« February 2007 | Main | April 2007 »

Friday, March 30, 2007

Why is this not the solution re the 15 British hostages?

This is a serious question, not a rhetorical one. Someone tell me, please, why this is not the solution — the obvious solution, and the solution that most obviously will work — to end, on just and proper terms, the current controversy between Iran and Britain:


30 March 2007

Ambassador Rasoul Movahedian
Embassy of the Islamic Republic of Iran
16 Prince's Gate
London SW7 1PT

Mr. Ambassador:

The Islamic Republic of Iran's seizure by armed force of 15 uniformed British sailors and marines from Iraqi territorial waters on 15 March 2007 was an unprovoked act of war against the United Kingdom. Our efforts to settle this dispute through peaceful means via the United Nations have been unavailing; you have unequivocally confirmed your unwillingness to participate in meaningful negotiations through that forum; and further proceedings there would obviously be futile.

Unless our personnel are returned to us unharmed by 11:59 o'clock p.m. London time on 2 April 2007, this Government will be obliged to conclude as of that date and time that a state of war has existed between the United Kingdom and the Islamic Republic of Iran since 15 March 2007.

In that event, we will, of course, be calling upon the U.K.'s allies, including but not limited to the United States of America, for such assistance as they and we deem prudent pursuant to our respective treaty obligations or otherwise.

Govern yourself accordingly.

/s/ Margaret Beckett
Foreign Secretary
United Kingdom of Great Britain and Northern Ireland


Hon. Condoleezza Rice
U.S. Department of State
Washington, D.C. 20520

Hon. Jaap de Hoop Scheffer
General Secretary
North Atlantic Treaty Organisation
Brussels, Belgium


(Extra credit assignment: This explains why the above won't be sent, but should be. Casus belli in a sentence: "If a non-nuclear Iran kidnaps foreign nationals in international waters [and gets away with it], we can imagine what a nuclear theocracy will do.")

Posted by Beldar at 05:51 PM in Global War on Terror | Permalink | Comments (16)

Thursday, March 29, 2007

My name is Leading Seaman Faye Turney ...

Royal Navy Leading Seaman Faye Turney"My name is Leading Seaman Faye Turney," begins the voice on the video. "I come from England. I serve on Foxtrot 99, and I've been in the Navy nine years."

"Foxtrot 99" is Her Majesty's Ship Cornwall, the British frigate on which Leading Seaman Turney serves. The video includes a very short shot of Seaman Turney and the other crewmen from the Cornwall after their capture last Saturday as they're being ferried to Iran. In that shot, of course, she's in a Royal Navy uniform. Her head is uncovered, her hair pulled back but exposed.

As she is being interviewed in the video, however, Leading Seaman Turney wears a black veil (I gather it's also called a "hijab" or a "khimār") to cover most of her hair, with some sort of white gown or burqa covering her body. In another shot in the video, one of her and crewmates being fed while in captivity, she's still in her Royal Navy uniform, but wears a white veil with a blue check-marks pattern.

Elsewhere, I read that Leading Seaman Turney has a husband named "Adam" who's a Petty Officer in the Royal Navy, and together they have a three-year-old daughter named "Molly." This strikes a personal chord: I too have a daughter named "Molly," and I have a son named "Adam."

Of their religious beliefs and preferences, I read too that Faye and Adam Turney "were married in 2002 at her family’s local church in Oxon, Shrewsbury. Their daughter was also christened at the church." From that, I infer that she's probably not an adherent of the Islamic faith. From another U.K. news source, I read of Adam Turney's parents that

[t]he couple know their son and daughter-in-law are never called upon to under-take potentially dangerous missions at sea together.

One of them is always assigned land duties to allow them to be in the same country as their child.

So while Faye Turney was piloting one of the two boats [from the Cornwall] seized off Shaat-al-Arab waterway off Basra in Iraq, Adam was working as an instructor aboard HMS Raleigh, berthed close to their home in Plymouth.

Leading Seaman Turney's Iranian captors can force her to wear a burqa and a veil. They can coerce her to mouth the lies they've fed her, and they can then use the resulting video images in their propaganda efforts. And I guess that there probably are some people around the world who sympathize with her captors, or who otherwise find cause to celebrate in the forced imposition upon Leading Seaman Turney of the Islamic command that women are

not to display their beauty except to their husbands, or their fathers, or their husband's fathers, or their sons, or their husband's sons, or their brothers, or their brothers' sons, or their sisters' sons, or their womenfolk, or what their right hands rule (slaves), or the followers from the men who do not feel sexual desire, or the small children to whom the nakedness of women is not apparent ....

I have no doubt that the reason her Iranian captors chose to coerce a phony "confession" from her in particular, and to display her in particular in the video they've released, is precisely because she's a woman. The Iranians may also insist on referring to her as "Mrs Turney," and various newspapers' and press agencies' stylebooks may likewise dictate that quaint form of reference (even though that's particularly anachronistic, at least bordering on inappropriate, in this context).

Leading Seaman Faye Turney, Royal NavyThe Iranians are apparently too stupid to realize, however, that in the first few sentences of her videotaped "confession," this twenty-six year old woman just kicked their asses in front of most of the world — specifically, in front of everyone in the world, including certainly some Muslims, who reject the notion that their religion, or any religion, or any army or regime may crush the individuality and humanity out of someone just because she's a woman:

"My name is Leading Seaman Faye Turney," she says. Her voice is calm on the video. But the subtext shouts "LEADING SEAMAN, do you GET THAT? I come from a world where women can wear Royal Navy combat gear and pilot assault boats without anyone thinking that's blasphemy or even unusual. I come from a world where women are people instead of possessions. I've been doing this for NINE YEARS, this is my CAREER. And when I choose my headgear, it's not some veil — it's the beret that's part of the uniform of a member of Her Majesty's Royal Navy."

Her daughter Molly, when she grows up, and her husband Adam will doubtless always consider Leading Seaman Faye Turney to be a hero many times over — not just as a mom and a wife, but as a warrior serving her country. Her very existence is a rebuke to the barbarism of her captors. Later this afternoon, I'm going to discuss these events with my own Molly and Adam as well, and I'm quite sure they'll feel the same way.


UPDATE (Thu May 31 @ wee-small-hours): Re-reading this entry in the light of the fuller story of the British sailors' captivity, I must recognize that there are good arguments to be made, and that have been widely made, to the effect that some of them behaved badly while in custody and then upon their release. Some apparently "broke" — gave the Iranians pretty much all the cooperation they demanded — on threat of torture not much more severe than the Monty Python "comfy chair/soft pillow" gag. Be that as it may: I stand by my original point, which has to do with the fact that a western woman — any western woman — has the opportunity to choose career paths, live her life, and pursue happiness in a wide variety of ways that would result in fatal stoning were a woman from a strict Muslim community to try to do so. I am not a cultural relativist: I claim that our culture is, indeed, a superior one in many respects, and this is one of them.

Posted by Beldar at 07:35 AM in Global War on Terror | Permalink | Comments (10)

Tuesday, March 27, 2007

Fish. barrel. law professor — bang!

It seems to be Jonah Goldberg week at BeldarBlog. (It may be some strange convergence of the stars, or maybe the end of the Battlestar Galactica season. Jonah is the only nationally famous pundit whose dog has ever linked to my photo album of my dog, which did endear Jonah and Cosmo to us both). But anyway:

Quoth the fish Professor Paul Campos of the University of Colorado School of Law in a Rocky Mountain News op-ed today brazenly entitled "Confess Your Hypocrisy" (emphasis mine):

[T]he parallels between [Sen. James] Inhofe's criticism of Gore and the "chicken hawk" argument made by opponents of the Iraq war are striking. Consider the hypothetical case of an Iraq war supporter who we'll call "Jonah." Jonah posts lots of things on the Internet in which he argues that the Iraq war is the central front in the war on terror, and that the war on terror is a fight for America's survival.

When critics point out that our military has had to lower admission standards in order to meet recruiting quotas, and that Jonah himself is a healthy man of military age, Jonah replies that he's contributing to the global war on terror in his own fashion, by posting pro-war arguments on the Internet, attaching a yellow ribbon magnet to his car, and so forth.

This response is just as lame as Gore's, and in exactly the same way. If you claim we're facing a huge crisis that requires great personal sacrifice on everyone's part, but refuse to make any real sacrifice yourself, then your attempts to obscure the latter fact through empty symbolic gestures deserve to be mocked.

If you mischaracterize your opponents' argument, then in comparison, in the very short term, your own argument will sometimes look better than it deserves to. They teach us in law school, however, that that is not a very smart thing to do, because when you do it, it's fairly easily demonstrated that you've been disingenuous. Then you lose your credibility, and people think you're a mullet (or worse).

I defy you, Professor Campos, to find a single speech of President George W. Bush in which he has urged all American men of military age to enlist so that we can pursue the Iraq War. I defy you to find any argument by any prominent and respected supporter of the Iraq War in which the argument is advanced that, "To win in Iraq, we need every eligible American male to join up!"

That is silly. The parallels aren't "striking"; rather, they're a figment of Prof. Campos' rhetoric, and not a very good figment at that.

Many people on the left, on the right, and in the center have remarked — and correctly so — on the enormous difference between the Iraq War and, for example, either of the World Wars, in terms of the sacrifices the American public has been asked to make. The sacrifices asked of the public in those other wars were non-trivial, and they weren't just for show. Rubber and petroleum, for example, are commodities that get used up very rapidly in wartime, and for which synthetic substitutes or alternate production processes were just becoming available in the 1940s. Japan seized Indonesia precisely to guarantee its own supply of those commodities; the southern half of Germany's invasion of the Soviet Union was directed at seizing the strategically essential oil fields of the Caucasus (in part so the Germans could make synthetic rubber out of the oil there). And America, in addition to building the network of government-owned (but industry run) petrochemical plants along the Texas gulf coast that remain a backbone of our petrochemical economy today, instituted rationing to ensure that the military had the rubber and petroleum it needed to fight and win the war. People had to patch their flat tires, run them bald, or just do without, and gasoline was rationed too.

But of course, World War II was not just a "world war," it was a "total war." The total strength of the U.S. armed forces by the end of that war was over 12 million men and women, and we built more entire airplanes during World War II than we've ever had individual soldiers stationed in Iraq. Our modern military forces were able to topple, in a matter of weeks and with amazingly few casualties, the armed forces of Iraq that had withstood years of conventional warfare, and that had inflicted and taken hundreds of thousands of casualties, against Iran just a few years earlier. But they're just that damned good, God bless them. And yes, we were able to do that without having to stop manufacturing new cars (to switch the auto plants to tank production), and without having to ration gas or rubber, and without having to draft millions of new soldiers.

If it's your husband or your sister who's been killed or wounded in Iraq, it's as horrible a tragedy for your family today as it was for the American families of the 1940s; so I don't mean to minimize or trivialize the casualties we have suffered. And yes, we've spent a whopping bunch of money on the Iraq War too.

But we could double, or triple, or grow ten-fold our current commitments in Iraq — of course that would take a while to do, but I'm talking hypothetically — and still not make a fraction of a shadow of a dent in the American economy, or in everyday Americans' lives, as compared to the upheavals that World War II created.

If we have the political will to do so, we have the military and economic resources to continue to maintain our current activities in Iraq more or less indefinitely. The "data" Prof. Campos cites are ridiculously shallow and inconsequential. If he means to suggest that we're actually at the brink of our national capacity in war-fighting already, he's insulting not only current-day America, but the legacy bequeathed to us by our parents and grandparents. Sure, we might have to up some financial incentives or do some other juggling to maintain (or better, grow) an all-volunteer military force; and in the short term, individual units and personnel and families have indeed had to contribute more than what's "fair," more than would be prudent, more than they would have if we'd planned more wisely and farther in advance. But redirecting even a tiny fraction of our GNP could certainly produce more volunteers than we could train and absorb even if we were growing the military ten-fold. There is no conceivable scenario in which the Iraq War will ever require the United States to draft — or even accept, if we volunteered — Jonah Goldberg, or me, or Prof. Campos.

That's a good thing, and not just for the three of us. That we have the capacity to prosecute such a war, without having to disturb the economy or the daily lives of most Americans, is a mark of how incredibly rich our country is, in just about every way you want to measure that. If you want to find anything bad about that, it's sort of an inverse, perverse corollary of Prof. Campos' silly argument: Many Americans don't properly appreciate the stakes involved in Iraq precisely because we, as a nation, have had to sacrifice so little of our blood and treasure on it so far, as compared to previous wars like World War II, or even as compared to the wars in Korea or Vietnam. World War II was a war in which we'd take more American casualties on a single day — to advance 250 yards across an insignificant speck of an island in the middle of the vast Pacific — than we've taken in the entire Iraq War so far put together. That we can affect matters of global strategic importance without hundreds of thousands of casualties, or without redirecting 30 percent of our gross domestic product, is a very good thing!

So Prof. Campos' premise — that those who support the Iraq War "claim we're facing a huge crisis that requires great personal sacrifice on everyone's part" — is a load of crap. Nobody (other than the odd straw-man manufacturer or two) is claiming that.

Mind you, an American loss in Iraq would indeed be a crisis. The strategic and geopolitical risks being defended in Iraq are huge, even if you just look at geography and natural resources and completely ignore the threat from radical Islamic fundamentalists. The consequences of a failure there might indeed impose sacrifices on everyone in the United States — the West continues to be incredibly vulnerable to disruptions in the supply of Middle Eastern oil, and it's not hard at all to imagine scenarios in which the pump price for gasoline paid by Americans, for example, might triple, or in which we might have to ration gasoline as a result of failing to commit sufficient resources in Iraq that are now, comparatively, plentiful. But we're at no risk of losing the war, or a battle, or a skirmish, or a velcro patch off anyone's uniform, because of the absence of buck privates Goldberg, Campos, or Dyer.

To any rational student of world history and world affairs, the cost-benefit ratio of continuing in Iraq is a no-brainer — on a national, macroscopic basis, it is indeed something we can afford to invest in, even if it's a high-risk, long-shot investment, without having to make "great personal sacrifices on everyone's part." That's not a "gotcha" for critics of the war to throw in the faces of "chicken-hawks." Rather, that we can pay the requisite price without great across-the-board sacrifices by all our citizens is another reason why it would be so very tragic to simply quit, to cut and run, to give up, to abandon both hope and strategic interests.

Gore's argument, by contrast, is indeed that without changes in each and every one of our lives and in our national and world economy altogether comparable to the disruptions created by World War II, Manhattan Island will be twenty feet under water before my children have grandchildren. I think that's a preposterously overstated argument, which I suppose makes me an "aggressively ignorant demagogue" (the term Prof. Campos uses for Sen. Inhofe, who I'll agree acted badly during Gore's recent Senate testimony). But whether Gore's right or wrong, there simply is no way to equate his arguments about individual responsibility for global warming to anyone's arguments about what's needed to maintain, or even increase, our operations in Iraq. As Prof. Campos himself concedes, based on the nature of Gore's own argument and his lifestyle, Gore indeed has some hypocrisy to concede.

I rest my case. Prof. Campos — hey, you, swimming in circles over there in the barrel! Bang.


P.S.: Re-reading this post, I recognize that my snark dial was obviously cranked up to eleven as I wrote it. Prof. Campos' own snark dial was probably only at about an eight in his op-ed, and I think his jabs at Mr. Goldberg were probably intended to be at least in part humorous, even though these are very serious subjects.

In any event, Prof. Campos is a serious scholar with a distinguished record and position; I don't intend any personal insult by my snark; and neither do I suggest that Prof. Campos' arguments are made in bad faith. They're just silly. If he'd care to reconstruct them without the faulty premise, I'd be glad to give him space here or, as he'd more likely prefer if he thinks any response is appropriate (which he may well not, given the humble nature and limited audience of my blog), I'd gladly link to wherever he might choose to publish his extended and revised remarks. (Not that I'm actually humble, nor that you, gentle and valued reader, are limited in anything but a numerical sense.) Onward and upward.

Posted by Beldar at 11:58 PM in Global War on Terror | Permalink | Comments (8)

More Beinart vs. Goldberg on Vietnam

It's gotten hard for me to read The Corner without running into the Battlestar Galactica spoilers, and I plan to spend the balance of this evening catching up via TiVo. But I also made time to watch and listen to Episode 2 of the "PB&J Show" (a/k/a "What's Your Problem?"), a recorded online debate between Peter Beinart and Jonah Goldberg. Mr. Goldberg was generous enough to link my post from Saturday about their on-going debate, so I was curious to see what was said next between them.

I was not disappointed. Which is to say, as I expected, Mr. Beinart displayed an abysmal grasp of history, precisely the "memory hole" about which I wrote on Saturday. Rough quote: "To me, what's really remarkable about Vietnam is how little, given what everyone had said, our defeat in Vietnam ended up mattering.  I mean, maybe Cambodia fell, but even in that region, American allies didn't topple." Mr. Goldberg then pointed out that many more people died in Southeast Asia because of our abandonment of South Vietnam than have died in the current liberal cause célèbre, Darfur, and noted that liberals always leave that part of the story out when they're talking about Vietnam. In response, Mr. Beinart said (again, rough but close quote): "Well, the moral story of Vietnam is multi-faceted. I mean, we also killed a lot of people while we were there, through pretty savage bombing, particularly under Nixon. And while you can say Cambodia wouldn't have happened if we hadn't left, you can also say Cambodia wouldn't have happened if we hadn't come."

So you see, according to Mr. Beinart, a few thousands of civilian collateral casualties incident to American strategic bombing — many of which were the result of the North Vietnamese government's pioneering use of the "human shield" concept, i.e., surrounding likely targets with civilians — is morally comparable to the genocide of millions in Cambodia, and to the killing, imprisonment, and/or violent displacement of millions more in what had been South Vietnam.

And besides, the genocide was our fault anyway.

So there you go, folks. If you wonder, as Mr. Goldberg has been doing, whether the Democratic Party will be deterred from a cut-and-run policy in Iraq by fears that the resulting bloodbath in the Middle East will later cost Democrats at the polls, then there's your answer: No, they won't be deterred, because they are confident that they won't suffer any such consequences, because the people they're counting on to vote for them after the bloodbath are the people as colossally foolish, and as stupendously ignorant of (or willfully blind to) history, as Mr. Beinart. It worked for the Democrats with respect to Southeast Asia, for whose abandonment and destruction in 1974-1975 the Democrats never paid a political price. Why should they think it won't work now in Iraq?


UPDATE (Wed Mar 28 @ wee-small-hours): It occurs to me that, in fairness, I should acknowledge some other options that the Democratic leaders may be counting upon, besides voters who are ignorant of, or willfully blind to, history. There are, I posit, some number of voters who know and appreciate the above-referenced and shameful history in Southeast Asia, and have not blinded themselves to it, but who nevertheless conclude that they will vote for Democratic candidates anyway.

That might be because there are other issues (e.g., abortion rights or support for organized labor) that they deem more important than foreign policy and the global war on terror. That might be because they are sincerely convinced that the Republicans' nominees would cause even worse consequences to America and the world than the likely bloodbath in the Middle East, and that keeping the Republicans out of power is more important than any other consideration. Or that might be because they are unconvinced that there will be a bloodbath at all, or at least not one of any lasting consequence to the U.S., in the Middle East. None of these motives are wicked or unpatriotic. And of course, these categories are not all mutually exclusive or absolute.

I want to avoid the trap, all too easy to fall into, of hurling blanket demonizations at the "other side" or at those who vote for the "other party's" candidates, and my original statement above stepped over that line. I know that I have at least a handful of readers who regularly vote the Democratic ticket, others who split their tickets, and yet others who are genuinely independent/undecided. There are also conservatives and Republicans who have contrary views on the Iraq War. I hope those readers will comment when they see me engage in such over-generalizations. Civil disagreement is welcome here; and one thing that I admired in listening to Messrs. Goldberg and Beinart debate was their reciprocal civility and goodwill.

However, people who fall into one of the four categories posited in this update may still be accurately described as excusing the cut-and-run Democrats from paying any political price for the consequences of a forced, premature withdrawal from Iraq. And obviously, I disagree with their conclusions. Obviously I have no way of knowing how many fall into these categories.

Still, if Mr. Beinart is representative, that suggests that not many do — because based on his written and oral arguments, he clearly seems to be in the "ignorant of, or willfully blind to, history" category. To know for sure, one would have to ask more detailed follow-up questions than Mr. Goldberg had the opportunity for, such as: "How many civilians do you think were killed by American bombing in Vietnam, and how many do you think perished in Cambodia and the former South Vietnam? Do you know what happened in Laos in 1975 and after? Do you know what happened between China and Vietnam, or Russia and Vietnam, after 1975? What, if anything, changed in Thailand, Malaysia, Indonesia, and the Philippines between, say, 1965 and 1975 — and what's significant about that earlier date in the Vietnam War's history? Tell me specifically why you think Republicans are "silly" to argue that South Vietnam could have resisted the North indefinitely, a la the South Korea or West German paradigms, if American support had continued? What impact would other world events (e.g., the Soviet invasion of Afghanistan in 1979, or the growing American trade with China) likely have had on Southeast Asia if South Vietnam had stayed viable that long? Why do you rule out the likelihood that America's abandonment of South Vietnam, even after withdrawing its ground forces and minimizing the risk of further substantial casualties or POWs, encouraged such things as the truck bomb at the Marine barracks in Lebanon, the seizure and hostage-taking at the American embassy in Tehran, or continued superpower proxy wars in Angola and Central America?"

I would be fairly surprised to get knowledgeable answers to these questions from someone who equates deaths in Vietnam due to American bombing and the subsequent genocides in Southeast Asia, but I suppose I could be wrong.

Posted by Beldar at 07:51 PM in Global War on Terror, Politics (2007) | Permalink | Comments (5)

Boom industry: Pre-paid legal insurance for public servants?

This New York Post op-ed from John Podhoretz takes as its fanciful premise someone applying for a job as a public servant in government. JPod uses the conversation during this hypothetical job interview to point out, sadly but correctly, that those who aspire to such positions these days are increasingly at risk of needing high-priced legal talent to defend them in court — and the higher their aspirations for service, he suggests, the more likely they are to have the need.

My first thought on reading this op-ed was: Yeah, that's true — and one's risk isn't even much diminished if one's already a lawyer oneself. Such was certainly the case for the public servant who I'm sure JPod had in mind when he wrote this op-ed, the just-convicted Scooter Libby. Libby had been a senior partner in a high-powered international law firm in between his positions in government. (There are, in fact, some who argue that Libby needed a better lawyer sooner, and that he erred in relying on a former law partner without deep experience in high-profile criminal matters during the initial FBI investigation and grand jury proceedings.)

My second thought was: Lawyers are actually at something of a disadvantage when charged with misconduct while acting as public servants, because everyone imputes to them a degree of cunning which they may or may not actually possess. For example, Libby's brilliant career, including his legal training and experience, provided the prosecution with powerful arguments against his defenders' claims that he'd had innocent lapses of memory.

Which led to my third thought: Of course, Clinton and Nixon were both lawyers too, and they certainly ended up paying millions in legal fees. At least one of them nevertheless did end up getting off lightly, and reasonable arguments can be made that both of them did. Certainly despite all the legal fees they paid, neither ever missed any meals or had to shop for their clothing at the Goodwill. Their troubles were of their own making; they brought upon themselves their own need for armies of lawyers to defend and represent them.

Which led to my fourth thought, which isn't ultimately inconsistent with the first three, or with JPod's op-ed: The risk of being called upon to hire lawyers to defend oneself in legal proceedings is indeed a dramatic and daunting one. But it does indeed go with the territory. By definition, public service entails responsibilities that may, and certainly should, outweigh its privileges; otherwise it is "self-service," isn't it? With great responsibility comes greater risk of close scrutiny and, indeed, unjust accusations. There's no way around that. We certainly don't want high public servants who are incapable of understanding those risks. When you agree to live in a glass house, you ought to expect to have to make other life-style changes besides just cutting back on your stone-throwing hobby.

And yes, finally, those risks should be at least as great for lawyers as for non-lawyers in public service. As professionals we purport to hold ourselves to higher standards. We are supposed to know better. And we ought not be immune, or less exposed, to the risks that others face as public servants — one of which, unquestionably, is the risk of having to spend money to pay lawyers to defend you on charges and claims that would never have arisen but for that public service.

JPod's hypothetical job interview is, then, only loosely metaphoric. We do want people for public service who will go through just the sort of questioning — at least self-questioning — that he proposes, and who will, nevertheless, answer, "Yes, I understand that I'll be at greater risk for needing to hire lawyers to defend me someday, but I do want this job anyway." That's true even for the lawyers among them; in fact, it's true especially for the lawyers among them.

Posted by Beldar at 06:22 PM in Law (2007), Politics (2007) | Permalink | Comments (6)

Saturday, March 24, 2007

Beldar on Goldberg and Beinart on whether Democrats have paid a political price for opposing the Vietnam War

NR/NRO's Jonah Goldberg takes issue with an op-ed in TIME in which TNR editor Peter Beinart argues that the new Democratic majority in Congress ought to "go for it" — meaning, here, Democratic party leaders continuing to act very aggressively, beyond what the Democratic Party's own center or center-right will support — in trying to end the Iraq War in very short order. As part of that argument, Mr. Beinart makes this assertion about the relevance of the political history and precedent from the controversy over the Vietnam War:

... Just before the Senate narrowly voted down a Democratic resolution calling for withdrawal in 2008, a G.O.P. staff member crowed that "the public won't go for it." Haven't the Democrats learned anything from Vietnam?

Actually, they have. Despite today's conventional wisdom, Democrats didn't suffer in the 1970s for opposing Vietnam. And they're even less likely to pay a political price for trying to end the war in Iraq.

Mr. Goldberg argues that by "going for it" in the manner suggested by Mr. Beinart, however, the Democratic leaders would do their party more damage than good:

[E]ven if you agree to his argument that Vietnam didn't hurt the Democrats in the 1970s (I think there's a debate to be had and — hey! — we just may have it)[, it] certainly hurt the Democrats in the 1980s. Reagan's popularity stemmed in large part from his ability to defeat the Vietnam syndrome. Clinton would never have been elected in 1992 with his Vietnam record if the Cold War hadn't been over, and even then it was a tough haul. The war on terror won't be over any time soon, so they can't rely on a political peace dividend the way Clinton did in 1992. And the Democrats seem to be working overtime to make their foreign policy stance as indecipherable as possible. Peter sees nuance. It's not clear to me average Americans will.

I'm not sure what I think about the ultimate issue they're debating, but on the specific issue of whether the Vietnam experience was, overall, something that hurt the Democrats, I find myself in disgusted agreement with Mr. Beinart — and in fact, I'd go farther than he does, and argue that the Democratic Party never paid a serious political price over Vietnam at any time.

Right now, though, I don't care much about whether either party pays a political price. Instead, I'm worried about the consequences for our nation, and the world, if in the current debate about Iraq, Americans fail to consider properly what happened as a result of the American abandonment of South Vietnam in 1973-1975. I'm worried about the price we'll all end up paying if we cannot overcome our national amnesia on that subject.


To many, including probably to most of us who came into our (at least chronological) adulthood in the 1970s, there are good and handy reasons to remember that decade as if it embodied a consistent set of themes and events — the way most Americans now think of the 1950s, for example, as the "Eisenhower/'Happy Days' era." But the 1970s weren't at all homogeneous, and I think both Mr. Goldberg and Mr. Beinart err in so assuming. The 1970s actually break up into discrete and dissimilar chunks.

By January 1, 1970, there were indeed still very, very committed and defiantly radical anti-war Democrats raising hell over Vietnam. But Richard Nixon had just finished beating a Democratic centrist on war issues, Hubert Humphrey. And more to the point, Nixon was about to absolutely thrash the Democratic Party's next presidential nominee, George McGovern, whose candidacy is now remembered only for two things: He was the standard bearer for the radically anti-war hard-left in the Democratic Party, and he brought the Democratic Party to an electoral nadir exactly eight years after Lyndon Johnson had done the same thing to the Barry Goldwater-led Republicans. Throughout the first 3-1/2 years of the 1970s, the hard-core anti-war Democrats had almost completely lost traction on Vietnam — or rather, they'd been effectively outmaneuvered by Nixon's combination of successes in Vietnam (albeit controversial ones) that had permitted him to withdraw most American ground forces and his overall foreign policy success in skillfully exploiting the growing China/USSR rifts.

Mr. Beinart describes the subsequent turn-around in power, and then the effective ascendancy of the hard-core anti-war Democrats, thusly:

In 1973 the Senate voted to suspend funding for American military operations in Vietnam; the next year, Congress voted to cut off aid to the embattled government in Saigon. Some of today's commentators argue that those votes devastated the Democratic Party in the mid-1970s. But if so, the Democrats had a strange way of showing it. They won the 1974 midterm elections in a landslide. Two years later, Jimmy Carter grabbed the White House. To be sure, Watergate played a major role in those victories. But if the party's efforts to end the war weren't the primary reason for its success, they certainly didn't hurt.

Those are (mostly) the right dates. Mr. Beinart ought also have certainly included the Congressional vote in early 1975 that rejected Pres. Ford's frantic plea for financing and air support to prop up our South Vietnamese allies who, prior to 1974, had been holding their own against the North, but by early 1975 were being completely overrun in conventional military battles that American air power could have turned around without any re-commitment of American ground forces.

But Mr. Beinart just misremembers the sequence of events that led up to those Congressional votes on Vietnam in 1973-1975. The hard-core anti-war Democrats' efforts to "end the war" were not only not "the primary reason for [the party's] success," they were a politically negligible reason. Watergate and Nixon's resulting disgrace and resignation directly and damn-nearly exclusively caused not only the 1974 midterms that put the Democratic Party, still controlled by its hard-core anti-war faction, into a dominant ascendancy in Congress, but also hobbled the Republicans with an unelected incumbent whose incumbency permitted him to fend off a vastly more appealing candidate, Ronald Reagan, in 1976.


Thus, Mr. Beinart has gotten his cause and effect confused. The actual cause of the power-shift, Watergate, had two effects relevant to this argument: It both facilitated the Congressional votes in which the hard-core anti-war Democrats finally got their way, and it also misdirected American attention from those anti-war (actually, anti-South Vietnamese ally) Congressional votes. As a result of Watergate, neither the anti-war Democrats, nor the Democratic Party as a whole, ever paid a serious political price at the polls for those votes.

And that's where Mr. Goldberg also begins to get it wrong, or at least to go off in another direction. Yes, Reagan's election in 1980 marked another tectonic shift in American politics. Yes, his eager embrace of an American return to vigorous prosecution of the Cold War and his promise to turn around the shocking decline of the American military both generated substantial political support for him; some portion of the famous "Reagan Democrats" crossed over for those reasons. But my own strong recollection is that many, and probably most, of the Reagan Democrats were motivated by disgust with 20% interest rates, stagflation, gas lines, and American impotence in the Iranian hostage affair. Essentially none of those Reagan Democrats were motivated by guilt over, or disagreement with, the 1973-1975 Congressional votes on the Vietnam War as such.

In other words, in 1980 the Democratic Party and its incumbent president certainly did pay a price — both for domestic incompetency and malaise and for flabby military and foreign policy. But except for a few of us who were already part of Reagan's base anyway, pre-April 1975 Congressional votes over the Vietnam War just weren't on anyone's radar screen anymore.


Maybe when Mr. Beinart was discussing the Democrat Party's opposition in the 1970s to "the Vietnam War," he was indeed really intending to address something broader than those Congressional votes. Whether that was Mr. Beinart's intent or not, Mr. Goldberg certainly presumes that it was the Democratic Party's anti-war policies in the first half of the 1970s which created a broader change in American public opinion and self-assessment, the "Vietnam War Syndrome," that became a reflexive form of American self-paralysis. Mr. Goldberg then argues that the cure for that syndrome somehow exacted a political price eventually paid by Democrats in 1980 and after. (I'm a bit confused by his reference to Clinton's Vietnam draft dodging, but I interpret that to mean that the Democratic Party would have paid an even higher price for its anti-war past as late as 1992, but for the intervening end of the Cold War.)

But the history of American involvement with Vietnam, from the 1950s through 1975, is an incredibly relevant topic that should indeed affect current discussions over Iraq in many, many ways — including the military, foreign policy, and domestic political spheres. The anti-war votes in 1973 through 1975 that did indeed "end the war" are more directly relevant for those discussions about Iraq, I submit, than broader and fuzzier history on the "Vietnam War Syndrome," its cure by Reagan, the resulting end of the Cold War, the first Gulf War, and so forth.

What Mr. Goldberg says after re-defining Mr. Beinart's premise, in other words, may be true. It's just not what's important now, though.

Instead, for purposes of the current debate over Iraq, what's important about the history of American involvement in Vietnam, and especially the American abandonment of South Vietnam, is the blank spot in the American consciousness that continues to leave most Americans (most of whom now have come of age after 1975) serenely ignorant of what I believe to have been the single most shameful event in 20th Century American history. Millions of people died in Southeast Asia as the direct result of those votes by the anti-war Congress in 1973-1975. Almost none of the dead were Americans, though, and the American public was still distracted by Watergate and thoroughly exhausted by bitter arguments over Vietnam that by then dated back more than a decade. And as a result, for most Americans, those horrifying and eminently preventable events simply didn't happen.


That's what I mean when I say that the Democratic Party never paid a price for its opposition to the Vietnam war.

When we're talking now about cutting and running from Iraq, with a risk of regional and world consequences that may well dwarf the bloodbaths in Southeast Asia after March 1975, we must, as a nation, manage to see and to appreciate — and to remember with appropriate horror and regret and, yes, shame — the blood of those millions that will forever stain American history.

Note well: I am not arguing that the piles of corpses in Cambodia's killing fields and the drowned Vietnamese boat people were intended by the Democratic Party as an institution. It wasn't the Democrats from the "Watergate Class of '74" who herded families into reeducation camps and tiger cages. Our guilt and shame ought be as enablers of madmen; our guilt and shame ought to be for failing to prevent that which we could and should, as a nation, have foreseen that the madmen would do. And in discussing the current alternatives regarding Iraq, for example, I do not think that it's particularly productive, nor even very precise, to talk about the Democratic Party's collective historical responsibility, as an institution, for the consequences of those 1973-1975 Congressional votes.

But without slapping party labels around, it is altogether appropriate — it is essential, it is a moral imperative at the risk of our collective and individual souls — that Americans finally grasp and then come to grips with what happened in Vietnam and Southeast Asia in the last half of the 1970s as a direct result of the anti-war, cut-and-run, and cut-off-the-funds politicians of either party who forced this country to abandon our allies there. The lessons here need to be learned by our nation, not just by one or the other of its political parties. In that regard, I'll appropriate Sen. McCain's comment: It's not political parties who win or lose wars; it's entire nations who win or lose wars, and it's nations who bear the consequences.

Since the Vietnam War, our military forces have learned how to conduct themselves in a way that minimizes collateral casualties among innocent civilians. Most Americans now are justly proud of our military for that (and many other things, too). But many millions of innocent civilians are once again at risk of becoming collateral casualties — not of American bombs or tanks, but of gutless and short-sighted American politicians, unless they too can manage to learn the lessons of the aftermath of the Vietnam War.

What mostly suppresses my optimism now is not doubt about whether the Iraq War is winnable, nor my concerns for whether a free Iraq can grow to independent viability. What suppresses my optimism has little to do with the Green Zone in Baghdad, but everything to do with the Capital Dome in Washington. What suppresses my optimism is my fear that anti-war American politicians will doom us to repeat a past that most Americans don't even remember ever having happened.

Posted by Beldar at 11:14 AM in Global War on Terror, Politics (2007) | Permalink | Comments (19)

Friday, March 23, 2007

Mariachi Llaneros de Houston

The guitarronista asked me as I was leaving: "You play the trumpet?"

I think he must have noticed the middle three fingers of my right hand twitching in unconscious valve-movement patterns over the course of the preceding 2-1/2 hours. Or maybe he noticed that I was just paying more attention to the two trumpet players than to any of the other members of his mariachi band.

"A little," I admitted, "but not like them." I banged my fist to my chest, then held up my index and middle fingers, twisted together, to point to the trompetistas. "They must be brothers — they play together so tightly, tan fuertemente  y dulcemente, just like they're one!" I said. "But you're all terrific, thank you all so much!"


I guess there may be one or two first-rate mariachi bands in Des Moines or Grand Rapids; it wouldn't surprise me too much if there were a half dozen really good ones in Manhattan.

But on a spring Friday night like this one, I'm awfully glad to be a Texan, and to live in a big cultural polyglot like Houston. I wandered into my favorite Mexican restaurant tonight and just lucked into hearing an extended and very spontaneous mariachi jam session.

The seven members of the band — two players each for the trumpets and violins, and one each for the Mexican guitar, vihuela, and guitarrón — I'd heard, and much enjoyed, on many other occasions. They're very polished, very precise, and very good musicians. They wear traditional costumes and they stroll, playing customers' requested favorites for tips. But this is not a touristy restaurant at all; most of the regular patrons are locals, and probably 80% of those are Hispanic. The food ranges from traditional Tex-Mex to deep-interior Mexican dishes. And if you think all mariachi bands are hokey clichés out of 1960s American south-of-the-border movies, then you're very badly mistaken.


Tonight, however, there were four customers at the bar — friends who arrived and left together, I think on a guys' night out — who'd arranged themselves on a semi-circle of barstools, around which the band members had then arrayed themselves. One customer — a large and robust man, at middle-age the oldest of the four, and sporting a proud Pancho Villa mustache that flaunts Anglo stereotypes of Hispanic men — must have been a mariachi himself in his heyday: With the accompaniment of the band and his friends, he was belting out a fabulous assortment of heartfelt vocals that I'd never heard before. The band members listened carefully to him between songs; although my own Spanish is rusty and weak, he seemed to be giving tips not on technique, but on impassioned musical charisma (which he certainly has himself in spades).

The other three customers in his group made up in matching enthusiasm for what they lacked compared to his musical talents. But all eleven of them together were just having a blast, playing and singing stuff that clearly was not from the band's regular repertory, and that they half-knew only by ear at best.

I could tell it was a special night for them too, because the four customers kept holding up their open-flipped cell phones mid-song. I presume that they were transmitting and/or recording for their special someones far away to hear and maybe see them. The musicians and their avid audience shared cheers and tears and upturned bottles and mugs all around.


Mariachis_2Fortunately for them and for everyone else in the restaurant, my own trumpet was safely tucked away at home in my den. I'm just good enough a trumpet player that I can improvise along with most kinds of music — jazz, pop, rock, blues, gospel, classical, military band, or just about whatever (and I like all those and more) — without embarrassing myself in front of tolerant friends or even strangers. But nobody will ever mistake me for a pro, and I'm sure I would have embarrassed the real musicians if I'd asked to sit in with them tonight. (I suspect they might have politely plied me with enough free drinks until I stopped trying.)

I'm no guitarist, but I can mostly grasp how the string players could fill in and complement each other seamlessly once they'd picked up the key and time signatures and the tempo and the basic chord structure from the vocalist; they were doing mostly rhythm background and sometimes tentative vocal harmonies with the lead singer.

Mariachis2 But mariachi trumpets are alternately dominating or accompanying, staccato or legato — and they're almost always very exposed and paired in close, brilliant harmonies. You've got to have range, you've got to have volume, you've got to have chops of steel, and above all else you've got to have brazen confidence in yourself and your compadre. For the life of me, I can't guess how these two trompetistas managed to improvise so tightly, keeping all those qualities even through syncopation, irregular measures, and fast, difficult articulations.

This was like listening to someone dictate spontaneous poetry, the words of which nobody else in the room knows — but with ten other people interjecting their simultaneous and closely interwoven dictation of all the punctuation. I've seen and heard jazz and blues bands, rock and Dixieland bands, all do something similar before. But I just hadn't seen or heard really talented mariachis jam before tonight.

It was just a treat. My cheek muscles are sore from grinning almost continuously for 2-1/2 hours.


Unpaid and unsolicited endorsement: If you happen to be in the Houston area and need a mariachi band, call Pedro Duran at 832/687-0842 for "Mariachi Llaneros de Houston."

I write this kind of post mostly to record my own memories, rather than out of any expectation that anyone else will find them interesting. However, I do particularly like the opening line of this one.

Posted by Beldar at 10:49 PM in Music/Arts | Permalink | Comments (7)


Along with Roy Rogers and all of the American astronauts, Lloyd Bridges' character "Mike Nelson," in the TV show Sea Hunt, was one of my childhood heroes. It had nothing to do with his heroic actions in the plot-lines of the various episodes. It was simply because he could breathe under water.

I took my first scuba certification course in 1972 while I was still in high school, but — there being a marked shortage of oceans and lakes near my hometown in the Texas panhandle — I was never able to manage the supervised open-water dive necessary to complete the certification. I remedied that through another course I took during college in Austin, though, and I got my basic PADI certification diving in Lake Travis and other Hill Country lakes in 1979. Distractions intervened; it was many more years before I could take the sort of dream vacation that includes serious ocean diving. I finally got my PADI advanced open water certification in 1989, and then had some terrific dive trips to Cozumel, Cayman, and various Texas Gulf Coast spots in the early 1990s. But then I lost my regular dive buddy (and wedding best man and overall best friend) to complications from a tragic snow skiing accident. Because of that and various other reasons, it's been well more than 10 years now since I've done any open-water diving.

But watching a really cool video like this one from InstaPundit certainly makes me miss diving all over again.

One of the things I like best about this particular video is the segment from 1:15 to 1:30 in which a diver is doing a series of graceful 360-degree rolls and then a somersault — all while his arms are calmly folded, motionless, over his chest. That illustrates very well something that I've always had a hard time explaining adequately to non-divers — how scuba diving seems to me more like flying than like swimming.

I'm a decent swimmer, and I enjoy it. But swimming, even graceful swimming, inevitably is all about flailing one's arms and legs through the water, and always having to get one's mouth and nose back out of the water to keep breathing. And swimming, like the rest of life, is mostly two-dimensional — that is, one's own motor power only moves one along either an X-axis or a Y-axis. Our daily lives take place in Flatland, and usually it's noisy there to boot.

But scuba diving makes the Z-axis way more accessible to a human than wings make it accessible to a bird. Scuba (once you learn good buoyancy control) is like having an anti-gravity suit that's nearly effortless and automatic. You're cruising along at 40 feet below the surface, and you see something interesting 15 feet below or above you. With what feels like way less effort and thought than it takes to walk 15 feet on land — without much more conscious thought than it takes you simply to look up or down 15 feet — you glide up or down at your whim. Your own orientation — upright, head-down, prone (either belly-down or -up), or whatever — is likewise completely a matter of your easy choice. (Although most people do tend to want to avoid attitudes that prompt that last splash of seawater which you haven't quite been able to purge from inside your mask running back along your cheeks and up your nostrils.) There's no thrashing. No reaching, climbing, or pulling required. And just the rhythmic, soothing sound of your own calm breathing and tiny bubble-trail.

(The folded arms you see throughout Prof. Reynold's video, by the way, are very deliberate, I'm sure — and a mark of skillful and environmentally conscious divers. If you keep your arms folded then they can't be flailing around and accidentally banging into coral, which can hurt both you and it — and you heal much faster than the coral can! When you're diving somewhere like these reefs around the Caymans, you no more ought to be crashing into stuff than you'd walk through Yellowstone recklessly swinging a running chainsaw. Keeping your arms folded also helps suppress the swimming instinct of trying to use your arms for propulsion, which wastes energy and increases your air consumption rate. People also tend to use their arms to change or maintain their depth without realizing it, which is also energy- and air-wasteful, and something you're better off learning to do reflexively through other buoyancy control techniques. And besides: Gliding along with your arms folded just fits the zen of a good dive.)

Diving is filled with seeming contradictions. It's a group activity that is also intensely personal. It depends on high-tech and fairly expensive gear that is bulky and heavy out of the water, but once in, you completely forget about that gear for the most part, and instead you just feel a profound sensory and spacial freedom. It's the most serene exhilaration that I've ever experienced.

My kids are approaching the ages now when they all can learn to scuba dive. Soon, with them, I hope to go back.

Posted by Beldar at 11:54 AM in Family | Permalink | Comments (2)

Thursday, March 22, 2007

Beldar's reply to Lederman's response re executive privilege

I'm genuinely gratified that Prof. Marty Lederman — whose Balkinization post on the executive privilege ramifications of the current fired U.S. Attorneys controversy I critiqued at length early today — emailed me with a gracious and articulate reply to my critique. I've already appended it in full as an update to my critique, and in this post I attempt to reply to his response. (Sur-replies and sur-rebuttals, however, from the host or otherwise, are strictly forbidden on this blog on grounds of excessive wonkitivity.)


Prof. Lederman is absolutely right that we agree on a great deal. We agree, of course, that the Supreme Court's existing precedent clearly holds that executive privilege is not absolute, but instead merely a qualified privilege that may be overcome by a sufficient showing under one of the Supreme Court's favorite tools, the venerable "balancing test." We likewise agree that a claim of privilege may sometimes be overcome even when the communications at issue are from the POTUS live and in person; the Nixon Watergate Tapes decision leaves no room for argument on that, either. And we also agree that a connection to an ongoing, specific criminal prosecution — like Leon Jaworski's subpoena of the Nixon Oval Office tapes during Watergate — has been given enormous weight by the Court in such balancing exercises. (We disagree, it seems, as to exactly how much weight.)

I'll also largely accept Prof. Lederman's characterization of his intent in his original post with respect to his reference to Secretary Rice's testimony to the 9/11 Commission. He's certainly right that in actual, practical history, Congress has been able to get a whole lot of substantive information about executive branch deliberations through negotiated agreements that have successfully avoided constitutional clashes. Indeed, I'd concede, and I suspect he'd agree, that such agreements — which inevitably include non-waiver/non-precedent clauses — serve a vital purpose. An effective system of checks and balances does not require that Congress and the President always fight to the death with broadswords on every executive privilege dispute, and these agreements have indeed served as useful lubricants to keep the wheels of government turning.


I'm still troubled, though, by what strikes me as a "wink-wink nudge-nudge say-no-more" attitude from Prof. Lederman about the non-waiver/non-precedent clauses. He argues that the many recent inquisitions negotiated by agreement and under such clauses — when considered in the light of other recent "tell-all" trends that consistently compromise executive confidentiality (Stephanopoulos/Woodward) — effectively undercut one of the key justifications for executive privilege in the first place, viz, the need for confidentiality to ensure that the President gets the best possible advice. He shifts into almost a Fourth Amendment sort of analysis: the Prez has no reasonable expectation of privacy, he seems to be arguing. But he doesn't quite come out and say that this is a factor that federal courts ought to rely on as undercutting the weight of executive privilege arguments. In other words, if I understand Prof. Lederman correctly, he's making this as a practical and political point, rather than a legal point regarding legal or factual precedents.

If so, then we may come close to agreement on this as well. I confess, however, that my own background as a trial lawyer inclines me toward pretty strict legal analysis on privilege issues. With the binary set of possible results I face, courts can balance all they want to get to a result, but in the end I either have to hand over the documents and permit the testimony that I've tried to withhold as privileged, or I don't. And I am very confident that, for example, the SCOTUS would emphatically refuse to weigh either Bob Woodward's series of books or frequent testimony and interviews made under non-waiver/non-precedent clauses as legal grounds to reject, or even undercut in the balancing test, a claim of executive privilege. I don't think you can get five Justices to wink-wink nudge-nudge at the same time, and you certainly can't get them to say-no-more.


Finally, Prof. Lederman is correct that I neglected to address in my critique his original post's arguments about one particular type of executive misconduct that might be implicated here. Specifically, in what he refers to by short-hand as the "take care" point, his original post asserted that

pressuring the U.S. Attorneys to make prosecution decisions based on the partisan affiliation of the possible defendants would still be unlawful, because it would violate the President's constitutional obligation to take care that the laws are faithfully executed.

In his response, he asserts this even more strongly:

[T]he principal purpose of my post was to show that there may well have been criminal wrongdoing here — and, more importantly, that there is very strong evidence now that the President and his advisors acted unconstitutionally to the extent the removals had anything to do with the desire to have prosecutorial decisions influenced by partisan considerations. That should, and would, in my view, strongly support the congressional claim here — but I don't argue that it's determinative.

Well, we certainly agree that such an argument wouldn't be determinative in overcoming an assertion of executive privilege. But we disagree as to whether it would even be persuasive.

I recall very vivid arguments from both sides in the House impeachment and Senate trial of President Clinton as to which, if any, of his alleged or admitted acts of misconduct qualified as "Treason, Bribery, or other high Crimes and Misdemeanors" for those purposes. I also certainly recall many references during those proceedings to the Presidential oath to "protect, preserve, and defend the Constitution of the United States," and to Article II, Section 3's injunction that the President "shall take Care that the Laws be faithfully executed." And I emphatically recall President Clinton's defenders' arguments that nothing he had done, even if criminal, rose to constitutional violations, and that instead President Clinton's attackers were trying to "criminalize politics as usual." I'm not suggesting that any of those arguments, and certainly not that any of those provisions in the Constitution, are trivial or unimportant.

I do suggest, however, that none of them are a sufficient, or even a proper, basis for permitting a Congressional subpoena to overcome an assertion of executive privilege. I'm reasonably confident that there is no existing precedent that would legitimize such arguments. And as with my earlier point about the extraordinary potential breadth and the vagueness of "corrupt influence" and obstruction of justice statutes, I'm pretty sure that damn near every political dispute between any President and any Congress, and certainly every personnel decision made by any President, could easily be recast into "He's not taking care that the laws be faithfully executed!" and "He's not protecting, preserving, and defending!"

Congress: "We want to know what Karl Rove said to Dubya last week in the Oval Office about their plans on Medicare reform!" Prez: "Are you kidding me?" Congress: "No, we're not kidding. We have a Medicare statute, and Dubya and Rove have been plotting to gut it, and we're convinced it's for political purposes. That's not taking care to execute the laws of the United States, so we're entitled to overcome Dubya's assertion of executive privilege."

My polestar for this is, again, the Nixon Watergate Tapes case. That wasn't just Congress probing and guessing. That was an independent prosecutor who'd already convicted the little fish, already indicted all of the bigger fish, and already included the biggest fish of all as an "unindicted co-conspirator." Yes, that subpoena was in support of a criminal prosecution under, among others, the broad and vague obstruction of justice statute. But Jaworski had exhausted his less intrusive means; he had specific names, dates, places, and acts tied to essential elements of the crimes indicted; and he had a compelling argument that the material being withheld on grounds of privilege would be directly material to all that. That's at the end of the spectrum where we know that a President's claim of executive privilege was outweighed by other factors.

By contrast, "he's not taking care!" without a whole, whole lot more — without all those hoops that Jaworski jumped through — seems to me to be at the far opposite end of the spectrum. And in the context of a Congressional subpoena, it's an argument being made not by an independent prosecutor, but by a competing branch of government that's supposed to be restrained by checks and balances and whose powers are supposed to be separated. That ultimately gets me, I think, not just to a disagreement with Prof. Lederman's "take care" argument, but at least to the brink of, and possibly all the way over to, arguing that a Congressional subpoena based on a "take care" argument ought to be summarily rejected as a nonjusticiable  political question. Jaworski's criminal prosecution propelled him through that hoop and then on to, and through, the executive privilege hoops. I don't think Waxman's and Leahy's desire for a media show-trial can.

Posted by Beldar at 11:47 PM in Law (2007) | Permalink | Comments (6)

Name that Solicitor General!

For each of the following two quotes, name the Solicitor General being quoted and the Presidential Administration in which he served!

Quote No. 1 (from January 10, 2001):

Executive privilege. Few recent developments have impeded a president's ability to administer the office effectively more than the climate of investigations and the erosion of executive privilege. In the 1950s, President Eisenhower was lionized for invoking executive privilege to protect executive branch deliberations from investigations by Sen. Joseph McCarthy. From Richard Nixon through Bill Clinton, however, "executive privilege" came to be seen as a euphemism for "cover-up." As demands for information on White House deliberations, including memoranda to the president and staff members' own notes and diaries have multiplied, White House officials have found their ability to confer — even to think — impaired by this lack of confidentiality.

This is unfortunate. As the Supreme Court has recognized, the privilege of protecting the deliberative process within the White House "is fundamental to the operation of Government." Because the country is best served if the president's advisors are free to give him blunt, candid, even harsh, assessments, a president and his principal advisors "must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately." Democrats in the Congress and the new administration's critics in the press (an institution that zealously guards the confidentiality of its own internal editorial deliberations) should recognize that every team needs the right to huddle, including the president's team.

Quote No. 2 (from March 20, 2007):

Advice given to the president — there is an interest in having a president get unfettered advice from those who speak directly to him and to have what they say to him and what he says back to them shielded, except in fairly strong circumstances.

But that's not necessarily what is being talked about here [with regard to the fired U.S. Attorneys]. The testimony of the White House officials are about conversations that occur between White House officials and Justice Department officials, not necessarily advice given to the president.

Answer: It's former Clinton Administration Solicitor General Walter Dellinger, in both quotes!

Posted by Beldar at 07:18 AM in Law (2007) | Permalink | Comments (2)

Beldar on Lederman on executive privilege

Marty Lederman, currently a visiting professor of law at Georgetown University Law Center, has a post on the Balkinization blog specifically discussing the Bush administration's likely arguments regarding the applicability of executive privilege in the current U.S. Attorneys firing kerfuffle. (Hat-tip: Orin Kerr at the Volokh Conspiracy.)

I don't know Prof. Lederman. His post is indeed interesting, and I credit him for conceding that at least a few of the Bush administration's arguments may have merit. But with due respect, I still believe that his post is often wrong and sometimes profoundly misleading, if (I presume) unintentionally so.


[Note re update below: Even if you quit reading at some point during my over-long post, you will probably want to skip down to Prof. Lederman's gracious and thoughtful email reply, as reprinted in full below. — Beldar]

In Prof. Lederman's first point, in which he argues that Congress should be able to breach executive privilege to compel disclosure of even White House communications to and from the President himself, Prof. Lederman writes (link in original) that

it's not uncommon for such close aides to testify about matters in the Executive Office of the President — it happened frequently in the Clinton Administration, for instance. In this case, if any wrongdoing occurred, it almost certainly occurred in the White House itself, which is where any incriminating evidence would be. Thus, if Congress is entitled to actually learn about the reasons for the U.S. Attorneys' dismissals, and possible pressure brought to bear on their prosecutorial practices, then it will necessarily need to receive information about what transpired in the White House. (After all, it was the President who dismissed the officers.)

I've got two serious problems with that.

First: Prof. Lederman gives as an example Secretary of State (then National Security Adviser) Condoleezza Rice's testimony before the 9/11 Commission, and he includes a parenthetical noting that "Rice testified on certain conditions," without explaining what those conditions were. Well, exactly what the conditions were is awfully danged important if you're going to cite this example as a precedent. The very first condition set by the Bush Administration, and agreed to by the 9/11 Commission, on this particular appearance was this one:

First, the Commission must agree in writing that Dr. Rice's testimony before die Commission does not set any precedent for future Commission requests, or requests in any other context, for testimony by a National Security Advisor or any other White House official.

I know Prof. Lederman at least had access to that information, because I'm quoting from a letter from Alberto Gonzales, writing to the 9/11 Commission in his then-role as Counsel for the President, that Prof. Lederman quite properly linked from his post. To nevertheless cite the Rice appearance as a specific example that cuts in favor of finding no privilege in the dispute over the fired U.S. Attorneys is, I think, badly wrong. That appearance was stipulated and agreed to have no precedential value for future privilege arguments! And I suspect that Prof. Lederman knows — at least, he certainly should well know, given his own work history and areas of specialization — that reservations of this sort are not only typical, but nearly universal whenever there is a concern on the part of the Administration, be it Democratic or Republican,  that Congressional questioning will get into the decision-making process within the top levels of the Administration.

Second: Although this is an argument couched to appear as a narrow one, in fact it would swallow the executive privilege whole. Prof. Lederman concedes, as he (or any serious debater) must, that in any judicial showdown over executive privilege, "the [Supreme] Court [and presumably the lower federal courts predicting what the Supreme Court might say] would be most reluctant to intrude on Executive communications the closer those communications get to the President himself." He then seeks to distinguish the fired U.S. Attorneys' situation by claiming (italics in original) that "if Congress is entitled to actually learn about the reasons for the U.S. Attorneys' dismissals, and possible pressure brought to bear on their prosecutorial practices, then it will necessarily need to receive information about what transpired in the White House."

But tell me, sir, what situation there might ever possibly be an executive privilege dispute in which there indeed has been communication with the President himself, but in which the President had no responsibility, not even imputed responsibility, for a decision about which (the then-majority party in) Congress wants to inquire? If that's the standard, then there is no executive privilege, ever, except on the most trivial matters. In every important case, where will the "information about what transpired in the White House" pretty much have to come from? Unsurprising answer: the White House! I think this dog not only won't hunt, but it's actually already caught and swallowed its own tail.


I'm also disturbed by Prof. Lederman's arguments in his second major point to the considerable extent that they appear to be based on, and quote from, Nixon v. Administrator of General Services, 433 U.S. 425 (1977):

Congress also has the power to investigate the workings of the Executive branch simply to determine whether legislative amendments are necessary in order prevent or deter undesirable government practices, and perhaps even for the basic function of facilitating "the American people's ability to reconstruct and come to terms with their history," Nixon v. Administrator, 433 U.S. at 452-453 (although for that purpose the need might not be as urgent).

When I first glanced at the reference to that case in Prof. Lederman's post, I was entirely unsurprised. I assumed that he was citing and quoting directly from the very famous Supreme Court case over the production of Oval Office tapes that led directly to Nixon's resignation — United States v. Nixon, 483 U.S. 683 (1974) — to which he'd made a passing reference already. "That's the Watergate tapes case," I immediately thought to myself — quite arguably the most important Supreme Court decision ever, on any subject. Now, I'll grant that if I'd looked closely, the case style referenced by Prof. Lederman, with its short-hand reference to "Administrator," ought to have tipped me off. And if Prof. Lederman had also included the date parenthetical that formal citation form requires, that would have also probably have clued me in that he wasn't citing or quoting from the tapes case, but from some later (and necessarily more obscure) decision.

But I hope no one else made the same mistake I did, because in the passage I've set out above, Prof. Lederman was not citing to, quoting from, or relying on the Watergate tapes case. Instead, the case Prof. Lederman cites by name and quotes from was about whether Nixon was entitled to override a specific statute directed to the question of public access to his entire body of presidential papers and tapes after Nixon had left office. That 1977 case didn't involve a Congressional subpoena, nor a Congressional attempt to itself access presidential papers, nor any kind of subpoena at all. Indeed, it was Nixon himself who brought the case to challenge that statute — a statute which had not only the backing of Congress but which his own hand-picked successor, President Gerald Ford, had signed into law.

As part of its decision, the Supreme Court did review its (admittedly thin) prior caselaw on executive privilege, including of course its 1974 decision involving the Watergate tapes. But in overruling Nixon's attempt to assert privilege as to his entire collection of official papers and tapes, the Court first stressed in 1977 that

to the extent that [executive] privilege serves as a shield for executive officials against burdensome requests for information which might interfere with the proper performance of their duties, a former President is in less need of it than an incumbent.

443 U.S. at 448 (citing United States v. Nixon, 418 U.S. at 714; additional citations omitted).

The Court also found it very significant that neither the Ford nor the Carter Administrations supported Nixon's claim in the 1977 case, id. at 449. That's against a background in which every Administration has the constitutional duty, under the separation of powers and checks and balances doctrines, to jealously guard their own prerogatives.

Of the "estimated 42 million pages of documents and 880 tape recordings whose custody [was] at stake, the District Court concluded that the appellant's claim of Presidential privilege could apply at most to the 200,000 items with which the appellant was personally familiar" — note the recognition here that proximity to the President is indeed important. But the sweeping breadth of Nixon's claims, which embraced essentially everything he or anyone in the Office of the President had said, written, or done during his (almost) two terms in office, also cut strongly against his executive privilege assertion in 1977, id.

Finally, the Court stressed in 1977 that the statute itself contemplated regulations from the Administrator that would "protect any party's opportunity to assert any ... constitutionally based right or privilege," meaning that "there [was] no reason to believe that the restriction on public access ultimately established by regulation will not be adequate to preserve executive confidentiality," id. at 450 (ellipsis in original).

Thus, in the very case cited and quoted from by Prof. Lederman, the Supreme Court left open the very real possibility that Nixon, even after his departure from office, might still successfully raise a more focused executive privilege challenge to the disclosure of particular documents and communications. And thus, to the limited extent that the 1977 case applies at all (given its wildly different circumstances), it actually cuts in favor of a focused executive privilege claim of the sort the Bush Administration could make with respect to communications regarding the firing of the eight U.S. Attorneys. Perhaps Prof. Lederman only intended to yank the quoted phrase from Nixon v. Administrator of General Services out of context to support a more general point about Congressional oversight. (Actually, that case doesn't quite do that either, as evidenced by the fact that the word "oversight" isn't in the opinion, and "oversee" is used exactly once, with reference not to Congress but to the President "oversee[ing]" executive branch offices, id. at 438.) But did he just fail to read the rest of the case?


Prof. Lederman also slams Michael Carvin, a deputy assistant attorney general in the Office of Legal Counsel during the Reagan administration, for saying on the PBS News Hour that

the Supreme Court has made it clear: You need a very clear showing of a reasonable suspicion of criminal wrongdoing to overcome the president's inherent power to get unfettered advice from his advisers."

Mind you, Mr. Carvin made this statement in response to examples listed by former Solicitor General Walter Dellinger (who in other contexts has vigorously argued in favor of executive privilege) in which officials of the Clinton Administration agreed to testify when there were specific criminal violations alleged as the basis for their being called to testify. But nevertheless, says Prof. Lederman's post flatly, "That's wrong. The Court has never even suggested such a rule, let alone 'made it clear.'"

Well, how about this language from the Nixon case that is at least more arguably on point to the fired U.S. Attorneys situation — once again, the 1974 case of United States v. Nixon:

In this case we must weigh the importance of the general privilege of confidentiality of Presidential communications in performance of the President's responsibilities against the inroads of such a privilege on the fair administration of criminal justice. The interest in preserving confidentiality is weighty indeed and entitled to great respect. However, we cannot conclude that advisers will be moved to temper the candor of their remarks by the infrequent occasions of disclosure because of the possibility that such conversations will be called for in the context of a criminal prosecution.

On the other hand, the allowance of the privilege to withhold evidence that is demonstrably relevant in a criminal trial would cut deeply into the guarantee of due process of law and gravely impair the basic function of the courts. A President's acknowledged need for confidentiality in the communications of his office is general in nature, whereas the constitutional need for production of relevant evidence in a criminal proceeding is specific and central to the fair adjudication of a particular criminal case in the administration of justice. Without access to specific facts a criminal prosecution may be totally frustrated. The President's broad interest in confidentiality of communications will not be vitiated by disclosure of a limited number of conversations preliminarily shown to have some bearing on the pending criminal cases.

We conclude that when the ground for asserting privilege as to subpoenaed materials sought for use in a criminal trial is based only on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice. The generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial.

418 U.S. at 711-13 (italics and boldface mine). What part of that is not clear? I count ten uses of the word "criminal" in just three paragraphs — do you need an even dozen for it to be clear? In the single biggest decision rejecting a claim of executive privilege in the history of our nation, a strong preliminary showing of the communications at issue being closely associated with very specific and already-indicted criminal conduct was a key factor, and indeed probably the key factor, in the Court's balancing test.

Even in the 1974 Nixon case, the Supreme Court remanded to the federal district judge with emphatic instructions to conduct a document by document, communication by communication, balancing test, showing extreme sensitivity to maintaining confidentiality to the maximum extent practicable consistent with the prosecution's demonstrated needs:

It is therefore necessary in the public interest to afford Presidential confidentiality the greatest protection consistent with the fair administration of justice. The need for confidentiality even as to idle conversations with associates in which casual reference might be made concerning political leaders within the country or foreign statesmen is too obvious to call for further treatment. We have no doubt that the District Judge will at all times accord to Presidential records [a] high degree of deference ..., and will discharge his responsibility to see to that until released to the Special Prosecutor no in camera material is revealed to anyone. This burden applies with even greater force to excised material; once the decision is made to excise, the material is restored to its privileged status and should be returned under seal to its lawful custodian.

Id. at 715-16 (citations omitted). Contrast that to the current situation: Why do the Democrats in Congress want this to proceed by subpoena-and-oath testimony instead of by the agreement (including a standard non-waiver, non-precedent clause) offered by White House Counsel Fred Fielding? So they can have a mass-media show trial — and that for purposes which, at a minimum, at least include political ones, notwithstanding whatever thin gruel they can dredge up as evidence that there might possibly have been some unspecified crime committed by someone.

At least the 1974 Nixon case did come out against a President's assertion of an absolute executive privilege; Prof. Lederman, or opponents of executive privilege in the current dispute, could indeed to that degree rely on its outcome to some extent. But among the suspected criminals in the 1974 case was Nixon himself as the famous "unindicted co-conspirator." Can anyone doubt that that weighed heavily in the Supreme Court's balancing test?

And keep in mind, too, as the Court emphasized in 1974, that Nixon was only relying on a generalized claim of privilege; had he been able to show an association between the communications sought by the criminal case subpoena and "military or diplomatic secrets," id. at 710, for example, then the Court might have come out the other way even in the 1974 case. Our U.S. Attorneys are charged with such things as border enforcement and other law enforcement designed to protect national security in a time of war. Indeed, that the decisions in question were matters of executive branch hiring and firing — by itself and without reference to their specific duties and job performance or the Administration's enforcement priorities — gives the Bush Administration a far better claim than Nixon could come up with. The 1974 case is all about a balancing test. And no one can dispute that the Bush Administration at least has better arguments than Nixon had that the balance today ought swing in the opposite direction.

Later, Prof. Lederman allows how there is a "grain of truth" in Mr. Carvin's argument, citing Cheney v. United States District Court, 542 U.S. 367 (2004). In upholding a claim of executive privilege, however, Cheney reached the opposite result from the 1973 Nixon case precisely because Cheney didn't involve any criminal allegations, as the Court made abundantly clear:

First, unlike this case, which concerns respondents' requests for information for use in a civil suit, Nixon involves the proper balance between the Executive's interest in the confidentiality of its communications and the "constitutional need for production of relevant evidence in a criminal proceeding." The Court's decision was explicit that it was "not ... concerned with the balance between the President's generalized interest in confidentiality and the need for relevant evidence in civil litigation .... We address only the conflict between the President's assertion of a generalized privilege of confidentiality and the constitutional need for relevant evidence in criminal trials."

The distinction Nixon drew between criminal and civil proceedings is not just a matter of formalism. As the Court explained, the need for information in the criminal context is much weightier because "our historic[al] commitment to the rule of law ... is nowhere more profoundly manifest than in our view that 'the twofold aim [of criminal justice] is that guilt shall not escape or innocence suffer.'" In light of the "fundamental" and "comprehensive" need for "every man's evidence" in the criminal justice system, not only must the Executive Branch first assert privilege to resist disclosure, but privilege claims that shield information from a grand jury proceeding or a criminal trial are not to be "expansively construed, for they are in derogation of the search for truth." The need for information for use in civil cases, while far from negligible, does not share the urgency or significance of the criminal subpoena requests in Nixon. As Nixon recognized, the right to production of relevant evidence in civil proceedings does not have the same "constitutional dimensions."

Id. at 383-84 (many citations to Nixon omitted; otherwise, quotes, bracketed portions, and ellipses in original).

Friends and neighbors, that's not just a "grain of truth" — that's a whole silo. "Never even suggested such a rule"? Pish-posh. Whether we call it a "rule" (which Mr. Carvin didn't), or whether we merely call it "overwhelmingly important and (in the most significant cases) virtually outcome determinative," the Supreme Court has certainly done more than "suggest" the importance of criminal connections in overcoming claims of executive privilege. Prof. Lederman, I believe that you owe Mr. Carvin an apology; and you may want to do more homework before you make such categorical assertions that someone else hasn't done his.


Prof. Lederman ends with an extended discussion of what kind of crimes might have been committed in relation to the current controversy. With due respect, again, he's long on guesswork and completely missing any actual facts. The statute on "corrupt influence" that he cites is, as he at least admits, awfully vague. There will rarely be any political dispute that cannot be re-cast in some way as "corrupt influence" or "obstruction of justice." (That's especially true if it's Senators Leahy or Schumer who are doing the re-casting; their fishing rods are long, wild, and hyperactive, and they sure do like to do their fishing in front of the cameras.)

Bring me a single Assistant U.S. Attorney who can give names, dates, places, and an explicit statutory reference to support the nebulous assertion that some crime was committed in connection with the firing of any of the U.S. Attorneys, and then I'll begin to take such arguments seriously. I find completely unbelievable, and frankly insulting to them, the notion that hundreds of career federal prosecutors would stand by and say nothing in the face of even one chargeable criminal offense affecting the integrity of our national law enforcement system. If any such crimes happened, they had to have happened literally right in front of their eyes. And yet you have career attorneys in fired U.S. Attorney David Iglesias' office, for example, circulating and signing a letter attesting to his incompetence instead. ("Abdicated his responsibility," "lack of leadership," "risk averse," and "absentee boss," sez they. "Disgrunted!" sez he. "[Crickets sounds]," replied the mainstream media to this part of the story told by the people who actually worked for the man.)

"Well," the proponents of the subpoenas might huff and puff, "We first have to gather evidence before we can get an indictment or prove a crime!" Fine, then. Bring me a grand jury subpoena, instead of a Congressional one that's been rammed down the throats of the minority party's committee members on national TV. If you can't find the proverbial ham sandwich that a federal prosecutor and grand jury are willing to at least investigate, then that old dog not only won't hunt, he's just barking, and he's not barking up the wrong tree because you don't even have a tree.


With all due respect, I'm just not very impressed by Prof. Lederman's post. I'll certainly give him the benefit of the doubt that he didn't intend to mislead by omission or otherwise. But he's missed too many important points, and misstated too many others, for me to take this particular post seriously. Nor can I agree with Prof. Kerr that Prof. Lederman's post "offer[s] a strong starting point on these issues." In my view, he's got to backtrack considerably to get to the starting point because he's been running hard in the wrong direction.


UPDATE (Thu Mar 22 @ 12:40pm): I'm not going to block-quote it simply because of its length, but what follows (in a sans serif font) is — verbatim, in full, and by permission — an extremely gracious, thoughtful, articulate email that I just received from Prof. Lederman (emphasis his throughout):


Bill:  Thanks so much for taking such efforts to thoughtfully respond to my post -- I really appreciate it.
You are right in many of your particulars regarding the doctrine -- indeed, I wouldn't (and didn't) argue with the majority of them.  The problem, if there is one, is that I think you're overreading my post.  I am not making a case that the executive privilege claim here is, or is not, a winner.  As I wrote at the outset, I think that because of the vagaries of the doctrine, and the fact that resolution is almost always the result of inter-branch bargaining, it is a close and largely indeterminate question, at least if one is to "follow" the few judicial precedents that are out there.  (I'll put aside here what, in my view, the proper legal framework ought to be, which is really beside the point and which my post does not address.)
My two basic points were simple ones, namely, (i) to reject the two categorical statements that I've been hearing a lot of (Carvin being the obvious example); and, more importantly, (ii) to focus on why there might have been wrongdoing here if the removals were effected because of the U.S. Attorneys' refusal to make partisan prosecutorial decisions.
You don't really take issue with those things, as far as I can tell.  So I suspect our disagreements on the law are really fairly marginal.
As for the particulars:
1.  I cite the Rice example only because I was, after all, quoting from the Gonzales letter and to show that despite the government's hard-line legal position, in fact it's not uncommon for close presidential advisers to testify about what went on in the White House.  Of course the Executive branch always asserts that the cases don't set a precedent.  And by the same token, of course they do not demonstrate that there can be no legitimate privilege claim in such cases.  I didn't say otherwise.  But the dozens of examples, especially when taken together and with the U.S. v. Nixon cases themselves, do demonstrate that there is no absolute bar on revelation of such close-to-the-President communications, not one that has any teeth or historical backing, anyway.  Also -- and I didn't stress this in my post, but I think it's important -- these examples do seriously undermine the predicate for executive privilege, which is that the President's advisors will only speak candidly if they are assured their communications will remain confidential; the fact that they often will be revealed -- not only through testimony of close advisors, but also through tell-all memoirs (e.g., Stephanopoulos) and "leaks" (e.g., the Bush Administration revealing slews of oval office conversations to Bob Woodward) -- means that such expectations are no longer reasonable, which makes it difficult to argue that the privilege is critical to preserving full and uncompromised communications in the oval office.
As you say, I agree -- and wrote! -- that the privilege claim is stronger (at least as a predictive matter of what courts would do) the closer one gets to the President himself.  I was merely endeavoring to show that there is not a category of officials whose communications are absolutely inviolate -- even though the Executive branch often says that there is.  I don't think you disagree with this point.  As you properly note, I did not argue that Congress is entitled to learn the actual reasons for the dismissals -- only that if the courts were to recognize such an interest, it could only be vindicated if communications of the President's close advisors were disclosed, and that there is no absolute or categorical constitutional bar to such disclosure.
2.  You are right about the details of Nixon v. Administrator, the details of which I know quite well (it's one of my favorite cases to teach).  I did not and would not cite it as authority for denying the privilege in this case, or as a strong precedent one way or the other for a congressional-subpoena question, etc., or otherwise to suggest that it's directly on point here in the ways you insinuate.  I cited it only for the quite modest but important proposition that Congress's legitimate interests include not only inquiring into possible criminal and other wrongdoing (as Carvin indicated), but also, among other things, facilitating "the American people's ability to reconstruct and come to terms with their history."
3.  I disagree that evidence of possible criminal wrongdoing is "virtually determinative" of whether the privilege claim would or should be sustained.  But be that as it may, I conceded that the question of wrongdoing is very important, at least as a practical matter if the case reaches the Court; and the principal purpose of my post was to show that there may well have been criminal wrongdoing here -- and, more importantly, that there is very strong evidence now that the President and his advisors acted unconstitutionally to the extent the removals had anything to do with the desire to have prosecutorial decisions influenced by partisan considerations.  That should, and would, in my view, strongly support the congressional claim here -- but I don't argue that it's determinative.  You don't really address this constitutional "take care" point, the centerpiece (and most important aspect) of my post.
Anyway, thanks again for giving it such serious and close thought.  Feel free to post this or not, as you see fit.  (Perhaps I'll post it to the balkinization comments if I have time.)  Unfortunately, I'll be tied up most of the next two days, so I won't be able to closely follow where, if anywhere, this blog-debate goes.  I hope, however, that it does prompt a fruitful discussion.
Marty Lederman


That's certainly food for more thought, and if I have anything further by way of response, I'll put it in a new and separate post.

Posted by Beldar at 04:15 AM in Current Affairs, Law (2007) | Permalink | Comments (11)

Wednesday, March 21, 2007

Worst idea I've heard this month

Larry Kudlow, writing on NRO's The Corner (and reprinted on his own blog, or perhaps vice versa):

Here’s my humble suggestion: [Attorney General Alberto] Gonzales ought to be replaced by an eminent law school dean or college president — someone with enormous credibility and respect.

Whether or not Gonzales ought to go, saints preserve us from someone chosen as Gonzales' replacement because he or she is an "eminent law school dean or college president." I'm assuming that Mr. Kudlow meant to restrict his suggestion to college presidents who also have law degrees. Let's further presume that he meant to restrict his suggestion to law school deans and college presidents who are also conservative, Republican, or (preferably) both — although that gets us into a pretty small circle on the national Venn diagram. And I'm not saying that there are no law school deans or college presidents who might make a decent Attorney General. (The one who springs immediately to mind is Ken Starr — and good luck trying to get him through the Senate confirmation hearings!)

I'm just saying that ivy-covered ivory towers are just about the very last places that I would choose to start looking for someone to hold simultaneous roles as (a) the nation's top law enforcement official and (b) top lawyer for the government of the United States.

How about someone instead who's earned "enormous credibility and respect" through his or her experience in, oh, say, law enforcement or the practice of law? How about someone who's regularly lived and worked in the real world, outside of government or academics?

The solution to the Administration's public relations problems is not a new Attorney General whose experience in crisis management comes from presiding over faculty senate meetings or resolving arguments over tenure.

(The second-worst idea I've heard this month also comes from The Corner, specifically Ramesh Ponnuru's suggestion yesterday on this same topic: "I just want it to be somebody the president has never met." <snark>Yeah, that's a terrific criterion to use for choosing members of the president's cabinet. Let's get a total stranger! Let's find a new AG in the mold of, say, Bobby Kennedy!</snark> Seriously, I respect him a lot, but Mr. Ponnuru's comment is the kind of snide Bush-bashing I'd expect to see on dKos.)

Posted by Beldar at 11:18 AM in Law (2007) | Permalink | Comments (6)

Tuesday, March 20, 2007

Preaching what we practice

"Not infrequently" — I suppose that would be my answer, if someone were to ask me "How often do you ridicule, mock, or just poke fun at college professors on your blog?"

That's partly a function of politics, mine being conservative (with libertarian overtones on particular issues), and a large majority of academics being prominently (often flagrantly) of the liberal/radical persuasion. Perhaps because their profession shelters them from reality, lots of college professors, including (and perhaps especially) professors in graduate schools, tend to be out of touch with it — which in turn causes them to propound ideas, theories, and arguments that range from silly to foolish to profoundly dangerous.

There are some prominent exceptions, however, and among those, the ones I tend to pay the most attention to — by reading, citing, and discussing their blog posts, for example — are a handful of blogging law professors whose views tend to correspond with my own. Most of them are on my blogroll to the right. I don't always agree with them, but nevertheless, on matters both legal and non-, I'm usually interested in what they have to say and how they say it.

Objectively, then, I ought not to have been shocked or surprised to read this statement today from the most prominent blogger among them, Professor Glenn Reynolds (a/k/a InstaPundit a/k/a the Beauchamp Brogan Distinguished Professor of Law at the University of Tennessee College of Law) — but I still was, albeit pleasantly so (boldface mine):

Ultimately, legal education is about the practice of law.

He wrote that in the context of an ongoing discussion in the legal blogosphere about the decreasing frequency of law review citations in judicial opinions. On that subject in particular, I have only one observation: But for the facts that (a) so many judges rely heavily, even exclusively, on their just-graduated law clerks to gather supporting citations for their written rulings, and (b) so many of those law clerks have just exited law review staffs and editorial boards, then (c) the number of law review citations in judicial opinions would be dramatically lower than they already are. My educated guess is that at least eighty percent of the law review citations still being made in judicial opinions are attributable to choices made by law clerks, rather than by the judges for whom they work. Nevertheless, on the broader subject of law schools and legal education generally:

That simple sentence from Prof. Reynolds ought to be tattooed on the inside of every law professor's eyelids.

And it's not just the liberal professors' eyelids that need tattooing. Some of them actually do grasp the concept, even if they're inconsistent in its application. Mark Tushnet, for example — now at Harvard Law, and certainly one of the most radically hard-left law professors in the country over the last couple of decades — was visiting at Texas during my first year of law school, and he taught my freshlaw federal civil procedure course. The first assignment he gave us was to draft a federal court complaint that would survive a "motion to dismiss for failure to state a claim" under Rule 12(b)(6) of the Federal Rules of Civil Procedure. That was an amazingly practical assignment!

Of course, the claim that we were directed to plead was on behalf of a hypothetical prisoner challenging the conditions of his confinement as cruel and unusual punishment. By the second or third week of class we were discussing how the caselaw on class actions under Rule 23 could be critiqued through the lens of Marxist dialectic. And surely if any law school courses could be expected to teach students nuts-and-bolts stuff about the practice of law, courses in civil and criminal procedure, state and federal, ought to do so. But I still give Prof. Tushnet credit for at least that one passing nod to the notion that legal education, ultimately, ought to be about the practice of law.

Mind you, I am not suggesting that all or even most legal education should be nuts-and-bolts stuff, nor that legal theory ought to be short-changed at the expense of the purely practical. But neither should law schools be conducted, as so often seems to be the case, on the premise that their mission is to produce more law professors. And legal scholarship — specifically including the books and law review articles that law professors write — ought usually to have some intended audience besides other law professors.

Now if we could just get an actual practicing lawyer onto the SCOTUS ....

Posted by Beldar at 07:00 PM in Law (2007) | Permalink | Comments (4)

Thursday, March 15, 2007

Antidote to U.S. Attorney firing hysteria is, appropriately, the actual evidence

My pop quiz yesterday, while intended to be educational for non-lawyers who didn't know much about where U.S. Attorneys fit in the federal justice system, was also intended to explain why my main reaction to the "scandal" about the firing of seven of them has been to yawn.

Until you bring me something other than speculation, or speculation plus a "fishy" correlation of dates (from which causal connection and motive are presumed without further proof), I'm inclined to rely on the fact that there is a vast network of career staff behind each of those political appointees.

I would be very, very, very, very surprised if any U.S. attorney in the last three decades has ever handled a single important investigation or prosecution entirely on his or her own, without staff involvement. And the notion that any of them could have been unfairly canned because of their failure to cooperate in some major subversion of justice, or because they were about to uncover some malfeasance on the part of an administration ally — without the knowledge and loud public outcry of many career staff members — is simply so improbable as to be fantastic (in the sense of "almost certainly someone's politically-inspired fantasy"). For that to happen without multiple whistle-blowers strikes me as about likely as Attorney General Gonzales calling a mass meeting of several dozen Washington-based DoJ lawyers working on anti-terrorism matters and saying, "Okay, gang, from now on, we're going to ignore anything that's possibly related to al-Qaeda" without any of them making a peep.

That does not mean that I necessarily would agree with every decision made by those in the Bush-43 administration who are charged with setting law enforcement priorities; or by those whose jobs include dealing with those pesky outside interests like legislators and lobbyists; or by those whose job it is to assess overall effectiveness and, in particular, leadership and administrative competency on the part of the 90+ U.S. Attorneys themselves.

But massive systemic administration corruption relating to U.S. Attorneys on a national basis — by administrations of either political party? I wouldn't even hypothesize that on Bill Clinton's part when he fired all of them; that was obviously the hardest of political hardball, but there's no reason to think it was systemic corruption. So you gotta bring something strong before you'll persuade me that that is much of a real possibility. Remember, besides the staff, there will be a new U.S. Attorney appointed for each one who's fired, and eventually (notwithstanding the revisions to the confirmation requirement made as part of the recent Patriot Act renewal) those new ones are subject to Senate confirmation too. To be successful, the corruption would have to include not only career staff but the new U.S. Attorney too.

Seven U.S. Attorneys being fired is, frankly, below my threshold of being concerned enough to invest a huge amount of time on my own digging into it. 

Nevertheless, I'm not entirely uninterested. And given that there are specific allegations floating around out there about specific ones of the seven particular U.S. Attorneys about whose firing much is now being made by the Democrats, I'm grateful that there's actually some serious fact-checking going on about some of the more hysterical speculation already splashed on left-leaning blogs and, yes, in the mainstream media.

In this pair of posts, Patterico, for example, debunks some of the more outrageous claims that have been made. And like any skilled advocate — as opposed to a skilled demagogue (to whom truth and accuracy are irrelevant) — he does so by examining and reporting on the actual evidence (here a large volume of emails). And then, just as importantly, he repeatedly offering links to that same evidence for his listeners/readers' own independent examination.

Patterico's debunking including pointing out things that he or others might rationally differ on — the Bush-43 administration's prioritization on such matters as prosecuting the most egregious repeat immigration violations or morals crimes — but he then makes the overriding point that, yes, administrations do get to set those priorities. That you may disagree with theirs doesn't mean that the administration is corrupt when it fires its political appointees who fail or refuse to follow those priorities.

Given the time and attention he's invested, and very fine job that Patterico's doing with his posts (which I'll continue to follow, of course), and my own diminishing interest in the entire "scandal," I'm not terribly likely to write any more posts of my own on this "scandal."

Posted by Beldar at 11:28 AM in Law (2007) | Permalink | Comments (4)

Wednesday, March 14, 2007

Stopping debate on a question before you're convinced that anyone can know the answer

The marvellously asymmetrical Megan McArdle, who's guest-blogging at InstaPundit, strikes me as a smart and articulate and appealing person. I don't know the details of her education in science, but I don't find it implausible to presume that it exceeds my own. And perhaps in this post, Ms. McArdle expressed herself with less than her typical care — trying to get into that "Insta" mode? But I have two reactions to this bit:

I think there are a lot of questions about global warming: how much, and what, should be done. However, I regard two questions as basically no longer worth debating, at least by people with my level of science education:

1) Is AGW [Anthropogenic Global Warming] happening?
2) Should we do something about it?

The first is a technical question that seems to be largely settled; when you've convinced Ron Bailey it's happening, you've convinced me.

First reaction: If you genuinely have a thorough-going education in the science relevant to issues regarding claims of dangerous man-made global warming (a phrase I'm using without at all accepting its premise, mind you), then why does your being convinced depend on proponents of the theory convincing someone else, be that Mr. Bailey or anyone else? Isn't that another way of saying that you don't have the thorough-going education in the relevant science? (In Ms. McArdle's case, I reject the alternative explanation, which is laziness.)

Second reaction: My own training and profession includes evaluating highly credentialed "experts" in all sorts of subjects daily. Specifically, I examine, and sometimes cross-examine, them with an eye toward helping jurors (and me) understand the gist of what they're saying, and usually with an eye toward either supporting their credibility or else pointing out reasons why their expert conclusions ought to be suspect (even to jurors or other non-experts who lack their expertise).

I don't have to be a climatologist, for example, to understand this two-part argument made by some well-credentialed climatologists: First, current science is still a long way from having any thorough-going understanding of the mechanisms of long-term climate change or short-term weather, and such understanding as we do have can lead to calculations that tie up the most powerful supercomputers for weeks on end. Second, the margin of error for the extrapolations being made from the very limited amount of genuinely reliable historical data on weather and climate which we do have substantially exceeds the degree of climate change being postulated as attributable to man-made causes (as opposed to climate cycles that have occurred before man could even arguably have much affected them).

That amounts to an argument being made by some (granted, not all) well-credentialed scientists to the effect that not even well credentialed scientists have enough reliable data to be sure enough about the conclusions of dangerous man-made global warming theory proponents to justify turning national economies upside down over it. Even more succinctly: At least some presumably smart scientists are saying, "Ain't none of us smart enough yet to bet the ranch on this stuff, and we don't have the data of sufficient reliability that we'd need if we were."

Until someone persuades me that that is wrong, I'm not going to bet the ranch based on Al Gore's or [fill-in-the-blank with the name of your favorite smart person or "expert"]'s say-so. I'm more than a bit worried that doing so would be like betting my health on an expert who prescribes radical treatments to readjust my phlogiston or chakra balances, or to vent some of my admitted ill humours (I'm especially prone to an excess of splentic black bile).

And precisely because Megan's own professional expertise is, broadly speaking, the value of the ranch which is being bet (economics), I'm surprised that she's willing to, either. She writes: "I think America needs a whopping big carbon tax (and am braced for the flood of mail I know this declaration will trigger)." Oy. Count me as whoppingly-bigtime opposed. But I do generally agree with her observations about the unlikelihood of political solutions to the problem, if there indeed is one.

Posted by Beldar at 03:36 PM in Current Affairs | Permalink | Comments (10)

Pop quiz on U.S. Attorneys

Pop quiz:

(1) U.S. Attorneys are part of which branch of the government:

(a) Legislative;
(b) Judicial; or
(c) Executive.

Answer: (c).

(2) The person who has the ultimate decision on hiring and firing government employees in the Executive Branch is:

(a) Nancy Pelosi/Harry Reid combo;
(b) Chief Justice John Roberts, in his role as head of the United States Judicial Conference; or
(c) the POTUS, George Bush.

Answer: (c).

(3) By statute (passed in accordance with, and subject to limitations of, the constitutional separation of powers doctrine), Congress' only proper role with respect to U.S. Attorneys is:

(a) To provide them with day to day oversight and direction;
(b) To confirm their permanent appointments and exercise minimal oversight (consistent with all Congressional oversight of Executive branch actions, i.e., for purposes of fulfilling Congress' ongoing legislative function); or
(c) To give any fired U.S. Attorneys a national forum to bitch and moan and claim that they were fired for their brave resistance to the subversion of justice and the rule of law by BushHitler/Rove + Cheney/Halliburton.

Answer: (b).

(4) Once confirmed in their positions by the Senate, U.S. Attorneys serve:

(a) For life, subject to impeachment by the House and removal by the Senate for high crimes and misdemeanors;
(b) For the remainder of the term of the President who appointed them, including any second terms; or
(c) At the pleasure (i.e., the whim) of each President, who can remove them with or without "good cause" and without consulting either of the other two branches of government.

Answer: (c).

(5) Once confirmed in their positions by the Senate, U.S. Attorneys tend to resign voluntarily:

(a) Rarely, because their jobs are very cushy, highly paid, and heavy on personal courtroom time like Patrick Fitzgerald just spent on the Libby trial;
(b) Occasionally, only when there is a political scandal or change in the party that holds the White House; or
(c) Not infrequently, and more often than is probably good for the judicial system, because they're typically being paid only a fraction of what they could make in private practice, their jobs have crushing administrative responsibilities that keep them from really "practicing law," they suffer high rates of burn-out, and they very often have other or better job opportunities by returning to private practice, becoming federal judges, teaching, or running for public office.

Answer: (c).

(6) Each U.S. Attorney's office focuses mainly on:

(a) Prosecution of high-profile crimes, especially political crimes;
(b) Prosecution of crimes of all sorts; or
(c) Representation of the United States is an incredibly broad variety of both criminal investigations and prosecutions and civil lawsuits and disputes, of which investigating and prosecuting crimes with substantial political overtones constitute a tiny, tiny fraction of the overall workload.

Answer: (c)

(7) Every U.S. Attorney has among the lawyers working for him or her many dozens of non-political "career staff" who are intimately involved in the day-to-day handling of essentially all matters in their district. (Large districts like Washington or the Southern District of New York each employ several hundred career staff attorneys all by themselves.) According to a recent DoJ recruiting brochure, in contrast to the political appointees at the top of each office,

[t]he average age of an AUSA [Assistant U.S. Attorneys] is 43. The average length of service for non-supervisory attorneys is 11 years. The average length of service for supervisory AUSAs is 20 years. These numbers indicate that although some attorneys may briefly pass through a U.S. Attorney’s Office to gain valuable experience, many more are pursuing a significant part of their career in this environment.

Most of these attorneys are highly principled; although career staff by definition are not typically hired on the basis of their personal politics or political involvement, most offices' career staff include Republicans, Democrats, Independents, and people who are apolitical but devoted to public service. Most of them could quit government service and triple their pay in a heartbeat. If they were aware of their bosses being systematically and unfairly fired for their failures to cooperate in the subversion of justice for political ends, they may reasonably be expected to:

(a) All remain silent, because they are concerned that Karl Rove will arrange Mafia hits on their family members for speaking out;
(b) All quit and flee to Uganda for the same reasons expressed in (a) above; or
(c) Resign en masse while picketing Congress and the mainstream media by the hundreds to better expose and protest the wholesale subversion of our constitutional government.

Answer: (c), and that hasn't happened, and won't, because the people actually in the best position to know, know that this is politics as usual by the party that controls Congress but doesn't control the White House, and in the meantime they'll just keep their heads down, keep doing their jobs on behalf of the people of the United States, refuse to give press interviews that would be spun for political purposes, and wait for the madness to pass.

(8) The seven U.S. Attorneys purportedly fired for improper political reasons to subvert the justice system represent what percentage of the total number of U.S. Attorney positions in the United States?

(a) About 7%;
(b) About 14%; or
(c) About 36%.

Answer: (a). There is one U.S. Attorney position for each federal judicial district in the United States, for a total of 94 (including U.S. territories). Texas, for example, has judicial districts, and therefore separate U.S. District Courts, for the Northern, Southern, Eastern, and Western Districts of Texas, so there are four U.S. Attorney positions for Texas. Many less populous states have only one federal judicial district, and so have only one U.S. Attorney position. Districts may have multiple "Divisions." Thus, for example, although Houston is the headquarters for the Southern District of Texas, there are also court divisions in Brownsville, Corpus Christi, Galveston, Laredo, McAllen, and Victoria; and all but Galveston (which is handled out of Houston) also has its own U.S. Attorney's division branch office.

(9) Number of U.S. Attorneys simultaneously fired by Bill Clinton upon taking office for brazen, unarguably political motives absolutely unrelated to their merits or job performance:

(a) One-third;
(b) Two-thirds; or
(c) All of them.

Answer: (c).

(10) For bonus credit: Without doing any research through Google or other online sources, can you name the current U.S. Attorney for the federal judicial district in which you live? (My guess is that less that 5% of non-lawyers outside of Chicago or Manhattan could answer this question accurately. The Southern District of Texas' current U.S. Attorney is Donald J. DeGabrielle, Jr.; he's been in office about a year, but I admit that I had to look up his name, so I get no bonus credit.

Posted by Beldar at 09:05 AM in Law (2007), Politics (2007) | Permalink | Comments (10)

Tuesday, March 13, 2007

Another odd search string

One small but important continuing benefit of blogging is the amusement generated when one checks one's blog's Sitemeter to see what search engine strings are producing referrals to one's blog.

"Hairy celebrities" is one that still amuses me, but it shows up with remarkable regularity from all over the world. I'm also pleased to be among most search engines' top returns for the phrases "uh-uh" and "nuh-uh" — it's good to be widely recognized as being authoritative on something, even if it's negative and inarticulate. As of the moment, Google returns one of my posts at number six for the search phrase "Libby materiality." My conceit allows me to think that Google takes me as a serious pundit on the Libby case, even if several million blog readers obviously don't. I'm still enormously proud to be among Google's first returns on the phrases "Kerry's lucky hat" and "Dan Rather fraud." And I have no trouble recognizing and remembering the posts that any of those particular search terms dredge up.

Oftentimes, though, it's harder to fathom how the search engines' logic corresponds to something I've written here. The winning search phrase in the "what could I have written to produce that?" category for today is this one: "forced to wear rubber punishment knickers." And how could I only have ranked fourth? (Hmmm. Perhaps within a few days, this post will bump me up to number one!)

Posted by Beldar at 04:18 PM in Weblogs | Permalink | Comments (1)

Conspiracy theory of the day

If only I had it to do over again; if only I could retrieve the too-quick click on the "post" button; if only I had the ability to edit others' weblogs' comments — well, then, I would un-do the ungracious "Duh" with which I ended a comment that I left on this post from Adele M. Stan over at TAPPED.

It was rude, and I regret it. I also regret referring to the post's writer only by her surname, which had registered in my consciousness as a first name; in any event, addressing her as "Ms. Stan" would have been better-mannered.

I remain keenly skeptical, however, about Ms. Stan's argument that the real explanation for the Harriet Miers nomination to the SCOTUS was to "[g]et Miers out of the way before anyone thought to call her to testify on any one of the multiple scandals of which she may have known or partaken."

  • I gather that Ms. Stan is a widely published journalist but, I presume, a non-lawyer. Nevertheless, many journalists seem to have at least a passing familiarity with the concept of legal privileges against giving testimony, including the attorney-client and executive privileges. Indeed, some journalists are quite insistent that they are entitled to refuse to testify based on privileges decidedly less robust, and sometimes even based on imaginary ones. Then again, Dubya's not a lawyer either. So perhaps he, like (apparently) Ms. Stan, wasn't aware that those real and well-established privileges would have been an adequate basis to stonewall as part of the cover-up of everything about which Ms. Miers might be asked to testify. Whereas, by contrast, everyone knows that Supreme Court Justices are immune from having to testify about things they observed or participated in before taking the bench because of ... ummm ... the "I don't want to, and you can't make me, nyah-nyah, because I'm now on the Supreme Court" privilege? So perhaps that really was Dubya's motivation for nominating Ms. Miers.

  • There aren't many openings on the Supreme Court, however. If Dubya genuinely thought that the top lawyers within the Administration who were giving him mixed legal and political advice were vulnerable to questioning about their private counsel to him, he should have named AG-AG to fill the O'Connor slot when he withdrew Ms. Miers' nomination, rather than Judge Alito. After all, why should a president waste a Supreme Court nomination on someone who doesn't need the seat for the purpose of concealing evil presidential conspiracies? I guess that nominating Judge Alito was awfully short-sighted then.

  • On the other hand, I continue to be amazed at how stupid ol' chimp-cowboy Dubya was nevertheless prescient enough back in October 2005 to foresee the amazing political scandal (at least within the feverish minds of the Angry Left) that the firing of seven U.S. attorneys — political appointees all, now alleged to have been fired for political reasons (gasp!) — would turn out to be roughly a year and a half later. If Dubya is going to be prescient, I do wish he would be more consistent about it.

Of Ms. Stan's own prescience, her colleague Ezra Klein writes (links omitted):

All props to Addie, who really did call the Miers thing. There needs to be some sort of rule for the Bush administration's tendency to eventually, inevitably justify the most intensely cynical interpretation of their actions.

I believe that would be the "If you're already cynical to the point of paranoia, you'll be able to justify all of your further paranoia as well-deserved cynicism" rule.

Posted by Beldar at 02:42 PM in Law (2007), Politics (2007) | Permalink | Comments (3)

Monday, March 12, 2007

The pilcrow

Until this morning, when I came across its name while researching something entirely unrelated, I never knew that the paragraph symbol — ¶ — is called a "pilcrow."

That strikes me as an important but small piece of information that is unlikely to ever be useful, but I shall nevertheless try to remember it.

However, this leaves me feeling intellectually unsatisfied. Is there a comparable name for the section symbol — §?


I likewise recall being vaguely disappointed that neither in my general law school education, nor in my Teaching Quizmaster class on citation form, nor even in my service as a member and editor of the Texas Law Review, did I ever find a comprehensive set of rules on when, for example, in drafting an agreement, one ought to use these symbols. With the exception of legal treatises and, especially, loose-leaf services, both symbols seem to be fairly uncommon in the source documents (for example, the agreements) themselves. But in citations and other shorthand references to those source documents, both kinds of typographical symbols are quite commonly used.

But they are used inconsistently. And that bothers me. It bothers me that in one of the two major treatises on federal civil procedure, the authors and publishers used section signs, and in the other, they used pilcrows. Can't we all just get along?

I distinctly recall practicing the writing of both of these symbols some time during my first year of law school. I can do both now, along with the ampersat and the ampersand — @ and &, "at" and "and" symbols respectively — without even trying hard. (Of course, I write less and less by hand anymore these days. And try using the word "ampersat" when dictating your email address to someone over the phone. It's guaranteed to annoy.)

Even very good corporate lawyers with whom I've been acquainted have seemed to be quite schizophrenic in referring to the various chunks of their contracts, indentures, prospectuses, and so forth as either paragraphs or sections, subparagraphs or subsections, and the like. ("Chapters" and "subchapters," in anything but statutes, seem to be comparatively rare and eccentric.) I don't understand how they tolerate that degree of anarchy in what is otherwise such a buttoned-down legal practice.


Inflation, of course, has damn nearly killed the cent sign — ¢, bless its heart. But I still know it in ASCII for those rare occasions when I need it.

Now, in both my professional writing and my blogging, I know my em-dashes from my en-dashes, and I pay attention to the difference between my dashes and my hyphens. In legal writing, I try to remember to do a global search and replace to substitute non-breaking spaces for regular breaking spaces before all my pilcrows (and double pilcrows) and section-signs (and double-section-signs), lest those typographical symbols end up at the end of a line while their following integers are on the next line. There are few typographical symbols sadder than a widowed pilcrow.

Curled quotation marks, single or double, are both invidious and insidious. If you don't understand that, if you don't understand their potential for causing snarls and thrown letter-openers and mass search-and-replaces and ASCII catastrophes of all kinds, you obviously haven't been paying attention. Sure, Microsoft Word and WordPerfect now both shove them down your throat by default. Can you not see the conspiracy there? Is Bill Gates' name ever taken in vain more frequently than by writers who type "(c)" and look away for a second, not noticing until too late that their "(c)" has been automatically and stealthily replaced by a changling, a "©"? In the twenty-first century, "a-b-copyright symbol-d" has become, unfortunately, a common, almost natural, progression.

Mastery of a word-processing program is only achieved when you can, by brute force and shortcuts and knowledge of obscure menus and undocumented commands, force that program to produce its printed output in exactly the format you desire. Support staff who can do this for helpless lawyers are especially valuable. Lawyers who themselves have mastered these techniques are ... jedi knights.


To give you an idea of how long I've been sufficiently obsessive to be concerned about such things: I recall that the 1979-1980 editorial board of the Texas Law Review once spent the first half-hour of one of our meetings arguing whether the second comma in a "see, e.g.," citation ought to be italicized. Then, having decided that the answer was "yes," we argued for another half hour whether it was worth the expense to the Review to continue instructing our printer to make changes from our galley and page proofs to reflect that preference. (Again, the answer was "yes.") You would be much mistaken if you thought that these were subjects on which only one or two editors expressed strong views. But being friends and classmates, aspiring professionals, who held each other in high regard and shared a keen mutual respect, we did manage to keep from coming to blows, and to rally 'round the final decision of the editor-in-chief (which was in accord with the majority view of his editors) without further strife or argument.

As southerners and westerners and followers of Harvard's Bluebook, it was always our consensus view, however, that the Washington and New York (and United States Reports) affectation of not italicizing (or underlining) the "v." in case names was unworthy of even remarking upon, much less following. I got into a heated argument about this with my secretary in the summer during which I clerked for a New York law firm, Sullivan & Cromwell. I believe she thought that she risked losing her job by agreeing to my demands that she underline those v-for-versus notations in case citations. (They still offered me a full-time job, but they probably figured they would eventually assimilate me into the non-underlined-v. culture; I'm not sure if my summer secretary kept her job after I left or was cut loose as a traitor once I'd returned to Texas.)

Somewhere in Cambridge, Massachusetts, there is an insane asylum whose only residents are the authors and, more recently, the revisers, of the Bluebook. And they have their own circle in Hell, in which the demons don't give a damn about the difference between supra and infra. Me, my nightmares tend toward usage instead of citation form. "Comprise" and "composed of," "disinterested" and "uninterested" — these things torment me in both my sleep and my waking copy editing.

New recruits to the law review in my day had to learn a set of uniform handwritten notations to communicate what we wanted our type-setters to do. There was one notation for "delete," and another for "delete and close-up." The word "stet" had mystical qualities associated with forgiveness and redemption. I suspect this notational language has mostly been lost in the current day, in which every man or woman is his own publisher, and "printer" is something sold by Canon or Hewlitt-Packard instead of referring to a typesetting company.


The Texas Rules of Civil Procedure, Federal Rules of Civil Procedure, and local rules of the state and federal courts in which I usually practice, in contrast to some other jurisdictions' state or local rules (including, I believe among others, California's), fortunately do not require the routine numbering of either lines or paragraphs in pleadings. (One local judge does insist on 14-point typefaces, however, and the Texas appellate courts, superstitiously, require 13-point typefaces.) Nevertheless, as a matter of consistent practice, I have been scrupulous for many years in using progressive integers to number every paragraph of my pleadings. This allows me, or opponents, or the courts, to later specify a particular paragraph easily using just an integer preceded by (ahem, I knew it not by that name before this morning) a pilcrow; or perhaps by both a number preceded by a pilcrow and also a page number, if we want to be all belt and suspenders about it. My paragraphs need numbering in the same way that the TV detective Adrian Monk needs to touch and count every parking meter he walks past.

I'm also fascinated, but somewhat troubled — suspicious, frankly, of pathology or heresy — about regional variations in what I've heard referred to as "the box." "The box" is what's at the top of pleadings, wherein typically is listed the names and, often (but not always) the capacities of the parties (for example, "XYZ Corp., plaintiff" and "John Doe, individually and as next friend of Johnny D. Doe, a minor, defendant and counterclaim-plaintiff"); the cause or docket number (for example, "2007-20158" in current filings in the Harris County District Courts, or "Civil Action No. H-07-4102" in the Southern District of Texas, Houston Division); the particulars of the court (for example, "In the District Courts of Harris County, T E X A S, 129th Judicial District," or "In the County Civil Court-at-Law No. 3 of Harris County, T E X A S," those spacings dating back to typewriter days and manually full-justified margins for "the box").

And it's quite common, but not universal, for lawyers to use a "vs." instead of a "v." in "the box," even though they'd never think of putting a "vs." into a citation of a casename in a brief or pleading or motion. Why? (Why not?)

In many venues, in constructing "the box," it's typical and customary to use a vertical row of section signs to separate the names and capacities of the parties in a column on the left, with the docket number, perhaps the court and jurisdiction name, and perhaps other pertinent information (the judge's name; whether it's a Chapter 7 or 11 or 13 or an adversary proceeding in bankruptcy court) in a column on the right.


And yet: In other parts of the country, using section signs as column separators is considered uncouth. They may instead use close-parenthesis marks exclusively for that purpose.


In particularly Manichean jurisdictions, they use as their vertical row to divide the two columns a close-parenthesis symbol immediately followed by an open-parenthesis symbol:


Such people also devour their young and walk backwards at every full moon. They are to be shunned and quarantined.

The rule of thumb for safety is that when you're drafting a pleading for filing in a jurisdiction or court in which you have not regularly practiced before, you make your box look like your opposing counsel's box. Of course, if you're the plaintiff and you're filing the initial pleading, you have no model to follow, unless you somehow dredge one up from another case that someone else has filed there.

In twenty-six years of practice, I have yet to have a single pleading or motion or brief or other legal filing rejected because I referred to "paragraph" when I should have said "section," or because my document's "box" used section symbols rather than close-parenthesis marks. I'm nevertheless always vaguely worried that some clerk, somewhere, will shout "We can't accept this for filing! Look at those pilcrows where there should be section-symbols! Send this back to that damned lawyer from Texas, and may God and his malpractice insurer have mercy on his soul if our rejecting his filing and sending it back causes him to miss a jurisdictional deadline!"


Non-lawyers among you who've struggled through to the end of this post will be convinced that I am, or have gone, insane. Lawyers among you, at least the lawyers with adversary practices, will probably nod and sympathize with some or all of these comments. You are the ones who will be repeating to yourself, after reading this post: "Pilcrow, pilcrow, pilcrow."

Posted by Beldar at 09:22 AM in Humor, Law (2007) | Permalink | Comments (11)

Sunday, March 11, 2007

Fitzgerald, Libby, and the roles of, and viewing windows for, big lizards (be they mere prosecutors, Special Counsel, or Independent Counsel Godzillas) in the legal-political jungle

My blogospheric friend Dafydd ab Hugh has posted on his blog, Big Lizards, a terrific post that begins with a recap of observations and arguments about the Libby case from me and Patterico, and that then goes on to make a series of well-argued points of his own, followed by a well-chosen list of questions as to which he contends that Special Counsel Patrick Fitzgerald owes us all answers.

Dafydd, of course, is a frequent commenter on a number of blogs, and his own is first-rate. When I urge you with respect to this particular post of his to "read the whole thing!" and then to "keep scrolling!" I am not making a rote compliment, but a genuine and whole-hearted recommendation. And it's genuinely not worth your while to read the remainder of my post here without first having read his from start to finish.

The executive summary of my response to Daydd is this: The criticisms you make of Fitzgerald are understandable, and I'm inclined to agree that at least one might be valid. Your frustrations with the lack of information and lack of closure from the process just concluded in the Libby case are widespread, precisely because the unanswered questions are indeed important ones. But the information you'd have Fitzgerald provide is of a sort that no prosecutor — whether Special Counsel, Independent Counsel, or otherwise — can furnish without deeply compromising the investigative and grand jury processes on which our criminal justice system is premised. You fault Fitzgerald for being too political, but your demands, if met, would turn him into another of the terrible political/prosecutorial animals that people accused Ken Starr and Lawrence Walsh of being (with considerable justification), and that is a species which Congress, with rare wisdom born of bitter experience, intended should become extinct. Real prosecutors can't answer the kinds of questions you've asked, ever but especially in a case fraught with political overtones, and when you think about it more, you'll probably realize you don't really want them to be permitted to.


Dafydd's opinions and mine part company in the earliest premise of his post — that "naming a Special Counsel is primarily a political, not a legal action."

I do not dispute that, as he argues in support of that premise, that Special Counsel (or their predecessors, Independent Counsel) have been "appointed in order to investigate a political scandal." Nor do I much dispute that "because naming a Special Counsel announces ...  that the Justice Department itself is implicated in this scandal, [and] hence cannot be trusted to undertake the investigation itself[, that] also makes it a highly political event." The second argument is a bit off in its formulation: the regular DoJ staff who would otherwise handle a case "cannot be trusted" in some sense, but it's not necessarily — and indeed, was not in L'Affair Plame — because the Justice Department was "implicated." Rather, there was at least an appearance of impropriety because of a series of potential conflicts of interest, first on the part of Attorney-General Ashcroft (who had pre-existing and substantial ties to the main rumored target of the investigation, Karl Rove), and then (far less specifically and probably less justifiably) on the Washington-based career DoJ staff as a whole, who were more or less presumed (fairly or not) to be viewed as such intrinsically political creatures by virtue of practicing inside the Beltway that the public interest would be better served by bringing in someone from another part of the DoJ altogether. So at bottom, I agree with Dafydd that political considerations are typically what drive the Special Counsel appointments, and that their investigations are almost always tied up in a swirl of politics and political concerns.

What I think he misses in his analysis, though, is that the intention of the appointment of a Special Counsel is to make the resulting investigation and (if appropriate) prosecution(s) less political than they would otherwise be, not more. The same was intended to be true for the previous system of appointing, pursuant to special statutory authorization, "Independent Counsel" like Ken Starr (Whitewater/Clinton) or Lawrence Walsh (Iran-Contra/Reagan), respectively the bane of Democratic and Republican administrations.


Of course, the entire investigation and indictment process in any of these cases is subject to being accused of being the "criminalization of politics-as-usual." That's just another way of saying, as Dafydd and I seem to agree, that Special Counsel appointments are likely to arise in those situations in which something alleged to be criminal conduct also seems to have been motivated by political concerns. At some point — the Watergate break-ins, for example — everyone seems to agree that, yes, whether it was politically motivated or not, this is a real crime. With Clinton's or Libby's alleged perjury, it's concededly a question on which there is lots more room for good-faith disagreement.

But unless one concedes that public officials should be exempt from the rule of law, instead of held to its highest standards, there must be someone in the justice system who investigates and then makes the decision, "Do we or don't we seek an indictment for this?" And in the current set-up, that's typically the Special Counsel. There is no way for crimes with political overtones to be prosecuted, ever — not even the Watergate break-ins — unless some kind of prosecutor-beast has that niche in the mixed politics-and-legal jungle of the Washington, D.C. ecosystem.

(And of course, the federal trial and appellate courts, and the grand and trial ("petit") jury systems, also have their roles, both as enforcers and as further checks and safeguards. They aren't immune from politics either, as a practical matter, but like the Special Counsel, they're intended, and somewhat set up, to function despite politics rather than because of them.)


The historical problem, though, was that the structure created by the Independent Counsel statute in fact almost uniformly turned out to make Independent Counsel not less, but more political. By giving them unlimited budgets, incredibly broad discretion, and freedom from DoJ involvement or even remote oversight, Congress birthed a species of mutant-prosecutorial Godzillas. By permitting Independent Counsel to make written reports on their findings — a dramatic and intentional (but spectacularly unwise) decision to broaden what they could say far beyond the traditional rule that prosecutors talk almost exclusively through their indictments and through the evidence that they then present in court — Congress gave those Godzillas not only a capacity to breathe fire, but virtually a mandate to do so, and in the process to issue a predictable, and more or less continuous, spray of napalm droplets in the form of leaks.

By letting the Independent Counsel statute expire without further extensions, Congress punted the genetic engineering task back to the DoJ. The DoJ's resulting Special Counsel regulations, under which Fitzgerald was appointed and serves, roughly codify a calculated re-balancing of concerns. As discussed above, there must be some sort of animal to fill the niche in the legal-political ecosphere where the Independent Counsel-Godzillas once trod. And garden-variety prosecutorial beasts can't always serve, because situations indeed inevitably will arise in which the canons of legal ethics, and related concerns about mere appearances of impropriety, require that normal prosecutors recuse themselves (or, failing such, be disqualified by the courts), so that justice not only be done, but be seen to be done, in an impartial fashion.

As I explained in one of my tediously lengthy posts back in 2003, the Special Counsel regulations very deliberately stripped the resulting animal of its flame-breathing (report-writing) genes, and was likewise intended to strip it of its fire-droplet (press-leaking) tendencies as well. Indeed, the resulting animal is intended to look and act almost exactly like the ordinary species of federal prosecutor — but just to come from and report back to a different nest than the one located in the territory of the ongoing dispute (here, Washington). It is indeed intended to be more robust and effective in a challenging political-legal environment than, say, the Archibald Cox variety of prosecutor, and that's why the regulations give it an extra layer of heavy-duty insulation from the common patriarchs of all such animals (the Attorney General and his boss, the POTUS). But the Special Counsel is still, recognizably, a creature of the Justice Department, and it's expected and intended to act that way (but just without the conflict of interest, real or perceived).


Dafydd's post points to at least two specific actions or statements of Fitzgerald that unquestionably have had, and could have been foreseen to have, enormous political consequences. None of them, however, and not even all of them in the aggregate, remotely approach the degree of political change and turmoil injected by previous Independent Counsel like Starr or Walsh. And with respect to most of them, there are good reasons for Fitzgerald to have done what he did from normal prosecutorial needs and motives, rather than from political ones.

Dafydd points to the fact that the Libby indictment referred to Plame's CIA employment status as being "classified," even though no one was charged under substantive statutes which might directly criminalize conduct that compromises covert agent identities or classified information generally. Fitzgerald's answer to that, though, would be that it was essential that he, as a prosecutor, establish the context of the FBI's and Special Counsel's and grand jury's investigation and the public interests that they were trying to protect, because that is an essential part of proving the materiality of perjury (and through that, obstruction of justice). He probably could have done that just by referencing her as a CIA employment, without saying "classified" or "covert"; that's how she was described in the reference under which he was appointed. But he had to say something about the general nature of the public interest that could have given Libby's statements to the FBI or to the grand jury their required materiality — and that is true without regard to whether anyone was ever indicted or convicted as a result of the investigation. Nothing more was required to establish materiality. And indeed, he didn't end up offering proof beyond that she was a CIA employee, and even that was indirect, because it came through the view-point of those who were discussing the transmission of what they understood to be true about her employment. What they understood to be true, rather than what actually is true, was what was relevant to the charges against Libby.

And to have said that Plame was or was not "covert" within the meaning of the relevant statute would, in Fitzgerald's view, have been unnecessary, and therefore improper, as inevitably tending to reveal material known to him, if at all, only through the processes of the investigation and grand jury proceedings, or to have revealed things that were not investigated more thoroughly. (It also would not have been nearly as simple a statement to confirm as Dafydd's question assumes.) In Fitzgerald's and the traditional prosecutor's views, either saying that she was or was not "covert" would be equally improper; the proper functioning of the criminal justice system depends on the public having no windows into those processes precisely so that the people whom the system relies upon to make those decisions will not be influenced by the politics and public opinion that would inevitably result. Fitzgerald, like the traditional prosecutor in a non-political process, is supposed to decide both when to turn over stones and when to stop without reference to the political affiliations of people under investigation or any other political concerns; if he's later to be called upon to explain what he did and why, other than with respect to the indictment and its proof in court, his decisions on those matters are inevitably going to be compromised.

And all you need do is look at the incredible volume of the guess-work already going on about this case, both from those arguing that he kept going to far and from those who argue that he didn't go far enough, to see how politics and public outcry might compromise the independent judgment a prosecutor is supposed to bring to bear. "He should have shut down!" insist some on the right, or "he should have indicted Armitage" insist others (also on the right). "He should have indicted Rove and Cheney! (And Impeach BushHitler!)" insist others on the left.

And it's not just prosecutors who we want to insulate through a cloak of secrecy. Likewise the FBI agents; likewise the grand jurors; likewise the judges, who won't let us look at their memos back and forth among one another or their law clerks. We want all these people using independent judgment, not sound meters tuned to the public hue and cry.

It is dramatic, but not at all wrong, to point out that these deliberate obscurations of the process, and the insulation they are designed to ensure, are what separates us from a government of laws and a government of men, from civilization on the one hand and mob rule on the other.


But if you accept at all the premise that Fitzgerald was entitled to prosecute someone who committed perjury and obstruction of justice in the course of an investigation that did not, ultimately, result in anyone being indicted or convicted for the suspected underlying crimes from the fact pattern and furor that got him appointed as Special Counsel — and many people do not accept that premise, but Patterico and I certainly do, and I think Dafydd does as well — then beyond the "classified" references made repeatedly but mostly in passing, there's not too long a list of other statements or actions by Fitzgerald that don't have at least an apparent prosecutorial motive and function (rather than purely political ones). [Now there's a sentence that begs to be put out of its misery if Beldar's ever written one — Ed.] The most troublesome statement that Dafydd points to is Fitzgerald's reference to a cloud over the vice presidency in his final (rebuttal) closing argument.

I would very much like to see a full transcript not only of Fitzgerald's closing arguments, but those of Libby's defense lawyers. FireDogLake's live-blogged synopsis is the closest I've been able to find (through admittedly non-exhaustive web research). The context there suggests to me that Fitzgerald wasn't referring to a political cloud of corruption, but rather, the "sand-in-the-eyes" metaphorical cloud from Libby's obstruction of justice that obscured the Vice President's actions from full investigation. I know that the MSM and the administration's opponents and Fitzgerald's critics are all eager to seize upon this as a political reference, but I can't really decide which is more likely to have been intended without actual transcripts.

If, however, that comment was intended to be an attempt to suggest a broader conspiracy that implicated both Libby and the Vice President in vague and uncharged crimes, or even just in some reprehensible and shocking (but non-criminal) political conduct, then yes, it would have been a straying outside of the proper role of a prosecutor. At best, one can argue that under that interpretation of the comment, it reveals Fitzgerald's otherwise tightly-repressed and -concealed political, non-prosecutorial motivations throughout the investigation and prosecution. Good-faith opinions on this concededly can differ. But personally, I just don't buy that conclusion, or think this one remark can be used to sell it.


Dafydd is innocently mistaken in his assumption that there is some line that can be drawn between grand jury testimony in particular and everything else that's gone on in the investigation and the decision whether to seek indictments and the trial planning. He acknowledges that grand jury testimony and proceedings are, by law, something that prosecutors and grand jurors and other participants may not disclose.

As Fitzgerald pointed out in his press conference at the indictment, however, grand jury witnesses and FBI interviewees may, despite urging from the prosecution, reveal what they've said. There's a reason for that distinction. It's the actors in the justice system, the investigators, decision-makers, the wielders of the system's spears — not the sources of their information — who need to be insulated from public opinion and political influence in order to exercise their judgment properly and independently.

And when you understand that rationale, then you understand that each and every one of the well-formulated and intensely interesting questions Dafydd has asked in the balance of his post — many of which have been asked less elegantly of Fitzgerald by the press at all of his press conferences — are also completely and emphatically out-of-bounds. They seek, directly or indirectly, information that he can't give. You can't segregate the grand jury testimony, and then strip out and publicize everything else (facts, investigation done or not done, judgment calls made on the basis thereof). Whether as a normal prosecutor or a Special Counsel, the system will fall apart if the public's advocate is either required or even permitted to disclose that stuff.

The demagogues in Congress will insist that as public servants in a coordinate branch of government, they're entitled to that information anyway. The DoJ will say, No you're not, because we're part of the executive branch, and the Constitution gives us and not you the job of investigating and prosecuting crimes. The demagogues will then ask the third branch, the judicial one, to compel the DoJ, but I am positive that the judicial branch will either refuse to answer the question or else side with the executive branch and its subpart, the DoJ.

Prosecutors talk to those outside the justice system through indictments and through the evidence they present in court to try to prove those indictments. They can give generalities and platitudes, and they can discuss things at the extreme margins. Fitzgerald's assurances in his indictment press conference that there was no interference or non-cooperation from any government agency in connection with his investigation were appropriate, for example, because if there had been, that's something he couldn't just shut up about. But Dafydd and the press would like Fitzgerald to talk about things like, "Did you consider indicting Rove? If not, why not? If so, how close did you come? Now let's talk about Cheney. What's your take, Pat, on Ms. Plame and her Vanity Fair photo spread?" (In fairness, Dafydd would never ask that question, but People magazine and even Newsweek would.)

The answers would be fascinating stuff. But it would be phenomenally bad public policy to permit Fitzgerald to give those answers. And it's just not going to happen.

Posted by Beldar at 11:45 PM in Law (2007) | Permalink | Comments (7)

News that will likely take most Republicans' minds off Libby

Chris Wallace, just now on Fox News Sunday: "There's been a lot of buzz, as we've said, in Republican circles that there's no true conservative in the G.O.P. presidential field. Now some top Republicans, including your friend former Tennessee Senator Howard Baker, are putting out trial balloons about you possibly entering the race. Question: Are you considering running for president in 2008?"

Fred Thompson (nodding in the affirmative): "I'm givin' some thought to it, and gonna leave the door open."

Things just got a lot more interesting.

(Note, however, contra the headline in this post, that Thompson also said if he were president, he'd pardon Libby now. I doubt he'll lose many Republican primary voters for saying that.)

Posted by Beldar at 08:12 AM in 2008 Election | Permalink | Comments (1)

Dramatic foreshadowing from 2005 on Congress' 2007 probe of L'Affair Plame

From Fitzgerald's October 2005 press conference when the Libby indictment was announced:

QUESTION: Would you oppose a congressional investigation into the leak of Valerie Plame's identity? And if not, would you be willing to cooperate with such an investigation by handing over the work product of your investigation?

FITZGERALD: I guess that's two questions, and I know I can answer the second part, turning over the work product.

There are strict rules about grand jury secrecy if there were an investigation. And, frankly, I have to pull the book out and get the people smarter than me about grand jury rules in Chicago and sit down and tell me how it works.

My gut instinct is that we do not -- very, very rarely is grand jury information shared with the Congress.

And I also think I'd have to be careful about what my charter is here. I don't think it's my role to opine on whether the Justice Department would oppose or not oppose some other investigation. So I'm certainly not going to figure that out standing up here with a bunch of cameras pointing at me.

In the likely looming showdown between grand jury secrecy plus executive privilege/separation of powers plus DoJ work-product privilege on the one hand, and Congressional curiosity-through-subpoena on the other, I predict that there will be a lot of posturing and frustrated Congress-critters at the end of the day. Expect much smoke and heat, little if any light. And the Democrats will blame everything on Dubya.

Posted by Beldar at 06:32 AM in Law (2007) | Permalink | Comments (1)


The distinguished and perceptive Charles Krauthammer wrote this  on Friday (boldface mine):

Everyone agrees that Fitzgerald's perjury case against Libby hung on the testimony of NBC's Tim Russert....

There is a second instance of Russert innocently misremembering. He stated under oath that he did not know that one may not be accompanied by a lawyer to a grand jury hearing. This fact, in and of itself, is irrelevant to the case, except that, as former prosecutor Victoria Toensing points out, the defense had tapes showing Russert saying on television three times that lawyers are barred from grand jury proceedings.

With due respect, Dr. Krauthammer and Ms. Toensing are both missing the obvious.

The previous footage of Mr. Russert, which comes from several years ago during the Clinton grand jury years, merely proves what most of us have long suspected:

TV news reporters and anchors — Russert obviously included — often read aloud on the air what's on the TelePrompTer™ (or on notes prepared for them by their producers and staff) with no understanding whatsoever of what they've just read!

Humor aside (and I didn't mean that entirely to be humorous), Libby's lawyers were given wide latitude to probe Mr. Russert's own memory while he was on the witness stand because it went to the credibility of his testimony, and that was entirely appropriate. By all accounts, they were pretty successful in showing past failures of memory on his part. But as Dr. K points out, Russert's knowledge of grand jury procedures in particular, while apparently transient at best, was not directly relevant to his own testimony about his conversations with Libby, nor to anything else in the Libby case. And because of its immateriality, it therefore could not have been grounds for any sort of perjury indictment or conviction against Russert.

As impeachment, this probably would nevertheless have been within the margins of "fair game" had Libby's lawyers wanted to bring up the old videotapes during their initial cross-examination of Russert. My understanding, however, is that this issue came up during Libby's lawyers' attempts to re-call  Russert — who at that particular moment was, I believe, outside subpoena range — to the stand during their own case for purposes of going into those tapes. It was that request that was denied. Commenters will correct me promptly, I'm sure, if I'm in error here; but if not, I am highly, highly confident that this discretionary ruling by the trial court is unlikely to form the basis for a successful motion for new trial or appeal. To establish an abuse of the trial judge's discretion here, Libby's lawyers almost certainly would have had to come up with a good reason why they didn't find, and couldn't have found, the old tapes before Russert left the stand the first time. And they'd have to show that the impeachment from these tapes in particular wouldn't have just been cumulative of their other impeachment — to the point that the outcome of the trial would quite possibly have been different. Ain't no way they can meet those burdens for appellate purposes, I suspect, and neither is the trial judge likely to reverse himself on this point in considering a motion for new trial.

The tapes are embarrassing for Russert, whom I'm inclined to agree deserves a fair share of embarrassment. It doesn't say much of anything about whether Libby's guilty or whether he got, in general, a fair trial.

Russert's Sunday morning show is already on my regular TiVo list (along with its counterparts from CBS, ABC, and Fox), but I certainly will be watching his live this Sunday morning if I can manage to. "Special Anchor," anyone?

I do hereby offer, however, two months' guest-blogging privileges on BeldarBlog to any guest of Russert's on this Sunday's Meet the Press who puts him on the spot about those tapes.

Posted by Beldar at 12:44 AM in Humor, Law (2007) | Permalink | Comments (7)

Libby and Berger

Does it occur to anyone else that Patrick Fitzgerald ought to be appointed immediately to be Special Counsel to investigate whether there was any obstruction of justice or perjury in connection with the Sandy Berger investigation, prosecution, and plea bargain?

Wouldn't that shut up just about everybody on everything, at least for a little while?

(Of course it wouldn't, but I can dream.)

Posted by Beldar at 12:01 AM in Humor, Law (2007) | Permalink | Comments (3)

Saturday, March 10, 2007

Did Fitzgerald abuse his prosecutorial discretion?

I'm pretty sure that I'm running out of meaningful things to say about the Libby prosecution and verdict.

Still, in response to some very articulate and thoughtful comments on my previous posts, as well as posts and arguments I've seen elsewhere, I'd like to explain why I haven't spoken out strongly yet, one way or the other, on the "prosecutorial discretion" debate.

In the process of getting to that explanation, I first have to address a number of arguments that others have advanced, but that I find unpersuasive, as tending to establish an abuse of discretion on Fitzgerald's part.

And finally, I'll offer up again what is unquestionably an obvious point, but one that I genuinely do think is getting insufficient consideration among many who are debating this topic from either side of it.

I. The relative importance of the investigation of L'Affair Plame and the prosecution of any crimes even arguably revealed by it

The main thing I've had to say in the past on this general subject is that I think whoever was in Fitzgerald's position — whether he or she was regular career DoJ staff whose normal job responsibilities would have included District of Columbia-based crimes or a "Special Counsel" with a particular mandate like Fitzgerald — would have been completely justified in treating this particular case as one demanding more than usual thoroughness.

Even for the United States government, investigative and prosecutorial resources are still limited, and judgment calls have to be made every day about which rock not to turn over, which follow-up grand jury subpoena not to issue, and when to close up one file and move on to the next one. And there are many factors that prosecutors ought to consider when exercising their judgment on those matters. In every case, those decisions are subjective and subject to second-guessing, especially when 20/20 hindsight is applied.

In this investigation in particular, though, I believe that there were extraordinary and compelling reasons for the prosecution to be particularly thorough and particularly diligent and particularly open-minded. In exercising its judgment, the prosecution should have leaned hard in the direction of not shutting down prematurely. And it should have leaned hard in favor of allowing the full adversary system to play out fully, through and including a jury's verdict, rather than aborting that process through a prosecutorial decision to shut things down.

One thing that the trial has unquestionably revealed to the public is the degree to which L'Affair Plame compelled the attention of the Administration at its very top levels. And neither has there ever been any doubt about the furious obsession over this matter among the Administration's opponents, the mainstream media, the blogosphere, and even non-trivial segments of the rest of the public. Whether it should have or not, whether it was originally a molehill or not, it certainly had become a mountain of an issue by the time that the DoJ had to decide how to respond, for example, to the demands that a Special Counsel be appointed.

At the time, I thought that the decision to appoint a Special Counsel was absolutely proper, and I still think that. I say that as someone who had, and still has, a strong opinion that the now-defunct "independent counsel" statute ought to remain on the scrap-heap of legal history.

Nor, considering everything else I've read about him apart from L'Affair Plame, have I heard any reason to think that Patrick Fitzgerald was an inappropriate or unwise choice to serve as Special Counsel. To the contrary, I've yet to hear any remotely persuasive criticism of him outside the context of L'Affair Plame.

Neither am I at all persuaded by people who argue that the investigative and prosecutorial resources expended in L'Affair Plame were disproportionate or not cost-justified. Again, that's very much a matter of judgment, but given the amount of public furor and interest — and the potential effects on public confidence in the justice system of whatever resulted from the investigation — this matter deserved all the resources expended on it. There have been countless drug or organized crime or white-collar crime investigations and prosecutions that were completely off the national radar screens that nevertheless soaked up far more resources than this; I'm not unhappy with the resources devoted to those, either. But dollar-based objections to the Special Counsel team's efforts are, in my opinion, silly and transparent fronts for objections that are really based on other (including political) motivations.

No one can seriously dispute that if the Special Counsel team had shut down without any indictments, there would have been a substantial political firestorm from opponents of the Administration who were predisposed to find, and deeply suspicious of, the proverbial "whitewash." To the extent possible — and total success on this is never going to be possible — this investigation not only had to do justice but to be seen to do justice. No result would ever have satisfied everyone. In this particular case — which unquestionably touched upon many matters of national security having nothing whatsoever to do with Ms. Plame and her particular status — permitting justice to be seen to have been done was going to be especially difficult. So that's yet another factor that ought to have weighed in favor of the prosecution pressing on and turning over more rocks, rather than shutting down early.

II. The length of the investigation of L'Affair Plame

The length of the investigation and prosecution is misleading when examined in isolation. This investigation and prosecution proceeded at an appropriate pace, given all the circumstances.

There was no way that Fitzgerald could complete his investigation of possible charges against Libby — or that he could rule out charges for perjury or obstruction of justice against all of the other potential targets — without overcoming the privileges that were being asserted by Matt Cooper, Judith Miller, and other members of the press. The NYT continues to insist that the most significant ramifications of this case were on the press. (I actually tend to agree that, in the big picture as measured over many years, the righteous and appropriate slap-down delivered to the NYT might be the most important legacy of the case.)

What the NYT continues to conveniently overlook, though, is the DoJ regulations that effectively duplicate the statutory non-absolute reporters' privilege which many state legislatures have enacted. Those regulations required Fitzgerald to first exhaust other means of acquiring equivalent information from other sources before he could even try to compel the reporters' testimony. Those press folks then injected many, many more months of delay into the investigation. Recall, for example, that by the time of the D.C. Circuit's decision on Cooper and Miller, Fitzgerald was reporting that their grand jury testimony was all he was waiting for before effectively concluding his main investigation and either issuing indictments or not. Press lawyers were kicking and scratching to try to get the Supreme Court to stay the D.C. Circuit's mandate (i.e., freeze its decision) pending a decision on their petition for Supreme Court review. Of course Judy insisted on her star turn as Ms. Contempt of Court before she finally testified to the grand jury.

The rest of the key witnesses also had complicated schedules that needed some accommodation: Libby's two grand jury appearances, for example, were separated by several weeks because until the indictment, he was, after all, handling all the duties of the Chief of Staff to the VPOTUS, and Fitzgerald's investigation didn't and shouldn't come before all of the other responsibilities of that office-holder.

And this was far from the only food on Mr. Fitzgerald's own plate. While personally overseeing and staying thoroughly involved in this investigation — it was Fitzgerald, for example, who examined Libby before the grand jury, not some subordinate to whom he'd delegated that task — Fitzgerald was also dealing with the other responsibilities of the U.S. Attorney for the district that includes the nation's third largest city, including other hugely important investigations relating to national security and the global war on radical Islamic terrorists.

III. The absence of other indictments from L'Affair Plame

Some of those who argue that Fitzgerald must have abused his discretion, or acted out of anti-Republican partisanship (hah!) or a slavish desire to placate the Administration's critics (double-hah!) or the press (triple-hah!), point to the indictments he didn't bring. (Some of these same critics also claim that Fitzgerald was acting out of self-aggrandizing motives, i.e., to get a conviction of somebody, not two paragraphs after faulting him for not indicting anyone other than Libby. The simultaneous making of these arguments, even if done under oath, would probably not be perjury, but even when done only on a blog, it is very silly.)

I also find that to be a very unpersuasive line of argument. The fact that two witnesses' recollection of facts differ, for example, is by no means a sufficient reason to conclude that one of them should have been indicted for perjury, and anyone who makes that argument is either very foolish or very disingenuous. Scooter Libby's prosecution didn't depend just on the difference between his purported recollection and Tim Russert's, for example, but between his purported recollection and the recollections of a large handful of other witnesses, key documents, and Libby's own sworn recollection at other times. In every potential prosecution, the prosecutor must constantly be asking himself, "What does the current state of the investigation, viewed through the lens of all my experience, tell me about the likelihood that I'll be able to prove every element of a crime beyond a reasonable doubt?" That includes essential elements like "materiality" to the underlying subject of the testimony, and it also includes the prosecutor's assessment of absolutely subjective matters like the witnesses' relative credibility.

Is it conceivable that Fitzgerald could possibly have persuaded a grand jury to issue other indictments? Oh, sure — that's actually likely, given the number of proverbial ham sandwiches in the District of Columbia. Is it conceivable that he might have obtained convictions of persons other than Libby for things like perjury or obstruction of justice? Well, from an outsider's perspective, that doesn't seem to be inconceivable either. But is it so likely that we can conclude that Fitzgerald's failure to try was an abuse of prosecutorial discretion?

Look how long the Libby jury deliberated, for example, and how many close observers of the trial insist (in what I will stipulate to be well-informed good faith) that there was insufficient evidence even as to Libby. And most of the other targets being bandied about — Russert, Fleischer, Armitage, Rove, Cheney — all have major and glaring holes, obvious even to public outsiders, in any potential indictment against them. It's one thing to toss out a paragraph in your blog about how so-and-so looks as culpable as Libby or even moreso; it's an entirely different thing to get an indictment and conviction based on proof beyond a reasonable doubt of every element of a criminal offense.

With due respect, I've yet to see a serious effort by anyone in the press, or by any of those bloggers, even to outline the elements of an indictment as to any other possible crime or target that would survive an immediate motion to dismiss. Such an effort would require you to identify the statute, and then come up at least a meaty sketch of the names, dates, and places for the events by which you'd propose to prove every element of the crime defined by that statute. Maybe those arguing "so-and-so should have been indicted" lack the competence to frame an indictment, but I think they also lack the law and the evidence. If you're gonna argue that Fitzgerald would-coulda-shoulda, then put up or shut up on the very first step he'd have had to take. Otherwise you're just blowing smoke.

No, I am not remotely prepared to say that Fitzgerald completely and absolutely blew it, to the point of it having been an abuse of his discretion or any sort of credible evidence of bias against Libby, in refusing to seek indictments against anyone else. And that's even continuing to apply my previous remarks to the effect that he ought to have erred, if at all, in favor of letting possible crimes be tested through the full system.

Let's assume, for purposes of argument, that based on the FBI interviews and fact-gathering that had already been done, Fitzgerald was able to conclude with reasonable confidence within days of becoming Special Counsel that there had been no criminal violation in the leaking of Plame's CIA status, or at least that there was insufficient evidence to make it sufficiently likely that he could obtain a conviction for that. Should he have closed down the investigation then, based solely on that, without doing anything else?

Unquestionably not — not unless he was content to have public confidence in the justice system take a huge hit. Recall, you Libby defenders, just how successful Libby's defense was at suggesting that FBI interviews were likely to be biased, inaccurate, and unreliable (as compared, say, to stenographically or electronically recorded grand jury testimony or, better yet, open trial testimony tested by full cross-examination). Remember that this is a system set up to provide increasingly stringent tests for evidence — and what the policeman says he was told might be the end of the story, but it very, very often is not. Again, for purposes that justice not only be done but be seen to be done, would any Special Counsel be justified in running at least some of the key fact witnesses before a grand jury? That's still a secret proceeding, and one that's comparatively likely (in comparison to an open adversary-system trial) to produce distorted results, but at least it's an indication of some further diligence than just relying on FBI agents' notes.

Does that mean the Special Counsel had to put every witness whom the FBI had interviewed under the brighter (but not brightest) lights of a grand jury appearance? That, again, is a judgment call, and it's one that can only be made based on all of the other cumulative results of the investigation to date — including other interviews, documents that have been gathered, and previous grand jury witnesses. Critics of the verdict have faulted Fitzgerald for not having run Richard Armitage before a grand jury, since he's who indisputably first leaked Plame's CIA employment to Novak. And superficially that's surprising. But did Fitzgerald ever have any reason to think that anyone was ever likely to question what the FBI notes already revealed as to what Armitage had to say? At the time when Fitzgerald could have subpoenaed Armitage, was there any crime still being actively investigated that his testimony was material to? I don't think so — and a pretty good indication of that is that neither Fitzgerald nor the defense saw any reason to call Armitage as a witness at trial.

With particular respect to Libby, Andy McCarthy has pointed out that even as of the day Fitzgerald was appointed, there was already a conflict in Libby's sworn declarations to FBI agents and the documentary evidence in his own hand on unquestionably material topics. We don't know, and will probably never know, what other potential subjects and crimes were still being examined by Fitzgerald as he was continuing the investigation through both grand jury testimony and other efforts. But given the verdict, it's pretty hard to argue that he didn't at least have one potential crime that justified at least further investigation.

Finally, keep in mind that to some degree, Libby's trial was itself necessarily a continuation of Fitzgerald's overall investigation. Witnesses were examined far more extensively in that trial than they had been in their FBI interviews or grand jury testimony, and their examination included that from Libby's defense lawyers, who certainly had every incentive to point fingers elsewhere. It was not at all inconceivable that something unexpected would come out of some Libby trial witnesses' testimony that might have prompted further investigation — by FBI agents and DoJ lawyers, and potentially by a grand jury — as to other potential crimes and defendants. One can hypothesize, for example, that many or most of the witnesses in the Libby trial might have offered new evidence that someone else — Rove? Armitage? almost anyone — had obstructed justice or given false sworn declarations on material subjects. It's a mistake to presume, in other words, that Fitzgerald was some modern-day Inspector Javert obsessed only with Libby. The more fair presumption is that Libby was the only blip still on Fitzgerald's radar screen by the time of Libby's trial, and that Fitzgerald was properly focused on proving what the indictment against Libby alleged rather than using the Libby trial as a fishing expedition to look for more crimes and defendants — but that Fitzgerald nonetheless hadn't turned his radar off yet.

IV. You and I can't know everything one needs to know to make a fully informed judgment on Fitzgerald's exercise of discretion

It is simply astonishing how much information is now out in the public domain about L'Affair Plame and the Libby prosecution. Think back just a few years to the various legal fights during the Clinton years: Even the amount of information that was circulating then — and I remember being astonished at being able to read, for example, the Starr Report for myself, in full text, within hours after it came out, including particulars I'll never quite forget about such things as novel cigar usages — is dwarfed by what's now somewhere on the internet about this investigation and this trial. I spent several hours in the last couple of days reading Libby's grand jury testimony, for example, and looking at his handwritten notes that were part of the exhibits. Anyone with access to the internet anywhere in the world could scrutinize the trial exhibits on a day-by-day basis! And there were mainstream media reporters and bloggers of every persuasion and inclination giving minute-by-minute updates during the trial.

(One fairly sharp — and absolutely positively appropriate! — contrast with the Clinton fights, however, is that there were comparatively few leaks associated with Fitzgerald's investigation, including the grand jury process. That is fairly compelling circumstantial evidence, at least in my book, that this investigation wasn't being driven on a day to day basis by political concerns and the 24-hour and weekly news cycles.)

But still: However much even the most avid public followers of all this may have soaked up or dug up, there can be no serious argument from any quarter that any of them have available to them all the information that Patrick Fitzgerald had available to him.

For one thing, he's had access to classified national security information that you and I haven't seen, never will see, and ought not see. For that matter, so has Libby, and (to some extent) so have his counsel. How did any of that affect any of Fitzgerald's judgment calls? I don't know, and neither do you.

But completely aside from the classified national security information, in every prosecution — in every trial — there is always a vast body of information, some of it trivial but some of it potentially important, that non-participants haven't ever seen.

Every case I've ever tried, for example, has had box-loads of stuff — correspondence, memos, legal research, notes and drafts, and mounds and mounds of document production — that nobody outside the case has ever seen. Any trial lawyer will tell you that if your own trial team can maintain even a reasonably good handle on that universe of information, you're doing a fabulous job. If you and your trial team actually have a command of 90% of that material, you're world-class. But no outsider is likely to have a genuine command of even half of it.

I've had the experience of taking over a whole bunch of cases that other lawyers have prepared, and sometimes that they've even already tried, and then preparing that case for further proceedings, appeals, or retrials. It's amazingly common for my fresh set of eyes to find important things that my predecessors missed. But there have also been occasions when I've completely missed important things that my predecessors knew were awfully important, even when I've had their active cooperation and access to their entire files.

The absence of complete information doesn't mean we can't have a meaningful debate on subjects like whether Fitzgerald properly exercised his discretion. But don't kid yourself into thinking that you can genuinely put yourself into his shoes in second-guessing his decisions.

You just can't, and — really and truly — you can't even get very close, even in the internet age and in a case that's gotten the kind of scrutiny that this one has.

V. Even if we knew everything we needed to know, most of us don't have the prosecutorial perspective to analyze it properly

We're all entitled to our opinions, but I'm less inclined, in general, to second guess judgment calls that must necessarily have been the product of intensive training and experience on the part of (to use Dubya's apt if inelegant phrase) the actual deciders. The reliability and credibility of my second-guessing depends on my having that same training and experience. If you ask me, for example, whether Surgeon Y made a good judgment in deciding to sew Patient Z back up rather than dig around for another three hours looking for more tumor, my pronouncement on that is going to be about as meaningful as a coin-flip or a dart throw.

I'm a seasoned civil trial lawyer with broad and deep experience, and before that I had the privilege of spending a year working as an appellate law clerk within the federal justice system. But I've never belonged to the special fraternity of prosecutors. I've never had the opportunity of standing up and saying "Bill Dyer, your honor, for the United States of America." I've been involved in thousands of lawsuits and many dozens of jury trials, but not one of them has ever required me or my opponent to prove our allegations beyond a reasonable doubt. And although I've had awesome, sometimes crushing, amounts of responsibility for my individual clients, I've never had the exact kind of pressures that all prosecutors have to some degree, and certainly not the kind of pressures that top-level senior prosecutors in an international media fishbowl must handle.

I'm probably in a better position than most non-prosecutors to pretend that I know what a reasonable prosecutor might do in any given set of circumstances. But that's really a conceit on my part. I used to think I was as good at fighting bad guys as Roy Rogers, too.

Before you burst a blood vessel over what Pat Fitzgerald did or didn't do, ask yourself just how much experience you actually have to be drawing confident inferences.

Do I feel confident enough in my own assessments on L'Affair Plame that I'd be comfortable, for example, having President Bush act on the basis of my recommendation as to whether Patrick Fitzgerald ought to be fired as a U.S. Attorney or promoted to the next high-ranking position in the Justice Department? Hell, no; and God save these United States from me being the decider on that sort of issue!

VI. So far, Fitzgerald has indisputably won every significant fight he chose to pick in L'Affair Plame

We all cherish the freedom that lets us debate and persuade and disagree with one another over all these issues relating to L'Affair Plame and Scooter Libby. We're all entitled to have, and voice, opinions that Fitzgerald indicted too few people, or too many; that the jury was too harsh or too timid; that the reporters were heroes or villains; and that Bush/Rove + Cheney/Libby & Co. are either devils or the last bastions of our protection from terrorists who'd love to behead each and every one of this blog's readers. That's all well and good.

But we also live in a society that has defined institutions charged with effectuating the (capital letters alert!) Rule of Law. We justifiably celebrate those institutions when they keep our society from degenerating into military coups d'etat or bloody fighting in the streets. If you believe in those institutions — in things like the basic systemic integrity of the FBI and the DoJ and the grand jury process and the full range of federal trial and appellate courts and the jury system — then you have to pay due attention to the results of their processes.

So it's unbecoming — it's disingenuous — to leave out of the debate over Fitzgerald's exercise of his discretion the indisputable and obvious fact that so far, he's won every single major fight that he and his team chose to pick in the investigation and prosecution of crimes out of L'Affair Plame, including but not limited to the most important one yet, that being on four out of five counts in the Scooter Libby jury trial.

If Fitzgerald was absolutely, positively abusing his discretion, failing in his job responsibilities, incompetent, or otherwise screwing the pooch, you would expect that in at least some of these fights, he'd have had a set-back. You'd expect that Judith Miller would have left jail in a parade with a brass band escorting her home, instead of in a U.S. Marshals van en route to the grand jury proceedings. You'd expect that one or more of the multiple indictment counts would have been bounced in pretrial proceedings, or through directed verdict during the trial. That's happened quite a bit in a great many high-profile federal prosecutions — recently and locally, for example, in the fallout from the Enron collapse, in which the prosecution is struggling to stay above the median batting average for Major League Baseball outfielders. (I think they're still comfortably above the median batting average for National League pitchers.)

As in every trial, the Libby defense team won on a few motions and objections and discretionary rulings from the court; if they hadn't, that would be strong evidence that Fitzgerald and his team were complete wimps who weren't doing their jobs as trial advocates in the public interest. But to the best of my knowledge, on every single major fight against every opponent in the investigation and prosecution of crimes in L'Affair Plame, Patrick Fitzgerald is batting 1.000. And batting 1.000 in a multi-fight legal war just isn't typical even for very good, very conscientious federal prosecutors.

That impresses me, friends and neighbors. And it does so absolutely in proportion to my respect for the system in which Pat Fitzgerald has been operating.

The combat isn't done yet. If, as Fitzgerald's critics insist, the Libby verdict is fatally flawed in some or all of the many ways they now argue, then it ought to be set aside in whole or in part — either by the trial court in response to Libby's motion for new trial, or by the U.S. Court of Appeals for the D.C. Circuit (yes, that same court that made Judy testify and that yesterday struck a massive blow for conservative Second Amendment proponents), or by the U.S. Supreme Court. But if that doesn't happen, there are only three possible conclusions to draw: (1) Fitzgerald did a righteous job; or (2) the entire system broke down in this instance; or (3) the entire system ought to be trashed.

I'll tell you right now that I'm incapable of being persuaded of choice (3). That would rock my world and require me to conclude that my whole career has been a farce, and that's just not going to happen. Go argue that over at Democratic Underground or wherever.

As between (1) and (2), I'll reserve judgment pending Libby's appeals. But personally, I'm leaning pretty hard toward (1) for now.

Posted by Beldar at 06:32 PM in Law (2007) | Permalink | Comments (42)

Why Libby can still have been guilty of perjury even though no one was prosecuted or convicted for leaking about Plame

My honored friend Patterico has privately chided me from time to time in the past for putting too much of my energies into writing comments on other blogs, whether his or someone else's, when I ought to channel that energy into more posts on my own blog. Patterico's chiding is well taken, although I often remember it too late.

In a post yesterday about the Libby case, Patterico graciously linked my own long war story post from yesterday, along with a provocative and interesting post about Special Counsel Patrick Fitzgerald's exercise of prosecutorial discretion by our mutual friend Tom Maguire.

I take the liberty of reprinting here a thoughtful comment that Tom then left on Patterico's post; an admirably concise but important comment that yet another mutual friend, DRJ, made there in response to Tom's; and my own pair of answering comments. In re-reading it all, including intervening comments by a number of other people, it seems more clear to me that Tom and DRJ were focusing on the subject of prosecutorial discretion, which I addressed in my second comment. But it's very obvious that many other people who were commenting on this same post at Patterico's, and whom I've seen commenting on many other blogs, have fundamental misunderstandings about the nature of perjury law — and specifically, that they have the serious misimpression that sworn testimony can only be perjurious if it's about an actual crime that was at least committed by someone, and perhaps that also was indicted, prosecuted, and the subject of a conviction.

Since the balance of this post is basically all republication, I'm not going to use my normal block-quote style, but will just reprint the four comments in sequence. As partial compensation for my unabashed misappropriation of this prose, I encourage you all to visit Tom's and Patterico's blogs and to click through promiscuously on the advertisements you find there. And absolutely no one will be surprised that my pair of comments is longer by far than everyone else's put together.


First, from Tom (in comment #9 to Patterico's post):

Thanks for the link, and if I may be indulged for a moment, let me pose a legal question in the form of a short story:

A controversial University Dean is found dead in the cafeteria; because the Dean had been in good health, poisoning is immediately suspected as the cause of death (OK, a bit far-fetched, but work with me).

The Science Dept. Chair, Prof. Jones, is a suspect - he has access to weird chemicals *and* had been leading a faculty revolt against the Dean.

But Prof. Jones, in grand jury testimony, offers an alibi - he was in Atlantic City all weekend, five hundred miles away.

Well.  One fine day, two reports reach the prosecutor’s desk:

(a) Prof. Jones lied - he was, in fact, in town meeting with a group of trustees to plot the overthrow of the Dean.

(b) the medical examiner’s report is unambiguous - death from natural causes due to a rare, previously unnoticed heart condition.

SO - does the prosecutor file perjury charges against Prof. Jones?

YES: Jones lied during a good-faith murder investigation.

NO: Are you kidding - there was no crime!?!

The parallels to the Libby case may (or may not) be obvious, but I am curious to see what folks think.

OK, I am curious to see what I think, too.


Next, from DRJ (in comment #17 to Patterico's post):

Tom Maguire,

I think the prosecutor should pursue perjury charges against the Professor, if “only” to send the message you can’t lie with impunity to a grand jury.


Next, from me (in comment #39 to Patterico's post):

Tom Maguire (#9):

Your hypothetical is a pretty good one. I like it a lot. Your hypothetical is effective, but not because it illustrates a close legal question. It does not. If your hypothetical were asked in a law school criminal law examination, any law student who answered “No” would absolutely, positively get zero credit for that answer. It’s not a “maybe yes, maybe no” situation where someone gets partial credit. The only correct answer to your hypothetical is “Yes.”

Your hypothetical is particularly effective for people trying to understand the Libby situation because it strips the political confusion away that covers that case. Thus, your hypothetical can be used to effectively split people into two groups: First, there are those who do understand what the crime of perjury is, all of whom will answer “Yes” to your hypothetical. Second, there are those who think that perjury can only happen if the questioning is about an actual crime that was committed, and that can be prosecuted with a resulting conviction, all of whom will answer “No” to your hypothetical.

I’m guessing here, but my guess is that what may have led to some of this confusion is a poor understanding of the concept in perjury law of “materiality.” If the intentional false statement is on some matter that is not material to the subject of the testimony, then it may not be able to support a prosecution and conviction for perjury. Thus, for example, if Prof. Jones is asked before the Grand Jury, “How old are you,” and being vain, he lies and says he’s 39 even though he’s really 49, that’s a deliberate and intentional false statement, but it’s not on a material matter because that’s not something that relates closely to the reason for him giving sworn testimony to that grand jury. (His age doesn’t relate to anything that grand jury is trying to find out.) But some people blur this “materiality” requirement in their minds, and come away with the impression that to be “material,” the testimony must relate to a crime.

Well, no, that’s not at all what “material” means.

As a civil trial lawyer, I take testimony under oath day in and day out. Almost never in the twenty-six years in which I’ve been taking sworn testimony has the underlying subject of my questions been a crime — either actual or alleged.

Instead, in the cases I handle, what’s material may be whether someone did or didn’t sign the contract, or whether the supermarket manager did or didn’t know that there was a crushed grape on the floor (resulting in a slip-and-fall). The witness who deliberately lies to me about the signature on the contract will be subject to prosecution and conviction for perjury if his testimony was in my lawsuit about that contract, even though he wasn’t being asked under oath about anything having to do with any crime. “Signatures” are material for purposes of my contracts lawsuit. By contrast, who saw the crushed grape is material for purposes of my slip-and-fall lawsuit. Whether the witnesses in my contract or slip-and-fall case are actually 39 or 49 isn’t any more material in those cases, though, than it would be material in the grand jury investigation of who killed the Dean.

But if Prof. Jones was being examined before the grand jury that was convened to decide whether a crime had possibly been committed in connection with the death of the Dean, and Prof. Jones is a suspect, then yes, indeed — Prof. Jones’ whereabouts are very material to his testimony, and if he deliberately lies about them, that is indeed perjury, regardless of whether the Dean turns out to have been murdered or not. The materiality doesn’t depend on proof of the dean ever having been murdered by anyone. Rather, it has to do with the purposes of Prof. Jones having been put under oath for questioning before the grand jury.

Likewise, Libby’s testimony about who told him what and when, and who he told what and when, was absolutely “material” to Mr. Fitzgerald’s grand jury’s investigations. “Materiality” doesn’t depend on whether there really was a crime committed, or whether an indictment is ever returned, or on whether a conviction is ever obtained. The grand jury is entitled to get truthful testimony on the subjects that are material to its investigation even when — as here — it never finds probable cause to believe an underlying crime has been convicted, and therefore never indicts anyone. That’s why both Libby and Prof. Jones can later be found guilty of having committed perjury.

Anyway:  Let’s argue sometimes on each other’s blogs, and not just on our fine mutual friend Patterico’s!

Other readers: If you thought the correct answer to Tom’s hypothetical was “NO: Are you kidding - there was no crime!?!,” then you’re wasting bandwidth by even commenting on the Scooter Libby trial. You’re working on a completely flawed set of assumptions that guarantee that any conclusions you draw are going to be unfounded.

Best regards from your old friend,

- Beldar


Finally, from me (in comment #40 to Patterico's post):

One more thing: DRJ (#17 above) is definitely in the category of “those who understand what perjury is.” His answer presumes (as mine just above, #39, argues at great length) that Prof. Jones has indeed committed perjury, that there is ample evidence of it, and that Prof. Jones will be properly convicted. DRJ read your hypothetical differently than I did, though. DRJ read it to be asking about prosecutorial discretion. (I read it to be asking about whether perjury had or hadn’t been committed.)

But let me add that I absolutely, positively agree with DRJ as well on the prosecutorial discretion reading. With the clean set of facts you propose, the prosecutor is almost certainly going to be able to get a conviction if he does indict. Is there some reason why he shouldn’t?

The fact that the Dean wasn’t murdered is no good reason not to indict, for exactly the reason DRJ points out: You don’t let people off the hook for committing perjury just because it’s later established that the correct result of the grand jury proceedings would be a no-bill (non-indictment).

For grand juries to perform their essential screening function in the criminal justice system, they must get accurate (non-perjured) testimony on all of the facts that are material to the possible crimes they’re investigating, without regard to whether that testimony tends to sway the grand jury toward believing that there is probable cause for an indictment, or that there is NOT probable cause. Indeed, for the protection of the innocent, it’s arguably more important that grand juries get absolutely truthful and accurate (non-perjurious) testimony in exactly those cases in which they end up returning no indictments!

So DRJ is right: No prosecutor who understands the nature of the criminal justice system and the importance of witnesses giving truthful testimony — as compelled, in part, by the possibility of punishment through a perjury prosecution — would “walk on by” the clear case of perjury you’ve postulated.

That’s what Fitzgerald was trying to say in his press conference for which you pilloried him on your blog. You point out that he may have “walked on by” a lot of other potential perjury indictments, and maybe so; obviously you and he disagree on how strong those potential indictments might have been. The Libby situation has many more players, and many more political and military ramifications, than your nice, clean hypothetical. And in the real world, prosecutorial discretion is much harder to exercise, and much more subject to second-guessing, than in your nice, clean hypothetical.

But again, in your nice clean hypothetical, not only is it clear that Prof. Jones is guilty of perjury, but it is equally clear that any honest prosecutor would chose to prosecute him (notwithstanding the Dean’s natural death).

Update (Sat Mar 10 @ 7:37pm): I see that Tom's also posted his hypothetical on his own blog.

Posted by Beldar at 04:14 AM in Law (2007) | Permalink | Comments (17)

Friday, March 09, 2007

A Beldar war-story about a witness who lied under oath when he had no apparent motive to do so

This is a long, long war-story about a witness who told me a lie despite his lack of any good motive to do so. I don't know if it has any relevance to the Libby trial. If you're willing to wade through the war story, I'll let you draw your own conclusions about that, but I will suggest some that have occurred to me en route.


In the early 1980s, I was defending a regular client, Montgomery Ward & Co., in a personal injury case. The plaintiff, who I'll call Mrs. T___, was an older woman — a very sympathetic grandmother, in fact — who claimed to have suffered a ruptured disc in her neck when she was struck by an elevator door while exiting an elevator at one of Wards' stores. She'd had surgery on her neck, a laminectomy, that had been performed by a Houston neurosurgeon whom I'll call Dr. M___.

As a normal part of preparing for trial, Mrs. T___'s lawyer had arranged to secure Dr. M___'s testimony about his diagnosis, the need for the surgery, its outcome, Mrs. T___'s future prognosis, the reasonableness of her medical expenses, and so forth. As an experienced trial lawyer, my opponent knew that it's hard to arrange for doctors to appear as live witnesses at trial, so he'd had also arranged to record Dr. M___'s deposition through both a normal court reporter's written transcript and on a videotape that could be displayed to the jury.

This was by far the most serious case of the 150 or so on my docket then. I was new to the practice of law, and I had yet to try a first-chair district court case for big bucks, and in fact, I'd never even participated in either a doctor's deposition or a videotape deposition. What's more, my client's nominal co-defendant in the case, the elevator maintenance company, had cut a so-called "Mary Carter" deal with Mrs. T___'s lawyer whereby the elevator maintenance company would get back the modest amount it had already paid Mrs. T___ out of any verdict Mrs. T___'s lawyer could get against Wards! That aligned the elevator maintenance company and its very experienced lawyer squarely with Mrs. T___. It also meant that in this deposition, as at the trial itself, this case was shaping up to be (to use the extremely crude language that trial lawyers often use) a gang-bang, with me and my client as the bang-ees. Mrs. T___'s lawyer was asking for $500,000 to settle the case, and he intended to ask the jury for an even $1 million.

I was appropriately nervous, but I knew one of the things I needed to do before the deposition was to check out the surgeon.

Dr. M___ checked out pretty well. There was no way that I could attack him on the basis of his credentials. Dr. M___ was not only board certified, he was one of the examiners for the neurosurgery national board exams. He had over two decades of experience treating just this kind of case and doing just this kind of surgery. He had staff privileges at all of the best hospitals in the Texas Medical Center. In fact, Dr. M___ was an adjunct professor in neurosurgery at one of Houston's two medical schools. My then-girlfriend, who was a medical student, had even assisted him (i.e., held a retractor for a while) in the operating room in an unrelated case, and she told me that his reputation among the other surgeons and surgical residents was superb.

I also determined that although Dr. M___ had testified a few times before, it had only been in cases in which he had been a treating physician, meaning he couldn't have avoided being a witness. He wasn't a hired gun or a professional testifier by any means. I went through my law firm's library of prior expert witness depositions, but I only found one from Dr. M___, and that was in a case involving epilepsy — nothing remotely related to my case — and in fact his testimony had been generally helpful to my firm's client in that case. (I tucked that earlier deposition into my briefcase anyway, but I saw no way that it was likely to become useful.)

Nor was there any reason for anyone to suspect him of being biased. Mrs. T___'s medical bills, including her bills from Dr. M___, had already been paid in full by her insurance company. Mrs. T___'s lawyer was paying Dr. M___ by the hour for the time he was spending in giving his deposition testimony, but it was at a very reasonable rate, no different from what any local doctor would charge for taking time away from his practice. Other than the natural sympathy that most physicians feel for their patients, this witness had no conceivable motivation to shade his testimony in the plaintiff's favor, much less to tell an outright lie on her behalf.

The medical records also weren't particularly helpful to me. From both the pre-surgical tests and the findings during surgery, there was no doubt that the plaintiff did indeed have a ruptured cervical disc. That didn't necessarily establish that the disc had been ruptured in the elevator door incident, and there are lots of other ways that people can rupture cervical discs — sneezing, stepping hard off a curb, turning over in bed. There were indications of pre-existing arthritic changes in her spine typical for a woman of her age, but there were no suggestions that they had ever been symptomatic. I had no proof of any other traumatic event that could have accounted for the ruptured disc, so the surgeon's testimony was also likely to provide adequate proof of causation between the alleged accident and the ruptured disc.

All of this made me pretty glum as the deposition approached. I sought advice from older lawyers at my firm, but they pretty much came up dry too. The best they could offer were some suggested questions that can be asked in just about any soft tissue/ruptured disc case and that are usually somewhat helpful to the defense. For example: "Now, doctor, can you explain to the jury the difference between objective findings and subjective complaints? We know you have some diagnostic devices like X-rays that give you objective findings, but you don't have a device that exactly measures a subjective complaint like pain, do you? So when your patient tells you her pain is very severe, you generally must take her word for that, correct? And there aren't any objective tests that can tell whether her pain is really moderate or mild instead, are there? And you weren't there when the elevator door supposedly hit her, were you? So you can't absolutely, positively rule out that she might have actually ruptured the disc in her neck in one of those other ways that you've described as possible ways to get this kind of injury, can you?" That sort of stuff.

Thin gruel for an important cross-examination.


I had a heavy, bulging briefcase when I showed up at one of the hospital conference rooms for Dr. M___'s deposition at about 4:30 p.m. on a Tuesday, but that was only because Mrs. T___ had a whole lot of medical records. My handwritten list of questions for Dr. M___ filled about a page and a half, with wide margins and big writing.

And as I'd expected, Mrs. T___'s lawyer did a first-rate job of getting Dr. M___ to explain Mrs. T___'s condition, her surgery, her post-surgical care, the pain attending all of that, the likely causation, the possibility that she might need further surgery, the reasonableness of her expenses — the whole nine yards. And then the elevator maintenance company's lawyer put in his two cents, basically functioning as an additional lawyer for Mrs. T___.

Mind you, Dr. M___ wasn't going out of his way to hurt me and my client. He did have the educator's gift of explaining complicated medical information in easily understood terms, though. And by just giving honest and thorough answers to the particular questions skillfully selected by my opposing counsel, Dr. M___ had just about buried my client on medical causation and damages in this personal injury case. A million dollar verdict was seeming more and more likely to me, based on this testimony. I was very discouraged.

It was about 6:00 p.m. when it was finally my turn, and everyone was pretty tired. Dr. M___ in particular was beginning to look kind of ragged. When I started my questions, he interrupted to ask, "Can you finish up in 15 minutes or less? I've got a headache, my allergies are acting up, and I've been up since 5:00 a.m. today making rounds and doing three different surgeries, and my wife and I are supposed to go to a charity function tonight."

This was not an unreasonable request. Indeed, if I had not already been wallowing in self-pity over my hopeless plight in this deposition, I probably would have felt sorry for Dr. M___. His face was red, and his eyes were bloodshot; he was perspiring freely under the videographer's bright lights; and his voice had gotten hoarse.

I assured him that I'd be as brief as I could, but that it would be more than 15 minutes, and I started going through my list of "standard questions." Being inexperienced, however, I wasn't very crisp, and some of my questions were probably a bit repetitive. Dr. M___ was getting a little bit testy, and his own answers were getting shorter and more curt, less expansive, more technical, and with fewer explanations to make it easy for a lay audience to understand him. I wasn't making much headway.

"Dr. M___," I said, "I'm almost done. Thank you for bearing with me. I'm just doing my job, and all of these questions are important, or at least they seem that way to me. I'm on my last topic, sir, and to start us off on that: Dr. M___, can you tell the jury, please, what the term 'secondary gain' means?"


I must detour here to explain that "secondary gain" is another one of those things that pretty much all personal injury defense lawyers ask doctors about. Wikipedia's definition isn't too bad:

Patients' symptoms often have a significant psychological component, and physicians sometimes categorize psychological motivators into primary and secondary gain. Primary gain is an internal, unconscious motivator. For example, if a patient is particularly guilty about being unable to perform some task, their medical symptoms may be amplified as a psychological defense against the guilt. Primary gain can be a component of any disease, but is most dramatically demonstrated in Conversion Disorder (a psychiatric disorder in which stressors manifest themselves as physical symptoms without organic causes — such as a person who becomes blind after seeing a murder). The "gain" may not be particularly evident to an outside observer.

Secondary gain can also be a component of any disease, but is an external motivator. If a patient's disease allows her to miss work, gains her sympathy, or avoids a jail sentence, these would be examples of secondary gain. These may but need not be recognized by the patient. If she is deliberately exaggerating symptoms for personal gain, then she is malingering. However, secondary gain may simply be an unconscious psychologic component of symptoms.

So what the defense lawyer typically wants from the testifying physician — what I wanted from Dr. M___ — is mostly just an explanation of what "secondary gain" is. We want an acknowledgment that the prospect of getting money through a personal injury lawsuit can sometimes interfere with their patients' recovery or cause them to unintentionally exaggerate or prolong their subjective symptoms and complaints. We want the doctor to agree that he's seen patients who suddenly seemed to get dramatically better — for no objective reason that medical science can explain — as soon as their lawsuits were over. We want to end this topic, probably, with something like, "No doctor can absolutely rule out the possibility that 'secondary gain' might be a factor in a case like Mrs. T___'s, can they?" An honest, non-argumentative doctor will usually go along with you on all this stuff.

Unless I had a particular reason to think I was going to get an affirmative response, I would not have asked Dr. M___ to take the next step — that is, to render an opinion that secondary gain probably was responsible for some or all of Mrs. T___'s continued reports of pain and her slow recovery from surgery. Instead, I'd much rather get him committed, if I can, to the notion that no one can really say for sure.  If I leave room for him or anyone else to take a guess, then the plaintiff's lawyer is likely to get the doctor to say on re-direct that no, his opinion is that Mrs. T___'s medical situation hasn't been affected by "secondary gain" considerations relating to this lawsuit, and in fact, he wouldn't have prescribed all those post-surgical procedures and pain meds for Mrs. T___ if he really thought she was a malingerer, and now get the hell out of my hospital, you snot-nosed young lawyer!

Anyway, back to the war story:


"Dr. M___," I ask, "can you tell the jury, please, what the term 'secondary gain' means?"

Dr. M___ lets out a long breath and leans forward, his elbow on the table and his forehead cradled in his palm. He scrapes his hand down over a substantial seven-o'clock beard stubble, staring up over his fingers at me. He sniffs and furrows his brow; his eyes dart from me to Mrs. T____'s lawyer for a moment, and perhaps then he also glances over my shoulder at the wall clock. I can see that he is engaged in some internal debate, albeit a very quick one. For those few seconds, the only sound in the room is the soft whirrrrr of the video camera, but maybe I think that I hear something else too.

He lets his hand fall to the table and he shakes his head. "Never heard of it," says Dr. M___.

I am pole-axed. I ask in disbelief and confusion, "You've never heard of the term 'secondary gain,' Doctor?"

"I just said I'd never heard of that term before, counselor. So move on please." He stares at me. Defiant. It might be fair to call this stare a glare.

"But surely," I sputter, "you've at least heard that term used in medical-legal situations, in testimony about your patients? Maybe you've heard a lawyer use the term in a question, even if it wasn't a term you'd normally use yourself?"

"I said I've never heard of the term before, and I certainly have never used a term I've never heard before. Now, are we all done here, counselor?" Dr. M___ stands up and starts to unclip the microphone from the breast pocket of his scrubs, but he pauses to look at me, probably because I have begun to dig furiously through my oversized briefcase.

"No, sir, we're not!" I shoot back at him (with a voice far more confident than I actually feel). I locate what I've been looking for, and I pull a thin booklet from my briefcase. Dr. M___ sits down, still glaring at me with no less annoyance, but perhaps with a certain uncertainty now. I flip through the pages.

"Dr. M___," I begin again, "do you remember having a patient a few years ago named Lorraine C___? To refresh your recollection, I'll suggest to you that while Ms. C___ was under your care, she also had a personal injury lawsuit pending against Ford Motor Company."

Two more beats of silence; Dr. M___ rubs his chin. "Well, yes. But Lorraine C___ was an epilepsy patient, and epilepsy has nothing to do with Mrs. T___'s ruptured cervical —"

"I didn't say it did, Dr. M___," I interrupt, "and you've now answered that question, thank you, but I still have a few more, so if you'll please just continue to keep your seat? Thank you, sir. And do you recall, sir, that on September 12, 1979, in Ms. Lorraine C___'s lawsuit against Ford Motor Company, Cause No. 78-19325 in the 129th District Court of Harris County, Texas, you gave your oral deposition in another conference room here at this very hospital where we're sitting today?"

"Now, wait just a minute, counselor, that was —"

"Yes or no, Dr. M___," I insist, "did you give your deposition in that case, or not?"

"Well, yeah, I did, but —"

"Thank you, sir," I interrupt again, "and do you remember taking the same oath for that deposition that you took here today?"

"Of course!" he answers, "But I don't see what —"

"I only have the one copy, Doctor," I interrupt again, getting to my feet and stepping around the videographer's lights to his side of the table. "So I'll have to stand over your shoulder as we read it together. The question, at page 43, line 8, was 'What kinds of things can account for continuing complaints of pain by Ms. C___ that can't be verified through your objective tests?' Did I read that correctly, Doctor?"

Dr. M___ looks up over his shoulder at me. No doubt at all: this is now officially a glare. "But this ...." He jabs the transcript I am holding in front of him. "You have to understand that ...." He coughs, wipes his face with a tissue, and then starts again. "You see, counselor, epilepsy is not ...."

He trails off, but I am done interrupting for the moment. Dr. M___ may look to everyone else in the room like he's just lost in thought. But by now, even though there's sweat on my own brow too, I am reasonably confident that I have already taken the rope which Dr. M___ handed to me, and that I've placed it in a noose firmly around his neck. He has been silently reading ahead in the transcript, and now his silence tells me that he knows what I know, which is that the trapdoor lever has already been pulled. Dr. M___ is on his way down, and as far as I am concerned, he can kick and twitch all he wants to along the way.

Eventually, grudgingly: "Yes, you read that correctly, Mr. Dyer." (Hey! He does remember my name after all!)

Me again: "And now will you please read aloud, Dr. M___, starting at page 43, line 10, through page 45, line 4, from your sworn testimony from that case? Read to this jury, please, the very thorough definition that you volunteered, Dr. M___, unprompted by any lawyer or anyone else. Right there, Dr. M___, read aloud your entire answer, please."

He's not answering yet, but that's okay, because now I want to fill the silence as he's accelerating downward: "It's the long answer," I continue, "the one that begins with the sentence, quote, 'Well, one explanation could be "secondary gain," and let me fully explain just what we physicians mean when we speak of "secondary gain,"' unquote. Read that aloud, please, and then the rest."

The good doctor, however, gives me a last spasm of drama — something better than reading aloud, something even better than I could have hoped for — before he quite hits the end of the rope.

"Well, counselor," Dr. M___ snarls at me, with his spray of spittle sparkling under the videographer's bright lights as he points to my still-open briefcase on the far side of the table, "I didn't know that you were going to bring the god-damned archives of the world!"


I made him read aloud the whole segment from his prior deposition, but only once. Dr. M___ had given almost a textbook definition then — very eloquent, actually very close to the Wikipedia definition above, but probably more clear.

I had the court reporter mark the cover pages and relevant testimonial pages from Dr. M___'s deposition in the C___ vs. Ford case as an exhibit to Dr. ___'s deposition in the T___ vs. Wards case. And then I had the good sense to say: "Okay. I have no further questions for this doctor." And to shut up, and to close my briefcase.

Mrs. T___'s lawyer tried to smooth things over on redirect with a few innocuous questions about other topics, but it just wasn't working. He could barely get Dr. M___ to stop glaring at me long enough to pay attention to any more questions. The elevator maintenance company's lawyer — who, despite the Mary Carter agreement, was more often than not on the defense side of the personal injury bar, with a defense's lawyer's normal sympathies and sense of humor — just grinned and asked nothing at all when it was his chance to re-direct.

As it happened, I tried that case twice, to two different juries. I mostly won it the first time; Mrs. T___'s lawyer appealed successfully; and so we tried it all over again. Both juries saw the videotape of Dr. M___'s deposition. But in neither case did I ever make any argument to the jury about Dr. M___ or his credibility. I had no basis in fact to suggest that he was a phony or a fraud or a whore or a habitual liar or a bad doctor. He was none of those things, and under the broad reading that I personally choose to give to the canons of legal ethics, it would have been improper for me to suggest any of those things to either jury.

But I didn't need to. Both juries, after viewing that videotape, were shocked to their toes by that exchange. That a man of science, a professor, a pillar of the medical community, would deliberately lie — and then not only curse but, as several jurors pointed out to me later, take the Lord's name in vain immediately after lying under oath (indeed, an oath followed by a prayer, "so help me God!") — absolutely and completely destroyed the credibility of Mrs. T___'s entire damages case. That Dr. M___ was willing to lie about "secondary gain" must mean, they inferred, that "secondary gain" was the explanation for all of Mrs. T___'s complaints! Indeed, both juries spontaneously concluded that Mrs. T___ and Dr. M___ had conspired to exaggerate her symptoms; many jurors doubted that she had ever needed the surgery at all. Based almost entirely on their rejection of Dr. M___'s testimony, both juries quantified her total damages in a shockingly small amount (for that day and time and venue) that was barely in excess of her concededly reasonable medical bills — and amazingly, the two different juries' findings were within $500 of each other!

(As it turned out, however, both jury's damages findings were mooted because we also established that Wards hadn't committed any negligence in connection with the elevator door incident. Mrs. T___ and her lawyer got nothing anyway, except for the comparatively small sum that the elevator maintenance company had paid them as part of the "Mary Carter" deal.)


Dr. M___ deliberately lied. He didn't forget. He didn't misspeak. He just outright lied under oath. And it just so happened that, through a freakish coincidence, I had there in my briefcase (a/k/a the "archives of the world") the evidence to prove beyond any doubt that he had just lied.

He lied about something that really was only marginally related to the case — his own familiarity with a completely subjective and general conceptual term that might or might not arguably apply to just about any patient. He wasn't even lying about the application of that concept to this specific case; indeed, no professional can ever give more than an educated guess whether "secondary gain" is involved with a specific patient's treatment and recovery. That's why I never considered bringing Dr. M___'s lie to a prosecutor's attention: His lie was on a subject of fact, not opinion ("had he heard or used the term"), and there was certainly adequate proof beyond a reasonable doubt that he had indeed intentionally lied under oath, but his lie just wasn't on a sufficiently material point. If he'd said, "I operated twice" when he really operated only once, that would have been a material lie. That would have been perjury.

And Dr. M___ had absolutely no good motive to lie. He wasn't trying to help Mrs. T___, or to hurt Montgomery Ward & Co. If that had been his intention, he could have said, "Yes, counselor, I know that term, and here's what it means, but let me give you my professional opinions as to why it doesn't apply." And he could have accomplished his purpose without telling any demonstrable lies. As far as the goals of either side in the lawsuit, Dr. M___'s lie was an absolutely senseless one.

But I'll tell you, friends and neighbors, what I'm absolutely convinced of, based partly on the circumstances, but mostly on his bleary-eyed stare and the gears in Dr. M___'s mind which I imagined that I heard turning over the whirrrr of the video camera, just before he started the lie.

Dr. M___ just wanted to go home. He wanted to shave five minutes off the deposition. He was annoyed at this eager-beaver young lawyer, and he didn't much care one way or another about this lawsuit, and his nose was stuffy, and his feet were throbbing, and there were more surgeries scheduled for dawn tomorrow. His wife was probably going to nag at him for forgetting to bring home that carton of milk, and the chicken at the charity dinner was probably going to be cold and rubbery. He lied because he thought it would save him some time because it would shut me up, and because he thought he deserved to get the deposition over with, and because he knew he was a terrific doctor and nobody was suing him and he certainly hadn't done anything wrong anyway, and because he had already told the truth about everything really important, and because he thought this little lie would just make things simpler, and because he thought he wouldn't get caught, and because he thought the lie just would not matter.

Well, yeah, but the lie did matter. Testimony under oath matters; lies matter. This particular lie wasn't perjury, but it still turned out to have a dramatic effect on both juries' damages verdict. You just never know when the clueless-looking young lawyer might actually have a clue, or when he might, by coincidence, have the archives of the world, or at least the pages from those archives that turn out to matter most, right there in his overstuffed briefcase.


I don't know if there may be any parallels in the Libby case. As I've written before, I still have a hard time imagining what Libby's motive could have been for the deliberate lies that the jury found him to have made. They just don't seem to be very smart lies, nor were they lies that could have accomplished very much even had they gone uncaught. And Libby himself is such a smart guy.

But then, Dr. M___ is a smart guy, and his lie wasn't very smart, nor very profound either. He lied for bad reasons that seemed reasonable to him at the moment he told the lie, but I certainly made him regret the lie, and I probably made him question his own reasons for telling it, pretty soon thereafter.

I have to allow for the possibility that Scooter Libby originally told his lies for not-very-good, not-very-smart reasons too, even if they were reasons that seemed valid to him at the moment he told them. But then he got caught in the lies, and then he just didn't have any very good answers for why he'd told them.

That would certainly explain why he didn't take the stand.

Maybe Scooter Libby didn't take the stand in his own defense because he's a good man who, by the time of the trial, recognized that he'd made some very bad decisions for not-very-good reasons. Maybe Scooter Libby is a man who was willing to let his lawyers do their best, and who was willing to put the prosecution to the test of meeting its burden of proof, and who was hoping the jury might find a "reasonable doubt" even without hearing any testimony from him — but because he is indeed a good man, and a man who has spent now hundreds of hours searching his conscience, he just couldn't bring himself to tell any more lies under oath, even if they might have improved his chances of acquittal.

That's frankly the best explanation for his not taking the stand that I can think of under these circumstances, and it's not entirely unflattering to him. That's about the only way I can make sense of all this, and I guess I hope it's true.

Posted by Beldar at 12:04 AM in Law (2007), Trial Lawyer War Stories | Permalink | Comments (7)

Thursday, March 08, 2007

Beldar on York, McCarthy, and Bennett on the Libby verdict

Bill Bennett's radio show this morning (hat-tip: K-Lo on The Corner) featured two very smart and very knowledgeable pundits, Andy McCarthy and Byron York, discussing the Libby verdict. There may be an actual transcript available somewhere by now, but I was sufficiently interested in their points that as I was listening to the replay, I made a rough transcript, which I'm posting here as a jumping-off place for some of my own, and my readers', further comments.

Note that this is my paraphrasing of the interview, rather than my having attempted to quote its participants exactly, so even with respect to words or phrases I've placed in quote marks, there is a large risk of inaccuracies.

And since this is my blog, I've indulged in the fiction that my own punditry on these topics might be interesting to others, so I've added my views in green. (The relative amounts of green and black text demonstrates that my blog bandwidth is almost unlimited compared to talk radio shows' air-time.)


York:  Best grounds for a pardon: (a) No underlying crime.  (b) Lots of other people had difficulty testifying; forgot significant things. (c) Everybody inside the bureaucracy was talking about Wilson and Plame, "everybody does it."

Beldar: I don't agree on (b), and I think this is the weakest argument that Libby's lawyers or defenders have made. That other people, including witnesses in this case, may have bad memories or forget important things is self-evident. By itself, that tells us nothing about whether bad memory is really the explanation for the inconsistencies between what Scooter Libby said at different times, or between what he said and what others said.

The case focused, appropriately, on him on his memory and intellect and state of mind; on the relative importance to him, in his particular circumstances, of the things he claimed to have been paying close attention to (or not); and on the likelihood that he, in particular, could have forgotten these particular facts when speaking to the FBI or testifying before the grand jury. His lawyers understandably wanted to focus on others' memory gaps, not just to impeach the credibility of other witnesses (like Russert), but to continue to drum home the basic point that "all human memory is frail." But the jury apparently found other witnesses' memory to be reliable on the key points.

Memory failures do happen all the time. And oftentimes conflicts in testimony aren't due to lies, but due to either memory failures, or differing vantage points from which facts were observed, or different levels of appreciation by the observers. (I wrote a long post urging that one must be careful about "brandishing 'the liar finger'" back during the SwiftVets controversy.) Nevertheless, pointing out that others had memories failures says nothing about whether Libby actually did. That was the key issue, on which Libby the key witness, the only witness who could provide direct (rather than circumstantial) evidence never testified, by his and his lawyers' own choice.

McCarthy:  Sometimes the exercise of prosecutorial discretion assumes that a crime has been committed, but nevertheless, the equities balance out in favor of not charging.  If maybe the charge should not have been brought in the first place, or if it's unclear whether it should have been brought, that may be a powerful basis for a pardon.  There's a strong case to be made that this case shouldn't have been brought, or that it was only brought because of the political furor. What Libby did here may have been a terrible wrong, but there are competing arguments, like the danger of criminalizing politics-as-usual. If I were president, I would expect to see some contrition before granting a pardon. It's unfortunate that a lot of Libby's supporters are ignoring the jury verdict. Our system depends on people telling the truth. But there are many reasons to think he was unfairly singled out, not the worst wrong-doer.

Beldar: I agree with Andy that this is probably the most troubling thing about the prosecution, and probably also the best single ground for a pardon. Certainly but for the political furor, an ordinary prosecutor in an ordinary investigation in which he'd already determined that there was no underlying crime might have declined to prosecute. He might have done so even though, as here, the false statements were from a public servant, and even though they went to the heart of the matters being investigated.

But one thing that prosecutors should, and do, consider when they make discretionary calls like this is how it will affect public perceptions of justice, and sometimes, as here, that includes political considerations. In terms of likely public suspicion over a refusal to indict, this case was at the very far extreme of the spectrum. Similarly, a pardon from Dubya would probably be intended to mean, "This is a good man, and these were small potatoes." But it would likely be read, fairly or not, as Dubya saying "demands for justice, when they're made by Democrats or opponents of my administration, count for less." And just as Fitzgerald didn't want to feed that perception by exercising his discretion not to indict, it's entirely possible that Dubya, even leaving office, may not want to feed that perception through a pardon.

York:  Jurors felt that they had to convict Libby because he lied, but they also felt that there was something funky about the case.

McCarthy: There are two different situations where you can say a prosecution shouldn't have been brought:  (1) Complete miscarriage of justice, like the Duke case; and (2) a situation where reasonable minds can differ.  Fitzgerald got the case in December 2003.  By then Libby had already spoken to (and per jury, lied on one occasion) to the FBI agents.  You always have to ask, What are the competing concerns?

York:  Case was extremely political from the beginning.  Wasn't much outrage after Novak article.  Wilson drummed it up.  Democrats were saying Ashcroft was conflicted.  It would have taken a profile in courage for the Bush Administration to say, "We don't need a special prosecutor."  But there would have been a huge political outcry even if the regular DoJ staff hadn't brought any indictments.

McCarthy:  Agrees with Bennett that it's not unprecedented for prosecutors to pass on indicting for false statements to FBI investigators.  It's a very fact-specific decision whether to charge or not.  If it's a public official, that's usually something that doesn't get overlooked.  You look at how important the lie is to what is being probed.  Even intentional lie on immaterial matter might be overlooked.  But if it goes to the heart of what's being looked at, you don't overlook it.  With Clinton, the lie wasn't about an underlying "crime," but it was about a civil sexual harassment claim (which many think ought not be a matter of federal law anyway); the lie was still significant, but it didn't relate to the core of his presidency. McCarthy agrees that this is an effective analogy, i.e., this is on a par with Clinton's lies. But it's still small potatoes, though, compared to other recent leaks made to reporters on national security matters, or to the Sandy Berger case.

York:  When we learned Armitage was the leaker and Rove was the confirmer, we wondered why this case went forward. But during the trial we learned that Russert told the FBI in November that there was a conflict between Russert and Libby. NBC was fighting subpoena, but FBI already knew his story. Re Clinton, from 1994-1998 there was a Whitewater investigation that was pre-Lewinsky, arising out of conviction of McDougals and sitting governor of Arkansas, and question was did Clinton testify truthfully at that trial. Because of insanity of independent counsel law, that investigation ended up making several diversions, but it did start with a crime, not just a private civil lawsuit.

McCarthy: Clarifying, I strongly supported the Clinton investigation. Unlike Libby, Clinton used the enormous powers of his office to obstruct justice. Proportionally, Libby misled the grand jury, but there's no indication that he or the Bush Administration used their power to obstruct the case; the opposite is true.

McCarthy (responding to call-in questioner): The lies were about his account to the grand jury of what his contacts with a couple of the reporters had been.

Bennett: Not as a lawyer, but as a moral philosopher, can I say there's a difference between that and flat-out lying about what you did with Paula Jones?

McCarthy and York: (Skeptical noises.)

York: The flimsiest charge was on the conversation with Matthew Cooper, "reporters are telling me about Mrs. Wilson, but I'm not sure if it's true."  He was acquitted on this count. But Libby said Russert conversation was Russert telling Libby about Wilson and then Russert saying "All the reporters know about Mrs. Wilson," and Russert said that didn't happen, and couldn't have happened because Russert didn't then know about Mrs. Wilson's CIA status.

McCarthy: These are "verbal acts"; the conversations ARE the crime because it's a leak investigation. On the level of criminal acts, these really aren't all that different from Clinton's situation.

York: The Clinton White House and its allies used executive privilege, as well as a bunch of other privilege claims that were entirely bogus, to try to obstruct that investigation.

Bennett: Still doesn't agree that there's a moral equivalence between Libby and Clinton.

Beldar: This highlights another reason why I still want to hear from Libby's own mouth his explanation for the inconsistencies. Libby's motivations to lie are still the most unclear part of the case to me. If there is a moral equivalence, it would come from Libby's motivations, and without understanding what those really were, I can't make that determination. Note, however: You can't talk about "moral equivalents" at all unless you first presume (or assume or treat as established), with respect to Clinton and Libby, that both were indeed committing perjury.

York: If Libby had said "I don't recall," he'd have been okay. Vernon Jordan seemed not to even remember his NAME in his Clinton grand jury testimony.

Beldar: I am extremely uncomfortable with this suggestion for two reasons. First, it's a fairly explicit suggestion that people ought to lie, rather than to cooperate with law enforcement authorities, on grounds that it would be a hard-to-prove lie, and by telling it you could avoid a significant risk. There is indeed some risk that a law-abiding citizen who tells the truth to the best of his ability might somehow end up being unfairly convicted of perjury, but for most of us in most all situations, that is an exceedingly small risk. Perhaps if one of the major political parties is raising a huge ruckus about you and you already have a target on your back, the odds of that happening are higher; but then you ought to take the Fifth, not lie. Otherwise, honesty is still the best policy as a general rule. Second, "I forgot" does not make you bulletproof even as a practical matter. Libby's defense — basically, "When I testified that I first learned Fact A on Date Y, I had just forgotten that I actually had learned Fact A on an earlier date, Date X" — isn't really very different from a straight-up "I forgot" defense. The way the prosecution makes a perjury case in either situation is by accumulating enough circumstantial evidence to compel an inference, beyond a reasonable doubt, that the particular witness really didn't forget. And that's exactly what Fitzgerald did in this case. He was helped tremendously in doing so because the jury had nothing else but circumstantial evidence — again, because the only witness capable of offering direct evidence on Libby's memory and state of mind, that being Libby himself, deliberately chose not to take the stand.  

York: Everyone in the news room was wondering how the reporter got on the jury. Answer is that the Libby team only had so many strikes, and there were other people who were worse. Judge wouldn't dismiss for cause.

McCarthy: You've got to convince judge that prospective juror can't be impartial to get him disqualified.

Beldar: With the exception of a genuine small-town situation where everyone in town knows all the witnesses and you simply can't find prospective jurors who don't, I've never encountered a judge who wouldn't have excused this potential juror for cause. If this judge didn't, and a proper objection was made and preserved, that might be a pretty good appeal ground, even though trial judges have broad discretion on making such decisions and appellate courts are reluctant to reverse on these sorts of grounds. I agree that it's absolutely amazing that this guy made it onto the jury. But then I'm also amazed if, as I've read elsewhere, there were three PhDs and a lawyer on the jury, and I'm surprised that on a jury chosen from the District of Columbia there were apparently only two blacks. I honestly don't know what to think about all of this.

(In the HuffPo piece, the journalist-juror, Dennis Collins, wrote: "Though our resident [juror who's also a] lawyer insists she's only another juror, her great recall of testimony and ability to explain legal language is invaluable." That certainly reaffirms my own long-standing rule to never, ever, under any circumstances, ever, period end of paragraph, accept a lawyer as a juror, no matter how badly I want to use my strikes on others. Regardless of what kind of case it is or which side I'm on, I do not ever want another lawyer, one with the credibility of "just another juror," arguing my case in secret and after I, my opponent, and the judge have all finished!)

McCarthy: Memory expert testified in preliminary hearing, but she wouldn't have been an effective witness for Libby. Fitzgerald got her to admit they'd never met, but then it turned out he'd cross examined her a year earlier.

Beldar: There is almost no chance that the verdict will be reversed based on the judge's failure to permit an expert to testify to the fact that people sometimes forget. That's silly. Even aside from the particularly brutal cross-exam Fitzgerald was able to do on this witness, I think that every additional witness that the defense called to talk about the frailties of memory in general, or Scooter Libby's memory in particular, would have further highlighted the fact that Libby didn't take the stand.

York: We don't know in the grand scheme that Russert didn't lie, but the jury [and York] both found that he was believable.  Defense tried to make the case (but at times faltered with it) that nobody was really lying, but that this was a case of conflicting memories.

McCarthy: Acknowledges that Fitzgerald is one of his best friends.

York: Lots of comments that if Libby had had his current representation when he was being interviewed by the FBI and testifying before the grand jury, instead of his original lawyer (his law partner named Joseph Tate, who wasn't a specialist), he might have done better.

McCarthy: Yeah, the best defense lawyers beat their clients up pretty hard before they go before a grand jury, not only to make sure that they're telling the truth, but to make sure that they have a consistent version of their story.

Beldar: This is an interesting line of speculation, but without knowing the particular lawyers involved, I can't comment. And without knowing what was actually said within the veil of attorney-client privilege, speculation is probably pointless anyway.

McCarthy: Re the juror who's put up piece on Huffington Post: Probably not a good ground for new trial or appeal. Courts have a bias against getting inside the jury deliberations, and his journalist status was fully disclosed during jury selection.

York: HuffPo paid him nothing. He may still be angling for a book deal.

McCarthy: He wouldn't be the first juror to do a book deal. No action is likely against Armitage; he actually went to the authorities. But it's curious that Armitage only said he'd leaked to Novak. Didn't mention having also leaked to Woodward until after the indictment, after which Fitzgerald had already made wrong statement at the indictment press conference.

Beldar: I'm intrigued by this. My guess is that Fitzgerald decided not to indict Armitage based on a determination that given his admission of having leaked to Novak, his failure to mention his also having leaked to Woodward would make that failure an "immaterial" lie at worst. I don't know if the FBI investigators' notes of Armitage's interview are in the public domain, but they'd certainly be interesting to see. Nevertheless, even if Armitage committed perjury, that wouldn't excuse Libby from committing perjury. And even if Armitage caught a break in terms of the exercise of prosecutorial discretion that Libby didn't catch, there have always been, and will always be, apparent instances of unfairness in any system that includes individual discretionary decisions.

Bennett: No underlying crime here. Compare that to national security programs (secret prisons, phone intercepts, Treasury Department funds program) that reporters have blown based on leakers; Justice Department does nothing. Is this disproportionate?

York: INSANE disproportionality. The issue is damage to national security; there was none here.  Those other things really hurt the US' relationships with the countries that were helping us out.

McCarthy: That nothing was done on other cases doesn't make Libby prosecution wrong.  But that is okay for the President to consider on pardon application, even if it didn't deter Fitzgerald on decision to indict.

York: Presumably DoJ has done something about these other leakers, but they haven't done the "smash-mouth" technique used by Fitzgerald of requiring government employees to give waivers releasing reporters from their obligations to maintain confidentiality.  Why hasn't that been used in these other cases?

McCarthy: If special counsel was merited in this case, it was because of the specter of the administration investigating itself.  In other cases, should just be normal DoJ staff.

Beldar: Ditto for all this. I'd actually like to see this "smash-mouth technique" used much more aggressively in leak investigations, pretty much any time the leaker's identity can't be readily determined through means other than asking the reporter. I agree 100% that there are big, big potatoes that haven't been peeled yet. I would note, however, that Fitzgerald is also in the process of investigating and perhaps prosecuting a genuinely big-potato leak case involving press sources tipping off Islamic terrorist fundraisers (posing as Islamic charities) before an FBI raid, and I presume he'll be as diligent in that as he has been with Libby. More power to him, and let's hope others within DoJ are as diligent in some of these other leak matters. See also Bill Bennett's post to this same effect, also on The Corner today.

York: Next step will be up to Democrats in Congress if they want to investigate this further, e.g., via Conyers' committee hearings.

McCarthy: That would be excruciating, but politically, it would be the best thing possible for the Republicans.

Beldar: This is apparently already underway. There's no shortage of ironies in L'Affair Plame, but the next one may be Prosecutor Fitzgerald stonewalling Congressman Conyers on Conyers' attempts to compel Fitzgerald to testify about matters protected by the DoJ's prosecutorial/work product privileges. As in: "Conyers: Why didn't you indict Rove? Fitzgerald: I'm sorry, Mr. Chairman, but I must respectfully refuse to answer that question." Followed by Fitzgerald and, probably, AG Gonzales as respondents in a contempt-of-Congress proceeding. Man, I'd pay for a front-row seat at that circus!


UPDATE (Fri Mar 9 @ 9:20am): It's not Conyers, it's Waxman.

Posted by Beldar at 08:04 PM in Law (2007) | Permalink | Comments (3)

Tuesday, March 06, 2007

The Libby verdict

I've blogged a whole bunch on the subject of various journalists, especially Judith Miller, who've claimed  in connection with the Plame affair that they were entitled to an absolute privilege against testifying about their communications with confidential sources. But comparatively speaking, I have not written very much about the underlying investigation, and I don't think I've written anything at all about the Libby trial itself. That's been deliberate on my part. Others in the blogosphere and the mainstream media have provided an incredible amount of detailed reporting and thoughtful analysis during the trial. I simply didn't feel that I had anything particularly wise or important or clever to add.

That's probably still true, but I've gotten a few emails encouraging me to get back to regular blogging in general, and asking me to comment on the Libby case in particular. So now that there's a verdict, for what it's worth, and as a start:


Way back in October of 2003, I wrote at considerable length in favor of the appointment of a special counsel, explaining in the process the difference between "special counsel" and "independent counsel." Back then, of course, before Patrick Fitzgerald had been appointed (I was suggesting Rudy Giuliani for that role, in fact), all of the focus was on whether there was reason to believe that a crime had been committed in the "outing" of Valerie Plame. (I took no firm position on that subject then, although I did say that "my gut hunch continues to tell me that there is less to this whole affair than meets the eye.") No one could know back then that the only eventual indictments would focus on statements and events from the investigation process. Nevertheless, the paragraph from that post that jumps out at me today is this one (italics in original):

Even if you think (as I do) that Ambassador Wilson is a bozo, you probably hope (as I do) that his wife and any agents she may have run or contacts she may have made are all safe from retribution by enemies of the US.  But the crime — if one has been committed — was against the people of the United States.  There would be genuine value to the republic in reassuring its public that possible spy-outers are taken very, very seriously during wartime, and that political connections cannot shelter any such criminals.  Dubya's administration has always had an anti-leak passion that dates back to his personal fury at leakers who undercut the GHW Bush Administration for fun and profit during 1989-1993. A nationally televised perp-walk would be a very good thing for the war effort if there are indeed grounds to believe — after a more detailed investigation than can be done in the popular press and the blogosphere — that a crime has in fact been committed here. We can warm up the cell in between Jonathan Pollard and Aldrich Ames, perhaps.

In retrospect, I was obviously naïve about how much purposeful and authorized leaking was being done by high officials within the Bush-43 administration. And the Libby conviction today ends up not relating very much at all to anything regarding the global war on radical Islamic terrorists. Nevertheless, I'll stand by the central theme of that paragraph: There is indeed value to the republic in reassuring its public that even such crimes as perjury and obstruction of justice, during wartime or not, are taken very, very seriously, and that political connections cannot shelter any such criminals.

A jury has now pronounced Scooter Libby guilty. Its verdict, and the actions of the trial judge that led up to its verdict, will be scrutinized through the normal and scrupulous process of a motion for new trial and then appeals, and one must allow for the possibility that the verdict will be set aside. Others who have more expertise than I do in federal criminal procedure and who have been following the trial more carefully than I have would be in a better position to make informed predictions about the likelihood of that. But for today, anyway, subject to that possibility, Scooter Libby has been found guilty of crimes that are still serious ones — even if they're not as dramatic, or as cosmically significant to national security, as what Aldrich Ames or Philip Agee did. And if, indeed, the guilty verdict stands up after post-verdict proceedings and appeals, then he ought to be punished.

I have two additional observations, neither of which are particularly profound or unique, but that I will nevertheless offer up for what they're worth. The first relates to the change in my own thinking about how the verdict probably ought to turn out, and the second relates to the possibility, now being widely speculated about, that Dubya might grant Libby a presidential pardon.


I'm saddened by the conviction because I support the Bush-43 administration, and I wanted to believe that none of its top officials would ever have committed the type of crimes of which Libby has now been convicted. And in October of 2005, I was struck by the poetic eloquence of Libby's letter to Judith Miller in which he urged her to end her defiance of the grand jury subpoena and to cooperate in giving her testimony. That seemed to me to be something that someone who knew he was guilty would be unlikely to write.

But the one fact that jumped out at me amidst all the other details of the trial was the decision by Libby and his defense team that Libby would not take the witness stand to testify on his own behalf. Prosecutors are not permitted to argue to juries that one's assertion of his constitutional right against self-incrimination is an indication of one's guilt. I don't know whether this jury actually did draw any adverse inferences from Libby's failure to take the witness stand.

Nevertheless, a defendant's failure to take the stand is the proverbial elephant standing there in the room that everyone must pretend to ignore. Whether this jury did or not, you and I are indeed free to draw adverse inferences. And the inference I draw is that Libby's defense team — who certainly must have spent countless hours previewing what his testimony would be, both on direct and on cross-examination — must have concluded that the risks from his taking the stand were not worth the benefits of him doing so, and that him taking the stand was likely to hurt his defense rather than help it. Put even more bluntly: Libby and his lawyers must have jointly decided that his own testimony at trial was more likely to convict him than to acquit him.

The inference here is strengthened by two other factors: First, the defendant's own knowledge and intent and state of mind are especially crucial in perjury and obstruction of justice cases; the obvious witness to negate those charges, or at least to raise a reasonable doubt about them, is the defendant himself. Second, the  most common reason why defendants decline to take the stand in their own defense is that it will expose them to impeachment via facts that would be otherwise inadmissible. Typically the impeaching fact is a prior conviction, about which the jury would never be advised but for the defendant's decision to take the stand. But Libby had no such worry that his defense would be prejudiced through such exposure. So his and his lawyers' concern had to be with how he would hold up on cross-examination specifically with respect to the facts pertaining to these charges.

A genuinely innocent man — a man with no criminal history (and indeed, a superb record of accomplishments), an articulate man who himself is a skilled attorney who is unlikely to be trapped by unfairly clever cross-examination, a man who is confident of his innocence and his ability to demonstrate it — ought to have taken the witness stand to deny the charges against him.

And Scooter Libby ... didn't.

A man whose inevitable demeanor and presence on the witness stand, whose fundamental and unalterable and obvious nature, was completely inconsistent with the main theme of his defense lawyers — that theme being that he has a poor memory, and that he was so preoccupied with other matters that he simply forgot who told him what and when, or who he told what and when — would not take the stand.

And Scooter Libby ... didn't.


With respect to the possibility of a presidential pardon, I think all of that speculation is vastly premature. There is no doubt whatsoever that such a pardon would create a firestorm of public opinion that would further undercut such political capital as the Bush-43 administration may still claim. It's altogether possible that Libby's post-verdict motions and (assuming they are unsuccessful) appeals will not have run their full course before January 2009. He's likely to remain free on bail while his appeals are pending. There is no realistic possibility that he could return to a position in the Bush-43 administration even if his conviction were set aside, and certainly not if he were pardoned. So even if one indulges in the assumption that Dubya thinks Libby ought not be punished, there still is no good reason why Dubya would not wait until the closing moments of his term as president to issue a pardon.

Moreover — and I admit that I may again be naïve in thinking this, but I do think it — I'm not convinced of the premise: I'm not yet persuaded that Dubya does think that Libby is deserving of a pardon, nor that he will come to that conclusion over time. It's entirely probable that, as a White House spokesperson has already announced, President Bush is saddened by the conviction. He certainly cannot be happy about the collateral damage to his administration, and in particular to Vice President Cheney, from the conviction. (The Office of the Vice President has issued a terse statement that Cheny is also saddened by the verdict, but will otherwise not be commenting pending further proceedings.) But I continue to believe that one way in which Dubya is the "anti-Clinton" has to do with his personal character. It would be contrary to that character for Dubya to pardon Libby if his post-verdict motions and appeals are unsuccessful, just as much as it would be consistent with the poor character of Bill Clinton to issue such a pardon. I believe that non-lawyer Dubya is as committed to the concept of the rule of law as lawyer Clinton was contemptuous of it.

If Libby is guilty — and right now, he's no longer presumed innocent, notwithstanding the chance that the guilty verdict may still be set aside — then he ought to be punished. I just don't think Dubya will get in the way of that process, even if he may be sympathetic to Libby on a personal basis (as, apparently, at least some of the jurors also were).


UPDATE (Tues Mar 6 @ 6:30pm): I'm singularly unpersuaded by arguments — like those made over on the Corner by Mark Levin — to the effect that crimes of the sort that Libby has now been convicted of shouldn't ever have been prosecuted. Does that not smack of all of Bill Clinton's defenders who tried to excuse his perjury before a grand jury on grounds that it was okay to lie about sex? That Wilson is a lying bozo, and that there was no crime connected with the "outing" of his wife, did not authorize Libby or anyone else to lie in sworn grand jury testimony or to obstruct the path of prosecutors as they reached that conclusion!

Instead, I find myself mostly in agreement with former federal prosecutor Andy McCarthy's take on these events:

... The administration had every good reason to refute Wilson — it was essential for the public to be told that what Wilson said in his op-ed was disingenuous; but I wish administration officials had done that openly and without apology, rather than in confidential leaks to reporters.

All that said, though, there was an investigation, and nobody, especially public officials, should lie to the grand jury or to investigating police. We can't (or at least we shouldn't) take the position that the obligation of truth-telling applies only to the investigations we approve of — especially when we live in a country where you are privileged to decline to answer any questions. What Libby did here was not the worst wrong in the equation, but it was still wrong.

The exception is that I don't agree with Andy's suggestion that there should never have been an investigation in the first place. I continue to believe that to rule out even any remote appearance of impropriety, the appointment of a special counsel was appropriate, and an exceedingly thorough investigation had to be made even if, as was probably true here, the prosecution would have exercised its discretion to wrap things up sooner but for the political overtones of the case. Fitzgerald had to be meticulous lest he be accused of being part of a whitewash. It was apparently Libby's very bad judgment to be caught having lied, for reasons that still are largely inexplicable, as he was floating along with many others in the wake of an investigation that was already headed to a fully justified but grandly ceremonial burial at sea.

Posted by Beldar at 03:20 PM in Law (2007) | Permalink | Comments (20)