Judge Roberts - or any nominee to the Supreme Court, for that matter - have to do to win the votes of Democrats?

He does not have to pass some litmus test, and he does not have to agree with me or any other Democrat on particular political or legal issues before we can vote for him. We understand that the President won the election and that he would nominate - and has nominated - a conservative....

But here is what Judge Roberts must do:

Fundamentally, he must persuasively demonstrate that he is not an ideologue....

Now another bit of good news. I think we've won the argument that judicial philosophy and ideology are important and proper considerations in confirming a nominee....

So, just as the nomination of Judge Roberts was the product of an evaluation of his philosophy by the President, it is beyond doubt that his confirmation can occur only after a similar evaluation by the Senate....

This is not a game, as it sometimes devolved into in the past,
where Republicans looked for whether the nominee smoked marijuana in high school and Democrats looked for what movies a nominee checked out of the video store. Rather, this is a serious inquiry during which a nominee must show that he is not out of the mainstream in applying the law.

There are some who suggest that the President's choice is
entitled to a presumption and that we should be little more than a rubber stamp, and that we should exercise our right to withhold consent only if there is some serious ethical lapse.

But that view is contrary to the Constitution and to common
sense.

The fact that these are just excerpts gives you a sense of how long this speech is. But it's worth a look.

Hughes Question

So today brings the news that Joe Biden has written a letter to Condoleeza Rice asking her whether a news report that Bolton has testified to the Fitz grand jury is true:

On July 21, 2005, MSNBC reported that Under Secretary Bolton testified before the federal grand jury in Washington that is investigating the leak of the identity of Valerie Plame as an agent of the Central Intelligence Agency.

I write to request that you or the nominee inform the Committee whether Mr. Bolton did, in fact, appear before the grand jury, or whether he has been interviewed or otherwise asked to provide information by the special prosecutor or his staff in connection with this matter, and if so, when that occurred. As you know, the Committee questionnaire, which the nominee completed in March, requires all nominees to inform the Committee whether they have been “interviewed or asked to supply any information in connection with any administrative (including an inspector general), Congressional or grand jury investigation within the past 5 years, except routine Congressional testimony.”

This is important, among other reasons, because Bolton answered "No" to the question regarding such investigations (Steve Clemons notes the additional possibility that Bolton may have faced an IG's investigation at State).

Here's another point, one my lady pointed out to me recently: it seems hard to believe that Karen Hughes -- who wasn't even working in the WH fulltime anymore -- would be asked to testify, while Bolton -- who was clearly up to his eyeballs in infights with Carl Ford of INR and Armitage (and maybe Powell) up the ladder, as well as apparently a Judy Miller source -- would not.

Just another thought.

Children of Privilege

Here's a good question for Peter. Maybe he can do better than vaguely cite "ample case law":

Q What's the case law that establishes attorney-client privilege for the work of the Solicitor General's Office?

MR. McCLELLAN: There is ample case law that is available that --

Q Specifically.

MR. McCLELLAN: -- talks about the importance of government attorneys having attorney-client privilege. And I'll be glad to provide you that information. There is ample case law available.

And here's another one:

Q Does the solicitor general work for the people or the President?

MR. McCLELLAN: The solicitor general represents the U.S. government in issues. And so they are the attorney for the U.S. government.

Now, I may be wrong. But aren't Senators part of "the U.S. government"?

So under McClellan's description of the attorney-client relationship, don't Senators have a right to see these documents? [Peter: that was a tongue-in-cheek question -- McClellan didn't even bother to say "the Executive branch"!]

Update: The excerpts are from today's Press Briefing, by the way.

Let the Sun Shine In

Armando makes a very interesting point here about GOP balking at releasing documents regarding Roberts's work at the Office of the Solicitor General:

1. The OSG does not work for the President, but rather for the people of United States. Thus there can't really be a privilege governing the OSG's work, can there?
   
2. According to quotes in the post linked above, the 8th Circuit ruled in the Clinton years that consultations with government (rather than private) counsel entail no privilege. Orrin Hatch applauded the decision.
   

Let me add a third point, about the fear of a chilling effect that Republicans have expressed when the issue of disclosing documents arises.

What is wrong with a chilling effect here?

If the OSG represents the people, why shouldn't its deliberations be subject to public understanding? I don't mean ex ante of arguments -- I can see why basic efficacy would require each side of a legal dispute to keep its strategy and tactics under wraps before the case has been adjudicated.

But afterwards? Why should Executive branch lawyers expect not to face the ultimate oversight -- political debate and electoral competition? Isn't that what Scalia and his minions are always telling us? You want a policy, win an election?

I'm not arguing that the law requires disclosure here; that's not my comparative (or even absolute) advantage. But the Senate -- and certainly members of the public and interest groups -- would be totally justified in demanding disclosure.

I don't want OSG lawyers to make their private arguments secure in the knowledge that only the governing Administration and its allies will be privy to them.

The alternative is the situation that appears more and more to be the case: the WH gets to send up a nominee whose legal and political views about which it can be confident, while everyone else is asked to take them on faith.

The flap over the attempts by the WH and Roberts to cover up his apparent Federalist Society membership is indicative. If they had just said, yeah, sure, he was a member once for a year or two, but it wasn't for him, then I think some people would have grumbled a bit, but no one would have held this in particular against him. Now it seems the WH feels it had something to hide.

What else are they hiding?

If they release the OSG docs, maybe we'll find out.

Faithful Recusal Update

Very curious.

First, today's piece by David Kirkpatrick discusses the comment Roberts supposedly made about recusal when meeting with Sen. Durbin the other day.

Now Turley is saying that Durbin himself was one of his sources. Now, a spokesperson in Durbin's office was paraphrased as saying yesterday that Turley's "column is wrong". Which is it? Durbin really needs to clear this up. Also in Kirkpatrick's article is a statement from Sen. Cornyn saying that he asked Roberts whether there was a conflict between his faith and his reading of the Constitution that would prevent his participation on the Court; Cornyn says Roberts said there wasn't.

Second, this whole flap has set off the predictable moaning from the religious right that Roberts's faith is being made an issue, and that Democrats are anti-people of faith, etc.

These accusations are repulsive lies.

To start with, the issue here isn't Roberts's faith. It's whether or not he's willing to follow his oath to uphold the Constitution. Period.

You might think that somehow there should be a presumption that Roberts is willing to do so. Actually, I think there should be. But presumptions don't require one to avoid seeking confirmatory information. In this light, Durbin's question was perfectly reasonable given that a number of conservative Catholics around the country have tried to deny communion to politicians who support a woman's right to choose (remember the 2004 election and John Kerry?). Surely whatever arguments these partisans made with respect to the President and members of Congress would apply with greater force to someone on the Court, who is likely to have a much greater ability to affect choice.

Lastly, the WH has made faith an issue in promoting Roberts to the religious right. And it's not exactly the case that groups like the FRC have avoided bringing religion into this debate.

Taking the Commons, Ignoring Coase

Today's John Tierny's column makes for very interesting reading. Here's a quick synopsis:

1. Ranchers in the west have had a lot of disputes with environmentalists. Ranchers want to use federal land to graze their cattle, while environmentalists want to limit grazing in order to preserve the land and undo/prevent damage to native plants.
2. A Bureau of Land Management program allocates permits for land use and then allows these permits to be bought and sold on the open market.
3. Tierney tells the story of a rancher named Dell LeFevre, who has had his share of trouble/run-ins with environmentalists. However, Mr. LeFevre recently sold some of his permits to the Grand Canyon Trust, whose Executive Director is Bill Hedden. Tierney writes that Mr. Hedden

   figures it was a good deal for the environment because native shrubs and grasses are reappearing, now that cows aren't eating and trampling the vegetation,

   while Mr. LeFevre

   likes the deal because it enabled him to buy grazing permits for higher ground that's easier for him and his cows to reach.

4. State and local politicians are now trying to undo such deals, because (according to Tierney) "they say their communities and the ranching way of life will be destroyed" by them.
   
5. The Interior Department -- headed by supposedly free-market oriented Sec. Gale Norton -- has agreed with these politicians, saying that since the land at issue already has been designated as "chiefly valuable for grazing", the BLM has the right to reopen the land for grazing.

What's wrong with this picture?

What's wrong is that the whole argument for using markets is that what's "chiefly valuable" is determined efficiently by allowing those most willing to pay to buy out those less willing to pay! When applied to environmental and similar issue, this principle is known as the Coase Theorem, and it's supposedly one of the bedrock principles of free-market -- as opposed to politically right-wing -- environmental policy. For reasons I will discuss another time, I think the Coase Theorem and similar arguments are over-used by its proponents, and I think the case for regulation is sometimes relatively strong.

But I can see only one possible argument that can be made to justify the position of Interior and the state and local politicians Tierney mentions: that "way of life" is a public good, whose promotion must trump the free market. These folks are entitled to believe that. But then they'd damn well take a look in the mirror, and they ought to be mocked mercilessly when they criticize opponents of free-trade agreements, Wal-Mart, and so on. I say this as a person who generally favors markets, subject to reasonable regulations.

The hypocrisy here is just breath-taking.

Update: Juan Non-Volokh -- nobody's pro-regulation poster-boy -- has a post up over at VC on this issue:

If the Bush folks wonder why they have such a bad environmental reputation, policies like this are part of the reason why. Here is an environmental policy that is wholly consistent with the conservative principles of property rights and voluntary market exchange. Yet the administration still opposes it. I think the Bush Administration's environmental policies are often subject to unwarranted criticisms, but cases likes this make the administration hard to defend.

Happily, JNV also provides a link to an earlier post of his about legal issues and grazing (I wonder if it includes the one that my conservative friend Peter comments on below?):

Bush's nomination of William G. Myers III to the U.S. Court of Appeals for the Ninth Circuit does not measure up to the standard set by this administration with the bulk of its judicial appointments. While I have no doubt that Myers is a capable attorney, I do not believe that he is particularly well-suited to the federal bench. While serving as solicitor for the Bush Interior Department, Myers failed to distinguish himself in any meangiful way. To the contrary, he appeared to adopt knee-jerk policy positions with relatively little thought or consideration. In one case, he pushed through a doctrinaire and poorly reasoned interpretation of a Supreme Court case in which he was involved -- an interpretation which may have satisfied Myers' pro-grazing bias, but undercut the administration's efforts to adopt market-based reforms on public lands. Worse, at least in the context of Myers' judicial nomination, the legal opinion had to be subsequently "clarified" because Myers' initial interpretation was so poor. (The initial opinion, M-37008, is here. The clarification memo is here.) [Emphasis added.]

"Bias". "Poorly reasoned interpretation". ""Clarified"".

Interesting.

Excerpts From Today's WH Briefing

Questions for and "answers" from Scott McClellan on RWLDGate in today's briefing:

Q Do Karl Rove and Scooter Libby still have top secret clearance here, access to classified documents?

MR. McCLELLAN: You asked this question last week, and --

Q I did. And I'm asking again.

MR. McCLELLAN: -- the President has said what our answer is to these questions. We'll be glad to talk about all these issues once the investigation is complete.

Q Do they have a clearance?

MR. McCLELLAN: We'll be glad to talk about all the issues relating to the investigation once it's complete.

Q Why can't you talk about it now?

MR. McCLELLAN: Well, that question I addressed a couple weeks ago.

[SNIP]

Q Yes, Scott, can you assure us that Andrew Card did not speak to either -- or did not tell the President or Karl Rove or Scooter Libby or anybody else about the Justice Department investigation?

MR. McCLELLAN: Yes, again, those questions came up back in October of 2003 and I addressed them at the time.

Q May I ask one follow-up?

MR. McCLELLAN: You may. Go ahead.

Q I know that none of you are speaking about this because it's an ongoing investigation. Can you explain why Alberto Gonzales would go on TV yesterday and do that, and talk about it?

MR. McCLELLAN: Well, what he said was already said from this podium back in October of 2003, and I don't think he got into commenting in any substantive way on the discussion. But the President has said that we will be glad to talk about this once the investigation has come to a conclusion, but not until then. And there have certainly been preferences expressed to the White House that we not get into discussing it while it is ongoing.

[SNIP]

Q Yes, thank you. There has been a lot of speculation concerning the meaning of the underlying statute and the grand jury investigation concerning Mr. Rove. The question is, have the legal counsel to the White House or White House staff reviewed the statute in sufficient specificity to determine whether a violation of that statute would, in effect, constitute treason?

MR. McCLELLAN: I think that in terms of decisions regarding the investigation, those are matters for those overseeing the investigation to decide.

Caricature of a Parody

ThinkProgress has a post describing the apparent new WH standard on Rove:

1. Administration officials will now be allowed to discuss the "ongoing investigation" on TV, as long as they just repeat things they've said before.
2. Scott McClellan will not say whether or not the WH stands by apparently false things he's said before from the WH Press Room.
   

Faithful Recusal?

This op-ed by GW Law professor Jonathan Turley is certainly worth a read. Look in particular at this excerpt:

Roberts was asked by Sen. Richard Durbin (D-Ill.) what he would do if the law required a ruling that his church considers immoral. Roberts is a devout Catholic and is married to an ardent pro-life activist. The Catholic Church considers abortion to be a sin, and various church leaders have stated that government officials supporting abortion should be denied religious rites such as communion. (Pope Benedict XVI is often cited as holding this strict view of the merging of a person's faith and public duties).

Renowned for his unflappable style in oral argument, Roberts appeared nonplused and, according to sources in the meeting, answered after a long pause that he would probably have to recuse himself.

This is a very worrying thing to hear. Turley writes further that

It was the first unscripted answer in the most carefully scripted nomination in history. It was also the wrong answer. In taking office, a justice takes an oath to uphold the Constitution and the laws of the United States. A judge's personal religious views should have no role in the interpretation of the laws. (To his credit, Roberts did not say that his faith would control in such a case).

Assume that Roberts is serious.

At what point does he mean to recuse himself from issues that might lead to a conflict between his faith and his reading of the Constitution? Before, during, or after discussion of whether to grant cert, receipt of briefs, oral argument, conference, or opinion writing and circulating?

Suppose he intends to recuse himself only at the conference stage (where initial votes are taken on the issue at hand) or afterward. Then this will be the situation: when Roberts feels his faith and his reading of the Constitution and/or statutes are in agreement, he will vote on a case; when he feels his faith contradicts his reading of the law, then he will not vote.

Why does this matter? For one, it suggests that we will have a part-time Justice. For another, it suggests that the time when he does participate in the earthly pursuits of the Supreme Court, his judgments will be skewed in favor of a particular religious point of view. This is hardly a Justice, much less justice, for all Americans. You don't have to agree with a Justice's reading of the Constitution and the law to believe that taking seriously the practice of jurisprudence requires that the Constitution and the laws must take precedence over an individual's personal policy preferences. Isn't that what Justice Scalia has been claiming all these years?

Here's another reason why Justice Roberts's apparent plan of recusal matters: when the Supreme Court deadlocks on an issue 4-4, lower courts' decisions are automatically affirmed, but (I think) no nationwide precedent is created. That means that as long as Justice Roberts sits on the bench, some issues may simply go unresolved, with conflicting federal laws in various regions of the country.

This is probably why Justice Scalia last year said that

The choice for a judge who believes the death penalty to be immoral is resignation, rather than simply ignoring duly enacted constitutional laws and sabotaging the death penalty.

I'd be most interested to hear opinions from those with a Con law background, especially regarding the question of whether Roberts's apparent position has been taken -- and followed -- by other Justices or judges.

But at the moment, I don't see how Roberts can really be serious about this. And if he is, I don't see how the Senate can confirm him.

Update: In today's briefing, Scott McClellan says the following:

MR. McCLELLAN: I don't know about -- well, I know who he is. I don't know all the discussions that Judge Roberts has had with members of the Senate. He's had good discussions with a number of them already, and those discussions are continuing. That's part of the ongoing consultations ahead of the confirmation hearings. But I do know that Judge Roberts has said in previous testimony that personal beliefs or views have no role whatsoever when it comes to decisions that judges make. And he's indicated there is nothing that is in his personal views that would prevent him from faithfully and fully applying the law. And that's something he has said in previous testimony. So I'm not sure all the specifics about any conversations or what he's referencing. [Emphasis added

Update 2: This AP article says that Durbin's office initially refused to comment about Turley's column, "but later in the day a spokesman said the column was wrong." Curious. I'd sure like to know more about the "two people who attended the meeting" to whom Turley sourced his information. And I'd like to see someone get Durbin, rather than a spokesman, on the record. That said, I sure hope that Roberts never made that statement.

Dems Announce RWLDGate Calendar

***MEDIA ADVISORY***

Lawmakers to Unveil Web Calendar - 742 Days Since Rove Blew the Cover of a CIA Agent and Not a Single Hearing in Congress

A letter to Hastert and Frist Calling for
Congressional Hearings Also to Be Released

WASHINGTON, D.C. - Several Democratic lawmakers led by Senator Frank R. Lautenberg (D-NJ) will hold a news conference at 3:30pm today, to unveil a new "Web Calendar" on the Rove-CIA leak scandal. The calendar will be on display and will be used by lawmakers to highlight the number of days that have passed since the White House leaked the identity of a CIA agent and the Republican controlled Congress hasn't held one single hearing on the issue. Additionally, the lawmakers will release a letter to Speaker
Hastert and Majority Leader Frist demanding the Congress take action and begin an investigation.

Who: United States Senator Frank R. Lautenberg (D-NJ)
Other Members of Congress

When: TODAY, July 25 @3:30pm

Where: Senate Radio and TV Gallery - S. 325

Weekend Plame Developments: III

Another thing that hit me about Saturday's Leonnig-VandeHei piece involves this bit, which starts with the observation that Fitzgerald

sought testimony from Cooper about his July 2003 story in Time. In 2004, Cooper obtained a waiver from Libby to discuss their conversation, as had the three other reporters.

Cooper and his attorneys were surprised that Fitzgerald agreed to ask Cooper questions only about his conversations with Libby, sources familiar with the investigation said.

The sources said Fitzgerald looked surprised in the August 2004 deposition when Cooper said it was he who brought up Wilson's wife with Libby, and that Libby responded, "Yeah, I heard that, too."

The prosecutor pressed Cooper to then explain how he knew about Wilson's wife in the first place, and Cooper said he would not answer the question because it did not involve Libby, the sources said.

That testimony contributed to a lengthy legal battle, as Fitzgerald sought to compel Cooper to testify before a grand jury about his conversation with the source. He also sought testimony from New York Times reporter Judith Miller.

I've always figured one of the really key questions to RoveWarLiesDeathGate is why Fitz pursued Cooper and Miller so avidly, and why Cooper's notes weren't enough. The above excerpt helps answer this question with respect to Cooper.

Fitz needed Cooper because Rove initially denied having talked to Cooper, though he later seems to have told prosecutors that he did talk to Cooper, with a focus on welfare reform (read the rest of the article for that stuff). Cooper's infamous email verified that Rove's initial claims were inaccurate (possibly lies, possibly "forgetfulness"). But the email doesn't say anything about welfare reform, and it doesn't tell us that Rove knew Joe Wilson's wife's job was classified (other things in the documents Time handed over may do so -- we don't know anything outside of the email). Makes it obvious why Fitz feels he needs Cooper's personal testimony. The questions that Cooper reports having fielded about the role of welfare reform verify this view, and the fact that Rove told Cooper "I've already said too much" certainly doesn't aid Rove's I-didn't-know-she-was-covert IIPA defense (how in the world Cooper keeps a straight face when he says maybe Rove meant he was late for a meeting is a whole other ball of wax).

So now we understand why Fitz was pushing Cooper so hard.

One further observation. DoJ guidelines require prosecutors not to compel reporters' testimony over minor issues. Whether or not you think perjury and obstruction are minor (for example, whether or not you'd impeach a President over alleged instances of those offenses), I can't help but wonder if Cooper's testimony is damaging to Rove in more substantive ways, i.e., with respect to possible IIPA or Espionage Act jeopardy.

Weekend Plame Developments: II

Saturday's Leonnig-VandeHei piece on RoveWarLiesDeathGate was very interesting to read. One observation is that there are lots of places in that article where the sourcing is left especially vague -- in some cases it's obviously the declined-to-comment Robert Luskin talking, but in others you have to wonder whether either someone from Fitzgerald's office is talking (Fed Throat?), or whether pissed-off lawyers representing other players -- especially reporters -- have had enough of the WH's circus of dishonest leaks.

In any case, here's a very interesting tidbit:

Two lawyers involved in the case say that although Fitzgerald used phone logs to determine some contacts between officials and reporters, they believe there is no phone record of Cooper's now-famous call to Rove in the days before Novak's column appeared. That is because Cooper called the White House switchboard and was reconnected to Rove's office, sources said.

Also, when first questioned in the days after Plame's name appeared in the press, Rove left the impression with top White House aides that he had talked about her only with Novak, according to a source familiar with information provided to investigators.

That second graf is interesting for multiple reasons. First, it tells us that Rove did, in fact, talk to "top WH aides" about some part of his role in this escapade. To whom would you expect Rove to talk? Well, Andy Card is an obvious person, since he is and was Rove's titular boss (whether or not that's a fair description of the actual hiearchy). You'd probably also expect Ari Fleischer to be there, and possibly -- but much less likely -- Alberto Gonzales.

Second, if you read the graf carefully, you see that it doesn't say that Rove told top WH aides he told Novak about Plame/Wilson -- just that he "talked about her". Which would be consistent with Rove's (now totally discredited) claims that he didn't leak classified information (namely, Joe Wilson's wife's job at the CIA).

Third, the graf doesn't say that "Rove told top White House aides that he had talked about her..." No. Rove "left the impression". Which tells you that even then he was probably choosing his words carefully, which tells you that he probably understood he faced some potential jeopardy here.

Fourth, who is the "source familiar with information provided to investigators"? Could be Luskin, but I don't see how this graf, juxtaposed against the preceding one, is helpful to Rove. Makes you wonder if someone else in the inner circle is now trying to keep focus on Rove and off of him- or herself.

Weekend Plame Developments: I

I want to discuss a couple of developments in RoveWarLiesDeathGate over the weekend. Lots of people are talking about the well-publicized revelation -- which actually has been known for a very long time -- that then-WH Counsel Gonzales waited 12 hours to tell WH staff not to destroy any Plame-related documents after hearing from DoJ that there would be a criminal investigation.

Frank Rich kicked off the fun with his column yesterday in the NYT. On Face the Nation, Gonzales said that the WH asked for and received permission to wait 12 hours (since he got the investigation word at 8pm). Could be. Happily, Bob Schiefer asked Gonzales if he told anyone at the WH about the investigation before the morning. Gonzales said yes, "the chief of staff" -- meaning Andy Card.

Which makes one wonder whether Card has testified to the grand jury (I can't find anything on the web to say he has, though I might be missing something obvious), and, if not, whether he will be asked to. In the meantime, the WH didn't comment yesterday when asked whether Card told Rove or anyone else about the impending investigation.

Another interesting piece of news is that Gonzales told Brit Hume on FNS that he himself has testified to the GJ in the case, but that he had no information on Plame/Wilson before reading about the whole thing in the papers.

Which raises the question: who of importance in the WH -- besides maybe Andy Card -- hasn't been linked somehow to this case?

WH, State, POTUS, VPOTUS. The gang's all there.

Preparing?

Look at the first part of the 2nd sentence in Steve Clemons's post excerpted below:

The source did not have any knowledge on whether Bolton was one of Miller's sources on the Valerie Plame story she was preparing [emphasis mine]

I've followed this scandal pretty obsessively, and this is the first time I've heard anyone say for sure that Miller was preparing a story -- as opposed to doing reporting in case she wanted to write one.

For a long time, Miller's non-story has struck me as a potentially key question: why didn't she write a story given that she was evidently doing relevant reporting? A friend in the MSM business has suggested it's possible that Miller (or her editors) just decided there wasn't anything extra there. I don't know if I buy that. An alternative is that Miller was going to break the story, only to be stymied by Novak's scoop. But still -- why not write an article when you've done reporting and supposedly know some key stuff?

It's possible Steve Clemons inserted that phrase himself, but I wonder if his "highly placed" source knows something else that we don't know.

Miller Time For CCM?

Check out this post by Steve Clemons, excerpted in full here:

TWN has just learned from a highly placed source -- and in the right place to know -- that John Bolton was a regular source for Judith Miller's New York Times WMD and national security reports.

The source did not have any knowledge on whether Bolton was one of Miller's sources on the Valerie Plame story she was preparing, but argues that he was a regular source otherwise.

It's all "thickening."

This is not a surprise to us here at CCM. We've been suggesting that Judy Miller may be in tight in this whole escapade for quite some time. And a couple hours ago, I posted on Bolton, suggesting that if he's involved, it was likely by talking to Miller about Plamegate, and almost certainly after Kristof and before Wilson. You'd think this is the sort of thing Fitz would want to ask her about, especially if he really has talked to Bolton (see this post for more on Bolton).

Yep, our conspiracy theory may have gotten some details wrong (we pooh-poohed the Bolton connection back then, among other things), but the basic motif is looking more and more plausible.

Mark Fiore Shoots...Mark Fiore Scores!

You pretty much have to go check this out.

Bolton Down the Hatches, or the Drain?

One thing I've wondered about for a long time is whether John Bolton fits into all this RoveWarLiesDeathGate stuff. I even suggested the possibility a while back, but I was fairly dismissive of it. I've actually been thinking that a call to Bolton would make a lot of sense for an MSM type for quite a while. And weeks (maybe even months) ago, on the way back from a movie in G'town, I told my lady that I wouldn't be shocked if the NSA intercepts were related to all this. She mocked me back then as paranoid (kind of like Bu$h Ate My Baby, aka my conservative friend Peter, likes to do) .

Times change.

Even so, Bolton is such a nut that the most plausible thing is he's dirty here, dirty there, and dirty everywhere -- you don't need the intercepts to be related to RWLDGate, even if they might be.

But I really am surprised that no one in the MSM got onto Bolton's case sooner. I say this partly b/c of his repeated involvement in all sorts of WMD scams on the public, partly b/c he's supposed to be tight with the VP's office, and most especially b/c of the State Department memo and all the back-and-forth between him and Carl Ford, whose name keeps turning up in RWLDGate stories. Not to mention Armitage, and to a lesser extent Powell, who are not rumored to be big fans of JB.

So when I read today's NYT piece by David Johnston, I was intrigued by this passage, buried way at the end of an A1 story, long after the jump:

Democrats who have been eager to focus attention on the case have urged reporters to look into the role of several other administration officials, including John R. Bolton, who was then under secretary of state for arms control and international security and has since been nominated by Mr. Bush to be ambassador to the United Nations.

In his disclosure form for his confirmation hearings, Mr. Bolton made no mention of being interviewed in the case, a government official said. In the week after Mr. Wilson's article appeared, Mr. Bolton attended a conference in Australia.

So what's notable about this passage? Several things:

1. "Democrats...have urged reporters to look into the role...including John R. Bolton" -- I doubt this is a reference to my recent comment on this site, which means that folks who talk regularly to reporters (hmmm, Senate Dems?) have been on this for a while.


2. The point about Bolton's disclosure form is important because there's apparently a section where you're asked to say whether you're involved in any way in any legal proceedings; this issue is discussed earlier in the same article. Read the second sentence I've excerpted, and focus on the phrase "a government official said". Why not "a WH official", "an Administration official", or something similar? Makes me think this is either a State person or, much more likely, a Senate source (the House doesn't have a role in confirmations, so you'd think Senate staff or Senators would be the most likely source here).
   


3. I'm guessing that the disclosure form is signed under penalty of perjury. So what?, you ask -- maybe he just didn't testify. But here's David Shuster's Hardball report last night (courtesy of Steve Clemons):

   According to lawyers, former Secretary of State Colin Powell and undersecretaries, including John Bolton, gave testimony about this memo.

This stuff obviously raises a lot of questions. One possibility, noted by some folks at TPMCafe, is that Bolton testified months ago and no longer considered his involvement current. That would make you wonder why Karen Hughes and Robert Joseph felt compelled to mention their involvement, but it's certainly possible that people can differ on their interpretations of their obligations (it's also possible there is no discretion; I don't know what the form says).

But I want to point out a couple other things about the NYT article. First, it's written by Johnston, who I think is a GA (general assignment) reporter. But its notes say it was reported by Johnston, Richard Stevenson and Douglas Jehl, with contributions from Anne Kornblut. Stevenson is a WH guy, and Kornblut is a GA person at the Times, having covered the WH for the Boston Globe previously. No surprises there. As I understand it, though, Jehl is an intelligence/State guy. Interesting that he's involved in this article, and you have to think he's the one who checked out the Bolton stuff.

Which raises my second point. Why didn't someone just call Bolton? Doesn't that make more sense than simply reporting someone else's [I assume] comment about Bolton's disclosure form? It seems like the first thing you'd do in a reporter's shoes on this story. If they did call Bolton, why doesn't the story say that? If he refused to talk on the record, say that.

And what in the world is the significance of the fact that Bolton was in Australia the week after Wilson's column ran? Is that supposed to mean he couldn't have talked to reporters? Don't they have phones in Australia? And in any case, my money says that if Bolton's involved with reporters here, it has to do with Judy Miller, and it probably happened after Kristof's May 2003 column and before Wilson's July 2003 op-ed. I'd guess they talked around the time of the June 10, 2003 State Dept memo everyone is exercised about now. Which makes his travel to Australia in the second week of July a distraction.

Which, in turn, makes me wonder if Jehl called Bolton, who refused to speak on the record but told Jehl on background that he [Bolton] was in Australia after Wilson's column, knowing that Jehl could check that against official State documents, and thus it would get into the paper. If you think this is all paranoid (Peter, you still reading?), fine. But please explain to me (i) why no on-the-record call to Bolton, (ii) what the significance of the Australia thing is, and (ii) why it's in the paper.

Laffing Our Way To Transversal Trouble

Ok, CHB, this is what you get for that.

Over in the comments section of Jim Hamilton's excellent blog Econbrowser, Barry P asked this question:

Has anybody been able to come up with a Laffer curve for the US economy with actual, reliable, meaningful numbers attached? One guy I know swears that the maximum is at about a 90% tax rate, so we *must* be to the left of the maximum, but empirically I wouldn't know one way or another.

This topic happens to be related to my business (no, running CCM is just a hobby!). So I weighed in over there. Let me cross-post my comment there:

I'm pretty sure that the 90% number comes from Varian's Intermediate (undergrad) Micro text. But if you want to figure it out for yourself, just do the following:

1. Note that revenue is R(t) = tI(1-t), where t is the tax rate, 1-t is the take-home share, I is taxable income, which is a fctn of t if you believe in microeconomics (why this has come to be called "supply-side" rather than "utility-maximizing" is an interesting question for the intellectual historians). Of course, I am simplifying by assuming a flat tax rate. But I don't have time to write another dissertation right now.

2. Take logs and differentiate:

d ln R(t)/dt = (1/t) - I'(1-t)/I(1-t)

Note that the peak of the laffer curve occurs where this derivative equals zero. So we set

I'(1-t)/I(1-t) = 1/t.

Now multiply both sides by 1-t, and you get that the l curve peaks at t* such that

E = (1-t*)/t*,

where E is the elasticity of taxable income (E must be positive if you believe that there is an opportunity cost to revenue-generating activity). All serious arguments about the l curve's peak come down to figuring out what the value of E is, since

t* = 1/[1+E].

Now, it's only a slight caricature to say that the luskin-bush-novak-delay-kemp types seem to think that E = infinity, so that every single tax cut raises infinity. Sigh. More respectable folks think E may be as high as 3, in which case t*=0.25. For technical reasons, I think the evidence for that claim is totally dismissable. A more plausible long-run estimate is probably something in the neighborhood of 0.4, and perhaps as high as 0.6 or as low as 0.

In the 0.4 case, t*=1/[1.4]=5/7, or over 70%.

If I remember right, the 90% estimate is based on earlier estimates of the labor supply elasticity using hours worked, rather than taxable income, as the endogenous supply-side (!) variable.

In any case, t* is a hell of a lot higher than today's tax rates.

Bet you're sorry you asked, aren't you, CHB?

Alternative Universe

A propos of my earlier post regarding the federal deficit, I'd planned to comment on the news that the Presidential tax-reform commission is looking at getting rid of the AMT. Since Bush gave the Commission a revenue-neutrality mandate (kind of ironic, coming from that guy, no?), the key question here is, where will the make-up revenues come from?

But Mark Thoma has done my work for me (Thanks, Mark!).

Whoomp

Atrios finds a scrubbed gaggle transcript from July 9, 2003 (three days after Joe Wilson's op-ed hit). What's in it? Ari Fleischer saying the case for war was based on WMDs. Here's the money quote:

But there's a bigger picture here, and this is what's fundamental -- the case for war against Iraq was based on the threat that Saddam Hussein posed because of his possession of weapons of mass destruction, chemical and biological, and his efforts to reconstitute a nuclear program. [Emphasis added.]

There it is for all you well-meaning MSM folks and all you Republicans who feel the need to suggest that WMD weren't the Administration's key justification for the war.

Whoomp there it is.

(Democratic) Congressional Oversight!

From MoveOn:

We've just heard that tomorrow, Friday July 22, Democrats in Congress will hold oversight hearings on the national security consequences of disclosing the identity of a covert intelligence officer. The panel of witnesses will include former intelligence officers and analysts who will discuss the impact of such disclosures, based on decades of experience and service to our country on intelligence and national security matters.

Here's a press release about this event, which is open to the public for all you DC-area types, and here's a map.

Foggy Throat

Josh Marshall has a post up about today's Pincus-VandeHei WaPo article. Josh excerpts the article's mentioning the "secret" classification of the June 17, 2003 memo, and he writes:

What does that mean? First of all, I think this is pretty much what we'd expect in such a memo that contained that sort of information. What this does is knock out one more basis for a defense based on ignorance. Whoever saw this memo knew that the information was not to be revealed.

I certainly agree with Josh's inference.

But I think this WaPo article is both less and more significant than Josh lets on.

Why less significant? Because other discussion of the memo made the classified nature of the memo clear. Consider the lead sentence in yesterday's Squeo-McKinnon WSJ article:

A classified State Department memo that may be pivotal to the CIA leak case made clear that information identifying an agent and her role in her husband's intelligence-gathering mission was sensitive and shouldn't be shared, according to a person familiar with the document. [Note that the story says "familiar with the document", not the investigation.]

If you go read that article and then read today's by Pincus-VandeHei, you'll see that P-V don't really add much, beyond the level of classification (secret, rather than either the lesser classification of confidential or the greater classification of top secret). That's why I think today's WaPo offering is less significant than Josh argues.

Why more significant? Two reasons.

1. It's obvious from each article (as well as Richard Stevenson's Saturday article in the NYT) that someone who is in a position to know a lot and used to be way up the State Department ladder has been talking a lot. If you read these three articles, I think you have to conclude that Foggy Throat is either Powell (doubtful), Armitage (most likely in my book) or Carl Ford (somewhere in the middle); Marc Grossman is a lesser possibility, though it's unclear that he would have known about Armitage's call to Ford at home (mentioned in Sat's Post article). Of course, there's no reason to assume that only one of these folks is talking to journalists -- there could be multiple Foggy Throats.
2. The way this person(s) information is showing up is, I think, highly significant. Drip, drip, drip. Moreover, as I noted above, the volume of today's drip is nearly trivial. But it's in the Post, not the WSJ (or the NYT).

   That's three major newspapers getting little pieces of the same big story, most likely from the same person, in less than a week. Why are these facts significant? Because they mean that Foggy Throat very much wants this story kept alive and kicking.

   The Bushies clearly have been hoping to use the nomination to knock the RoveWarLiesDeathGate off the front page. But today's WaPo story is over the fold, on the front page. Because Foggy Throat wants this story to stay there. And Foggy Throat is expertly leaking one little drip at a time to make sure that happens.

   That's what's really significant about today's WaPo story.

Update: A person who would know confirms my thinking.....

Weeks Ago?

So just how long has the WH been looking for a new SC Justice? Here's a question at the WH briefing last night, answered by Dan "Glad-I'm-Not-On-Record-Calling-Rove's-Involvement-Ridiculous" Bartlett (WH communications director):

Q Was he surprised?

MR. BARTLETT: Was he surprised? I think -- I can't speak on behalf of him. I'll try to find out. But this process was not -- I mean, he had been through -- he had met with members of the staff weeks ago.

Weeks ago? O'Connor announced her resignation 18 days before yesterday. So that means either

1. (a) John Roberts met with members of the WH staff fewer than 4 days after O'Connor's announcement and (b) Dan Bartlett says "weeks ago" when he means 2 weeks ago,
2. Roberts met with members of the WH staff less than 2 weeks ago and Bartlett mis-spoke, or
3. Roberts met with WH staff before O'Connor's announcement (at least, before it was public).

I'm not suggesting there's anything wrong with any of these possibilities, but I was a bit surprised because I hadn't recalled that candidates were interviewed so quickly after O'Connor's announcement, and I'm quite sure that the WH has never said anyone was interviewed before July 1.

Update: An informed commenter points out my error in calling Dan Bartlett by his old title, WH Communications Director (Nicole Devenish is the current one). However, it's possible the commenter also errs in calling Bartlett a "Senior Advisor" -- McClellan calls him "Counselor to the President" (although McClellan's primary responsibility is to lie to the press, so who knows?).

Leahy And Roberts To Meet Today

From Leahy's office:

Senate Judiciary Committee Ranking Member Patrick Leahy (D-Vt.) and Judge John G. Roberts, President Bush's nominee to the Supreme Court, will meet in Leahy's office on Wednesday (July 20) for a preliminary visit about the upcoming committee inquiry and hearings on the nomination.

Update: Source tells me that Roberts is meeting with Frist and Reid as well as Leahy and Specter today. He's also apparently going to meet with all 18 members of the Judiciary Committee before the recess starts.

Gordon's Initial Take

Yale Law Prof Robert Gordon provides Initial Reactions to Roberts over at TPMCafe:

Roberts is a very conservative nominee. Both business and social conservatives will support him strongly, and with good reason. He hasn't had time to build much of a legacy as an appellate judge, but his career locates him solidly on the far right of today's Court, the Rehnquist-Scalia-Thomas wing.

[snip]

Because his style is quiet and low-key, he is more likely to attract votes of fellow Justices than the inflammatory Scalia and the mediocre Thomas.

[snip]

Roberts will be very hard to challenge, because all Bush's choices were bound to be bad and this one could have been much worse. If Senate Democrats are skillful, they will neither reflexively oppose Roberts nor go around saying what a great pick he is. They will point out that his views on many issues are unknown, that where they are known they are cause for concern, and will insist on a thorough examination. If he will not answer questions they should vote against him for that reason alone.

Schumer & Kennedy Press Conference

Press release from Schumer's office:

U.S. Senators Chuck Schumer and Ted Kennedy, will hold a press conference at 12:30pm TODAY, July 20, 2005 in the Senate Radio/TV Gallery on the nomination of Judge John G. Roberts to the Supreme Court and the importance of the committee hearings.

Not sure if it will be on CSPAN/CSPAN2.

You Come To CCM To Get It Right

Howie Kurtz makes the same point made by my friend in the know, as reported here:

By choosing to unveil his nominee at 9 p.m., Bush not only threw the media establishment into a tizzy, he also broke the news right on deadline for East Coast newspapers and after the network newscasts. He cut through "the filter," as he calls the media, preventing -- or at least delaying -- journalists from researching long pieces picking apart his choice. The president also guaranteed himself a bigger audience than with a morning announcement (even if some would have preferred the scheduled "Big Brother 6" and "I Want to Be a Hilton").

Wonder what Bu$h Ate My Baby thinks.....

Here's A Must-Keep

Via Lindsay Beyerstein at Washington Monthly (who got it from Digby):

FindLaw is assembling official documents pertaining to Karl Rove and the leak of the identity of CIA operative Valerie Plame.

Jeffrey Rosen's Take

CHB does it right. Duly noted, and apology posted, good buddy.

Here's an excerpt from a Jeffrey Rosen profile of then-potential nominees in TNR:

John Roberts, 49. U.S. Court of Appeals for the Washington, D.C., Circuit. Top of his class at Harvard Law School and a former law clerk for Rehnquist, Roberts is one of the most impressive appellate lawyers around today. Liberal groups object to the fact that, in 1990, as a deputy solicitor general, Roberts signed a brief in a case involving abortion-financing that called, in a footnote, for Roe v. Wade to be overturned. But it would be absurd to Bork him for this: Overturning Roe was the Bush administration's position at the time, and Roberts, as an advocate, also represented liberal positions, arguing in favor of affirmative action, against broad protections for property rights, and on behalf of prisoners' rights. In little more than a year on the bench, he has won the respect of his liberal and conservative colleagues but has not had enough cases to develop a clear record on questions involving the Constitution in Exile. On the positive side, Roberts joined Judge Merrick Garland's opinion allowing a former employee to sue the Washington Metropolitan Area Transit Authority for disability discrimination. He pointedly declined to join the unsettling dissent of Judge David Sentelle, a partisan of the Constitution in Exile, who argued that Congress had no power to condition the receipt of federal transportation funds on the Metro's willingness to waive its immunity from lawsuits. In another case, however, Roberts joined Sentelle in questioning whether the Endangered Species Act is constitutional under Congress's power to regulate interstate commerce. The regulation in question prevented developers from building on private lands in order to protect a rare species of toad, and Roberts noted with deadpan wit that "the hapless toad ... for reasons of its own, lives its entire life in California," and therefore could not affect interstate commerce. Nevertheless, Roberts appears willing to draw sensible lines: He said that he might be willing to sustain the constitutionality of the Endangered Species Act on other grounds. All in all, an extremely able lawyer whose committed conservatism seems to be leavened by a judicious temperament.

Is the right wrong to love this guy? We'll see.

Open Mind

Just watched Bush and Roberts. I imagine I'll get it for this (CHB, you out there, buddy?), but I'm ready to learn more about Roberts. There's an interesting post by Ed Kilgore over at TPMCafe, and this comment by (former Terrapin?) Joe Smith is heartening:

I happen to agree with Jeffrey Rosen that Roberts with his judicious temperment will be a conservative restraintist, which is really the best case scenario.

Given Bush's record on judicial nominations (and on politics), it's hard to believe he would knowing nominate a "conservative restraintist". But I hope that's what has happened. Based on what I know now, it could be worse: we could be dealing with a JRBrown or Priscilla Owen, i.e., an aggressive right-wing activist in the Scalia-Thomas mold.

Time to learn.

Update: Substance notwithstanding, let me second CHB's most insightful process points.

Update 2: The CAP has exactly the right sentiment.

A Roberts Fan

Here's a strong statement in support of Roberts from the Volokh Conspiracy (generally -- though not uniformly -- a right-leaning and very interesting and thought-provoking blog). Excerpt:

1) Roberts is an outstanding lawyer, excellent judge, and impressive individual. He is the sort of person, irrespective of ideology, who President's should nominate to the High Court (and those who have worked with him generally feel this way, even when they disagree profoundly with his legal views).

[snip]

3) Activist groups have already begun to misrepresent John Roberts record on various cases. For instance, he has been accused of voting to overturn the Endangered Species Act. In actuality, Roberts dissented from a denial of en banc review because, he stated, the panel decision was in conflict with those of other circuits. His opinion did not challenge the panels conclusion. Rather, he argued that there were reasons to be concerened about the conflicting (indeed, incompatible) rationales adopted by different circuits, and that this merited en banc review.

A4J Not Fans

I don't know much about Roberts (though that will change). Here's a link to an Alliance for Justice report on him; their conclusions are not comforting:

John Roberts’ legal career and professional writings reveal that he is out of the mainstream in his legal views in a number of areas, most prominently civil rights and the right to choose. His record as a member of the Bush and Reagan administrations reflects opposition to the rights of women and minorities, as well as a restrictive view of the proper role of federal courts in protecting the environment and the rights of criminal defendants. His comments about the Rehnquist Court reveal Roberts’ extremist ideology, a view confirmed by his membership in and connections to ultra-conservative legal groups.

Mr. Roberts has been nominated to a federal court with tremendous influence. The Washington Times said of the nomination of Roberts (along with that of Miguel Estrada) to the D.C. Circuit that it, “offer[s] business the best opportunity in years to free itself from government regulations…. A victory for conservatives on the appellate court could cut deeply into the aspirations of environmentalists, labor groups, and other social activists. They depend on federal regulations to carry out their advocacy efforts. The Senate was denied the opportunity to question Roberts fully about his record and his views at his recent hearing. The Alliance for Justice opposes his nomination.

Roberts Bio

Here's a bio of John Roberts from SCOTUSblog's sister:

Brief biography:

Judge Roberts was appointed to the D.C. Circuit in 2003 by President George W. Bush (he was also nominated by the first President Bush, but never received a Senate vote). Before his appointment, he practiced at Hogan & Hartson from 1986-1989 and 1993-2003. During the interlude, he was the Principal Deputy Solicitor General in the first Bush administration. He also served in the Reagan administration as a Special Assistant to the Attorney General from 1981-1982 and as Associate Counsel to the President from 1982-1986.

Judge Roberts attended Harvard College and Harvard Law School. He then clerked for Judge Henry Friendly on the Second Circuit and for Justice Rehnquist.

Judge Roberts is fifty years old. He and his wife have two children.

For more details and links, click the link above.

Just a thought

Gotta go to dinner. But here's a thought:

I will not at all be surprised if it's Owen. Brown smells
wrong because she could well lose, without a filibuster. Jones will be controversial but lacks the rub-their-faces-in-it quality Rove loves so much. Plus, I bet Dems wouldn't filibuster her in the end.

Owen will probably get confirmed, but it will probably take the nuke option to do it. Which the right very much wants.

We know that Rove relishes every chance to engage the right, and we know the WH needs that now more than ever.

Just a thought.

Update: Ok, it's Roberts, not Owen. See below.

Wrong Edith?

Update 9: I have Roberts confirmed (NB: I didn't say Bush has Roberts confirmed) from a source who would know.

Update 8: As I posted Update 7, Josh Marshall posted saying AP says Roberts.

Update 7: Well, ABC is now saying it's Roberts. And his stock has blown through the roof at TS.

As of 5:20pm EDT, Tradesports (click on Legal then Supreme Court) makes Edith Jones the favorite (P=about 0.50) to get the nod from W tonight.

News reports or no, Clement gets a lot less love (her bid is 13.5, though her ask is a much-higher 25), with Priscilla Owen nearby (12.1/19.9).

Wish I had a TS account.

Update: ABC's website is reporting that a source says it won't be Clement. If you look at the Tradesports contracts for today, there's a huge plummet in Clement's stock this evening (London time) and a huge upward spike in Jones's. Makes you wonder if there are some insiders here.

Update 2: And now Jones has taken a big dive of about 10 points in the few minutes since I wrote the first update. You want to see market volatility, go to TS.

Update 3: Welcome, TPMCafe readers. I hope you'll stay a while and look around. In the meantime, let me tell you that the "Supreme Court Female" contract at Tradesports has gone from the 40s to the 90s today and is now back down to 80ish. Unfortunately, no one I know in the MSM can tell me any more about what is going on right now, beyond the obvious fact that there's some disinfo in the system.

Update 4: ABC now reporting that Clement has been told by the WH they decided to go in a "different direction". Further update: A source in the MSM who would know says they "are hearing" that "it is definitely not Clement".

Update 5: Tradesports news -- Luttig's stock just shot up to about 30, from basically 0.

Update 6: Regarding Update 5, I should have noted that Luttig's Ask price shot up, but his Bid didn't move much. This is means that people holding Luttig shares became more reluctant to let them go, even though those who didn't already have them weren't clamoring to get them. This dynamic is actually consistent with a phenomenon in psychology/behavioral economics known as Loss Aversion. It's a somewhat controversial subject, but there's definitely empirical support for it. Calling Dick Thaler and Sendhil Mullainathan: here's a nice application.....

Wanna Bet Rove Is Gone?

Then go here and click on Current Events and then White House (right now the market makes Pr[Rove resigns on or before Sep 30, 2005]=0.18):

Karl Rove Contracts

Dublin, Jul. 14 (TradeSports) -- The Exchange has listed three new 0-100 contracts on the resignation/departure of Karl Rove, Assistant to the President, Deputy Chief of Staff and Senior Advisor.

The Contracts can be found under Current Events>White House> Karl Rove Resignation.

The contracts will expire at 100 if there is an official White House announcement reporting the resignation, retirement or departure of Karl Rove from his current position as Assistant to the President, Deputy Chief of Staff and Senior Advisor by the time/date specified in the contract or if he no longer or if Mr. Rove has factually departed his current position noted above.

The contracts will expire at 0 should there be no announcement or no such factual departure by the time stated in the contract specification i.e. on or before 11:59.59 pm ET on the date specified within the relevant contract.

Please contact the Exchange if you have any questions about how the contract will be expired in specific circumstances.

For guidance purposes only the following clarifications are offered:

* A tendered resignation that is not accepted will cause the contract to expire at 0

* A resignation from one post but not all will cause contract to expire at 0

Please Note: A resignation does not have to result in the actual departure by the contract expiry date but rather the announcement of the said resignation must be made and not rejected by that time/date.

A Departure/Resignation may be 'forced' or 'voluntary'.

This Will Keep Media Matters Busy

From the Hotline:

Sen. Rick Santorum (R-PA) and Rep. Barney Frank (D-MA) on "O'Reilly" (FNC, 8 pm).

I hope David Brock and the good people at MMFA didn't have anything else planned in the hour before Bush's announcement.

Smart Friends

A savvy friend writes in to CCM's Red Phone:

The WH spreads rumors that it's Edith Clement, then schedules the announcement for 9 p.m. (creeping close to deadline for everyone, but particularly national papers such as the Times and USA Today). THEN, in a classic bait-and-switch, Bush announces it is, in fact, Michael Luttig (or anyone else). Bam -- the coverage in tomorrow's papers (except for the west coast ones) is about an inch deep, setting the tone for the entire debate. Let's put it this way: smart Dems will resist the urge to comment AT ALL tonight, because anything they say now will be held against them later.

It's a very shrewd move by the WH -- and another example of how they manipulate the media to serve their own purposes.

What can I say? I have smart friends.

Desperation?

Regarding CHB's excellent point below, let me offer this additional note.

In the last year and a half or so, I've gotten to know several of Washington's media-industrial-complex workers. I think before then I basically thought that media outlets -- newspapers, tv news shows, magazines -- had an essentially limitless supply of people to throw at the extra stories. I'm here to tell you that it ain't true.

When a big new story crops up (or a big old one on hold crops back up), the top folks have to scramble to cover it, dropping everything else. This is, in fact, how CardCarryingMember was born: my vacation to Vegas over July 4th weekend with my best girl got called off because we were dumb enough to schedule our outbound flight the day after the last day of the last week in the Supreme Court session.....suffice to say, her badly needed time off went the way of the dodo when Justice O'Connor announced her retirement. Why? Because her employer evidently had no one else to cover Congressional reaction. As for me, I sat home twiddling both my left thumbs. It came down to a decision between online poker and the blog, and the blog won.

A propos of what, you ask? Well, announcing the nominee to replace O'Connor is part of a tried-and-true strategy to knock a bad story (RoveWarLiesDeathGate) off the front burner with a bigger story.

Yesterday I noted just how desperate the decision to send Roy Blunt on to FTN to Face Joe Wilson was. Today let me point out just how desperate the decision to name a nominee tonight is. Remember, these are the folks who were discussing waiting to announce a nominee so as to minimize flak. It is now less important to them to avoid that flak than to get RoveWarLiesDeathGate out of the news.

Desperate times in the Bush White House.

Update: I forgot to add: look hard in tomorrow's news for really nasty stuff (from the WH point of view) about RoveWarLiesDeathGate. It's an old Washington trick, perfected by Rove, to send bad news out when it will be overwhelmed with other, unrelated coverage; bonus if that coverage is good for the WH.

Update 2: For those of you not on the WH distribution list, they cancelled the Daily Briefing today. Got themselves a twofer with this one, didn't they?

Love That Jon Stewart

From the Hotline:

Jon Stewart on the Bush Admin attacking Joe Wilson: "Sad to see the administration powerless in the face of the overwhelming force that is the former Ambassador to Gabon"

Do Your Part

For those of you who live in or near the great non-state of Washington, DC, MoveOn is holding a protest of Rove tonight:

Tonight Karl Rove will be the keynote speaker at a fundraiser in downtown Washington for Republican Congressman Jim Gerlach (PA-6th). Gerlach's election next year will be one of the toughest in the country so you'd think he'd be smart enough to keep his distance from Rove--who betrayed the identity of an undercover CIA operative. But Gerlach is sucking up to the Karl Rove cash cow. We need to draw attention to Gerlach's failure to put his patriotism before his political ambition.

So, here is the plan. Tonight we'll gather at 6:15 PM (or a little early) at 1700 Pennsylvania Ave NW for a peaceful protest (signs will be provided). The media is expected to attend and we especially expect media from Gerlach's hometown to attend. We'll have a peaceful picket for about 45 minutes with some chants while Rove is upstairs at the fundraiser, the media will get their pictures and footage and then we'll go home.

WHAT: "Fire Karl Rove" protest outside fundraiser for Jim Gerlach

WHEN: Tonight, Tuesday July 19 starting at 6:15 PM

WHERE: 1700 Pennsylvania Avenue NW, Washington (Metro: Farragut West or Farragut North)

RSVP: http://political.moveon.org/roveaction/

Signs will be provided.