BeldarBlog

Personal knowledge in affidavits

This story in today's New York Times doesn't surprise me — and indeed, I wrote a long post last fall with my own musings on affidavit drafting and use — but it ought to make a lot of trial lawyers stop and think (boldface mine):

At the behest of the rail industry, [Texas Department of Transportation railroad section director Darin] Kosmak on about 100 occasions over the last 11 years signed sworn statements about warning signs at railroad crossings, according to court testimony. The affidavits were mostly drafted by the rail industry, which then used them in case after case as a critical defense against claims that unsafe crossings had caused deaths and serious injury, court records show.

But now, the truth of those affidavits is being called into question. According to his court testimony, Mr. Kosmak recently admitted that his sworn statements misrepresented — unintentionally, he says — what he knew about those crossings....

The railroads sought Mr. Kosmak's affidavits to help prove that federal money was spent by the state on railroad warning signs, called crossbucks. Courts have held that if federal money was used, accident victims are pre-empted from making claims under state law that inadequate warning signs made the crossing unsafe....

[In the affidavits, Mr. Kosmak had] said he based his assertion [that federal funds had been used] on either "personal knowledge" or records of a federal program that operated for [1977-1981].

But last October, Mr. Kosmak admitted that he had no proof that those federal funds were used at any Texas rail crossing.

"We don't have specific records that exist any longer of any specific location," Mr. Kosmak said in an interview.

When the program began in 1977, Mr. Kosmak said, he was a teenager in high school.

"Obviously," he added, "I was not working at Txdot when some of the stuff included in my affidavit was actually performed." He said he had not understood the legal definition of personal knowledge. "It could be characterized as an honest mistake or a layman's mistake," Mr. Kosmak said. "It wasn't anything deliberate on my part."

Mr. Kosmak acknowledged that the affidavits implied that every one of Union Pacific's crossings had received federal money....

Thus, Mr. Kosmak neither had genuine personal knowledge — based on events that he'd seen with his own eyes, heard with his own ears, and participated in — about the funding. Neither did he have indirect knowledge that he was repeating and summarizing from documents (TxDOT records) that would themselves have been self-authenticating and admissible under the "official records" exception to the hearsay rule. He was swearing to something — but he literally couldn't have known what he was talking about, meaning that he was merely guessing (or worse).

There are, of course, long-standing requirements of evidentiary law, common throughout the United States in both state and federal courts, which require that affidavits affirmatively demonstrate the basis for the affiant's testimony. But in actual practice, many — perhaps even most — of the affidavits I read fail to lay the proper predicates for the affidavit testimony to be admissible. And this is particularly true of affidavits frequently given by lawyers rather than the actual witnesses in the case — a dangerous and disgusting practice whenever the substance of the facts being related relate to anything other than counsel's own handling of or participation in the litigation. Not two days ago I received an affidavit in which my opposing counsel swore to a long list of facts about her foreign client's lack of contacts with Texas, for example — and as someone who'd represented that company for less than a week, I'm quite confident that she had absolutely no personal knowledge about those contacts or the lack thereof. My impression is that such affidavits and/or unsworn "declarations" by lawyers are even more common in some states than they are in Texas practice.

Sometimes it's a disguised blessing when one of my opponents tenders such an affidavit. When it comes time for the witness to give oral testimony, either in a pretrial deposition or on the witness stand at trial, such affidavits furnish very fertile ground for cross-examination. And indeed, the lawyers who developed the information about Mr. Kosmak's and his sponsoring railroads' affidavit practices are now using that information to paint him, TxDOT, and the railroad defendants as incompetent, untrustworthy, or worse. But quite a few plaintiffs' lawyers who took those affidavits at face value in the past, without challenging or probing into the basis for them, either are or ought to be kicking themselves vigorously for doing so.

Laymen frequently don't, and can't be expected, to understand legal authentication requirements. And thus a routine self-serving declaration like "I have personal knowledge that the facts stated in this affidavit are true" can very often be demonstrated to be false, whether it was or wasn't intentional. What's shocking to me, however, is how many lawyers — whether trial lawyers or otherwise — either don't understand, or simply get incredibly sloppy with, satisfying (or testing their opponents' satisfaction of) these requirements.

The resulting impeachment technique — basically "You claimed under oath in yer affidavit to have personal knowledge, and now you've admitted thatcha didn't, so yer a gol-darned liar, ain'tcha?" — is fun and often justly effective. (In all probability, I'll have several occasions to use it in my next two trials.)  But it can be misused, by lawyers or unscrupulous reporters, to imply a perjurious statement when that's not at all accurate, as was the situation last fall when Michael Kranish of the Boston Globe shamelessly tricked Captain George Elliott into apparently "recanting" his original affidavit about John Kerry's medals based on sloppily draftsmanship by whatever lawyer wrote that original affidavit.

In many foreign jurisdictions, they still put wax or metallic paper seals and dangling ribbons to dress up affidavit testimony. It looks official, therefore it must be true, right? In most American practice now, those frills have been replaced with a simple inkstamp from a notary public, who almost never will have actually sworn the affiant to tell the truth. The support staff in my own office always laugh at me on those occasions when I'm obliged to submit an affidavit or verification (e.g., that photocopies of deposition testimony excerpts and/or exhibits attached to a summary judgment motion are true copies of what is in the official version created by the court reporter) because I routinely — prompted or (almost always) not — raise my right hand and solemnly say, "I do so swear" just before I sign my name for them to notarize.

Friends and neighbors, it's worth the three seconds that takes. And fellow lawyers, don't blow off, or trivialize, or get sloppy with, the language in the affidavits you draft or review when it comes to the evidentiary predicates for the affiant's personal knowledge. Not just crusty old trial lawyers take sworn oaths seriously — juries do too, and should!

Journalists' amicus brief in Miller-Cooper appeal is a waste of paper

James Taranto's Best of the Web offers this link to a .pdf version of the "friend of the court" brief filed on behalf of many of the "nation's largest news organizations and journalism groups" to urge the en banc DC Circuit to take Judith Miller and Matt Cooper off the hook on their contempt citations. As Mr. Taranto correctly characterizes it, the brief argues that "a federal court should first determine whether a crime has been committed in the disclosure of an undercover CIA operative's name before prosecutors are allowed to continue seeking testimony from journalists about their confidential sources."

I've read it. It's polished, as one would expect. But much of the forty pages comprises introductions and required certifications and tables (including the long, admittedly impressive list of news organizations wanting to be the DC Circuit's "friends"). Unsurprisingly, given that the record is subject to grand jury secrecy and the brief's writers don't have a clue what's actually in it, the record citations are largely to press reports, website speculations, and the like. There are, of course, ringing — and very general — citations to cases and law review articles pontificating about the importance of the press in a free society. But here's the key to the whole brief (boldface by Beldar; citations omitted):

As the Special Counsel concedes, an investigation that is brought in "bad faith" alters the application of Branzburg. While there is no suggestion that the Special Counsel is proceeding in bad faith, there should be abundant concern that the CIA may have initiated this investigation out of embarrassment over revelations of its own shortcomings.

Inadequately concealed behind that passive voice is the admission that makes this whole argument ridiculous: The news organizations can't prove, or even convincingly argue, that the Special Counsel was acting in bad faith when he subpoenaed Miller and Cooper to testify before the grand jury. And there ends the issue.

The brief goes on to argue that

[t]he reporters' counsel should be given the opportunity to contest evidence that exists independently of the grand jury but that is only in the government's possession. If a neutral analyst determines that the CIA lacks sufficient evidence to fulfill the elements of the crime underlying the leak investigation, then no crime under the Act has been committed and any need to compel Miller and Cooper to reveal confidential sources should evaporate.

Well, as it happens, there is a "neutral analyst" that our system assigns to make this determination. It's called a jury. And the way our system works is that the jury is called upon to make that determination at a particular time — but only if and after the prosecution's and grand jury's investigation have resulted in an indictment, and only if and after there has been a trial on the merits, presided over by a judge. It's not the responsibility or the province of grand jury witnesses to make this argument, nor the responsibility or the province of the judge to make a ruling until after the prosecutor and grand jury have returned an indictment.

There's not a single case cited in this brief to the contrary. That's because there is no case to the contrary. And that makes this nicely polished brief filed on behalf of distinguished news organizations a waste of paper — forty pages of it, urging the DC Circuit to turn our criminal justice system topsy-turvy without a single citation of authority on point.

There is one citation missing from the brief that really ought to be there — to Chapter XII of Alice's Adventures in Wonderland:

'Let the jury consider their verdict,' the King said, for about the twentieth time that day.

'No, no!' said the Queen. 'Sentence first — verdict afterwards.'

'Stuff and nonsense!' said Alice loudly. 'The idea of having the sentence first!'

'Hold your tongue!' said the Queen, turning purple.

'I won't!' said Alice.

'Off with her head!' the Queen shouted at the top of her voice. Nobody moved.

'Who cares for you?' said Alice, (she had grown to her full size by this time.) 'You're nothing but a pack of cards!'

But even a pack of cards, even the Red Queen, knew that charges have to come before trial, verdict, or sentence, whatever the order of the last three. To the MSM's suggestion to the DC Circuit that the Plame case proceed in reverse order, through the looking-glass, I can only echo dear Alice: Stuff and nonsense!

Raven 42

This is amazing.

Whatever your views about the Iraq War and the GWOT, if you're an American, you need to read about this. About fifty different superlatives run through my mind, but none of them are adequate. I suppose if I had to pick one, it would be "professionalism" — said very softly, reverently, in simple and grateful awe.

Accurate (but wholly inadequate) official photo caption:

"In this image made available 23 March 2005, Sgt. Leigh Ann Hester, team leader, 4th Platoon, 617th Military Police Company, 503rd MP Battalion, 18th MP Brigade, stands in front of a captured weapons cache after her squad repelled an insurgent attack on a Coalition supply convoy March 20 about 18 miles southeast of Baghdad. (AFP/US Army-HO)"  More pix here, but by all means read the whole story.

--------------

UPDATE (Sat Mar 26 @ 3:20am): More here, here, here, here, here, and here (CBS News video linked from right-hand column).

Don't blame Floyd Abrams if his clients insist on putting muddled but journalist-friendly First Amendment precedents at risk

Howard Bashman in How Appealing points us to this review by The New Republic Online's Alexander Barnes Dryer of First Amendment lawyer Floyd Abrams' new book, Speaking Freely: Trials of the First Amendment.  I haven't read the book yet, but Mr. Dryer's review focuses mainly on a subject I've blogged about quite a bit — Mr. Abrams' tactical and strategic choices in representing MSM journalists Judith Miller and Matt Cooper in the Plame affair. Mr. Dryer writes (links in original):

In retrospect, it's difficult to criticize the approach Bickel and Abrams ultimately took [in the Pentagon Papers case], given that the outcome — a near-total ban by the Court on any "prior restraint" of speech — was so favorable to civil libertarians. But as Bickel understood, even the Pentagon Papers triumph came at some cost, for it marked a new delineation of what the First Amendment did and didn't allow. Abrams argues that the government's challenge led to this delineation, but it is undeniable that the First Amendment defense he and Bickel presented led to it as well, for it allowed the Court to rule on the Amendment itself. Anytime the courts are given such power ["such an opportunity" might be a more apt phrase here than "such power" — Beldar], the First Amendment is at risk.

Nowhere is this danger more apparent than in Abrams's current case, defending journalists Judith Miller and Matthew Cooper from a government subpoena over their confidential sources. Abrams is basing his case on the First Amendment. But as two authors of the act under which the reporters are being subpoenaed have written, it's not even clear an investigation (let alone subpoenas) is justified, given the specifics of the case. Jack Shafer has made a compelling argument that Miller and Cooper should reject Abrams and his First Amendment-based defense of them. A narrower defense, based solely on the act in question, might lead to surer victory.

As I argued in my previous lengthy post (and see also the more recent commentary and links over at Just One Minute), I continue to believe that it's absolutely ridiculous to suggest that reluctant witnesses, whether from the press or otherwise, have legal standing to abort altogether a criminal investigation that has not yet gotten out of the grand jury investigation stage. We have an entire criminal justice system that emphatically does not turn on such witnesses' assessment of whether a crime has been committed or how criminal statutes ought to be applied to facts to which neither they nor we are fully privy — facts that by definition the prosecutor and grand jury have not yet fully plumbed themselves.

It is awfully amusing, though, to watch the angst develop on the left as this case progresses. And for all my regard for Floyd Abrams — whom I hope is indeed counseling his press clients as to the big-picture strategic aspects of the precedents he might set, or fail to set, or even erode, while representing them in court — I continue to believe that folks like Mr. Dryer and Slate's Jack Shafer are misdirecting their fretting. Mr. Abrams is, ultimately, not a principal here; he's an advocate, and he's ethically required to follow his clients' directions.

If they think the facts of this particular criminal investigation (what we know about them, anyway) don't present a good pattern to put "at risk" the concededly muddled state of federal precedent on whether there is, or ought to be, a federal common-law "shield privilege" or even more fundamental First Amendment precedents, then Mr. Dryer and Mr. Shafer should be talking not to Mr. Abrams, but to his clients (Miller and Cooper) and their employers (the New York Times and Time magazine). Other reporters apparently have managed to avoid outright defiance of grand jury subpoenas in this case, perhaps by obtaining their confidential informants' consent to waiving confidentiality or otherwise.

In short, if Mr. Dryer and Mr. Shafer think that this case unjustifiably puts First Amendment law at risk — and I certainly agree with Mr. Dryer that the current "ambiguity regarding the right to confidential sources often works in journalists' favor" — they need to tell Matt and Judy to cop a plea, cut a deal, and give up their sources instead of insisting on being martyrs. Don't blame Floyd, First Amendment icon though he justly has become.

Bit more time for blogging

I was told yesterday that the middle of my trifecta of trials set back-to-back in fact won't be reached, and will instead be reset for sometime in the summer. I hope to be able to write more about the just-concluded trial, but it's not quite wrapped up (still one more fight to finish, with my predecessor counsel on the case), and I'd best not quite yet. The third is still set for April 11th, and I'll be fairly busy with it between now and then. But I hope to have some more time for blogging over the holiday weekend, at least. Much thanks to those of you who continue to stop by!

Trial lawyer sour grapes

Prof. Bainbridge, Prof. Volokh, and John Steele all have posts about Los Angeles County District Attorney Steve Cooley being quoted as saying that the jurors who acquitted actor Robert Blake of murder were "incredibly stupid."

I agree that this wasn't an ethical violation by D.A. Cooley, but I also agree with all three that a top public servant making this public comment about a panel of jurors in the public justice system is ... incredibly stupid.

I'm reminded of online poker games in which, inevitably, on average once every half hour, one player will begin ragging on another for playing stupidly.  "You cold-called with a 9-3 offsuited?!?" the complainer will sputter. "How incredibly stupid!" Of course, these rants always come immediately after the player with the 9-3 offsuited has just made a full-house to beat the complainer's ace-high flush.

Maybe the jurors in the Blake trial were incredibly stupid, and maybe the player who cold-called with a 9-3 offsuited was too. But in neither poker nor lawsuits is there any profit in saying so, even if you fervently believe it to be true — and it's ill-mannered to boot. A good and mature poker player will respond to his bad beat by saying "Nice hand! Way to hang in there!" and then buckle down with the sure knowledge that eventually he will take the bad-but-lucky player's money (if they play long enough). A trial lawyer (prosecutor or otherwise) should say, "We took our licks today, and we're surprised by and disagree with the jury's verdict, but we believe in the system." (Fill in your own good sportsmanship cliches here.)

I've just taken my own licks in a jury trial. But I told those jurors during final argument that my client and I would respect and accept their verdict — and I do. I'm of course wondering why this jury's damages verdict was considerably lower than I expected, and in particular, whether (a) I misread the case originally, (b) I actually didn't do as well as I thought in the trial, or (c) there's been a broad change in local jury attitudes recently. It's important for me to try to draw conclusions on each of those subjects because of how they might affect what I do for other clients in the future. But any of those explanations, or all of them in some combination, are far more likely than that the jury was "incredibly stupid," at least in this particular trial.

And occasionally — quite rarely — I have seen juries do stupid things, in my own cases or a few others in which I knew enough about the case to draw that conclusion confidently. In a profession with as much subjectivity as mine and D.A. Cooley's, you expect to see a certain number of aberrations. I don't know enough about the Blake trial to say whether it was one or not. But if I did, and if I thought so, I certainly wouldn't — from a position like D.A. Cooley's — ever say so for public attribution.

Progress report from the courthouse trenches

To be very crude, a crusty, longwinded trial lawyer with a gray beard like mine doesn't have many cherries left to pop. But although in the last twenty-five years I've tried a couple of dozen personal injury cases from the defense side, and also have handled many dozens more from the plaintiff's side in pretrial proceedings that ended up in settlements more recently, I've never — before this afternoon — listened to the judge read the verdict of the jury in a personal injury case I've tried all the way through from the plaintiff's side. This, in a case in which I first entered my appearance as (successor) counsel of record for the plaintiff last Wednesday, and picked a jury yesterday morning.

Tactical victory: A favorable verdict, and one slightly in excess of the pretrial settlement offer. Strategic disappointment: A verdict far, far below what I'd hoped for and expected.

It was an absolutely clean trial — a fine judge; competent and talented and very professional opposing counsel; cost-effective and swift justice for both sides. I know I did my best. And the result — although hugely disappointing — doesn't shake my fundamental faith in the jury system. There are lessons to be learned, I'm sure. But tonight the surprise and the sting on my cheek are still too fresh to try to speak or infer them; and the case isn't quite final yet, and I don't have my client's permission to say anything more here yet anyway.

A colleague who watched the trial will interview the jurors by phone in the next few days, and I hope from that to be able to draw some tentative conclusions: Did I overplay my hand, or did I misread it to begin with? From what's admittedly only a tiny data point — albeit one that looms large in my personal viewpoint at the moment — can I draw any interesting conclusions, for example, about broad changes in jury attitudes, perhaps due to public concern about "tort reform"? Perhaps, perhaps; I think maybe so; but I dunno yet, I just ... don't know.

I'm reminded of a motivational saying I've seen variously attributed to Hippocrates, Chaucer, and Abraham Lincoln: "The life so short, the craft so long to learn." That much, I certainly can confidently affirm.

Lines overheard, in a breathless feminine voice, from the next table at the restaurant that leave Beldar sputtering and gasping with laughter for no apparent reason

"But I just love Charlie Sheen!"

Why Larry Tribe is a dangerous man

NRO's Ramesh Ponnuru points us to this online letter from Harvard Law Professor Lawrence Tribe, responding to Mr. Ponnuru's recent column suggesting that Prof. Tribe has been guilty of some self-promoting revisionist history.

I don't have anything particularly relevant or original to say about the merits of their dispute, but in reading Prof. Tribe's letter, the final sentence of this paragraph sent shivers down my spine (emphasis added):

That connection, one beyond a lawyer’s logic, impelled me to press, both orally and in my reply brief, the argument that even if the public’s right to see justice done was protected in so many words neither by the First Amendment’s “freedom of speech” nor by the Sixth Amendment’s right “of the accused” to a “public trial,” the “tacit postulates” of our system protected that right. The Ninth Amendment is among the reminders that those postulates count every bit as much as the text itself.

And there you have it in a nutshell, folks. Do you want your President to appoint, and your Senate to confirm, federal judges in the Larry Tribe mold — judges who believe that the "tacit postulates" they see fit to read into the Constitution "count every bit as much as the text [of the Constitution] itself"?

Say it with me now, reverently: "Tacit postulates!" By golly, now, that's something worth fighting a revolutionary war to create and a civil war to maintain, isn't it?

In algebraic terms, I wonder if this works out to TP = C^prime or instead to TP ≥ C^prime? I dunno, I never was much good at algebra.

But I'm damn sure "TP" is a variable.

Advance apologies for light posting

I'm announcing "ready" for one jury trial tomorrow; for another one in two weeks; and for yet a third in mid-April. Chances are good that all three will be reached, which would mean back to back trials for ol' Beldar. The middle one might turn out to be something I can blog about eventually — in fact, I'm already having to bite my fingers to keep from using my blog as a mock jury pool because it raises issues which I'm quite sure that both my lawyer and nonlawyer readers would find provocative, and it's a genuine "case of first impression" both legally and factually that it's awfully hard to predict how a real jury will react to. Anyway, my blogging over the next several weeks is likely to be light and even more unhinged than normal.

Bay on Sgrena

The single best article or blog post I've read yet on the Guiliana Sgrena incident, unsurprisingly, comes from retired Col. Austin Bay. Not too hot, not too cold — and written by a guy who knows whereof he speaks regarding traffic patterns in Houston, LA, and Baghdad, automatic weapons, roadblocks, and rules of engagement.

Lessons of the Little Red Hen: Noam Scheiber misses the point

The New Republic's Noam Scheiber argues that the Republican Party is less likely to benefit from the wave of "democratization" going on in the Middle East than the Democratic Party:

[I]n the long-term, I think Bush's democratization initiatives clearly benefit Democrats, assuming they don't find a way to screw it up. Here's why: The Republican base consists primarily of Southern and lower-midwestern isolationist/realist types, Western libertarians, conservative evangelicals, and K-Street taxcutters. (As far as I can tell, no one ever lost a Republican primary by failing to win the neocon vote.) None of these groups gets particularly excited about democratizing foreign countries — either because they think it's a utopian project doomed to fail, or because they think it's likely to do more harm than good, or because they think we could put the money and effort we'd spend promoting democracy abroad to better use at home. Except for a small circle of neocons, the only reason most conservatives support Bush's democratization rhetoric is partisanship — because, absent the democratization rhetoric, Bush's entire foreign policy would look like one big disaster, which would be devastating for the party.

The Democratic base, by contrast, consists of a bunch of activist types who love spending time and money on idealistic causes, and who can be convinced to spend it abroad as long as you persuade them the motivation is pure. They believe in things like democracy, human rights, civil society, responsible governance, etc. with every fiber of their being. (If you don't believe me, just ask yourself which party you think, say, most third world debt-relief activists cast their vote for, or members of the free-Tibet movement, or the groups who lobby for equal rights for women in the Muslim world.) Democrats, in other words, have principled reasons for supporting democratization abroad, which, in many cases, even outweigh their intensely partisan dislike for this administration.

Even leaving aside the offensive suggestion that only Democrats can be principled in "every fiber of their being," what an incredibly pre-9/11 mentality this displays! And what an incredibly offensive pigeon-holing of Americans of all political stripes and colors!

Earth to Noam: Every American President for generations, Republican and Democrat alike, has talked the talk about democratization. Jimmy Carter, to take one example, could pontificate and moralize with the best (or worst) of 'em. Grand rhetoric, patient diplomacy, and economic incentives all have a role to play, and frankly, in the big picture, there's not a whole lot to differentiate Carter from Reagan or Dubya on those scores.

So why is Jimmy Carter's foreign policy legacy the Soviet invasion of Afghanistan and the Iranian hostage crisis, while the Gipper's legacy was the end of the Cold War and the opening of Eastern Europe, and Dubya's legacy may be a democratic Afghanistan, Iraq, and [add your favorite despotic regimes' names here]?

The short answer is that Reagan and Dubya understood that the rhetoric of democracy is made real through American military boots on the ground — or at least the credible threat of those boots, as demonstrated by courage and steadfastness of the boot-wearers and their commanders in chief.

I don't mean to suggest that this is something Republicans always get right, or that Democrats can't ever get right. The saddest moment of Reagan's presidency was the retreat from Lebanon, not the Iran-Contra scandal, and likewise the saddest of the Bush-41 presidency was the abandonment of freedom fighters in Iraq after the Gulf War. FDR, HST, and JFK could talk about "fighting for freedom" without provoking giggles, too.

But the changes abroad simply can't be made to happen with words and bucks and parlays alone. The examples for freedom now being set by the brave peoples of Afghanistan and Iraq could not have happened without American military action as a predicate. Encouraging moves toward openness and nonsupport of terrorists in Libya, Lebanon, Egypt, Saudi Arabia, central Asia, and elsewhere would not have happened without the credible possibility of intense American involvement, potentially and eventually up to the point of having American boots on the ground.

When you broaden your political viewpoint beyond "energizing each party's base" and look at the American public more broadly, big chunks of it — regardless of their pigeonholes and past party affiliations — are capable of figuring this out. And they're also willing to accept the premise that the best protection for America — the best way to prevent more 9/11s — is to promote democracy and democratization effectively, which means aggressively. Mr. Scheiber's analysis of various coalitions within the Republican party ignores the fact that aggressive democratization abroad has become a domestic security interest that transcends old coalition and even party labels.

For the Democrats, then, to ever benefit in a material way from the "politics of democratization," they will have to field a candidate whom the American public, and the world, believe to be willing and able to take the risks, fade the heat and verbal brickbats, and put American boots on the ground when necessary.

Could the Dems do that? Sure they could, in theory — if they repudiate their recent history and their far-left wing (a/k/a "their base"). They can't nominate another Jacques Forbes Kerry, though. I'm betting on Hillary the Hawk as the Democratic nominee in 2008 precisely because when it comes time to point to Dubya's successes and say "I coulda done that!" in the caucuses, she's likely to have marginally more credibility than a John Kerry or a Howard Dean. But Condi's still gonna kick her butt, because with Hillary, it's gonna still be an act — posturing, just like her hubby firing off a volley of cruise missiles to wag the dog — and enough people will see through that.

Mr. Scheiber's suggestion — which effectively boils down to "We Dems will get the credit and reap the domestic political rewards from world-wide democratization because, after all, we're the only principled people" — is just silly self-deception. When it comes to making the bread of democracy, and then to enjoying the eating of it, Mr. Scheiber and his fellow Democrats should remember the tale of the Little Red Hen if they don't want to remain like the little yellow goose, peering sadly through the White House windows from outside.

How private accounts will "fix" Social Security's solvency problems

After the last State of the Union address, I wrote that "if there's a compelling reason to believe that personalization/privatization will address and solve the [Social Security] solvency concerns, I haven't heard it explained yet in words that can penetrate my liberal-arts-major consciousness."

But now VodkaPundit a/k/a Will Collier has done the best job I've seen so far of connecting the two issues in a candid and compelling way. Read the whole thing — it's not long, and excerpting only part of it here wouldn't do it justice.

Will's right, of course, that telling the truth will be dangerous, because when the truth is unpleasant — as, I think, the demographic truths of Social Security's future are — it's going to be spun hard by the truth-teller's political enemies.

TANSTAAFL, baby. That's a hard, cold macroeconomic truth: There ain't no such thing as a free lunch. If younger individuals are allowed to opt into a voluntary private accounts program, they will indeed face market risks. Diversification and a long time horizon can mitigate those risks, just as they do with private retirement investments. Perhaps those unwilling to "gamble" on market returns for their private Social Security accounts can instead gamble on future politicians not cutting their benefits/raising everyone's tax rates.

But the demographics are going to require that everyone face either one gamble or the other. Me, I'm more inclined to trust market forces than politicians, and I'm attracted both philosophically and fiscally to the idea of owning (being able to control, pass on) my retirement investment.

Dubya has a gift, in his best moments, for speaking plainly notwithstanding political risks. I hope he'll whap his speechwriters and political consultants upside the head, damn the torpedoes, and start making the case for private accounts in blunt terms like Will has used. Promising all things to all people without cost is pandering. Facing up to hard economic truths and then laying out options for dealing with their consequences is courageous — "hard, hard work," to borrow from Dubya's debate phrasing. But it needs to be done.

There are none so blind

I won't blame the Houston Chronicle's Mike McDaniel for the ridiculous headline on his story today about Dan Rather: "Rather climbing down from the pinnacle." But it's fair to say, I think, that the editor who wrote it and Mr. McDaniel both fall into the category of "those who will not see."

If the "pinnacle" in question were meant to suggest the highest point of arrogance, incompetence, barely-concealed bias, and willful duplicity, I'd agree that Dan Rather once stood at the top of that mountain. But that's clearly not what Mr. McDaniel or the headline writer intended. They used "pinnacle" to mean a lofty, admirable, well-earned and -regarded position in the world of mainstream media journalism. To suggest that Dan Rather "climbed down" from that position presumes that (a) he was ever there to begin with, and (b) he came down of his own accord. Neither of those premises is true, and the second one is laughably false.

Just how clueless is Mr. McDaniel? A quick indicator is when he refers to last fall's controversy as "Memogate." A quick Google search does indeed produce 55,000 hits, but "Rathergate" produces more than five times as many. It's not a trivial distinction: That someone would forge (ineptly) a set of memos to try to blacken a presidential candidate's reputation is neither surprising nor of cosmic significance by itself. That the "face" and principal symbol of a major network TV news organization would actively conspire to spread the fraud, and then to conceal that conspiracy, is of cosmic significance.

Mr. McDaniel buys into Dan Rather's spin bigtime:

Rather initially stood by the report. Twelve days after it ran, he issued an apology. He's been tight-lipped about it since.

Rather's is the most public face of that report, and his many critics think he championed it. An internal investigation came down hard on CBS but spared Rather and CBS News President Andrew Heyward.

"This is my personal view, but there are two things that have not gotten the attention they deserve," Rather says. "One, this panel found that whatever mistakes were made, they were not born out of political bias. No. 2, after spending four months and $5 million trying to establish that the memos were 'forgeries,' as so many have called them, the panel was unable to do that.

"I think it's fair enough to say that the documents weren't conclusively authenticated. I've acknowledged that, said I'm sorry and taken steps to see it doesn't happen again."

Oh, please. Even for a puff-piece, even for an op-ed, this string of distortions would be beyond the pale, but Mr. McDaniel's article is published as "news." Rather's defiant self-defenses outnumber his "apologies" by a huge margin, and he's been anything but "tight-lipped." The panel report inexcusably stopped short of saying that the documents had been conclusively proved fraudulent; Rather turns that on its head to say that they weren't "conclusively authenticated," and Mr. McDaniel signs on to that distortion without comment. The panel likewise refused to draw a conclusion, one way or the other, on whether Rather and his team's motive was self-glory or craven political bias; Rather paints that as exculpation and a ratification, and Mr. McDaniel swallows and then regurgitates that line of crap just as eagerly. Mr. McDaniel writes that CBS "spared" Rather and CBS News president Andrew Heyward, as if they were exonerated when in fact they've hung onto their employment by their fingernails and linger on in disgrace (which, itself, is another disgrace).

That Mr. McDaniel can quote a Rather phrase like "'forgeries,' as so many have called them" without blushing or refutation puts Mr. McDaniel quite near the pinnacle that Rather actually occupied.

If the panel had written, "Dan Rather is unquestionably the worst disgrace to journalism since the invention of the printing press," Rather would have spun it as "The panel compared me favorably to my peers from the classical ages of Greece and Rome!" And flacks like Mr. McDaniel would nod and smile and applaud — as the American public collectively rolls their eyes in disgust, and leaves in droves to look for other sources of news and commentary.

Reading a piece like Mr. McDaniel's, I'm left with equal parts of outrage, revulsion, pity, and regret. What's missing from my reaction is any sense of surprise.

Beldar to FEC: Bring It On!

The blogosphere (e.g., InstaPundit, Power Line, Michelle Malkin, Prof. Bainbridge, Red State, La Shawn Barber, Xrlq, WizBang, PoliPundit, The Democracy Project, and many, many others) is abuzz with worries that the Federal Election Commission, per a decision of a single federal district judge, might begin applying the McCain-Feingold campaign finance laws in a way that will treat blogs who discuss a politician or link to his/her website as having made an "in kind" campaign contribution, thereby subjecting bloggers to regulation, disclosure requirements, and potential civil and criminal penalties.

Thus, for example, Chris Muir's hilarious take in his cartoon strip "Day by Day." And in addition to these eloquent posts directly on the subject, my blogospheric friend Captain Ed of Captain's Quarters has added this disclaimer on an unrelated post in which he discusses Sen. John Cornyn (R-TX)'s smackdown of Sen. Robert Byrd (D-WV) (boldface by Cap'n Ed):

Please note: For FEC purposes, I must ask you not to donate to John Cornyn's campaign fund while visiting his website, nor do I endorse the Senator in any re-election bid. Unless he and his colleagues take some action to reverse McCain-Feingold, I'm afraid I'll be writing this about every politician currently in office.

Which prompted me to leave this comment regarding Cap'n Ed's post that included the disclaimer:

Cap'n Ed, if the disclaimer is intended to draw attention to a ridiculous decision on a ridiculous law, that's fine. I think your actual risk doesn't justify it, however, and I certainly have no intention of publishing that kind of thing on my own blog posts. If they want to make me the test case, they know where to find me. In the meantime, I'm not going to be intimidated by one loopy ruling of one federal district judge far from where I live.

To expand on that somewhat:

I'm emphatically not an expert on campaign finance laws, but I do know my way, in a general sense, around First Amendment precedent. I'm not giving legal advice to fellow bloggers or anyone else here, nor pooh-poohing their concerns. By all means, I encourage fellow bloggers and blog readers to express their concerns on this subject to the F.E.C., their legislators, and the public at large.

But speaking just as one crusty old trial lawyer who also happens to write a blog with his bemused observations and occasional rants about politics, I'm damned sure not going to change my blogging style, nor start running disclaimers every time I blog about a political issue or a politician/candidate. It's business as usual at BeldarBlog.

If the F.E.C. wants to make me their test case — and a test case somewhere outside the Beltway may be appropriate, given the F.E.C.'s decision not to appeal Judge Kollar-Kotelly's district court ruling to the D.C. Circuit — I'll gladly waive personal service and/or arrest. I'll meet 'em at the courthouse steps with my pocket copy of the Constitution in one hand and my keyboard in the other. Here's my wrists, boys — cuff me if you dare.

Maybe I'll beat Judith Miller and Matt Cooper to a jail cell. But I doubt it; and at least I'd have a genuinely principled reason for being there.

Two Yalies pay tribute to Jackie Robinson

On tonight's PBS News Hour, I just watched two Yalies, tall men in good suits, speaking about Jackie Robinson. As described elsewhere:

Bush and Kerry ... shared the same stage at a U.S. Capitol ceremony honoring Robinson, who broke Major League Baseball's color barrier in 1947 by becoming the first black player in baseball's modern era. He was posthumously awarded the Congressional Gold Medal, the highest award Congress can give.

Both men spoke eloquently in the short video clip I saw, but only one man used short sentences and plain, powerful words. One seemed to me to have a special gleam in his eyes that bespoke an involvement with and passion for baseball and its heroes. The other seemed to me to be reading a prepared text in that sonorous, somnorific drone we all came to know so well last year.

As the ceremony ended, the man who sounded less like a stereotypical Yalie was standing by Jackie Robinson's widow, applauding with the crowd. He spotted someone in the audience, made eye contact, nodded toward a back exit, and clearly mouthed the words, "You wanna ride?"

One of these men paid tribute from the heart to an American hero, and his ego and personality are completely compatible with thinking of someone else's convenience (could have been Laura's, could have been some aide's, I dunno) despite his high office, weighty responsibilities, and busy schedule. The other man showed up for a photo op, and will be forever associated with the phrases "Do you know who I am?" and "That son-of-a-bitch ran into me!"

I've been thinking I ought to update my banner image at the top of this page, just because it's been there since before these two men squared off in the November election. But I think I'll leave it there a while longer.

Executing criminals who couldn't legally buy a drink when they committed their capital crimes

I haven't yet read the Supreme Court's new death penalty decision, and may have more to write about it tomorrow. But I can't resist whacking this comment by Andrew Stuttaford on The Corner:

Looks like a good decision to me (although international 'law' should not have been cited in any way). I'm biased, of course, in that I'm opposed to the death penalty in almost every circumstance, but, in particular, I've never understood the logic of a system which provides that someone is old enough to be executed for a crime committed at an age at which (so says Elizabeth Dole) he is too young to handle a beer.

This is way too facile to take seriously. The prospective beer purchaser hasn't already been through a preliminary hearing in which a judge, listening to evidence particularized as to him, has made a ruling that the prospective purchaser should be treated by the law as an adult. There aren't twelve clerks, good and true, at the 7-11, backed up by a trial judge and layers of appellate courts and years of appeals, to review the twelve clerks' decision. Even if there were twelve clerks, they wouldn't have sworn an oath to listen carefully to evidence presented by degreed, professional advocates arguing for and against the proposed purchase of alcohol by that particular 17-year-old, and to follow the judge's instructions. Indeed, they wouldn't have heard the judge's solemn instructions that they must take that 17-year-old's entire life story, including his age, into account in making their ruling on the proposed six-pack purchase. They wouldn't spend hours or days or many days deliberating on it, and have to reach a unanimous decision. They wouldn't have to look into the eyes of the victim's family, or the eyes of the accused and his family afterwards.

Juries decide the fates of adults charged with capital crimes. I believe in that system. I believe that juries are able to make highly individualized and conscientious decisions about whether a particular defendant's age when he committed the capital crime is a sufficient factor, when added in with all the other aggravating and mitigating factors, to swing the balance against the death sentence, with the prosecution appropriately being given the burden of proving the aggravating factors beyond a reasonable doubt just as they did the underlying crime.

In short, I believe that there are indeed 17-year-olds who could be trusted to buy themselves a six-pack, but there's no system in place to distinguish between them and the ones who can't. There is a system — human and therefore imperfect, but nonetheless extremely elaborate and time-tested — for determining which capital defendants deserve death notwithstanding their age when they committed the capital crime. Society's decisions as to whether (a) every 18-year-old gets to buy a beer or (b) one 17-year-old (when he committed the capital crime) will get a lethal injection, have essentially nothing in common with one another.

I write this, by the way, as a father of a 17-year-old son.  I have no doubt that if there were the same elaborate system individualized checks and balances for buying beer as there is (or rather, was before today) for the administration of capital punishment, his maturity level would be found equivalent to or better than any 18-year-old in either.

There are serious arguments to make on both sides of yesterday's decision.  But with due respect, Mr. Stuttaford's isn't one of them.

When I grow up ...

I want to be as smart and eloquent as Victor Davis Hanson.