Quote of the Day (and the next several months....)

From Ron Fournier's AP piece:

With no sign of irony, Republicans demanded that Alito get a vote in the Senate - something they denied Miers.

Meet The Complete Joke

Russert's CIA-leak panel today:

• Judy Woodruff
• David Broder
• Bill Safire
• David Brooks
  

That's right.

Two non-partisan, Washington Media-Industrial Complex journalists.

And two partisan Republicans -- both of whom have spent the last several minutes dissembling (or demonstrating total ignorance) about the very serious allegations in the indictment, which states that Scooter Libby did indeed leak classified information about Valerie Wilson's CIA employment status.

No Democrats from the media.

Russert has soiled himself for months by continuing to cover a story in which he is a -- major -- player. And now he has rubbed the mess all around his pen by having such an obviously biased, factually unmoored panel of "experts" to comment about the leak.

Can Kingston Read?

Rep. Jack Kingston (R-GA) posted a statement at redstate.org that included this doozy:

"It's significant that the indictment does not mention the outing of Valerie Plame. It appears that after two years of investigation, Mr. Fitzgerald does not agree with the administration's critics that her situation is what this is all about."

Hmmmmmmm.

The indictment does say this (page 3):

f. Joseph Wilson was married to Valerie Plame Wilson (“Valerie Wilson”). At
all relevant times from January 1, 2002 through July 2003, Valerie Wilson was employed by the CIA, and her employment status was classified. Prior to July 14, 2003, Valerie Wilson’s affiliation with the CIA was not common knowledge outside the intelligence community.

And then it says this (page 11, graf 31):

31. In or about March 2004, in the District of Columbia,
I. LEWIS LIBBY, also known as “SCOOTER LIBBY,” defendant herein, did knowingly and corruptly endeavor to influence, obstruct and impede the due administration of justice, namely proceedings before Grand Jury 03-3, by misleading and deceiving the grand jury as to when, and the manner and means by which, LIBBY acquired and subsequently disclosed to the media information concerning the employment of Valerie Wilson by the CIA.

Gee.

Maybe Babs should take her adult literacy campaign to Georgia's First Congressional District.

Initial Thoughts on Fitzgerald's Decisions

Based on his press conference and the indictments, which I've now read, my first thought about Fitzgerald is that he is an American hero in a time that is far too short of them.

Personally, I would love to know everything that Fitz and the GJ found out, and all the things that evidently gave them pause about charging more (at this time, anyway). But as Fitz pointed out, it would be against the law for him to tell us. The contrast with the sieve-like conduct of Ken Starr's operation could not be more stark.

Moreover, it's pretty clear from the indictment that all of the substantive---as opposed to provable-in-court---elements on which WH critics on this matter have harped were in fact present: Libby, Cheney, Bolton [ed note: my suggestion that the indictment points to a Bolton connection appears to be wrong, based on reports that it was Marc Grossman, who I believe is a Bolton critic, rather than Bolton, who was referenced], Rove -- some or all of these people, and possibly more, went after Joe Wilson in the most dishonorable, unpatriotic and cowardly of ways. They leaked information they surely knew was either sensitive or---as it in fact was---classified to reporters in a campaign of lies meant to distract the public from Joe Wilson's underlying claims, all of which were basically true. They did so with no regard, and possibly with disregard, for the security consequences to Valerie Wilson, her co-workers or the Nation.

Now, as to the charges against Libby themselves: these are clearly serious allegations. They're serious partly on the obvious process grounds. But watching the press conference and reading the indictment makes it clear that they were substantively important, as well. As Dan Abrams just said on MSNBC, violations of the IIPA statute (and also the relevant part of the Espionage Act) require knowing behavior. And as Don Rumsfeld might say, it is impossible to know what Scooter Libby knew if he lies about what he knew. So in this case, the crime of obstruction has to do with conduct that limits the prosecutor's ability to address precisely the underlying knowledge on which an appropriate decision to charge Libby (or others) under those statutes would turn. Thus it's pretty clear that Fitzgerald's decision not to charge under those statutes reflects an inability to assess with the relevant degree of certainty whether Libby or others in fact possessed the relevant knowledge and intent. If you doubt this view, consider Fitzgerald's appellate filing regarding compulsion of testimony by Cooper and Miller, and consider the statements of the panel of three judges, all of which refer to crimes.

This is another reason why I think Fitzgerald is a hero: whatever his gut feeling is, he is not charging just to charge, or to try to vindicate the length and depth of his investigation. He said over and over that his responsibility is not to charge when he doesn't have the relevant degree of certainty. Unlike---just to pick an example---Ken Starr, this is not a prosecutor searching for a crime. He's a prosecutor searching not only for the truth, but for the right way to behave once he's found it. Fitzgerald repeatedly declined opportunities to pass judgment on the dishonesty of the Administration's case for war, and for good reason: That's not his job.

Regarding Rove, based on Fitzgerald's wording ("not quite done") and the expiration of the current GJ, it seems relatively unlikely---though certainly not definite---that he'll be charged. That said, it is 100% clear that Rove's behavior regarding the Wilson's was dishonest, disreputable and unworthy of an Administration that came to Washington promising to "change the tone" and "bring honor and dignity back to the WH". Even if he is not charged---whether or not his conduct was in fact criminal----his behavior has been both reprehensible and altogether too characteristic of a career based on lies and smears. Tempted as I am to say that in that way he couldn't be more worthy of being George W. Bush's right-hand man, in the end he couldn't be less worthy of the public trust that has been so indefensibly vested in him.

I'll have more to say about all of this, including (for example) the issue of compelling Cooper's and Miller's testimony, in the future.

In the meantime, kudos to Pat Fitzgerald for showing America that prosecutors not only have an obligation to behave both aggressively and conservatively in appropriate measures, but also that they can live up to that obligation. Even in such a politically charged atmosphere, and even when their potential targets are so obviously lining them up for a campaign of (cowardly anonymous) public smears.

Update: Josh Marshall has remarks from Cheney up. Note this one:

Scooter Libby is one of the most capable and talented individuals I have ever known. He has given many years of his life to public service and has served our nation tirelessly and with great distinction.

Let me point out that Cheney makes no statement whatever questioning Scooter Libby's behavior. Not surprising, given that Cheney's own role in this saga is detailed in the indictment and appears to contradict his own and the WH's official statements. But let me just point out that Libby's "tireless" service should always be seen through the prism of its most "distinct"[ive] act: the leaking of classified information for partisan political purposes. A fitting end to a disreputable man's career in public life.

Update 2: I see (from TP) that Marc Grossman was also an Undersecretary of State. I'd forgotten that, thinking Bolton was his superior. It is, thus, possible that Grossman is the one named rather than Bolton, though all other signs would suggest otherwise. [Further Update on this point: Media reports (like this one) are now saying that it was, indeed, Grossman, not Bolton, who was one of Scooter Libby's sources. This actually makes sense given the role of an unnamed State player---dubbed Foggy Throat here at CCM---in keeping this story in the media, as earlier media reports have suggested that Grossman asked for the INR memo on Joe Wilson's trip. The fact (if it is one) that Grossman was a Libby source doesn't mean he approved of Scooter's leakfest---it would have been totally reasonable for Grossman to assume that Libby would honor his nondisclosure agreement and behave responsibly, and it would be totally reasonable to think he would turn on Libby & Co. once he realized they did not. So now here's an interesting extant question: who was the WaPo's source for the 6x2x1 story? Not clear why it would be Grossman---how would he know either the 6 or the 2 parts?]

Update 3: Let me also point out that Fitzgerald repeatedly went out of his way, both in his press conference and his press release, to underscore that Libby is presumed innocent until proven guilty. I don't know how typical that is of a prosecutor's behavior, but it is a vital thing. Contrast Fitzgerald's caution and forthrightness with, say, the House's articles of impeachment against President Clinton. Of the four proposed articles, the two articles that passed (Articles I and III) each referred to crimes (perjury and obstruction of justice, respectively). Yet Bill Clinton had not been (indeed, he never was) convicted of either crime. Something on which to reflect.

One Down, More to Go?

Libby facing 5-count indictment for obstruction, perjury and false statements.

ThinkProgress has links to Fitz press release and formal indictment.

I haven't read either in detail yet. But the part of the press release I have read makes statements suggesting (to me, anyway) that Valerie Wilson's status was in fact classified and that Libby (i) knew or should have known that, and (ii) was clearly on a mission to discredit Joe Wilson using information about her. These things make me wonder if Fitz is done with Libby --- that is, they make me wonder if Fitz thinks Libby did in fact violate IIPA.

By now most people have probably seen that Rove gave Fitz info suggesting that his own false statements were inadvertent rather than obstructive, perjurious, etc. It will be interesting to see what happens on this front as Fitz decides what to do about Rove.

Press conference scheduled for 2pm.....

Paul Wellstone's Memory

Today is the third anniversary of Senator Paul Wellstone's tragic death. Wellstone, his wife Sheila and daughter Marcia, and three campaign staffers were killed in a plane crash while campaigning for his re-election in 2002.

The night before he died, I bought a ticket to go to Minneapolis to work on the final five days of his campaign. I found out about the crash the next morning when I got to my office (then in Berkeley) and an officemate told me. I went anyway, with a close friend of mine, and it was one of the most moving experiences of my life to volunteer for Fritz Mondale out of Wellstone's HQ together with his unbelievably committed staff. My first task was to call around to trade unions to see if anyone could help us build a shelter over the impromptu memorial outside the campaign office, where seemingly hundreds of people had left flowers, signs, and notes of grief.

I'll never forget the manic energy that people in that office had. It seemed like everyone was working 24/7 to avoid grieving. One day, Paul's son David came to the Congressional office where I'd been working, together with Al Franken. I'll never forget David Wellstone standing there, a week after his parents and sister were killed, trying to comfort and energize us, a collection of total strangers. I remember thinking so sad for him, and so amazed by his ability to carry on, publicly, under the worst possible conditions.

Fritz damn near pulled it off, which is truly amazing under the circumstances. We had to make lawn and other signs by hand, because there wasn't time to order printed ones.

I'll never forget standing in the ballroom for the victory party when Fritz came out to say that it would be a very long night, with many Dem precincts left to count. Sometime around 2:00 in the morning, we went back to our hotel, with still no word and early Wednesday flights waiting for us. I remember the sick feeling I had when I got up to leave and watched Mondale's concession speech around 6:30 Wednesday morning.

Perhaps another time I'll talk about the deceitful and slanderous attacks launched by Minnesota and national Republicans about the raucous tribute to Wellstone that took place a few days after his death. Many people have ascribed Mondale's loss to the supposedly overwhelmingly negative tone of that tribute. I wasn't in Minneapolis yet when it happened, but no fair-minded person can read Al Franken's "Lies and the Lying Liars" chapter on the Wellstone tribute and not be horrified by the GOP's smears. Even in the context of recent years, the dishonesty and callousness of those smears stands out.

It saddened me greatly that Fritz Mondale -- one of the most decent people in American politics for decades -- lost that way, if indeed that's the reason.

But I'd like to think that Wellstone's memory will be not just about his death and the terrible political result of it, but also about his live and the passionate views and ideals he held. His children and supporters have worked to do something positive to preserve and extend his legacy of progressive---and winning---grass-roots politics.

Check it out at http://www.wellstone.org/.

In the meantime, here's one of my favorite quotes from Paul Wellstone, one that appeared on a campaign poster that was prominently displayed in the Minneapolis campaign office where I worked:

Politics is not just about power and money games, politics can be about the improvement of peoples lives, about lessening human suffering in our world and bringing about more peace and more justice.

I hope Democratic insiders think about these words at least a bit today.

Bush in a Nutshell

On schadenfreude grounds, this NY Daily News story is highly entertaining.

If true, its various tidbits are informative as well. My very favorite part concerns the discussion of how Bush has started to visibly blame others (who else would he blame? He is W, after all) for his administration's littany of woes. Easily the best line is this one, concerning an adviser's assessment that Bush has himself to blame for the Harriet Miers fiasco:

"He must know that the way he did that, relying on his own judgment and instinct, was not good," another key adviser said.

Gee.

"Not good" results when George W. Bush depends "on his own judgment and instinct".

Where have I heard that suggestion before?

And here I thought that with W we were getting steady leadership for times of change.

Faint Praise: George Allen-CIA Leak Edition

Today we offer Senator George Allen (R-VA) some faint praise. CCM's faint praise is a simple matter of giving kudos to elected Republicans for doing or saying what they should do or say according to even the mildest set of expectations. Such acts and statements are notable only because so many elected Republicans have made such a mockery of the notion that they should be honest or principled, or do their jobs.

So why does George Allen get some faint praise? Because today on MTP, Sen. Allen said that Rove and/or Libby should step down if indicted:

MR. RUSSERT: But if Mr. Rove--if Mr. Rove and/or Mr. Libby is indicted, should they step down?

SEN. ALLEN: That'll be--I think they will step down if they're indicted.

MR. RUSSERT: And they should?

SEN. ALLEN: Yes, I do think that's appropriate that--I don't see where--if they're in the midst of an indictment.

Must have been some edition of MTP: You know things are getting goofy when George Allen makes Kay Bailey Hutchison look bad.

Right On, Brother Singer

Following is an email sent out by Phil Singer of the DSCC regarding uber-hypocrite Kay Bailey Hutchison's hypocrithon this morning on MTP (see below for my own view):

From: "Phil Singer"
Sent: 10/23/2005 05:00 PM
To: "Phil Singer"
Subject: HUTCHISON'S CONFUSION: IS PERJURY A BIG DEAL OR NOT??

During a five minute span on "Meet the Press" this morning, Sen. Kay Bailey Hutchison seemed to change her mind three times about whether or not perjury is a crime. Of course, it wasn't all that long ago that Hutchison was talking about the seriousness of perjury and obstruction of justice when voting to impeach President Clinton.

1) FIRST, HUTCHISON SUGGESTED PERJURY WASN'T THAT BAD... "I certainly hope that, if there is going to be an indictment that says something happened, that it is an indictment on a crime, and not some perjury technicality where they couldn't indict on the crime..." ["Meet the Press," 10/23/05]

Ø Hutchison Thought Perjury Was Serious Enough When She Voted to Impeach Clinton. Discussing her vote to impeach President Clinton, Hutchison said, "The reason that I voted to remove him from office is because I think the overridding issue here is that truth will remain the standard for perjury and obstruction of justice in our criminal justice system and it must not be gray. It must not be muddy." [AP, 2/12/99]

2) THEN SHE CHANGED HER MIND... "There were charges against Bill Clinton besides perjury and obstruction of justice, and I'm not saying that those are not crimes. They are." ["Meet the Press," 10/23/05]

Ø WRONG: There Were No Additional Senate Charges. By the time the Clinton impeachment debate reached the Senate for a vote, the only charges were perjury and obstruction of justice. [PBS.org, Online NewsHouse, "The Impeachment Trial"]

3) ...AND THEN SHE CHANGED IT BACK WHEN SHE DEFENDED MARTHA STEWART "...look at Martha Stewart, for instance, where they couldn't find a crime and they indict on something that she said about something that wasn't a crime...we are seeing grand juries and U.S. Attorneys and District Attorneys that go for technicalities..." ["Meet the Press," 10/23/05]

Ø Hutchison Has Always Had A Soft Spot For White Collar Crime. When the Senate Commerce Committee in 2002 was looking into the Enron matter, Hutchison said, "I am concerned about some of the political rhetoric that has occurred...on this issue." [Senate Commerce Committee Transcript, 2/5/02]

Hypocritical Oath: Kay Bailey Hutchison Edition

I'm introducing a new line of features here at CCM: the Hypocritical Oath. Just as doctors take the Hyppocratic Oath promising to do no harm, many of our elected representatives behave as if they've taken an oath to miss no chance to betray principles that they've previously claimed to hold dear. When I see a truly shining example of such hypocricy, I will note it with a Hypocritical Oath award.

Our inaugural award winner is Senator Kay Bailey Hutchison (R-TX). During the Senate trial of President Clinton on charges of perjury and obstruction, Senator Hutchison released a detailed statement purporting to explain her vote. Here is an excerpt:

MY VOTES ON THE ARTICLES OF IMPEACHMENT

Based upon my analysis of the facts of this case and my own conclusions of law, I have concluded:

(i) The President of the United States willfully, and with intent to deceive, gave false and misleading testimony under oath with respect to material matters that were pending before the Federal grand jury on August 17, 1998, as alleged in Article I presented to the Senate. I, therefore, vote 'Guilty' on Article I of the Articles of Impeachment of the President in this Proceeding.

(ii) The President of the United States engaged in a pattern of conduct, performed acts of willful deception, and told and disseminated massive falsehoods, including lies told directly to the American people, that were designed and corruptly calculated to impede, obstruct, and prevent the plaintiff in the Arkansas Federal sexual harassment case from seeking and obtaining justice in the Federal court system of the United States, and to further prevent the Federal grand jury from performing its functions and responsibilities under law, I, therefore, vote 'Guilty' on Article II of the Articles of Impeachment of the President in this proceeding.

Now, as I've noted, I don't think that President Clinton's behavior---wretched though it was---involved Constitutional, and thus impeachable, offenses. I recognize, however, that someone who feels that all instances of perjury and dishonesty during legal procedings, could in principle feel differently (no, Peter, I am not changing my previous view that GOP members were effectively engaged in an attempted coup---just because someone could believe these things doesn't mean those conspirators did).

Perhaps, a la Peter's comments on my earlier post, we should give Senator Hutchison the benefit of the doubt. Perhaps, that is, she really, really, really believes that dishonesty in legal procedings is a High Crime. Then one would certainly expect her to believe that perjury or obstruction in the CIA leak case should be aggressively prosecuted, now, wouldn't one?

I regret to say that Sen. Hutchison is untroubled by the hobgoblin of consistency, however. Here is a quote from her appearance today on Meet the Press (originally via ThinkProgress):

An indictment of any kind is not a guilty verdict, and I do think we have in this country the right to go to court and have due process and be innocent until proven guilty. And secondly, I certainly hope that if there is going to be an indictment that says something happened, that it is an indictment on a crime and not some perjury technicality where they couldn't indict on the crime and so they go to something just to show that their two years of investigation was not a waste of time and taxpayer dollars. So they go to something that trips someone up because they said something in the first grand jury and then maybe they found new information or they forgot something and they tried to correct that in a second grand jury.

I think we should be very careful here, especially as we are dealing with something very public and people's lives in the public arena. I do not think we should prejudge. I think it is unfair to drag people through the newspapers week after week after week, and let's just see what the charges are. Let's tone down the rhetoric and let's make sure that if there are indictments that we don't prejudge.

Gee. I wonder why people think that the GOP members who voted in favor of impeachment were dissembling?

Pathetic.

Maybe the DNC will get with it and start running ads asking why Republicans are soft on crime.

Gullible's Travails: Fitzgerald Always Had Full Authority Edition

Multiple recent articles and columns in the MSM (sorry, no time to link) have included statements---either in passing or as a key element in the authors' arguments---suggesting that the CIA leak investigation originally concerned only the Intelligence Identities Protection Act. The reason such assertions matter (at least in terms of spin and public debate) is that the IIPA was written in a deliberately narrow way---it's quite difficult to prove a violation absent very high-powered evidence. While I think people have been too quick to dismiss the possibility of an IIPA-based indictment, the fact is that other laws, most notably the Espionage Act, seem more likely sources for a substantive indictment; perjury and obstruction also seem highly possible.

Special Counsel Fitzgerald has just started a website that provides documents relating to his investigation (that alone strikes me as terrible news for the various WH advisers to the President and VP who appear to have been conspirators in the campaign against Joe Wilson and his wife). It is useful to note that this Feb 6, 2004 letter from then-Deputy AG James Comey to Fitzgerald states that Fitzgerald's authority

is plenary and includes the authority to investigate and prosecute violations of any federal criminal laws related to the underlying alleged unauthorized disclosure, as well as federal crimes committed in the course of, and with intent to interfere with, your investigation, such as perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses...

This letter was a clarification of the letter from December 30, 2003 that initially delegated to Fitzgerald

all the authority of the Attorney General with respect to the Department's investigation into the alleged unauthorized disclosure of a CIA employee's identity.

Note that this language refers to "the alleged unauthorized disclosure", not to any particular statute that declares this disclosure unlawful. That is, the language empowering Fitzgerald specifically provides him the power to investigate and prosecute those responsbile for anact (or acts). It does not limit Fitzgerald's authority to any particular law that governs such an act (or acts).

Best as I can tell, the reason people seem to think that Fitzgerald's investigation was originally confined to IIPA violations is that media reports at the time simply didn't mention any other statutes (e.g., the Espionage Act).

The resulting belief some appear to hold (see the poorly researched and poorly reasoned recent column by Richard Cohen in the WaPo, for instance) that Fitzgerald has broadened his investigation beyond its initial mandate appears to be the result of some combination of poor/lazy journalism and poor/lazy thinking by consumers of journalism.

Of course, not all MSM types have been as gullible as some, but those who have been surely deserve today's GT award. Maybe now that Fitzgerald's site is up, the price of information collection will be low enough for the Richard Cohens of the world to actually do their jobs before they start to write and talk.

Is Impeachment as Impeachment Does?

Imagine that this is true. Then change "Bush" to "Clinton", "Rove" to "Stephanopoulos" or "Blumenthal" or similar.

Then ask yourself this one question: how much time would expire before the Republican House of the mid-to-late 1990s would commence impeachment procedings?

Better yet, change "Bush" to "Kerry" or "Gore" and "Rove" to whatever you think the appropriate analogue is. Then ask yourself this question: how much time would expire before the current Republican House would commence impeachment procedings?

His Objective Sources....

....might even have to tell George W. about it if this story is true....

Cheney Skipping Town?

The WH has just announced that Dick Cheney will be in Missourri (i.e., not in DC) on Thursday (oops) Friday.

Wonder if this has anything to do with that.

Which I have to say I don't believe. (In fact, I wouldn't be surprised if these rumors were started by either the WH or OVPOTUS in order to put some lipstick on the expected pig of an indictment of Rove, Libby, maybe Hadley, and who knows who else. That is, if they start a rumor that Cheney will have to resign, and he is only mentioned, say as an unindicted co-conspirator, in PF's papers, then they can say, "Well, at least it wasn't as bad as some paranoiacs were saying".)

Hotline's F List

Here's a must-read compilation of info from today's Hotline:

THE F LIST: Who's Testified? Who's Given Interviews? Who's Just Been Mentioned?
Here's a list of folks who have either testified or have been interviewed by Patrick Fitzgerald (or by FBI agents) in connection with the Plame probe. Please send us omissions and additions and expansions. Anonymity is guaranteed. To repeat: the list below is of those who have been interviewed by officials in connection with the case. Inclusion does not necessarily indicate that the listed person has testified under oath (Hotline reporting, 10/18).

• Bush: Early Summer, 2004 (did not testify under oath)
• Cheney: Early summer, 2004 (did not testify under oath)
• Ex-Dep. Sec/State Richard Armitage
• WH Assist. To. Pres. Dan Bartlett
• Ex-WH press aide Claire Buchan: Feb. 6, 2004
• WH COS Andy Card
• Time's Matt Cooper: July 13, 2005
• Ex-WH press. sec. Ari Fleischer (at least twice)
• A.G. Alberto Gonzales: June 18, 2004
• Ex-DOS BIR dir. Carl Ford
• NSA Stephen Hadley
• Ex-CIA comm. dir. Bill Harlow
• Assis. Sec. of Commerce/Ex-Rove assist. Izzy Hernandez
• Assist. Sec. of State Karen Hughes
• Ex-Sec/State counterproliferation offic. Bob Joseph
• Washington Post's Glenn Kessler
• Ex junior WH press aide Adam Levine: Feb. 6, 2004
• Cheney CoS Irving L. "Scooter" Libby (twice)
• Ex-Cheney adviser Mary Matalin: Late January, 2004
• Current WH Press Sec. Scott McClellan: Feb, 6, 2004
• Ex-CIA dep. dir. John McLaughlin
• Cheney aide Cathie Martin
• New York Times ' Judy Miller (twice)
• CIA comm. dir. Jennifer Millerwise (did not go before grand jury)
• Columnist Bob Novak
• Ex-Sec/State Colin Powell: July 16, 2004
• Ex-Abramoff assist./Rove assist. Susan Ralston
• WH DCoS Karl Rove (4 times)
• NBC News' Tim Russert
• Stranger who stopped Novak in the street
• Ex-CIA dir. George Tenet
• Sen. Adviser to Sec/State Jim Wilkinson (has said he did not testify)
• Ex-Amb. Joseph Wilson

On the witness list at one point but never called to tesify:

• New York Times' Nick Kristoff

"Cooperated" with Fitzgerald:

• Sec/State Condoleezza Rice

Others believed to have testified:

• John Hannah, David Wurmser (senior members of Cheney's staff) (Hotline sources)

Other journalists mentioned in press acounts as having initially sparked Fitzgerald's interest:

• Time's Massimo Calabresi
• Time's Mike Duffy
• Time's James Carney
• NBC's Andrea Mitchell
• NYTer David Sanger
• Newsday's Timothy M. Phelps
• Newsday's Knut Royce
• Newsweek's Evan Thomas
• Ex-Postie Mike Allen
• NBC's Campbell Brown
• WSJ ed. page. editor Paul Gigot / reporter Greg Hitt
• Ex-celeb. James Guckert/Jeff Gannon

Suing for a Piece?

So here I go again, piggybacking on Mark Kleiman, who posts this excerpt from Richard Keil's Bloomberg piece:

In an interview yesterday, Wilson said that once the criminal questions are settled, he and his wife may file a civil lawsuit against Bush, Cheney and others seeking damages for the alleged harm done to Plame's career.

If they do so, the current state of the law makes it likely that the suit will be allowed to proceed -- and Bush and Cheney will face questioning under oath -- while they are in office. The reason for that is a unanimous 1997 U.S. Supreme Court decision ruling that Paula Jones' sexual harassment suit against then-President Bill Clinton could go forward immediately, a decision that was hailed by conservatives at the time.

My wife-the-insider and I were just discussing the Jones case over the weekend. What prompted our discussion was this statement by uber-hypocrite William Kristol on Bill O'Reilly's show:

I am worried about what happens to the administration if Rove is indicted. I think it’s the criminalization of politics that’s really gotten totally out of hand.

(I got this quotation from ThinkProgress; I can't seem to find online transcripts of the O'Reilly show).

Now, Bill Kristol is the same man who wrote in 1998 that

I'm against a return to normal business--until we render a verdict on Bill Clinton's behavior. I think he deserves to be impeached.

I found that quote of Kristol's without trying very hard. What a delightful bunch of lying hypocrites he and his ilk are: they were so exercised about Clinton's (alleged) perjury that they were willing to remove---indeed insisted on removing---the duly elected President for his sins (I say alleged because my understanding is that the technical---i.e. legal---definition of perjury is quite a bit more stringent than simply lying or misleading, etc---the lies have to be legally important; that said, nothing about my argument hinges on that point, so I'd happily drop it for argument's sake).

Now, the point that my wife and I discussed over the weekend started with the issue of whether it matters that Clinton's lies and other misbehavior came in the context of a politically motivated private lawsuit financed, staffed and engineered for the transparent purpose of running him out of the White House. If I remember correctly, the initial foray into Lewinsky matters came after Paula Jones's lawyers were tipped off by Linda Tripp (via Lucianne and Jonah Goldberg) that they should word certain questions in precise ways when deposing Clinton for the Jones case. When Clinton answered untruthfully, Jones's lawyers presented the matter to Ken Starr's office, which then seized the opportunity to ask Janet Reno for jurisdiction over the Lewinsky matter (quite far afield of the initial Whitewater matter).

The whole point of this exercise was to put Clinton in the position of either conceding an extramarital affair while in the WH or lying under oath. That saga sounds to me like the criminalization of politics: abusing the legal process to damage your political opponents.

Interestingly, the unanimous Supreme Court opinion mentioned above ends with this paragraph:

We add a final comment on two matters that are discussed at length in the briefs: the risk that our decision will generate a large volume of politically motivated harassing and frivolous litigation, and the danger that national security concerns might prevent the President from explaining a legitimate need for a continuance.

We are not persuaded that either of these risks is serious. Most frivolous and vexatious litigation is terminated at the pleading stage or on summary judgment, with little if any personal involvement by the defendant. See Fed. Rules Civ. Proc. 12, 56. Moreover, the availability of sanctions provides a significant deterrent to litigation directed at the President in his unofficial capacity for purposes of political gain or harassment.

So far, the Court's lack of concern regarding "a large volume of politically motivated harassing and frivolous litigation" has been vindicated. Really, there's only been that one little case. Which led to the impeachment of the President in what was essentially an attempted coup. One might say the Court got it wrong because it focused on the likelihood of "frivolous and vexatious litigation" rather than on the possibility that litigation able to clear minimal standards might be used as a sort of lever that would allow them to set a perjury trap---the possibility of which exists only because of the political constraints uniquely relevant to politicians (of course, if Clinton hadn't been such a lout of a person, the issue would never have arisen, but that fact is irrelevant if we want to develop legal policies that allow for the possibility that Presidents might not be the most upstanding citizens in town).

My discussion with the wife concerned the irony that the Jones-Clinton-Lewinsky-Scaife-Starr-Congress debacle could get started only because the fishing expedition was allowed to leave shore. No one serious believes the underlying issue of adultery should lead to the removal of a duly elected President (I recognize that some people believe this, but that belief renders them unserious in my view). So the only real issues regarded Clinton's mendacious conduct after the fishing line was cast. Our weekend discussion concerned the fact that there hasn't been a flood of politically motivated lawsuits against W. Some might say that's because Democrats are better people than Republicans, some might say that it's because Democrats are no bettter than Repubs but are just less effective at securing their goals, others might say it's b/c W is so squeaky clean and still others might say that there are grounds to gin up a flimsy lawsuit, that Dems would do it if they thought it would work, but that they've concluded it wouldn't work. Who knows? The fact is that it hasn't happened so far.

Now, the irony of guys like Bill Kristol whining about the criminalization of politics is that their scourge is not some Democratic partisan. Rather, it's a Special Prosecutor who was not only chosen by then-Dep AG James Comey (then-AG John Ashcroft recused himself due to a conflict of interest b/c he had a history with Karl "Leaky" Rove), he was nominated by W to be US Attorney for N. Illinois. Quite a contrast to Ken Starr, who replaced a Republican Ind Counsel named Robert Fiske. Here's how the Washington Post's Dan Froomkin describes things:

The original Whitewater special prosecutor was Robert B. Fiske Jr., a moderate Republican selected in January 1994 by Attorney General Janet Reno, who had the authority to make the appointment because the independent counsel law had expired.

In August 1994, with the law renewed and Fiske under fire from conservatives for being insufficiently aggressive in pursuit of the president, the three-judge panel in charge of appointing independent counsels abruptly replaced him with a conservative activist named Kenneth W. Starr.

Moreover, the substance of Clinton's transgressions pales by comparison to those alleged of the various WH folks who appear to be in trouble (Rove and Libby for starters). After all, if there is anything seriously troubling about what Clinton did, it's that he committed perjury (if he did) and (again, I don't know if it's actually true) obstructed justice in proceedings whose obvious ends were to damage him and his administration politically. I do think the process issues are serious: obeying the law matters. Which is why I find so silly the recent discussions of how bad it will be if Fitz indicts only on supposedly not "real" grounds like perjury and obstruction (mostly the hand-wringers have been GOP types, though mushily liberal Richard Cohen made one of his classic cameos the other day).

But more importantly, the substance of the WH leak is itself a very troubling matter. I won't recite all the reasons, having done so before (I think), except to point out that Valerie Plame/Wilson's job involved WMD issues. Remember them? Important enough to start a war over, right? Then surely important enough to justify a criminal investigation. This isn't about the criminalization of politics, it's about the prosecution of criminal acts.

It is ridiculous that GOP partisans like Kristol who told us perjury and obstruction concerning a private lawsuit were worth removing a President over now say that such process issues constitute criminalization of politics in a case whose substantive issues actually matter for public policy.

Put differently, there is no way to rationalize Kristol's view that impeaching Clinton was mandated while prosecuting Rove and Libby for "only" perjury or obstruction is wrong. By contrast, the converse is plausible: impeachment was wrong because the issues were pedestrian and not in any way Constitutional (I believe this is the position that Cass Sunstein takes in his book on judicial minimalism), but prosecution of Rove et al on process grounds only (if necessary) is mandatory because they involve a public policy issue of grave importance.

The Kristols of the world want to have their cake and rub it in your face, too.

They deserve to be mocked openly and mercilessly for supporting an attempted coup on the US electorate and then defending those who put political gain over national security.

Oh, and what does this all have to do with the possibility of a Wilson lawsuit against Bush, Cheney and their goons? Plenty: turnabout being fair play surely suggests that the SCOTUS should let such a lawsuit proceed. That said, I have two caveats. First, the opinion linked above does include a potential national security exception, which no doubt the Goon Squad and its lawyers would seek to invoke.

Second, from a public policy perspective, I think there's a very strong case that the SCOTUS had it wrong a decade (or so) ago, and that private lawsuits against the POTUS should be stayed until the end of his or her term. It is absurd in light of the Clinton years to suggest that the Presidency can withstand such lawsuits: most people who make it to the WH very likely are lousy people, and there will be lots of grist for the litigious mill. The Court should do us all a favor and insulate the country from the sort of venomous coup launched by the Scaife-Jones-Starr-et-al conspiracy. The correct venue during a presidency for dealing with truly important Executive transgressions is Congress and the impeachment process, where it is appropriate.

It would be entirely reasonable for Congress to start discovery concerning the WH's actions on the Plame/Wilson matter with an eye toward impeaching Bush and Cheney, if indeed they were involved in a conspiracy to leak Plame/Wilson's CIA employment status. Unlike oral sex in the Oval Office and obstruction/perjury related to its revelation, such conspiracy would truly constitute a High Crime. It would also be appropriate for the Wilsons to sue Dick Cheney and W for all those Halliburton and (taxpayer-funded) Texas Rangers millions -- after Bush and Dick leave office.

Update: I should say that when the news about Clinton and Lewinsky was first breaking, I thought he deserved impeachment. I think my view was colored by the fact that I felt that Clinton betrayed his supporters repeatedly as President, and that he was more worried about his legacy---esp including his reelection than about doing what was right. I still do feel those things in a lot of ways. But I was wrong about impeachment. Happily, as I sat watching ABC's This Week on a Sunday around the time the story broke and declared my support for impeachment, one of my more reasonable (and also quite progressive) friends said she thought I was crazy. I said, "But he lied under oath!" She said, "Presidents lie about policy all the time. Do we really want to lose a President over this?" Those of you know me may be surprised, but I conceded the point. She was right then and is still right now.

You Don't Have To Say A Secret's Secret to Reveal the Secret

The Millerthon has been most interesting to peruse, and maybe I'll have some stuff of my own to say about it.

That said, it's worth looking at this short post by Mark Kleiman (there are many others, all worth reading, about IraqRoveWarLiesPlameDeathGate, or whatever we've called it here at CCM, at Kleiman's site). He points out Cliff May's....unconvincing....personal bottom line:

The bottom line, as I see it: Judy Miller testified that Scooter Libby “did not refer to Plame by name or mention her covert status.” (I’m quoting from Howie Kurtz’ piece in the Wash Post).

Indeed, Miller says in her piece that based on her conversation with Libby she assumed Plame “worked as an analyst not an undercover operative.”

Well, that would mean Libby did not expose a covert intelligence agent, the crime charged by Wilson and his supporters.

It is hard to understate the idiocy of May's contention here. The part about the name Plame (or Wilson) is quite irrelevant, as I pointed out way back when. The part about mentioning her covert status is also quite a non-sequitur, a point that Kleiman makes with some vim:

If I know a secret about someone, and tell that secret to someone else, I've revealed that secret, even if I don't mention that it was supposed to be a secret in the first place.

Let's say, for example, that John is married to Jane but is secretly sleeping with Judy. If I say "John is sleeping with Judy," it's not a secret anymore. Whether I say "John is secretly sleeping with Judy" couldn't matter less. It wasn't the secrecy that was a secret, it was the sex.

Similarly, if Valerie Plame Wilson is an undercover CIA officer and someone publishes the fact that she works for the CIA, she's been burned, whether the publication mentions her undercover status or not. There's no second secret fact that she was undercover; her being undercover meant, precisely, that no one was supposed to know she worked for the CIA.

By the way, lest you think that idiocy on these matters is somehow a requirement to write for The Corner, evidently that thought is incorrect, as Andy McCarthy, who evidently is capable of both literacy and logical thought, demonstrates.

Just Like the Universe, CCM is Expanding

I'm pleased to announce that, on unanimous vote of the CCM Committee on Standards, Membership and pseudo-Intellectual Claims (aka, COSMIC), Bu$h Ate My Baby (aka "my conservative friend Peter" and "BAMBY") has agreed to join Team CCM as a full-time member, with all the rights, privileges, responsibilities and poor judgment that such membership implies.

I hope both all three of you readers will join me in offering Peter a warm welcome, and I'm sure many comments will ensue....

Incrementalism, Meet Medicare Expansion

Not many posts lately, because not much time. Here's an idea I've been thinking about for a while. I wrote it up recently when a friend who works for a DC consulting firm asked me (and others)

If ... you got to add one thing [to a list of things to improve America], what would it be? It has to be something you can deliver on that is measurable, e.g., equal pay or more affordable housing. You only get one.

Here's what I sent:

Here's my one idea: Expand health care coverage to all children under Medicare (NOT Medicaid). Arguments in favor are simple:

1. Medicaid coverage generosity and eligibility rules are set by the states, so children in poor and rightwing states get very poor coverage. Medicare coverage rules are set nationally. You have one political fight to win on coverage and eligibility, and then everyone covered gets same coverage.

2. As things stand now, Medicare's costs are skyrocketing---which as I understand it is due mostly to the fact that health care costs for adults are skyrocketing. Thus Medicare will be in serious political trouble in the near term if nothing is done: the GOP will argue that it is just too expensive, and its denizens will seek to undermine it piece by piece (a la the asymmetric rules for drug-price bargaining for private plans compared to traditional FFS Medicare that were tucked into Bush's prescription drug plan [note: one of the ironies of the GOP attack on entitlements is the costly--and likely inefficient--expansion of Medicare via prescription drugs; nonetheless, I think the endgame there is still clearly to kill FFS Medicare]).
   

   As an accounting matter, adding children will almost surely diminish the rate of growth of Medicare spending: I'm pretty sure that the rate of growth of children's health care is substantially below that of seniors'. Thus this reform would tend to make the numbers look better (even without changing the underlying facts).

   More importantly, adding children to Medicare would vastly enlarge the political constituency for Medicare preservation. Children have parents, uncles, aunts, and grandparents under the age of 65; moreover, children will remember that they received coverage when they become adults. If you want to diminish the possibility of generational warfare over the remaining welfare state pillars, this is by far the best way to do it.

3. There would be inevitable pressure to expand coverage up the age ladder (from 18 to 21, say, and then 25, and so on), as well as down the ladder from 65 (the Clinton Administration considered a buy-in version of this idea for those aged 55 and up if I remember). Thus this policy would provide a clear way to harness children's coverage to the incrementalism wagon, with an eye to ultimately providing universal coverage.

4. Consolidating coverage under Medicare likely would reduce fixed administrative costs that get paid many times by private insurers and state Medicaid programs. Thus this policy would tend to increase the efficiency of offering a given insurance policy [note: see Does Contracting Out Increase the Efficiency of Government Programs?Evidence from Medicaid HMOs by my colleague at UMD, Mark Duggan, for evidence that private insurers are in fact more expensive, at least compared to California's Medicaid program]. It would also allow employers to reduce their health insurance costs greatly (much of these savings would necessarily be offset by the higher taxes needed to fund expanded Medicare coverage, but given efficiency gains there would still be net savings; also, this is another place where the politics would be good because the reduced business costs would *look* business-friendly).

I'm sure I could think of more reasons. But personally I think this policy would have greater positive impact and also be more feasible (both technically and politically) then lots of other usual liberal wishlist items.

Just my one cent.

I'm sure my fiscally conservative econ peeps will thrash me (mentally, if not in the comments---though i bet strategery4 comes out of his self-imposed silence to blast me on this one). But in the long run this idea might well actually cost less than the status quo, and it has the advantage of expanding health coverage in a politically advantageous and sustainable way.

"Tofu for the Base"

I'll have more to say about the big events of the day after my one-day, continuing-resolution-style honeymoon ends.

But I do want to point out the neon sign of weakness that George W. Bush flicked on this morning with the nomination of White House Crony Counsel Harriet Miers to replace Justice O'Connor on the SCOTUS. As Jack Balkin points out:

When in doubt, this President has turned to trusted aides and associates, and promoted them. The Miers nomination is yet another example. The advantage of this strategy is predictability (for the President, as opposed to the public as a whole); the disadvantage is the danger of cronyism. Although we don't know much about Miers, it's likely that, like John Roberts, she was picked with a view toward protecting executive power.

Over the weekend, my wife and I joked about how one might expect Bush to nominate Michael Brown---after all, he's just as qualified to sit on the Court as he was to run FEMA. The jury is out concerning Miers's qualifications, but when he faces trouble, Bush either resorts to cronyism---as Balkin notes---or picks a known pit-bull to stir up support from the base.

Maybe, as Balkin also suggests, Bush knows enough about Miers to think she is really Scalia in plain (actually, in this case quite garish) clothing. But there is no way for the Leonard Leos of the world to really know this: appropriately enough for this administration, they will have to take it on faith.

Let me put it another way: my wife suggested this morning that the Miers nomination is like throwing tofu to the base and telling them that if you put the right sauce on it, it tastes just like red meat.

A pretty good cliche play if you ask me.

Postscript: Let me say a quick thank you to Peter for this amusing and touching post. We had a blast, and we're glad to know that BAMBY did, too; I can confirm that CHB had a great time as well (sorry, Peter, but we just can't tell you....try Libby or Rove, and maybe get some testimony from Judy Miller)....

Update: You just have to read this post by apparent conservative Gerry Daly