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Friday, September 30, 2005

Roberts; Miller; DeLay

I can't not post on a day that has so much law-related stuff in the news:

  • By far the most consequential news was also the most expected — that we have a new Chief Justice of the United States, the Hon. John G. Roberts, Jr. The 78 confirmation votes he received in the Senate was consistent with my prediction ("more than 70 votes" but "I don’t think he’ll break 85"). Yeah, it's a triumph for the Bush Administration, but more importantly by far, it's a triumph for the rule of law, in general and as applied, in our nation.

  • Judith Miller, her employer, and their allies are spinning desperately to make her look anything north of stupid today, and it's just not working. Another victory for the rule of law, another defeat for self-important and self-deluded scofflaws. The funniest lines I've read so far about her capitulation come from her near-maniacal supporters at Editor & Publisher:

    It's even possible that it was Fitzgerald who ultimately "cracked," eager to produce indictments but with the grand jury session wrapping up without Miller's key testimony on Libby. Or, on the contrary, Miller might have finally blinked, fearing that the prosecutor would extend the life of the grand jury, leaving her behind bars for many more months.

    Yeah, right. Mr. Fitzgerald's an utter wreck, just begging Ms. Miller to let up on him. Whoever on the "E&P Staff" wrote that stinker has either punctured his/her cheek with his/her tongue or is living blissfully in Bizarro World; my money's on the latter. The second funniest bit: Despite being in one but not the other continuously since July 6th, Judy still doesn't know the difference between "jail" and "prison."

  • The fact that Travis County District Attorney Ronnie Earle is well documented as a prosecutorial over-reacher, a hyper-partisan loose cannon (almost as dangerous to himself and members of his own party as to opponents), a grandstander, a frequent magnificent loser at the courthouse, and one of the biggest horse's asses in the history of Texas does not mean that Tom DeLay is necessarily innocent. But neither does the fact that Tom Delay has been indicted mean that he's guilty. I am not among Rep. DeLay's fans, but I do think he's entitled to his presumption of innocence.

Posted by Beldar at 12:15 AM in Law (2006 & earlier) | Permalink


Other weblog posts, if any, whose authors have linked to Roberts; Miller; DeLay and sent a trackback ping are listed here:

» Catching my eye: morning A through Z from The Glittering Eye

Tracked on Sep 30, 2005 9:39:53 AM

» Beldar on Delay etc. from ProfessorBainbridge.com

Tracked on Oct 2, 2005 1:28:37 PM


(1) Patterico made the following comment | Sep 30, 2005 12:54:54 AM | Permalink

Good going on the prediction. I did indeed give Dems too much credit.

(2) sammler made the following comment | Sep 30, 2005 4:09:19 AM | Permalink

I'm afraid the DeLay circus is just one more reason for people to despise the government -- which makes them less attentive to issues, and increases the contempt with which government will treat the people.

(3) Geek, Esq. made the following comment | Sep 30, 2005 9:05:23 AM | Permalink

Uh, Beldar, how can someone be a "hyper-partisan loose cannon" who's almost as dangerous to members of his own party as he is to Republicans?

I mean, if he's a loose cannon that goes after members of his own party more often than he goes after Republicans, that makes him hyper-partisan?

To early to tell on the meat of his case against The Hammer--that indictment was thin, but presumably he has more than he revealed there.

As long as he didn't get a sworn statement from Bill Burkett . . .

(4) Dave Schuler made the following comment | Sep 30, 2005 9:38:13 AM | Permalink

and one of the biggest horse's asses in the history of Texas
Surely not, Beldar. There's some pretty stiff competition for that title.

(5) gsbaker made the following comment | Sep 30, 2005 10:40:24 AM | Permalink

I think we all know what Delay did. The presumption of innocence is for the courts and not us gossipers and ankle biters. The real question is was what he did ilegal and if so what would be an appropriate penalty.
That the Democrats were doing the same at the time probably confirms your opinion of Earle and his activities.

(6) Rightwingsparkle made the following comment | Sep 30, 2005 11:01:08 AM | Permalink

NRO is reporting that Earle has had a film crew filming him for 2 yrs now. I'm thinking he needed a bit of sizzle to bring the reality show to the airwaves.

I've never been a fan of Delay either, but if this is the reason for the indictment, then I am on Delay's side all the way.

(7) Patterico made the following comment | Sep 30, 2005 11:40:19 AM | Permalink

"I am not among Rep. DeLay's fans, but I do think he's entitled to his presumption of innocence."

Of course he is -- in court. In the court of public opinion, we're entitled to offer opinions as to whether he's guilty based upon what we know.

But we should recognize that our opinions may be wrong because we don't know all the facts. Also, our opinions should be based on evidence, of which there is precious little that's been made public so far. And an indictment by itself proves fairly little.

Frankly, there's more publicly available evidence of Earle's partisanship than there is of DeLay' guilt.

(8) Beldar made the following comment | Sep 30, 2005 11:59:31 AM | Permalink

Geek asked,

how can someone be a "hyper-partisan loose cannon" who's almost as dangerous to members of his own party as he is to Republicans?

He apparently hates, and trashes, Republicans across the board and as a class. He claims to be a rock-solid member of, and to admire wholeheartedly, the Democratic Party (e.g., in its own fundraising, in which he's frequently been an enthusiastic participant).

I'm not, by the way, suggesting that his securing an indictment against Rep. DeLay was due solely, or even mostly, to the fact that Rep. DeLay's a Republican.

But it would be inaccurate to describe Earle as "nonpartisan" or "bipartisan" or anything other than a very active, aggressive, prominent, and lifelong Democratic Party partisan.

Mr. Schuler, I agree that there's lots of competition. But I suspect, for example, that you might get a genuinely bipartisan agreement that Earle's a serious contender from most other Texas politicians if they were to speak candidly. The late Lt. Gov. Bob Bullock, for example, and Dubya would almost certainly have both agreed. He may not be in the alltime top 5, but he's somewhere in the top 20.

(9) Mark L made the following comment | Sep 30, 2005 6:44:10 PM | Permalink

Earle *used* to go after Democrats. This was back in the 1970s and 1980s. But the Democrats he went after shared one characteristic -- they were *conservative* Democrats. You know, like Phil Graham, and . . . well, Rick Perry. The old Blue Dogs that all became Republicans by the middle of the 1990s.

Today, it is hard to name a Democrat that is not liberal in Texas -- most of them are now in the Mapes-Rather moonbat wing of the party. So since 1993 Earle, having purged the Democratic party of those of impure ideology has stuck to persecuting -- er, prosecuting Republicans. It is hard for me to take any Earle indictment dealing with campaign finance laws seriously.

(10) Ben Zeen (a pseudonym) made the following comment | Sep 30, 2005 10:44:52 PM | Permalink

If I may, I'd like to pursue a slight tangent to the DeLay issue.

The relevant Texas statute covering this matter places jurisdiction for campaign finance violations by non-Texas residents in Travis County. Avoiding for the moment the questions this raises about Earle's jurisdiction on this matter, why are the residents of Travis County, and thus Earle and his grand jury, privileged in this way?

I suspect there may be a reasonable public policy rationale for this, but it seems like jurisdiction should properly reside at the state level, with the Texas AG. As a non-lawyer and resident of California, I humbly request that the sages of Texas reduce my ignorance.

(11) Tom Maguire made the following comment | Sep 30, 2005 10:54:22 PM | Permalink

Although I have not been crediting you, your lone comment (to the effect that you can't run out the clock on Fitzgerald, since he can extend his grand jury) has triggered a modest redirection in my thoughts about Ms. Miller.

Anyway, there is a legal brouhaha stirring (or maybe a legal hahaha), and you may have a chance to step into a dispute between myself and John at Powerline.

You'd have to be crazy, of course...

(12) Beldar made the following comment | Sep 30, 2005 11:47:06 PM | Permalink

Ben, the campaign finance law in question is very much based on a populist anti-corporate sentiment. So putting its enforcement into the hands of a law enforcement official who's "close to the people" and "less likely to be beholdin' to corporate special interests" therefore is somewhat consistent with that notion.

There may indeed be a more pragmatic, less principled reason to explain why enforcement powers weren't given to the AG -- going back, for example, to a particular AG and a particular Texas Governor or Legislature who had some feud going on. In the old days when Texas was a one-party state, intra-Democratic Party competition often played out in such feuds; if you wanted to become Governor, you got yourself elected Comptroller or AG and then led a righteous campaign against the incumbent Governor. A local DA presumably wouldn't be as likely to be looking for a state-wide platform from which to lead a jihad, and would therefore be less of a threat to act out of pure spite and politics. But while an explanation like that wouldn't surprise me, I don't know (and haven't looked into) whether that's the real explanation for this particular statute.

(13) hunter made the following comment | Oct 1, 2005 1:13:21 AM | Permalink

The AG of Texas is severely limited as to the kind of law enforcement he or she can engage in. If I recall, the AG is limited basically to civil action in terms of law enforcement, although the recent storm aftermath does point out that the AG is enforcing price gouging. Be that as it may, Texas, under the current constitutional arrangement, will never have an Elliot Spitzer. Instead, we are stuck Ronnie Earle of the People's Republic of Austin.

(14) Ben Zeen (a pseudonym) made the following comment | Oct 1, 2005 2:36:35 AM | Permalink

Beldar, hunter: thanks. I suspected the reason was some sort of preference for a more local official. It still rankles me a bit that there seems to be little recourse, even if it was true that Earle abuses his office to harass his political foes statewide, and could continue to do so solely because it amuses the locals. But then there are lots of things I don't like that are the least-bad known solutions.

(15) Beldar made the following comment | Oct 1, 2005 5:31:32 PM | Permalink

Well, the AG is not entirely out of the criminal justice system loop. The AG's office, for example, routinely takes over from local prosecutors in defending against federal habeas corpus petitions. There's also quite a bit of civil law enforcement that overlaps with criminal law enforcement, e.g., the anti-fraud provisions of the Texas Deceptive Trade Practices-Consumer Protection Act, which empowers the AG to seek civil injunctive relief to put an immediate stop conduct that may also be criminally fraudulent. But I think it's fair to say that historically and in general, Texas has traditionally relied upon local prosecutors, rather than the AG, for in-the-trenches enforcement of its criminal laws.

I also agree with hunter that it's unlikely that Texas will have its own Elliot Spitzer, but it's not necessarily for lack of ambition on the part of past Attorneys General. Jim Mattox — whose name is again in the news and the blogosphere as someone Ronnie Earle unsuccessfully prosecuted — tried hard to ride into the governor's mansion based on an aggressive prosecution of the national and international insurance industry. Dozens of other state AGs joined in consolidated antitrust proceedings in federal court in San Francisco; only Jim Mattox filed his own separate state-court lawsuit. As it happened, that provided me with two years of steady and interesting employment (the high point of which was when legendary, longtime state insurance commissioner Lyndon Olsen declared under oath that the members of the industry were far too stupid to mount an effective conspiracy, and that they'd devour each other and their own young in competing against each other if the regulators would only let them). Other than employing lots of private-sector lawyers like me, however, the campaign ultimately accomplished nothing but a huge waste of state resources, and it certainly didn't get Mattox promoted into a higher office.

(16) jb made the following comment | Oct 2, 2005 11:43:43 AM | Permalink

While I agree completely with everything else you have posted about the DeLay affair, please comment on this: When Mr Fitzgerald agreed to limit his questioning of Ms Miller to Mr Libby's activities, was that not a bit of a retreat? It has been speculated that she did have other sources that she is protecting (other than her husband, who would be off limits due to spousal privilege?).

(17) Beldar made the following comment | Oct 2, 2005 12:32:11 PM | Permalink

jb, that's certainly the way Ms. Miller and her allies have spun things, and it may be that Mr. Fitzgerald provided an assurance now that he hadn't before. That may beg the question of whether he was asked for that assurance before. It definitely begs the question of whether he was at a point in his investigation then when he had sufficiently narrowed his focus and exhausted other leads as to be comfortable giving such an assurance. I certainly can't rule out that Ms. Miller thinks she needs to protect other confidential sources besides Scooter Libby. I don't think, though, that necessarily or even probably means that Mr. Fitzgerald has ever wanted to quiz her about those other sources.

(18) cathyf made the following comment | Oct 2, 2005 6:03:23 PM | Permalink

I'm curious. It seems plausible that Miller knew who Plame was and how she got her husband sent to Niger from her sources in the CIA, and may have been the one who explained it to Libby. Suppose that Miller's source in this was some civil servant. If this is the scenario, is it totally up to Fitzgerald's discretion whether to pursue the civil-servant source for unauthorized disclosure of classified information? Is there some guideline that would strongly discourage him from heading off on that tangent? Or is there some guideline which would obligate him to follow up on that possible violation of the law?

cathy :-)

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