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Saturday, June 30, 2007

D.C. Circuit releases less-redacted version of 2005 opinion which confirms that Fitz considered charging Rove with perjury

Jeralyn Merritt at TalkLeft asked on Friday (h/t Tom Maguire):

How close did Karl Rove come to getting indicted in PlameGate? As they say, "this close." Check out today's re-issued opinion (pdf) in the Judith Miller - Matthew Cooper D.C. Circuit Court of Appeals subpoena case containing new un-redactions: the name of Karl Rove.

I think she's right, and (with apologies to Jeralyn for excerpting so heavily) I'll quote more of her post to show why.

Now unredacted:

"Regarding Cooper, the special counsel has demonstrated that his testimony is essential to charging decisions regarding White House adviser Karl Rove."

Then on page 39:

"Thus, given the compelling showing of need and exhaustion, plus the sharply tilted balance between harm and news value, the special counsel may overcome the reporters’ qualified privilege, even if his only purpose — at least at this stage of his investigation — is to shore up perjury charges against leading suspects such as Libby and Rove."

The unredaction there is the last two words: "and Rove."

I do have a problem with Judge Tatel's use in this concurring opinion from 2005 of the phrase "shore up," and I look forward to seeing Fitzgerald's less-redacted affidavit when and if it becomes available online. "Shore up" implies that a charging decision had already been made. A more fair description would be "gather and explore evidence pertaining to possible perjury charges," and I'll bet a silver dollar that's closer to what Fitz actually said. (I know there are critics of his who will insist that this is Judge Tatel's "recognition" that Fitz was on a witch-hunt, though.) But in fairness also to Judge Tatel, that's not his assessment of Fitz' purpose. It's a statement that even if that were Fitz' only purpose, it still would suffice to justify overcoming the qualified privilege that Judge Tatel thinks federal courts should recognize to protect journalists' confidential sources.


In the D.C. Circuit panel's fairly short per curiam (i.e., unsigned) opinion on Friday explaining why it was now, in response to an application by Dow Jones & Co., re-releasing more of Judge Tatel's concurring opinion, the court wrote (slip op. at pp. 5-6; citation omitted):

[W]e reject Dow Jones’s request to unseal these materials in their entirety. Even if the Armitage revelation created a compelling public interest in them — and it is unclear to us why, as Dow Jones asserts, the Special Counsel’s knowledge that one individual leaked Plame’s identity calls into question the validity of his continuing investigation into others who may have unlawfully leaked this same information — this is irrelevant given that there is no First Amendment right of access to secret grand jury matters. Rule 6(e) governs what we may or may not release to the public. Insofar as materials concern still-secret grand jury matters, they must remain sealed.

That said, as requested by Dow Jones, we will release those redacted portions of Judge Tatel’s concurring opinion and the two ex parte affidavits that discuss grand jury matters revealed either during the Libby trial or by grand jury witnesses themselves. Although not every public disclosure waives Rule 6(e) protections, one can safely assume that the “cat is out of the bag” when a grand jury witness — in this case Armitage — discusses his role on the CBS Evening News. We think the same is true with respect to the disclosures made by Novak, Cooper, and Rove’s attorney. We unseal the concurring opinion and the ex parte affidavits, however, only to the extent that they have been previously revealed. Grand jury material not yet publicly disclosed will remain redacted.

The panel said, however, that it found special counsel Fitzgerald's suggestions as to what more ought be released "far too narrow," and that it had decided to release more than he originally suggested. I'll have more to say about that below in this post.


One of Jeralyn's commenters asked: "In layman's terms what does this mean?"

I'll reprint here (between dashed lines, but without block-quoting it, and with slight additions) the comment I left there, and then add a few additional comments:


It means that Fitzgerald was very seriously considering asking the grand jury to indict Rove as of the time he asked U.S. District Judge Hogan to hold Miller, Cooper, and Time Inc. in contempt of court for their refusal to testify pursuant to the grand jury's subpoenas of them.

He won that fight, the journalists appealed, and Fitz was still considering asking the grand jury to indict Rove as of the time he filed his briefs in the D.C. Circuit.

One of the things that the D.C. Circuit three-judge panel relied upon — as part of their balancing of the grand jury's and Fitzgerald's need for the testimony versus the reporters' desire to keep their sources confidential — was Fitz' assertion that this testimony from the journalists was essential in order for him to be able to decide whether to ask the grand jury to indict Libby. We've known that since the Libby indictment, when the D.C. Circuit, also in response to a Dow Jones petition, released parts of Judge Tatel's concurring opinion that had to do with Libby after he was indicted.

Now we also know that Fitz told the D.C. Circuit at the same time that he needed the journalists' testimony to decide whether to ask the grand jury to indict Rove, too. That was hidden — redacted, or concealed — in the version of the D.C. Circuit's decision that was previously released, in order to protect the privacy rights of people who were under grand jury consideration but hadn't been indicted (like Rove).

We can presume that after the U.S. Supreme Court denied the journalists' petition asking them to overturn the D.C. Circuit's decision, Fitz did eventually (after Judy Miller gave up her defiance and got out of jail) get all the testimonial cooperation he wanted. Otherwise he would have brought further contempt charges. We don't know exactly what all that testimony was, though, because it's still largely cloaked in grand jury secrecy (and always will be). Of course, we know what those witnesses later said at Libby's trial, but they may have been asked things about Rove in the grand jury that nobody had a sound basis to ask about during the Libby trial.

We know that Fitz has said he's not going to seek any more indictments in addition to Libby.

So whatever the journalists did say, after the courts made them testify, it ended up either (1) not persuading Fitz to ask the grand jury to indict Rove (the most likely explanation), or (2) Fitz did ask them to indict Rove, but the grand jury no-billed him (very unlikely).

The new revelation of what was going on behind the scenes at the D.C. Circuit, and from that viewpoint, inside the investigation and grand jury proceedings, is fascinating — but it doesn't change anything. Rove still isn't going to be indicted.


We still don't know — and we can't know from this — why Rove wasn't indicted. The use of the word "perjury" suggests that it was based on Mr. Rove's grand jury testimony, rather than anything he may have told the FBI. There's no specific mention of obstruction of justice, but that doesn't mean Fitz wasn't considering that too.  Maybe the journalists' grand jury testimony (presumably Matt Cooper's) cleared Rove in Fitz' view. Or maybe it was equivocal. Or maybe Fitz made a considered judgment that, based on his very subjective assessment of the strength of the various witnesses' respective credibility, he probably couldn't prove perjury charges against Rove beyond a reasonable doubt.

I'm sure that Rove is still glad not to have been indicted, but even if he had been indicted and then acquitted, he wouldn't have "proven his innocence"; rather, that just would have been a jury's determination that Fitz hadn't proved his guilt. And his attorney was glad enough to publicly repeat Fitz' statement, after the Libby indictment, that Rove was not a target, with the intent that that be widely circulated.

I have no quibble with the court's ostensible legal holding. I'm not sure, though, that they drew their lines very carefully. As the panel said (using an internet citation to a CNN news story, no less), there were "public statements by Rove’s attorney that the Special Counsel had informed Rove that he would not be charged in connection with this investigation." But quite arguably, the newly released material does put Rove in a significantly worse public light than he already might have been in based on his lawyer's carefully worded statement. We now know, for instance, details about how late in the process Fitz was still considering making a "charging decision" (i.e., deciding whether to ask the grand jury to indict Rove) — it was at a point when his investigation was, as he told the D.C. Circuit, essentially wrapped up except for these journalists' testimony. More particularly, we specifically know one criminal charge that was under active consideration — perjury. My guess is that is exactly the sort of specific detail that Fitz' original suggestions would have kept secret. When looking at what's already "out," we're talking here, metaphorically, about a whole bag of small, middle-sized, and maybe large cats, not just one big one with respect to each individual affected.

But on the other hand, I suspect that for those who recognize his name, opinions about Karl Rove are already so hardened, pro and con, that not much damage could be done to his reputation from the confirmation that Team Fitz was actively considering him on, specifically, a perjury indictment. There was wide-spread speculation both before and after Libby's indictment that these were the sorts of charges that Fitz was considering against Rove, in addition to possibly charging a substantive underlying offense based on the disclosure of Valerie Plame's CIA status.

There are others in the blogosphere who are busy trying to draw detailed inferences — which is to say, guessing, reasonably or not — about what's still been left redacted. That's fair game, I suppose. Some of them are plausible; others far-fetched; others strike me as wholly implausible.

But I emphatically disagree with comments to the effect that anything in Friday's decision can be used to predict anything about Libby's pending motion for bail pending appeal — much less his ultimately likelihood of success on the merits of his appeal. Unlike bloggers, pundits, and hyper-partisans, U.S. Circuit Judges, in my not inconsiderable experience with them, try very hard to avoid prejudgments, and to instead give the litigants who appear before them a fresh, fair hearing. And they would likely find the notion that they're already deliberately sending signals to Team Libby or Team Fitz as insulting as Team Fitz probably found insulting Dow Jones' argument that Fitz' "knowledge that one individual leaked Plame’s identity calls into question the validity of his continuing investigation into others who may have unlawfully leaked this same information."

Posted by Beldar at 01:21 AM in Law (2007) | Permalink | Comments (19)

Friday, June 29, 2007

More on Panetti v. Quarterman's new "rational appreciation of the State's rationale for your execution" prerequisite for the death penalty

On Prof. Kerr's post about the AEDPA holdings in yesterday's Panetti v. Quarterman death penalty decision from the Supreme Court, I left a link to my post rant yesterday afternoon about Justice Kennedy's rulings on the merits of the case. That prompted the following comment from someone posting there as "Public_Defender":

It's interesting to see how peeved some people get when they might not get to kill a schizophrenic. Now I see where the support for torture comes from.

If killing a documented schizophrenic vindicates your sense of morality, you are morally depraved. Panetti's schizophrenia at least partially explains his depraved desire to kill. What explains yours?

I'll reprint here (without block-quoting it) the reply comment I left there, somewhat enlarged. It turned out that I wasn't quite done ranting after all.


This isn't about morality (although I think morality here is generally parallel). It's about justice.

We're not talking about the State of Texas executing just any old "documented schizophrenic." Nor are we talking about the State of Texas executing someone because they're a "documented schizophrenic."

Scott Panetti

We're talking about the State of Texas executing a documented schizophrenic who is a convicted double-murderer — one who was found sane, found capable of participating meaningfully in his defense, and found competent to waive counsel, and none of those findings are in question any more — and whom the jury also found guilty beyond a reasonable doubt of the aggravating factors that justify the ultimate penalty.

I don't know the percentages, but it would amaze me if a very high percentage of the prisoners on death row, whether in Texas or elsewhere, aren't psychotic. Many of them are very psychotic indeed. You may want a different legal system, one in which everyone who's merely psychotic is excused from legal culpability, but that's not the system we live in — that's not the test for whether someone is exempt from punishment for their crimes.

But now Justice Kennedy and the liberal wing have rewritten constitutional capital punishment law to say that you have to be nicely enough adjusted to have a "rational appreciation" of the State's "rationale" for your execution. Otherwise, the State cannot execute you.

And who decides? Well, every expert under the sun has now been invited to testify. Juries get no vote on this subject — none. The judge who decides is quite likely not going to be the one who heard the trial evidence. But ultimately, it's the Nine Black Robes in Washington — now self-anointed as our national Psychiatrists-in-Chief — who get to decide, isn't it?

And they've expressly refused as part of this opinion to give the lower trial and appellate courts, state or federal, any more guidance for what the hell "rational appreciation" of the State's "rationale for execution" means.

I get no joy from executions. I handled capital cases as a Fifth Circuit law clerk 25 years ago. I've handled capital cases on a pro bono basis since then. There's nothing but tragedy and sadness here. The question is whether there's also justice or not.

I believe that even apart from its AEDPA holdings, Justice Kennedy's opinion in this case is by far the worst piece of SCOTUS death penalty jurisprudence ever written. No other case comes remotely close, and there are quite a few others that I have thought were pretty bad (including, actually, some that are perceived as pro-prosecution).

If you're genuinely big on protecting the rights of the accused, Pub_D, you'll figure out that you do yourself no favors by trying to ridicule, as bloodthirsty ghouls, those who believe in individual rights but nevertheless also believe in justice for victims and for society.


UPDATE (Fri Jun 29 @ 11:45pm): On this website, I came across a link to a short video clip of Scott Panetti that it says appeared as part of a 1997 HBO program on the Texas death penalty system. I haven't seen the full HBO program. The website, though, is a useful reminder that there are people who love Scott Panetti, and who are joyful that yesterday's decision was in his favor. They have my sympathy, but not my agreement. I transcribed the clip, and also took the screen-cap above from it:

GUARD: You got anything you wanna say to these people?

PANETTI: I had a ... a vision as we sort of surface-dive into the twenty-first century. For a society of two hundred and fifty million who claim the higher form of law, a superior form of law, to eliminate five thousands of its own members —

GUARD (interrupting): But you woke up and everything was alright, right?

PANETTI (calmly continuing, after the interruption): — in a form of what is vengeance against itself, it seemed like it wasn't justice, but perverse entertainment.

GUARD: Aw-right, well, we gonna move along there a little bit, you have a nice day there, aw-right?

I'm not suggesting that you or I or anyone can make a psychiatric evaluation of the man from these few seconds. But the man is, at a minimum, capable of arguing against the death penalty. If he can volunteer a counter-rationale against capital punishment, does that not imply that he understands ... the State's rationale for it?

Posted by Beldar at 08:04 PM in Law (2007) | Permalink | Comments (4)

Thursday, June 28, 2007

SCOTUS, per Kennedy: Panetti's not insane, knows he's a murderer, and knows that that's why Texas plans to kill him. But Texas can't, because Panneti might be too psychotic to really quite grok capital punishment

Anthony Kennedy, Associate Justice of the Supreme Court of the United States, is a good man and a smart man. I know he loves his country and the law, and devotes his best efforts to serving each through serving the other. In several important decisions released today at the end of this year's Supreme Court Term, he was the key, "swing" vote in 5-to-4 decisions in which he joined Chief Justice Roberts and Associate Justices Scalia, Thomas, and Alito. It is important to remember this; it is unseemly, and unfair, and unsophisticated, to pillory the man because he sometimes swings the other way.

But one of the areas on which he is consistently a poor fifth for the opposite wing of the Court is in death penalty cases, and oh! today he's delivered another kick — not just to my home state of Texas and the federal appellate court that hears appeals from it, the Fifth Circuit, but to every state everywhere whose publics have demanded (and whose legislatures and courts have agreed) that our society's worst crimes be punished by the most severe penalty.

Today's Panetti v. Quarterman is unusual for death penalty cases in that it produced only two opinions — one by Justice Kennedy, for the Court majority comprising himself and Justice Stevens, Souter, Ginsberg, and Breyer, and a dissent by Justice Thomas, in which Chief Justice Roberts and Justices Scalia and Alito joined.

To reach the merits of the case, Justice Kennedy first had to torture beyond recognition the plain language of a statute passed by Congress specifically to keep federal courts from trying to act as a combination of bullies and nannies to all the state-court systems throughout the country, the "Antiterrorism and Effective Death Penalty Act of 1996," or as we down in Texas call it, the "AEDP-ah-HAH!-hah-hah!-A." In fairness, most of the federal district and circuit courts tried to get with the program after Congress declared that it was time for federal courts to stop permitting, even encouraging, convicted murders sentenced to death from gaming the system for, literally, decades. It's beyond my energy level today to critique Justice Kennedy's AEDPA holdings, but I refer you, with approval, to Prof. Orin Kerr's excellent and timely analysis here.

I shall put that aside for the nonce, because I am sputteringly angry — and yet entirely unsurprised — to know that now the United States Supreme Court has appointed itself as Psychiatrists-in-Chief for all capital murderers everywhere and forever after throughout these United States.


Read with me about the starting place of this saga, as described by Justice Kennedy (slip op. at 2, .pdf at 7):

On a morning in 1992 petitioner [Scott Panetti] awoke before dawn,dressed in camouflage, and drove to the home of his estranged wife’s parents. Breaking the front-door lock, he entered the house and, in front of his wife and daughter, shot and killed his wife’s mother and father. He took his wife and daughter hostage for the night before surrendering to police.

Please. If you are a decent human being, spare at least ten seconds to re-read and think about that paragraph. And then, but only then, ponder this with me:

Two innocent human beings were brutally executed in front of the people most dear to them (and vice versa). A decade and a half has passed since then, and on every morning during that long parade of seasons and years, Scott Panetti has been served a hearty breakfast by the Texas Penal System. Around noon on every one of those days, the sun has passed over the graves of his victims while he was served his lunch. And on every one of those days — going back to the George H.W. Bush presidency, mind you — the sun has set on a society whose duly constituted conscience and fact-finders, twelve jurors good and true, have had the punishment they found to be justified — that they found to be required for there to be justice for both Scott Panetti and his two victims and the society he ripped them from — thwarted and delayed and frustrated. Scott Panetti had supper on all of those nights, too. Texas Death Row's not the Hilton, of course. But it's very fine accommodations compared to a grave, isn't it?

Scott Panetti got 56 pages of rapt personal attention (in turn representing dozens and hundreds of man-hours of legal reading, research, analysis, and writing) from the Supreme Court today. His victims got ... that one paragraph I just quoted, and that I hope you read at least twice.

I know Justice Kennedy knows about those victims in the abstract; and I'm not saying he necessarily ought to have written more about them, their lives, or their deaths, or the aftermath of that for the other, still-living victims of this crime. I just wish that I knew, for certain, that before he and the other Justices voted on this case, they had all actually spent a few moments just thinking, really hard, about those graves — and how long they've been there, and what that means.

That it was a decade and a half in the making doesn't necessarily mean that today's decision was wrong, of course. But something is wrong somewhere, because there is no legitimate excuse on God's green earth for every single bit of the post-conviction proceedings in a case like this one to have taken more than 36 months. I say that as someone who was inside the system, someone who read the briefs and then helped write multiple capital murder appellate opinions in 1980-1981, back when the state of the law was vastly less settled than it is now. Within 36 months after conviction there ought to be a final, ultimate, "no-more-appeals by anybody to any court, no-more-nuthin' and we know for sure whether he's going to be executed or not" decision. If he gets a re-trial along the way, you restart the clock when and if he's re-convicted. But anyone who tells you that it ought to routinely take 15 years is a fool or a liar or, most likely, both. (And as a result of today's decision, this case will probably drag on for another three or four years minimum.)


Lines from Justice Thomas' dissent, summarizing facts that Justice Kennedy doesn't dispute (because they're indisputable) (slip op. at 1; .pdf at 36):

Scott Panetti’s mental problems date from at least 1981. While Panetti’s mental illness may make him a sympathetic figure, state and federal courts have repeatedly held that he is competent to face the consequences of the two murders he committed. In a competency hearing prior to his trial in 1995, a jury determined that Panetti was competent to stand trial. A judge then determined that Panetti was competent to represent himself. At his trial, the jury rejected Panetti’s insanity defense, which was supported by the testimony of two psychiatrists. Since the trial, both state and federal habeas courts have rejected Panetti’s claims that he was incompetent to stand trial and incompetent to waive his right to counsel.

There is no issue now as to whether Panetti was, or should have been found by the jury to be, not guilty of capital murder by reason of insanity. Justice Kennedy does not dispute that he was legally sane when he committed the crimes, nor that he was legally competent when he was tried and convicted for them. But Justice Kennedy says Texas can't execute this sane capital murder, based on a 1986 ruling from a case called Ford v. Wainwright.

Now, that opinion was a hodgepodge and a mishmash with no single written opinion commanding a majority of the Court's members — in other words, it was much more typical of the Supreme Court's death penalty decisions, and damned hard for the lower federal and state courts to wrestle with. Again, according to Justice Thomas' explanation of how the Fifth Circuit had tried to sort out Ford's application to Panetti's claims (slip op. at 19, .pdf at 54; citations omitted):

Because the issue before the Court in Ford was actual knowledge, not rational understanding, nothing in any of the Ford opinions addresses what to do when[, as in Panetti's case] a prisoner [allegedly] knows the reason for his execution but does not "rationally understand" it.

Tracing the language of Justice Powell’s concurrence, the [Fifth Circuit] Court of Appeals held that Panetti needed only to be "'aware' of" the stated reason for his execution. Implicitly, the Court of Appeals also concluded that the fact that Panetti "disbelieves the State’s stated reason for executing him" does not render him "unaware" of the reason for his execution.

Justice Kennedy, however, characterizes the evidence about Panetti's mental state — in order to "frame the issue" — by explaining that Panetti's delusions have

recast [his] execution as "part of spiritual warfare ... between the demons and the forces of the darkness and God and the angels and the forces of light." As a result, [Panetti's] expert explained, although [Panetti] claims to understand "that the state is saying that [it wishes] to execute him for [his] murder[s]," he believes in earnest that the stated reason is a "sham" and the State in truth wants to execute him "to stop him from preaching."

(Slip op. at 22; .pdf at 27; first three brackets mine; citations omitted; ellipses and later brackets by the Court.)

If that's so, says Justice Kennedy and the majority, Panetti's death penalty may end up never, ever being carried out. You see, the Constitution prevents us from killing him if he doesn't really grok how society feels about him and what he did (slip op. at 26-27; .pdf at 31-32; citations omitted; boldface mine):

The potential for a prisoner's recognition of the severity of the offense and the objective of community vindication are called in question, however, if the prisoner’s mental state is so distorted by a mental illness that his awareness of the crime and punishment has little or no relation to the understanding of those concepts shared by the community as a whole....

... The principles set forth in Ford are put at risk by a rule that deems delusions relevant only with respect to the State’s announced reason for a punishment or the fact of an imminent execution, as opposed to the real interests the State seeks to vindicate. We likewise find no support elsewhere in Ford, including in its discussions of the common law and the state standards, for the proposition that a prisoner is automatically foreclosed from demonstrating incompetency once a court has found he can identify the stated reason for his execution. A prisoner’s awareness of the State’s rationale for an execution is not the same as a rational understanding of it. Ford does not foreclose inquiry into the latter.

Translation: "You Texans down there! You, there! 'Tain't enuff that yer capital murderers be sane, and 'tain't enough that they know they murdered their in-laws, and 'tain't enuff they know that's why you say yer gonna kill 'em. Stop killin' them murderers whut lack a purty good 'rational understanding' of yer 'rationale' fer killin' 'em! (And, by the way: We'll be the judge o' that up here in Washington, D.C.!)" 


And if you think I was kidding just now when I used Heinlein's "grok" concept as my own shorthand for what Kennedy seems to be saying about a prisoner's "rational understanding of a state's rationale for an execution," read the part in which Justice Kennedy seems to magnanimously allows how his new standard might be hard to apply and then proceeds to suggest that the initial bar is set awfully low (slip op. at 27; .pdf at 32):

This is not to deny the fact that a concept like rational understanding is difficult to define. And we must not ignore the concern that some prisoners, whose cases are not implicated by this decision, will fail to understand why they are to be punished on account of reasons other than those stemming from a severe mental illness. The mental state requisite for competence to suffer capital punishment neither presumes nor requires a person who would be considered "normal," or even "rational," in a layperson’s understanding of those terms. Someone who is condemned to death for an atrocious murder may be so callous as to be unrepentant; so self-centered and devoid of compassion as to lack all sense of guilt; so adept in transferring blame to others as to be considered, at least in the colloquial sense, to be out of touch with reality. Those states of mind, even if extreme compared to the criminal population at large, are not what petitioner contends lie at the threshold of a competence inquiry. The beginning of doubt about competence in a case like petitioner’s is not a misanthropic personality or an amoral character. It is a psychotic disorder.

Didja follow that? If not, that's too damn bad because — hey, they've also decided (slip op. at 28-29; .pdf at 33-34) that they're not going to really tell us what they really mean for the lower courts to do with all this!

Although we reject the standard followed by the Court of Appeals, we do not attempt to set down a rule governing all competency determinations. The record is not as informative as it might be, even on the narrower issue of how a mental illness of the sort alleged by petitioner might affect this analysis....

... The District Court, of course, was bound by [Fifth] Circuit precedent, and the record was developed pursuant to a standard we have found to be improper. As a result, we find it difficult to amplify our conclusions or to make them more precise. We are also hesitant to decide a question of this complexity before the District Court and the Court of Appeals have addressed, in a more definitive manner and in light of the expert evidence found to be probative, the nature and severity of petitioner’s alleged mental problems.

Punt. That is just so shameful, it's beyond words.

But what do you bet that Scott Panetti somehow, very mysteriously, manages to become even more psychotic before his next examination by the next set of experts and his next hearing on whether he has a sufficient rational understanding of the rationale for executing him? Which of today's SCOTUS decisions do you think will be the subject of imaginative conversations on death rows around the U.S.A. starting tonight and running well past Independence Day?

"Lord-a-Mercy! the State of Texas wants to end my preachin' because the lightning bolts of righteousness spring from my very fingertips, and the Devil himself has grasped those Texas snakes by their throats to menace the Angels protecting me, they're menacing my Angels with their eight-foot crimson fangs of injustice! Get thee behind me Satin! Get thee out from behind me, Warden! I hear the voices telling me to preach, and can't you hear the choir? The choir!"

For those who are faking or exaggerating, the schtick probably gets old — but it sure beats a cold steel needle. (Double entendre intended.) And no, I'm not suggesting that genuine medical professionals can't detect most faking and exaggeration. But when the SCOTUS is appointing itself as Psychiatrists-in-Chief, as they did for purposes of rejecting the testimony of the real ones who examined Scott Panetti, it doesn't much matter how accurate the experts are, does it?)


Ladies and gentlemen, friends and neighbors, it's less than a day old, and the ink is barely dry on the page. But I'm here to tell you that Panetti v. Quarterman is the single worst piece of so-called precedent on capital punishment ever written by the United States Supreme Court.

If you want Supreme Court Justices who not only overturn the will of the people as expressed both by Congress and by the state legislatures, and who not only will ride roughshod over the findings and evaluations of the lower state and federal courts, but who also will write touchy-feeey pieces of drivel, all in lieu of faithfully and intelligibly interpreting the U.S. Constitution on matters quite literally of life and death, then you will vote in November 2008 for a Democratic candidate. Any of them, all of them, will replace anyone in Justice Kennedy's five-person majority today who might retire in the following four years with someone worse than him in this regard. You can take that to the bank.

Posted by Beldar at 06:32 PM in Law (2007) | Permalink | Comments (4)

Does Cheney have a legal leg to stand on in contending that he and the OVP are not covered by the executive order on classified documents?

On The Corner, Ramesh Ponnuru asks: "Does he [Cheney] have a leg to stand on, legally? He sure doesn't seem to."

When you say "legally," Mr. Ponnuru, it’s not clear what context you mean, and your question simply can't be answered without knowing the context.

If your question is, "Could anyone go to court to compel Cheney’s cooperation with the Director of the Information Security Oversight Office in this dispute?" then the answer is a very definite "No." What's at issue is an executive order — literally an order from the Chief Executive to his subordinates in the executive branch — and its only compulsive force comes from the President’s ability, at his sole discretion, to punish or ultimately to fire those in the chain of executive command below him who disobey him. The POTUS is presumptively not only the author, but the only relevant ultimate interpreter of executive orders. Whatever the then-President says an executive order means — regardless of what it may or may not actually say, or what it was originally intended to mean — is what the executive order does effectively mean (using the word "effectively" quite literally). So does Mr. Cheney have a leg to stand on in that legal sense? Absolutely, as long as Dubya says so. (And he does.)

If you instead meant (as I suspect), "Is there prior court precedent, or are there statutes or regulations, or principles of legal reasoning and interpretation, that directly answer or even address this question?" then the answer is: "Not exactly, but: Such statutes and regulations and precedents and legal principles as there are actually tend to support Cheney's position."

I advise you against taking your legal advice from WaPo writers, Mr. Ponnuru. (Or from CBS News, which published an equally vapid and one-sided analysis that also pretty much, ummm, skipped the actual law stuff.)

You surely knew from the title of this post and its subject matter that this was going to get tedious, didn't you? Hang tough, and I'll try to take it one step at a time.


Executive Order 12958 (dated April 17, 1995), as extensively amended in Executive Order 13292 (dated March 25, 2003), is the relevant document (also reprinted here with some typos but with handy internal hyperlink cross-references). Section 5.2(a) of this executive order created "within the National Archives an Information Security Oversight Office." Section 5.2(b)(4) gives the ISOO's Director "authority to conduct on-site reviews of each agency's program established under this order, and to require of each agency those reports, information, and other cooperation that may be necessary to fulfill its responsibilities."

(I need a hard-core Beltway insider to tell me if the acronym for this office within the National Archives is commonly pronounced "Is SO!" That would be kinda cool, I guess.)

The ISOO Director implemented this executive order through a formal set of regulations that were published under authority of the order and subject to all of its limitations and restrictions. The pertinent regulation appears at 32 C.F.R. § 2001.80, and it says: "Each agency that creates or handles classified information shall report annually to the Director of ISOO statistics related to its security classification program." (It also goes on to say that the Director gets to specify the form and timing of the report.)

At first blush, neither the Vice President himself nor his staff would seem to be "agencies." But — as always with these pesky Washington lawyers! — whoever wrote this executive order had a special meaning for that word, and they gave it a peculiar definition in section 6.01(b) of the order:

"Agency" means any "Executive agency," as defined in 5 U.S.C. §  105; any "Military department" as defined in 5 U.S.C. § 102; and any other entity within the executive branch that comes into the possession of classified information.

Thus, the specific question raised by ISOO Director's letter to Attorney General Gonzales on January 9, 2007 — the source of the current argument — was "whether the Office of the Vice President of the United States ('OVP') is an 'agency' as defined in § 6.1(b) of the Order."

And we therefore have to consider three possibilities to answer it: Is either the VPOTUS or the OVP an "executive agency," a "military department," or an "entity within the executive branch" within the meaning and intent of this executive order? If not, then Vice President Cheney's right — even without reference to the practical and legal reality that it's only Dubya's interpretation that counts.

Before we look at the specific statutes or interpretive cases, though, pause with me a moment. (In the olden days, this would be when you'd stand looking at the wall full of maroon-colored volumes of West's United States Code Annotated, trying to decide which volume to pull down.) Title 5 of the U.S. Code is entitled "Government Organization and Employees." That's not where you find the statutes that deal most generally and directly with the President or the Vice President, though. Those are found in Title 3, entitled somewhat misleadingly, "The President." I say misleadingly because, for example, 3 U.S.C. §§ 104, 106 & 111 relate specifically and exclusively to the Vice President. He didn't get his own separate title when they structured the U.S. Code, in other words — but neither did Congress put his statutes over there with the Department of Agriculture in Title 5. That may seem trivial, but I'll come back to it later, because it's a hint, or maybe a clue.


The first term from section 6.1(b)'s definition of "agency" that we have to look at is "executive agency." But the statutory cross-reference quickly multiplies that term's meaning three-fold too, because 5 U.S.C.  § 105 tells us that "'Executive agency' means an Executive department, a Government corporation, and an independent establishment."

Each of those three terms, in turn, has its own special definition, but the first two are easy. First, 5 U.S.C. § 101 provides an exclusive list of the thirteen familiar "executive departments," each of which is run by a "Secretary of," rather than by the Vice President. Second, his Halliburton history notwithstanding, our Veep and his office don't fit the definition in 5 U.S.C. § 103 because, well, neither Cheney nor the OVP is a corporation.

Somewhat less helpfully, 5 U.S.C. § 104 tells us that "independent establishments" can be one of two things. One of them is very specific: The General Accounting Office (which has famously, but unsuccessfully, tried to sue Vice President Cheney, on the basis of which we can presume that they are indeed different from one another). The other thing, though, is very general: "an establishment in the executive branch (other than the United States Postal Service or the Postal Rate Commission) which is not an Executive department, military department, Government corporation, or part thereof, or part of an independent establishment." Whew. Fortunately, though, although we're faced with a model of Congressional clarity that tries to define something in terms of it not being a part of itself (or a part of some other specified stuff), we actually have a court case to help us out!

Haddon v. Walters, 43 F.3d 1488 (D.C. Cir. 1995), construed section 105's "independent establishment" puzzle in the context of deciding whether an employee of the Executive Residence (a/k/a the White House, but not to be confused with the "Executive Office of the White House") could sue the White House Chief Usher for employment discrimination prohibited by Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16. The court had to do that because Title VII, like our executive order here, also made cross-reference to 5 U.S.C. § 105 for its definition of "executive agencies." The D.C. Circuit first went through the same quick language and logic drill that I've just done with "executive departments" and "government corporations," but without the snark that I use to keep the dense legal prose moving. It then proceeded to hold that Congress did not intend for the the Executive Residence to be an "independent establishment" for two reasons — both of which apply equally as well to Mr. Cheney and the OVP.

First, the court noted that elsewhere, in 3 U.S.C. § 112, Congress had authorized

"[t]he head of any department, agency, or independent establishment of the executive branch of the Government [to] detail, from time to time, employees of such department, agency, or establishment to the White House Office, the Executive Residence at the White House, the Office of the Vice President, the Domestic Policy Staff, and the Office of Administration." That Congress distinguished the Executive Residence from the independent establishments, whatever they may be, suggests that Congress does not regard the Executive Residence to be an independent establishment, as it uses that term.

(Bracketed portion inserted by the Haddon court; italics omitted). The same, of course, is true of the Office of the Vice President, which was also included in the same list in the quote just above from section 112.

Second, the Haddon court noted that it's Title 3 (in 3 U.S.C. § 105(b)(1)), and not Title 5, that prescribes pay and working conditions for employees in the Executive Residence. This "further suggests," according to the court, that the relevant part of the Title VII employment discrimination laws that incorporated Title 5's definition of executive agency didn't apply to the plaintiff. Again, the same logic applies to Mr. Cheney and the OVP, for they also have their pay prescribed by Title 3 (specifically, 3 U.S.C. § 106) rather than Title 5.

Bottom line: the closely parsed statutory language, aided by the definitive interpretation of Congress' intent in the Haddon case, pretty conclusively establishes that neither Mr. Cheney nor the OVP are an "executive agency" within the meaning of section 6.1(b) of the executive order.


The second term from section 6.1(b)'s definition of "agency" that we have to look at is "military departments." Fortunately, that's a shorter inquiry: 5 U.S.C. § 102 reminds us that the only military departments are the Army, Navy, and Air Force. I know he swings a mean shotgun, but Vice President Cheney and the OVP are both legally distinct from those.


The third term from section 6.1(b)'s definition of "agency" that we have to look at is "other entity within the executive branch." Based on the analysis above, this "other entity within the executive branch" language is the only conceivable basis upon which the executive order might even arguably apply to the Vice President and the OVP.

And on this one, we can't hope to get any help from a federal court that's construed that term. This one doesn't come from a statute, and it's not defined by reference to a statute. We basically have nothing but traditional rules of construing legal language. Which is to say: We look at the language itself, and we also look at the context in which it's used.

Start with the language itself: Are either the Vice President or the OVP an "entity within the executive branch"? It's hard to dispute that both the Vice President himself, and his staff that collectively make up the OVP, are "entities." They are certainly treated, and considered, as being part of the executive branch for many purposes and in common parlance.

But the ordinary meaning of the word "within" implies something that is fully encompassed. There's a big difference, for instance, in being "within" a submarine and "partly within" a submarine. And as Administration spokesmen have tried to point out, there is an important respect in which the Vice Presidency, under the Constitution, does not exist or act "within" the executive branch, but in which it has a legislative function instead — presiding over the Senate and breaking ties there.

In drafting (or revising and republishing) this executive order, the President could have used a phrase that more definitely embraced the Vice President and his staff, despite their unique boundary-crossing attributes (of which he presumably was fully aware) — something like "entity wholly or partially within the executive branch," or "entity established by or pursuant to authority from Article II of the Constitution." But he didn't. When it would have been easy for a party to vary from the common meaning of a word like "within," and yet he didn't, courts generally are reluctant to find that he meant such a variance.

We also know that the President (or, more realistically, his own legal minions) paid special attention to the definition of "agency" when they issued the revised executive order, because the "military department" alternative that's now in section 6.1(b) wasn't in the original definition at all. They fine-tuned the language, but did not take the opportunity to rewrite, clarify, or broaden the "entity within the executive branch" provision while they were about the business of bringing in the military entities whose prior coverage must have been questioned. (As we'll see just below, though, they were definitely thinking about the VPOTUS and OVP at this particular time, in yet another context that can give us some guidance.)

To the question, then, of "Are the Vice President and the OVP 'within' the executive branch?" the best answer anyone can give is, "Yes and no; it depends on the context. And if you mean 'completely within,' then no." So let's look at the context, to see if it helps us resolve this arguable ambiguity.


The ISOO Director's letter — which, in turn, was the only resource cited or apparently relied upon by the WaPo article that Mr. Ponnuru linked — makes two half-baked efforts to support his position by reasoning from the structure of the executive order and the history surrounding it. But in fact, when you consider indisputable context and history that his rather disingenuous letter omits, both of his arguments actually end up supporting Vice President Cheney's position.

I'll take them in reverse order. Here's the second (boldface in original, footnotes omitted):

Plain text reading: There are several explicit references in the Order to the constitutional position of Vice President that confer specific authorities and exemptions upon the individual encumbering [sic; I suppose that's a back-formation from "incumbent"] that position. There is but a single explicit reference to the government entity (the OVP) which serves the President. This sole explicit reference for the purpose of exempting the OVP from a provision of the Order supports an interpretation that the rest of the Order does apply, to include the Order's definition of an "agency"; otherwise there would be no need for an exception.

There are indeed "several explicit references" in the order to "the President and, in the performance of executive duties, the Vice President." The qualifier there is important: The Vice President's executive duties are those delegated to him by the President, rather than those created elsewhere (e.g., the VPOTUS' constitutional role in breaking tie votes as presiding officer over the Senate).

But there is no explicit use of the term "Office of the Vice President" anywhere in the executive order. That is, the "plain text" doesn't say anything directly on the subject of whether the OVP or the Vice President was intended to be an "agency" for purposes of section 6.1(b). Rather, the "plain text" at best creates a structure from which, perhaps, inferences may be drawn — and that is what the ISOO Director is actually trying to do. In the footnote support for the reasoning in the last sentence I've just quoted from the letter, regarding the "exception" supposedly proving his point, the ISOO Director writes:

See § 3.5(b)(2) which exempts "in the performance of executive duties, the incumbent Vice President's Staff" from the mandatory declassification review provisions of the Order.

What the letter and its cleverly elided footnote fail to mention, however, is that this exemption is also the only provision in the executive order in which the President's staff is referenced. And the letter certainly omits mention of the fact that the Veep and his staff are treated exactly the same way for purposes of this exemption as the President and his staff. The exemption from mandatory declassification review actually includes —

(b) Information originated by:

(1) the incumbent President or, in the performance of executive duties, the incumbent Vice President; [and]

(2) the incumbent President's White House Staff or, in the performance of executive duties, the incumbent Vice President's Staff[.]

It's simply impossible for this exemption to imply one thing with respect to the Vice President's staff — i.e., for it to imply that the rest of the order must apply to the Vice President's staff — unless this exemption also implies the same thing not only to the Vice President himself, but also to the President, and to his staff. Suffice it to say that neither Dubya nor his posse are "executive agencies" under the analysis I've gone through above either. And the ISOO Director has certainly not had the cajones temerity to suggest that through this executive order, President Bush somehow intended to require himself to generate reports and paperwork under 32 C.F.R. § 2001.80 in order to gratify the Director's urge for turf protection. Indeed, he's only asked the AG for an opinion confirming that the order applies to the OVP, not to Cheney himself.

(I'm reasonably sure, based on another argument discussed just below, that if, say, the Office of the White House Counsel, or the Executive Office of the President generally, were dutifully filing yearly reports to the ISOO Director, he'd have mentioned that in his letter.)


The Director's other bogus argument in the letter — dutifully (if without much comprehension) parroted by the WaPo article Mr. Ponnuru linked — is that the Veep's past performance in providing compliance reports somehow set a precedent that ought to be binding, or at least useful in interpreting the intent behind the executive order (boldface in original):

Consistency in application: An interpretation that the OVP is not subject to the reporting provisions of the Order is fairly recent, in that up until 2002, the OVP did submit annual reports to this office.

For this argument to fly, though, one must presume that nothing else changed, other than the Vice President's willingness to comply, after 2002.

And that's an absolutely false premise, as the ISOO Director ought to know: A major purpose of Executive Order 13292 in March 2003 was to add language empowering the Vice President to share in the President's authority to classify and declassify material. That's when, for example, all the references to "in the performance of executive duties, the Vice President" were added; that's when the exemption language of what's now section 3.5(b) was added.

Before the 2003 revisions, in other words, there was no particularly clear argument that the President intended for the Vice President and his staff to have the rights and responsibilities that he and his staff had with respect to classified information. After March 2003, though, that clearly is the case. The Director's argument can only work if you believe that the President simultaneously (1) intended to give sweeping power to the Vice President and his staff that is equivalent for purposes of this order to that exercised by the President and his own staff, but (2) simultaneously, and without saying so explicitly, intended to subject the Vice President and his staff to the most tedious paperwork that the order imposes on the real "agencies" of the federal government.

The Vice President's compliance before 2003, then, the timing of his change in position, and the lack of compliance thereafter thus actually cut against the interpretation that the ISOO Director has suggested. And the "consistent application" under the current language and structure since 2003 has been that Vice President Cheney and the OVP have not complied, and the President has not squawked about that. Indeed, the President's own lack of previous reaction to the OVP's non-compliance is actually the best inferential evidence of the President's intent — even if, ya know, we ignore what his spokesmen say about his intent. (Which the WaPo and the NYT might do, but a court wouldn't, if there's a genuine ambiguity.)


My ultimate conclusion, then, is that while the language of the order itself may be ambiguous, this full context actually strongly supports Mr. Cheney's arguments. I think he not only has "a leg to stand on, legally," but that a court would probably agree that overall, he has the better of this argument.

But of course, as I started off saying, no court will ever be called upon to answer this question. The only judgment that matters is the President's, and as of today, that's still George W. Bush.

(For more reading on this general topic, start with this succinct post by Dr. James Joyner about the unique position of the VPOTUS. I don't disagree with his political analysis about this specific dispute here and here, either, although I think the legal questions are distinct. And with due respect, I suspect that Prof. Orin Kerr may not have given this subject the benefit of his most thorough legal analysis before writing posts here and here at the VC; but some of his commenters at least found their way to the actual text of the revised order and to some of the right statutes.)

Posted by Beldar at 06:06 AM in Law (2007) | Permalink | Comments (26)

Wednesday, June 27, 2007

Fred chooses the blogosphere for his riposte to the DNC's fundraising email attack on him

Ed Morrisey had a neat scoop today at Captain's Quarters with an exclusive pod-cast statement from former Sen. Fred Thompson in which the almost-official candidate responded to the Democratic National Committee's fund-raising email this week attacking him as a lobbyist and "the ultimate Washington insider."

Here's a direct audio link to the recorded statement, and after that is my rough transcript of Sen Thompson's pithy but pointed remarks, followed by a few remarks of my own:

Hey, this is Fred Thompson. Been travelin' the last couple of days. I had a great day yesterday in Nashville. And got down to Franklin to see my momma. Today, a wonderful day in Columbia, South Carolina.

While we've been out on the trail, though, I've learned some interesting things about myself. Apparently, I brought down the savings and loan industry single-handedly, and supported Caribbean dictatorships!

The Democrats, looks like, have chosen a fella not even in the race yet to launch their attacks against. I don't know when I've been so complimented. But they point out that in 35 years of law practice, I had half a dozen or so lobbying clients. They don't mention my latest, when Judge Roberts was nominated to the Supreme Court, President Bush asked me to lobby on his behalf to get him confirmed. And I was able to help out on that project.

But I'd just say, "Keep it up, guys!" Ya know, these are the same things that you talked about in the 1994 campaign when I first ran. And it got you within 20 points of me.

There is some segment of the United States voting public who will react to Fred Thompson, in his distinctive down-home drawl, saying he "got down to Franklin" to see his "momma" by rolling their eyes and making some feeble, snotty joke that includes the word "corn-pone." They're lost to whoever is the 2008 GOP nominee anyway — even if the nominee were fast-talking, non-drawling Rudy Giuliani or Mitt Romney. Me, I'm fixin' to go to go see my daddy next week over the holiday, and I'm just glad for Fred and his momma that they had a chance to touch base too.

In then-Circuit Judge (now Chief Justice) Roberts' testimony before the Senate, he seemed so polished and yet so natural that it's hard to imagine that it was the result of careful preparation — a role in which Sen. Thompson was reportedly involved (albeit probably as an unpaid adviser rather than a paid lobbyist). But Sen. Thompson served with, and knows well, many members of the Judiciary Committee, and I have no doubt that he was able to play "mock interlocutor" as a credible, inspired simulation for more than one of them. And Chief Justice Roberts was already, of course, an exceptionally skilled advocate for others' positions as an appellate lawyer whose full-time career consisted of preparing to face, and then answering critical questions from, folks much smarter and better prepared than the likes of Slow Joe Biden or even Fast Chuckie Schumer. If Sen. Thompson was also involved in quiet discussions with a few senators whose votes were in play, that's probably something neither he nor they will ever describe in much detail. But it's something that I'm grateful for as I survey this Term's SCOTUS decisions.

I'm sure that Sen. Thompson is prepared to address the subject of his other handful of lobbying clients in greater detail at an appropriate point in the upcoming campaign, and I expect that he won't be bashful or defensive about doing so. For purposes of this quick thrust-back via the blogosphere, however, Sen. Thompson's reference to the Roberts nomination — whose confirmation generated as close to a bipartisan consensus as we've seen on any domestic issue in years, and whose lingering impressions with the voting public are overwhelmingly positive (with the exception of a small group of hard-core Hard Left haters) — is a deft one, I think. It's a good example of how someone who was then outside government can nonetheless affect — positively and absolutely legitimately — something going on inside government, and not by peddling bribes or trading favors.

Posted by Beldar at 10:30 PM in 2008 Election, Politics (2007) | Permalink | Comments (4)

Tuesday, June 26, 2007

What's Hillary's angle in refusing to commit to refuse a pardon to Scooter Libby?

My working assumption is that everything that Hillary Clinton says and does is motivated by Hillary Clinton's desire to be elected President in 2008 and, secondarily, re-elected in 2012. That is the path to power, and power is all she cares about; everything else, from her soul to her marriage to the price of tea in China, is secondary.

This working assumption comprehensively and coherently explains 99.8% of everything I have read or heard that she has said in public since, oh, July 1991.

I credit her with the capacity for deep, cunning thought, and I do indeed think that she has learned — which is to say, learned to be more ruthlessly effective and more effectively ruthless — over the last decade and a half. I don't think she is a tenth as politically nimble and instinctive as her husband. But it worries me when I hear or read something from her that doesn't fit my working assumption — because it makes me think I might be missing something important.

So can perhaps you, gentle readers, explain to me why on June 19, 2007, Hillary Clinton pointedly refused to commit to refusing to pardon Scooter Libby?

Sen. Hillary Rodham Clinton (D-N.Y.), the wife of a former president who was criticized for his eleventh-hour pardons, declined to weigh in yesterday on a potential pardon for Vice President Dick Cheney’s former chief of staff, I. Lewis "Scooter" Libby.

Clinton and nearly all other major Democratic presidential candidates spent yesterday wooing labor unions and liberal groups at a series of forums and events in Washington.

Clinton’s remarks came at a presidential forum during the American Federation of State, County and Municipal Employees (AFSCME) Leadership Conference.

Her husband, former President Bill Clinton, created a firestorm in 2001 by pardoning Marc Rich, a man whose ex-wife had contributed substantial money to the Democratic Party and the Clintons.

"I would think there would be enough to be said about this without me adding to it," said Hillary Clinton in response to a question by moderator Chris Matthews of MSNBC about the possibility of a Libby pardon.

When Matthews called her out for a "political answer" and pressed her, he was shouted down by several members of the audience, who asked for a "real question."

Clinton added: “A question that’s really about the people in this audience … and not what goes on inside of Washington."

I just don't get this. The first thing I thought when I read this was, "Wow, exactly how naïve was Scooter Libby when he called Tim Russert in the supposed hope that Russert could exercise a moderating influence over Chris Matthews?" But the next thing I thought was, "Why on God's green earth would Hillary — even if she wanted to tweak Matthews' nose and "differentiate" herself from the field of Democratic candidates — pick this issue to do that?" (Secondary question: Why'd the union audience support her on this?)

Can you actually imagine President Hillary Clinton pardoning Scooter Libby? I mean, putting aside all the crazy conspiracy theories (e.g., "Scooter has the photographs of Hillary in bed with Vince Foster on the weekend before Foster's 'suicide'"), what possible reason would Hillary have to be at all decent to a loyal Cheney minion like Libby, especially given the sensitivity on pardon issues in general that she ought to have, simply as a triangulating focus-group driven wind sock?

So let's presume, for purposes of further analysis, that she's insincere in suggesting that she's open-minded. Why didn't she just say, "Hell, no, I would never in a million years pardon Libby?" Stated another way: What is the upside for Hillary Clinton in refusing to go on record now against a Libby pardon? Even if she wasn't before a hard Hard Left audience, a MoveOn.com audience — why pass up an opportunity to condemn the Bush/Cheney Administration?

She doesn't do anything by accident. There is a play here; somewhere in a tabbled, color-coded briefing book (numbered copies, printed on poison-laced paper whose antidote is only passed out at Hillary08! staff meetings every evening), this answer was pre-scripted, along with a rationale for it. I just can't suss it, and it's bugging me. Help me out, gentle (devious, suspicious, astute) readers?

Posted by Beldar at 08:24 AM in 2008 Election, Politics (2007) | Permalink | Comments (17)

Stupidest "news" (in an op-ed) of the summer so far: GOP party elders "could" visit Bush "today" to persuade him to dump Dick Cheney for Fred Thompson

According to Sally Quinn, in an op-ed in Tuesday's WaPo:

The big question right now among Republicans is how to remove Vice President Cheney from office. Even before this week's blockbuster series in The Post, discontent in Republican ranks was rising."

Why, yes! We in the right-most hemisphere of the blogosphere have been writing of little else this week than impeaching Vice President Cheney! Indeed, I believe this subject has filled almost 98% of all talk-radio hours for the past week, and as Sen. Trent Lott informs us, talk radio runs America. Discontent with Vice President Cheney is virtually drowning all us Republicans, but it's awfully astute of her to notice. Glub glub, tell me more!

Sally Quinn"Today, [a] group of [GOP] party elders, led by Sen. John Warner of Virginia, could well" go to President Bush to tell him that Vice President Cheney is "toxic" and has to go, writes Ms. Quinn.

Surely she knows about such matters, because Ms. Quinn's Wikipedia entry tells us is "an American author and journalist. She is also considered one of the arbiters of society and mainstream opinion in Washington, D.C." And, it tells us, Ms. Quinn "is married to Benjamin C. Bradlee, the former editor of the Washington Post and her former boss."

(Not that that's relevant. Just forget that I even mentioned it. After all, we need look no farther than Rosie O'Donnell to confirm that one doesn't need a powerful husband to get profoundly silly theories spread through the mainstream media. All that's relevant about her background is, as the WaPo byline discloses, that "The writer is co-host, with John Meacham, of On Faith, an online conversation about religion." Perhaps it was angels who appeared to Ms. Quinn to confide in her that President Bush's overriding concern now is to be freed up to "concentrate on AIDS and the environment in hopes of salvaging his legacy.")

Said Republican party elders "could act out of concern for our country's plummeting reputation throughout the world, particularly in the Middle East," Ms. Quinn notes in her op-ed. Hmmm. Notice the repeated use of the conditional tense? I suppose Harry Reid could also pick today to apologize to the American armed forces presently in harm's way for having publicly declared that the war is lost and that their leaders are incompetent, and he could pick today to issue a ringing declaration to our enemies that they ought no longer count on Reid Pelosi & Co. to keep doing their work for them in the Capitol Building. But I'm not holding my breath.

"For such a plan to work, however, [the Administration] would need a ready replacement," explains Ms. Quinn. Neither Giuliani, McCain, nor Romney would suit, but: "That leaves Fred Thompson. Everybody loves Fred."

Vice President Richard B. CheneyMs. Quinn even provides the Administration with the public excuse it needs to ease Mr. Cheney out: He needs to have the batteries changed in his pacemaker over the summer months. Clearly Ms. Quinn is wasted as an occasional WaPo columnist. A woman of her creativity obviously needs to be in the CIA, planning covert international disinformation campaigns. (Unless ... Do you think maybe she already is? Quick, someone call Bob Novak and ask him ....)

I've read the first two parts of WaPo's "blockbuster series" on the Veep. It contains absolutely startling revelations. Did you know, for example, that President Bush highly values Vice President Cheney's opinions, and often accepts his recommendations? That Mr. Cheney is the most powerful and effective Vice President in history, whose influence shocked and surprised even Dan Quayle?

I mean, who knew? Another scoop for the Washington Post! (Someone call the Harry Ransom Center at UT-Austin — maybe they can buy Ms. Quinn's archival papers to add to Woodward's & Bernstein's!)

Apparently based mostly on previous public reporting — spiced up just a bit with some unattributed sources who, from the context, seem to have considerable reason to leak opinions and tidbits hostile to Mr. Cheney — the first three parts of the four-part "blockbuster series" haven't yet actually revealed anything that's terribly surprising or controversial, even if it's all gospel truth. In fact, let me give you a hint, Ms. Quinn: Most of us here in the Red States who are reading it have been saying aloud to ourselves (since, ya know, we have to move our lips while we read) things like: "You tell 'em, Dick!" and "Damn, I'm glad that there's someone else besides Dubya with cajones in this Administration!"

(And we among the faithful may need some reminders this week of past principled fights that were more worth the fighting, given what may result from the Senate cloture fight(s) on the Administration-sponsored immigration legislation.)

In fact, some of us have been saying to ourselves, Ms. Quinn, that the very fact that political insiders will betray the Administration's trust so egregiously to leak this sort of high-level gossip to the Washington Post — violating, for example, not only executive but attorney-client privilege in the process — pretty well vindicates our Vice President's legendary secretiveness. (Me, I'm thinking a little dunk in the water for some of those leakers might be a no-brainer, but then, I'm a fascist Rethuglican Neanderthal.) 

Thompson_cigar Certainly the likes of Ms. Quinn, though, are useful to show us the far opposite extremes of the Washington spectrum that runs between serious statesmen and supercilious airheads, all of whom may nonetheless attend the same Kennedy Center performances and Beltway dinner parties.

I genuinely hope Sen. Thompson does another quick internet video, like the one he did to respond to Michael Moore, to address this unsought and deeply silly endorsement by Ms. Quinn. In comic deftness points, Fred's already ahead of Hillary by about 88 to 6. I know Washington is a target-rich environment for satire, but this opportunity is certainly a good chance to widen his lead.


UPDATE (Tue Jun 26 @ 10:50am): Reactions to Ms. Quinn's op-ed from both left and right have been, to put it mildly, skeptical. Captain's Quarters: "I'd like to have a shot of what Sally Quinn's drinking." Outside the Beltway: "This has to be the dumbest thing I’ve seen from a major journalist in quite some time." Comments from Left Field: "Thinking about this, though, is silly. There is no way in HELL you are pushing Cheney out." FireDogLake: "I know we have to pass the time somehow, but how about we try some actual news reporting for a change?"

Posted by Beldar at 03:42 AM in Humor, Politics (2007) | Permalink | Comments (8)

Sunday, June 24, 2007

Ex-girlfriends and ex-wife confirm Fred Thompson's "trophy husband" status on Jeri Kehn's arm

Further to my June 4th post entitled Fred Thompson and Jeri Kehn: Trophy wife, trophy husband?, the Sunday Times of London's Washington correspondent quotes several of Sen. Thompson's ex-girlfriends directly with ecstatic endorsements, and repeats his own statement that his ex-wife has told him she intends to campaign for him. (h/t Allah at Hot Air.)

Fred Thompson, Jeri Kehn, and their daughter Heyden Victoria Thompson Combined with his commanding height, resonant voice, distinctive looks, and wicked sense of humor; his career accomplishments in Tennessee, Washington, and Hollywood (and the presumptive wealth that accompanies the latter); his since-reconfirmed fertility; and the number of prominent and successful career-woman competitors whom Ms. Kehn had to best before reeling him in — doesn't this report make Fred exactly the sort of catch that an ambitious woman moving in Washington's circles of power would want to show off to her peers, to prove that she is indeed capable of landing someone extremely desirable by their standards?

I repeat I think there is just as good an argument that Sen. Thompson is a "trophy husband" as that Ms. Kehn is a "trophy wife."

The new picture I've reprinted here is from Sen. Thompson's official almost-campaign website, ImWithFred.com. Probably a third of the internet traffic my blog has gotten this month has been to my June 4th post, many via image searches through various search engines that turned up one or another of the various pix of them together that I've scavenged from around the net.

Beware of relying on such searches, though: I've seen several blogs link, and even republish, as being photos of Ms. Kehn, photos that are actually of a blonde country-western singer whom Sen. Thompson once dated. In its inscrutable ways, Google's image search for "Jeri Kehn" now includes a picture from my blog on its first page of returns —€” but the "hot babe" picture it shows is actually of Jeri Ryan (dressed as ST:Voyager's Borgalicious "Seven-of-Nine"), the ex-wife of former Illinois senate candidate Jack Ryan, about whom I wrote in a 2004 pre-election post commenting on John Kerry's having dated Morgan Fairchild.

(And yes, I do look for excuses to post G- and PG-rated pictures of very attractive women. So? A blogger in Ken MacLeod's new thriller, The Execution Channel (review forthcoming), secretly runs three porno websites to support his blogging! I have my standards, but I don't mind if Ms. Kehn's curves, or public curiosity about them, boost my blog's traffic — no more than she likely minded if they boosted her career opportunities.)

I'm also impressed with former Thompson girlfriend Georgette Mosbacher's comments in the London Times' piece about both Thompson and Kehn:

"It says a lot about his character that his ex-wife and ex-girlfriends think he is fabulous," said Mosbacher. "Character is important in a president."

Mosbacher is a friend of Jeri Kehn, Thompson'™s second wife, whom he married in 2002. At 24 years his junior, Kehn has been described as a "trophy wife" but the former Republican consultant is as clever as she is vivacious, according to Mosbacher.

"Just because Jeri is fun and beautiful, one should not make the mistake of stereotyping her. She is not someone who seeks the limelight and will not be out front, but will be very supportive," she said.

Ms. Mosbacher, the ex-wife of Houston oil baron and former U.S. Commerce Secretary Rob Mosbacher, is among other things an attractive socialite herself, and she has also endured her share of catty remarks about being a "trophy wife" — notwithstanding CEO jobs with a pair of companies and political clout in her own right (co-chair of the Republican National Committee's Finance Committee). I suspect that she and Ms. Kehn are both used to being misunderestimated. A critic or opponent who stereotypes you hands you much of the power you may need to later surprise and quite possibly humiliate him or her.

(A last comment: It's by no means crucial to Ms. Kehn's own list of accomplishments, but I'm not certain that she is in fact an attorney, as has been reported — or quite possibly simply assumed — at various places around the net. The Nashville Post story that I quoted earlier, for example, said that she "was an attorney and political media consultant at the once-powerful Washington [law] firm of Verner, Liipfert, Bernhard, and McPherson and Hand ... [b]efore that firm merged with DLA Piper in 2002." But Verner, Liipfert offered services besides legal advice, and it hired a fair number of politically savvy and well-connected non-lawyers, among them a famous former Governor of Texas, the late Ann Richards. I don't find Ms. Kehn's name among the online list of current members of the D.C. Bar Association, although that could also simply reflect her retirement from practice. If anyone can lay hands on definitive info one way or the other, please let me know by email or in a comment. Thanks!)


UPDATE (Tue Jun 26 @ 7:15pm): I'm advised — via an email from a trusted correspondent who's well connected to do such checking, and who was kind enough to do so (but prefers not to be named) — that Sen. Thompson's spouse generally goes by "Jeri Thompson," and that she is not a lawyer herself. I'm guessing, too, that within the next few weeks, Sen. Thompson's expanded official web presence will include more, and more definitive, biographical information about her as well.

Posted by Beldar at 04:36 AM in 2008 Election, Politics (2007) | Permalink | Comments (7)

Saturday, June 23, 2007

A prediction: The D.C. Circuit will reverse Judge Walton and order him to grant Libby bail pending appeal

I've now read both Team Libby's application for release pending appeal (warning: 122 .pdf pages because of the exhibits) and Team Fitzgerald's reply (21 .pdf pages). I'm much less impressed by the Team Libby's second and third arguments than I am by their first. 

Nevertheless, I'm going to go out on a limb — on record (at least here on my own bandwidth), and consistently with my prior leanings — and predict that Team Libby is going to win this particular battle in the D.C. Circuit. It's a hunch, and I may be proved wrong in short order. But I think that's what the D.C. Circuit ought to do, and I have no particular reason to think that it will do the opposite.

Note first that Team Fitz has to run the table — which is to say, if any one of Team Libby's three points is deemed by the D.C. Circuit panel to raise a substantial question, then Libby must be permitted to stay out on bail (or more likely, on a continuation of his personal recognizance bond) pending appeal.

I'm not quite ready to blog in detail about why I think Team Libby has the better of the argument on this "manner of Fitzgerald's appointment" issue. If and when I do so, it will be a chore: This is a very arcane legal argument whose components run the gamut from history through precedent through statutes through DoJ regulations through documents and facts (albeit mostly undisputed ones) very specific to the Libby case. If Libby ultimately has his conviction reversed on this point, his opponents (which is to say, opponents of the Bush-43 Administration) will scream that he's been vindicated on a technicality, and his supporters (many of whom no longer support the Bush-43 Administration) will scream that he should have been vindicated on something other than a technicality. And I actually only think part of Team Libby's first argument is particularly attractive, but it's probably enough by itself. I may well wait until I've read the complete briefs during the appeal on the merits before trying to make sense of them here in the educated layman-friendly language to which I aspire.

Nor do I think it likely that this D.C. Circuit panel will write at much, if any, length, whether it grants Libby's application or not. A different three-judge panel will hear the merits of the appeal in due course and after much more briefing and argument. This panel knows that, and it is likely to want to avoid prejudging issues — beyond simply deciding (as they must, at least among themselves) whether those issues raise "substantial questions" or not. So the most likely result is a short, per curiam (unsigned) order either granting or denying the application without much further (if any) explanation. Writing something like "On the unique circumstances of the facts of this case and the current status of the law as briefed, we think Libby has raised at least one 'substantial question'" would leave essentially no footprint in the sands of precedent, and would likewise leave the regular panel entirely free to either affirm or reverse Libby's conviction on the merits.

Various other pundits have commented on the fact that Team Libby's emergency application has drawn, at random, a three-judge panel identical to the one that rejected Valerie Plame's and Matt Cooper's appeal — which I scored as "Prosecution 34, Journalists 0" at the time. [Correction: It probably wasn't drawn at random; see comment below. — Beldar] But the three members of the panel — Circuit Judges David Bryan Sentelle (Reagan/Reagan), Karen LeCraft Henderson (Reagan/Bush-41), and David S. Tatel (Clinton) — although unanimous as to that result, wrote three very different opinions to explain their reasoning. If anything, I tend to think that may help Libby here: Especially if the panel declines to write an opinion, then any one of the three appellate judges who finds that any one of the three arguments from Team Libby raises a "substantial question" is probably likely to be able to persuade the other two to at least keep Libby free for the time being. Or two of the three could be persuaded by different reasons, and yet still vote to keep Libby free. Or one might find one reason entirely persuasive, and another might find three reasons half-persuasive (the latter of which wouldn't be entirely kosher, but these rulings typically get made over a conference call or, perhaps in D.C. where they're all together, over a cup of coffee).

Posted by Beldar at 10:58 PM in Law (2007) | Permalink | Comments (52)

Don't compare Nifong and Fitzgerald!

"[Dorothy] Rabinowitz, a member of The Wall Street Journal's editorial board, won a Pulitzer Prize for commentary on prosecutorial abuse," we are informed in the byline of this OpinionJournal op-ed. I'm not interested in trying to trash Ms. Rabinowitz in general (h/t Tom Maguire), but I do hope that her award-winning writing was better than this mish-mash of ill-considered comparisons. Despite the headline and subhead — "A Tale of Two Prosecutors: Mike Nifong is punished, but Patrick Fitzgerald isn't" — not much of this piece is specifically about Mr. Fitzgerald. Some of what there is, is demonstrably misleading. And the rest fails utterly to establish any remote comparison between the two prosecutors.

I've written before at great length to rebut better arguments that Mr. Fitzgerald abused his prosecutorial discretion than Ms. Rabinowitz has raised. Frankly, hers are remarkable only for the prestige of the venue in which they appear.


Fully half of Ms. Rabinowitz' discussion of the Libby case actually consists of criticism of U.S. District Judge Reggie Walton. But of Mr. Fitzgerald in particular, she writes (italics mine):

The obligation to truth, [Mr. Fitzgerald] argued, was of the highest importance, and one in which Mr. Libby had failed by perjuring himself. It would be hard to dispute the first contention. It is no less hard to avoid the memory of Mr. Fitzgerald's own dubious relation to truth and honesty — as, for example, in his failure to disclose that he had known all along the identity of the person who had leaked the Valerie Plame story. That person, he knew, was Richard Armitage, deputy to Colin Powell. Not only had he concealed this knowledge — in what was, supposedly all that time, a quest to discover the criminals responsible for the leak of a covert agent's name — he had instructed both Mr. Armitage and his superior, Colin Powell, in whom Mr. Armitage had confided, not to reveal the truth.

Special prosecutor Fitzgerald did, of course, have a duty to keep his investigation secret during grand jury proceedings, according to the rules. He did not have the power to order witnesses at those proceedings not to disclose their testimony or tell what they knew. Instead, Mr. Fitzgerald requested Messrs. Armitage and Powell to keep quiet about the leaker's identity — a request they understandably treated as an order. Why the prosecutor sought this secrecy can be no mystery — it was the way to keep the grand jury proceedings going, on a fishing expedition, that could yield witnesses who stumbled, or were entrapped, into "obstruction" or "lying" violations. It was its own testament to the nature of this prosecution — and the prosecutor.

This argument is either monumentally uninformed, or monumentally disingenuous. Either way, it's inexcusable for someone of Ms. Rabinowitz' stature and the Wall Street Journal's reputation for basic factual accuracy.

Mr. Libby was indicted and convicted for, among other things, lying to the FBI agents who were questioning him on October 14 and November 26, 2003. Mr. Fitzgerald, by contrast, was not even appointed as special counsel until over a month after the second FBI interview, on December 30, 2003. If the jury verdict is just and correct — and that's concededly a question that Mr. Libby's still testing, via the appellate process, but as of this moment he stands duly convicted — then Scooter Libby was already a self-made felon (albeit an as-yet-unindicted and -unconvicted one) before Patrick Fitzgerald ever got into the investigation.

No one has been a harsher critic of Amb. & Mrs. Bozo & Bozo-ette Joseph Wilson than me, and I am keenly aware of the dangers of "politics as usual" being "criminalized." Maybe the CIA shouldn't have referred this matter to the DoJ (although I think it should tend to err on the side of referring if it's at all a close case; but maybe this one wasn't). Maybe Attorney General John Ashcroft ought not have recused himself (although I think he was right to do so, given his past personal ties with then-reported chief suspect Karl Rove), and maybe his deputy, James B. Comey, ought not have appointed a special counsel (although I think he was right to do that, too, for reasons having to do with public confidence in the justice system and avoiding appearances of favoritism, and I said so at the time).

But when Mr. Fitzgerald got this case, it was already necessarily a false statement/perjury/obstruction investigation because what Mr. Libby had already repeatedly told the FBI agents simply couldn't be squared with the other written evidence and witness statements they had in hand.


So what would a responsible prosecutor do at that point? There may or may not have been an underlying crime committed, and that may indeed have been clear to Mr. Fitzgerald within hours or days after his appointment. But there also could be no doubt that what Mr. Libby had told the FBI agents back in October and November was indeed material to their original investigation — as the jury eventually necessarily found, based on the "materiality" instructions from the court (which in turn don't appear to be a major subject of Mr. Libby's pending appeal).

Prosecutors do have discretion; they don't have to seek indictments for everything. And a reasonable prosecutor in Mr. Fitzgerald's position when he first compared the FBI reports to the other evidence, especially given Mr. Libby's superb previous record as a public servant, could well have been skeptical of whether what Mr. Libby had said to the FBI agents by itself justified an indictment.

So in the exercise of his prosecutorial discretion, Mr. Fitzgerald did the responsible, prudent thing: What Ms. Rabinowitz paints as grand jury prolongation for purposes of "entrapment" ought instead be viewed as Mr. Fitzgerald throwing Mr. Libby the proverbial life-line by which Mr. Libby could have, and should have, extracted himself from the considerable hole he'd dug himself into before Mr. Fitzgerald was ever in the case.

Specifically, Mr. Fitzgerald used the formal and stately process of the grand jury proceedings to make further, much more detailed inquiries of Mr. Libby — under oath and with full stenographic and audio tape records. Mr. Fitzgerald asked sufficient questions to make absolutely sure that this wasn't just a mix-up, a slip of the tongue, a misunderstanding by the FBI agents. He ensured that Mr. Libby was represented by counsel standing by just outside the room. He expressly, repeatedly, and gravely warned Mr. Libby and his counsel that that Scooter Libby was the specific subject of an investigation that included making false statements and obstruction of justice in connection with his prior statements to the FBI. If ever there was a time to search one's memory, or even to express some doubts about one's previous recollection, then surely — obviously — this was that time! Mr. Fitzgerald might just as well have handed Mr. Libby an engraved invitation  reading "Just clean up your act, buddy, so I can cut you some slack on the FBI interviews, shut down this circus, and get back to Chicago to prosecute some genuine terrorists." 

And the result — if the jury's verdict is to be credited and if it is upheld — was that on two separate occasions, specifically on March 5 and March 24, 2004, Mr. Libby grabbed that life-line and then deliberately, if inexplicably, re-hung himself with it by committing perjury again and again.

How many chances, how many warnings, how many opportunities to refresh his "mistaken" memory, was Mr. Fitzgerald supposed to give Mr. Libby? How much can Mr. Fitzgerald be faulted for what was, at worst, was simply handing Mr. Libby more rope? It's easy for me to imagine a prosecutor cutting some slack — and being willing, if necessary, to face public outrage for that — for declining to seek an indictment just because someone's FBI statements seemed a bit off. But when that person has literally stared the prosecutor in the eyes, twice, and calmly and impassively continued telling an impossible tale while under oath and while knowing he was under the microscope, it's hard for me to imagine any prosecutor not seeking an indictment.


Ms. Rabinowitz surely knows that it is indeed routine for prosecutors to suggest to grand jury witnesses that keeping quiet about their testimony will best serve the interests of justice. If she agrees that courts and the rule of law, rather than gossip and the press, ought to determine criminal guilt and innocence, she understands why those suggestions are valid. She nevertheless inconsistently and absurdly characterizes Mr. Fitzgerald's statements to Richard Armitage and Colin Powell as an "instruct[ion]" in one paragraph, then as a mere "request" in the next — as if to leave an impression that Mr. Fitzgerald himself thereby tried to conceal evidence, corruptly influence their testimony, or obstruct justice. She expressly acknowledges in one paragraph Mr. Fitzgerald's own binding legal obligation not to discuss grand jury proceedings, but then in the other she suggests that Mr. Fitzgerald had some sort of indistinct, overriding obligation to "disclose that he [i.e., Mr. Fitzgerald] had known all along the identity of the person who had leaked the Valerie Plame story" anyway. That's silly, and wrong, and badly misleading.

Special counsel Fitzgerald, having duly run all the reasonable traps and followed up all the reasonable leads, would have ended up announcing that the investigation of L'Affair Plame was being closed with no indictments — except that he had in hand a large quantity of evidence that strongly tended to show acts of perjury and obstruction of justice by Scooter Libby, acts that were indeed independent crimes without regard to whether anyone's leak of Plame's identity was itself a crime.

Mr. Fitzgerald put those matters to the grand jury, as his duty in our system requires when his discretionary instincts are overcome by the weight of evidence. And based on that evidence, the grand jury indicted. The indictment was duly filed with the court, and the defendant had every opportunity to challenge it before trial. The indictment was not dismissed, and the case was tried. The pending appeal will test whether the trial was thoroughly fair, but it is indisputable that Libby's defense team vigorously cross-examined the prosecution's witnesses and presented their own defense. Their defense very notably did not include Mr. Libby testifying in his own behalf — something universally ignored and unexplained by Mr. Libby's media defenders, by the way, and something that remains inexplicable to me for a man who had no prior convictions, who was trying to persuade the jury of flaws in his subjective memory and lack of criminal intent, and who was in fact the only witness who could ever possibly give direct evidence of his state of mind, memory, and intent. The jury, having found proof beyond a reasonable doubt on every element of four of the five counts, then convicted Mr. Libby. And outright insufficiency of evidence will assuredly not be among Mr. Libby's leading appeal points. His lawyers have far better sense than to destroy their credibility with the D.C. Circuit by highlighting that sort of argument, and I doubt they make it at all.


Mr. Libby's conviction may well still be overturned on appeal. I think his best argument by far, based on what I've read, is the one attacking Mr. Fitzgerald's appointment process. I'll probably blog more about that later, separately; Ms. Rabinowitz' op-ed also mentions it, and she's right that Judge Walton behaved badly in his footnote discussion of the law professors' amicus brief about it. But if that appellate point succeeds, it will be because invalid prosecutorial appointments are conclusively presumed to never be "harmless error" — not because anything in particular would have been done differently, or not at all, by either a regular DoJ prosecution team or by a special prosecutor whose authority was properly circumscribed within 28 C.F.R. part 600. (Mr. Fitzgerald's appointment was pointedly not so circumscribed, and instead he was cut entirely free of even theoretical DoJ control for reasons that in my own opinion remain entirely obscure and, so far, unjustifiable.)

And as I've also written, I think there may also be sound reasons for President Bush to commute Libby's prison sentence if the D.C. Circuit doesn't order him released on bail pending appeal. That would permit the appeal to go forward, and if it is unsuccessful, still leave Libby disgraced, disbarred, heavily fined, and amply punished (especially, as many have noted, in comparison with the likes of Sandy Berger).

So I sympathize with those who sympathize with Mr. Libby. It's easy for such people to blame the judge, blame the jury, blame the CIA or Armitage or Joe Wilson — and yes, it's easy for them to blame Mr. Fitzgerald. He has been a very aggressive, and so far very effective, advocate for the prosecutorial position. (It's his job, for example, to make the argument that unproved crimes can still be considered under the sentencing guidelines on obstruction of justice — otherwise sentencing judges will end up rewarding those who successfully obstruct justice. Whether he succeeded in positing a persuasive causal link in this particular case, though, is another issue that will likely be tested on appeal, and on which his argument may be found wanting.)

But equating Patrick Fitzgerald to Michael Nifong? Are you nuts, Ms. Rabinowitz? Nifong is likely to be prosecuted for a crime very similar to Libby's — obstruction of justice. You may disagree that Mr. Libby's conviction is just. But that's a far, far cry from showing, or even arguing persuasively, that Mr. Fitzgerald and his team have themselves engaged in criminal subversion or obstruction of justice.

If you were a guy, Ms. Rabinowitz, and you were to make that kind of suggestion in a bar frequented by prosecutors and defense lawyers, you might end up getting your lights punched out. It's just way, way over the top — so far as to suggest that you don't remember that there is a top.

And when you play fast and loose with the basic facts, Ms. Rabinowitz — ignoring basic, uncontrovertable things like key dates when you're weaving a misleading argument — you're engaging in what may aptly be called "editorial punditry abuse." You do Mr. Libby no service when you demonize his prosecutor. And we readers and subscribers expect and deserve better from both you and the newspaper on whose editorial board you serve.

Posted by Beldar at 05:28 PM in Law (2007), Mainstream Media | Permalink | Comments (87)

Beldar responds to a reader's comments about contempt of court and the "few French fries short of a Happy Meal" incident

Reader Gregory Koster left a thoughtful comment on the second of my two previous posts about the "few French fries short of a Happy Meal" lawyer (William P. Smith) that I think justifies a response in this new post.

There's truth in Shaw's (character's) observation that all professions amount to conspiracies against the laity, but it's not the whole truth. A fair portion of this blog is critical of my profession, or elements of it. My second post about Mr. Smith started with a sentence acknowledging that lawyers are only occasionally effective at policing our own; I know that's also true of physicians, and it's probably true of other professions as well. Some of what should be "career-ending moves" go entirely unpunished, and many lesser transgressions do, and those all exact a substantial cumulative price from both laity and professionals. Conspicuous cases like these in which we've gotten it right are worth acknowledging.

Regarding Mr. Nifong's cohorts, I haven't done any research (online or other) into them, and have only followed the entire lacrosse team prosecution with moderate interest from a great distance, so I just don't have enough information to do more than speculate. Mr. Koster's questions and inferences regarding Nifong's enablers and possible co-conspirators are intriguing, but I, for now anyway, have no answers or thoughtful reactions.

Nothing in either of my posts disapproving of Mr. Smith's "French fry" remark was predicated on him being before a federal judge or a bankruptcy judge or a trial-court level judge. His remark would have been inappropriate before any tribunal. Mr. Koster mentioned some judges and courts whom he holds in low regard, and they may deserve that. But I've appeared on (fortunately rare) occasions before judges who were genuinely senile. There were indeed remedies for that available either in the appellate courts or else judicial conduct commissions. And even when those remedies were not entirely satisfactory — and I can well recall one instance in which they weren't, and my client quite literally paid a heavy price as a result — I would not have been justified in trying to ridicule them on the record during my court appearances before them.

I don't know any more of Judge Isicoff than the little bit I've read in connection with this incident, but I think that her conduct in it has been impeccable. This week, I read a comment on another website that suggested she'd been aiming for dramatic effect when she took a five-minute recess before announcing her decision. That's so spectacularly stupid and misguided an observation that I didn't bother to contest it, because — like her original restraint in withholding comment on the remark during the hearing itself, and only issuing the show-cause order later — it manifestly evidences her intent to be thoughtful and deliberative, and to resist the natural human instinct to give voice and effect to emotions or whims of the moment.

I don't find her comments personally pompous in the least. They do, however, reflect her altogether appropriate appreciation of the dignity that holders of her job description must maintain and the respect that job description must be shown in order for our legal system to function. I don't know her personally, but essentially all of the many judges whom I do know are continuously aware that the pomp which attends them really only attends their office, and they almost all work hard not to internalize it. Some are more successful than others at resisting. But they all recognize — as must our profession generally — that without ritualized procedures and norms expressly designed to maintain courtroom decorum, our adversarial system of justice would quickly become indistinguishable from televised wrestling matches or, worse, bad neighborhoods in today's Gaza Strip.

Thus, Judge Isicoff would have been doing a disservice — not just to her fellow judges of every type and stripe, but to the lawyers and the litigants who appear before them all — had she simply ignored Smith's smart-ass, juvenile insult. It is very unlikely that she wanted to become nationally known as "the judge accused of being a few French fries short of a Happy Meal," and she's doubtless also aware that some portion of the public, and even of the profession, will perceive her as having acted out of selfish motivations. But without regard to whether she did take personal offense at Mr. Smith's remark — which would be understandable; I'd take offense if someone said that of me in court, even advocate-to-advocate — she had a duty to defend the dignity of "the bench."

Mr. Koster wrote that if Judge Isicoff were "a customer service rep for a computer firm[, when she found herself u]nable to throw folks in jail on her say so, she'd blow up in a week." I don't know if that's true or not, but I do know that she's not a mere "customer service rep." Regardless of her personal tolerances, we as a society, collectively, cannot tolerate a court system so loosey-goosey that lawyers get to imitate Don Rickles, working the audience for snickers at the expense of the dignity of the presiding official. It's a short step from disrespecting the office to disregarding its rulings, so those boundaries have to be policed aggressively. Fortunately, most lawyers understand that, and they stay well on the respectful sign of the lines. But for those who don't, it's in all of our long-term interests for them to be called on it.

What Mr. Smith did was nowhere near as threatening to the long-term integrity of the system as what ex-prosecutor ex-lawyer Nifong did, but it still was bad behavior that couldn't be tolerated. The big-league manager who kicks dirt on the umpire's shoes gets ejected, and maybe fined or suspended for a few games; but the big-league manager who punches an umpire (or who gets caught having bet on his own team while he was a player) may end up being banned from baseball.

Finally, Mr. Koster notes that "[c]ompared to Nifong and his legal enablers, Smith has been hit far harder  — at least in the pocketbook." On an absolute dollar basis, that's probably true. But that's a function of the fact that Mr. Smith was, until recently, a department head of an enormous money-making enterprise. To the extent that the "French fry" comments will have a harsher fall-out on Mr. Smith than they might have had on some comparatively obscure and inexperienced practitioner, that's because he had more to lose and more reason to have known better.  In a relative sense, however, Mr. Smith's punishment is much lighter than that already inflicted on the entirely disgraced and disbarred Nifong, and appropriately so.

Posted by Beldar at 01:16 PM in Law (2007) | Permalink | Comments (5)

Friday, June 22, 2007

Nifong (appropriately) disbarred; contrite Smith gets off (appropriately) easily

June 2007 might be remembered (but probably won't be) as a good month for symbolically and substantively appropriate results in my profession's occasionally effective ability to police itself.


On the one hand, we have the very appropriate disbarment of North Carolina rogue prosecutor Michael Nifong.

Several readers have asked me in emails or comments for my take on Nifong's prosecution of the Duke lacrosse players, but I had nothing to add to what was being said, effectively, by others. The only thing I have to say now is: Good riddance to bad, bad rubbish.


And on the other hand, there's William P. Smith — the lawyer who declared that the judge before whom he was appearing was "a few French fries short of a Happy Meal" — about whom I and others blogged at length in May. (See also here and here on the question whether TV lawyer shows like "Boston Legal" are contributing to such incidents.) After reading the transcript, I wrote before Mr. Smith's appearance at the resulting show-cause hearing on possible civil-contempt charges against him:

Mr. Smith ought to be glad I'm not on an Illinois bar committee reviewing his license. I'm a traditionalist and a curmudgeon, but just based upon this transcript excerpt, I'd likely start off thinking along the lines of a ninety-day license suspension, then maybe dialing that up or down depending on the remaining circumstances (and in particular, the degree of contrition expressed). I'd also be inclined to specify some onerous and creative public service requirements for Mr. Smith's path back to practice, [including] 200 hours as a volunteer ....

Both Mr. Smith and his law firm, Chicago-based McDermott Will & Emory, however, have now handled his blunder in what I would readily characterize as exactly the right way — which is to say, they made no effort whatsoever to justify the unjustifiable or defend the indefensible, and instead they focused on retreat, repentance, and rehabilitation.

Mr. Smith voluntarily stepped down as head of his international mega-firm's bankruptcy department. (That's presumably subject to reassessment by him and his firm in the future, and I have no problem with that.) The lawyer they'd hired to defend Mr. Smith at the show-cause hearing asserted that Mr. Smith had "already completed The Florida Bar’s [online] professionalism course" that Judge Isicoff prescribed for him, and that he also had "agreed to complete at least 200 hours of pro bono work in Chicago." ("200 hours," my suggestion, right on the nose! Maybe they read my blog? Naw, it's an obvious number — ten percent of the presumptive target number of billable hours in a year for a big-firm partner like Mr. Smith.)

And Mr. Smith "also decided to make a financial contribution to the Center for Ethics and Public Service at the University of Miami law school," which by a "happy coincidence" is Judge Isicoff’s alma mater. That's effectively equivalent to a fine, except that he'll get a tax write-off, but I'm okay with that too. Without being too snarky, we can all agree that Mr. Smith will probably still be able to afford to dine out, at Micky D's or otherwise, to his heart's content after all this, but there will likely be personal, and appropriately private, financial consequences to him with respect to his MW&E partnership distributions that dwarf either his contribution or his tax write-off; I'd guess something with a low- to mid-six figure impact this year on what's almost certainly a seven-figure income. I'm sure this event has also inflicted at least seven-figure "soft costs" on MD&E in bad publicity and damage to the firm's reputation. And among the "hard costs," I'd be very surprised if MD&E didn't have to write off most or all of this particular client's bill for this matter, at a minimum; MD&E may have even found itself obliged to subsidize the cost of replacement counsel getting up to speed.

MW&E's managing partner (a/k/a "chairman") Harvey W. Freishtat — a deal lawyer, not a bankruptcy lawyer or a litigator — also flew down for the June 20th hearing in Miami from the firm's Boston office to apologize abjectly (one publication said Mr. Freishtat intended to "prostrate himself before the judge") for Mr. Smith's remark on behalf of the firm, and to confirm the firm's "commit[ment] to increase its pro bono involvement in South Florida" as a result of the incident. If you think that was a "cost-free transaction" in terms of intangible but hugely important intra-partnership relations, then you don't understand big law firms. Mr. Freishtat was surely there specifically, and appropriately, to convey the subtext message that this incident had grabbed the entire firm's attention, big-time, and that the firm's senior management was (quietly and mostly behind closed doors) doing what it thought appropriate by way of retribution and rehabilitation — and without the judge requiring it to do so.

The judge's reaction was unsurprising and appropriate, given the extraordinary and unqualified expression of contrition:

“There is no jurisdiction in the U.S. — including the district where Mr. Smith regularly practices — where the expression and tone Mr. Smith used on May 7 would fall in the bounds of acceptable behavior,” a solemn [U.S. Bankruptcy Judge Laurel Myerson] Isicoff said from the bench in front of a packed courtroom....

Isicoff said she hoped the widely reported incident would start a discourse in the legal community about the appropriate way for lawyers to address judges, clients and each other.

And with those remarks, she let Mr. Smith off the hook. There's no guarantee that Mr. Smith's own bar association back in Illinois won't also review the matter, and the story is still likely to haunt Mr. Smith from time to time in his future pro hac vice applications elsewhere (even if this hasn't resulted in a formal sanction that would have had to be disclosed as part of all such applications). But I doubt that there will be any further overt action taken by any other court or bar association. I congratulate Mr. Smith and MW&E on their crisis management; through it, they've turned what could have become a career-ending incident for Mr. Smith into something that can eventually be overcome and mostly forgotten — a "mere" black mark on his and the firm's reputation.


The punishments are, of course, nearly at opposite ends of the spectrum — and altogether appropriately so. Nifong's punishments aren't over yet; he may do, and indeed he richly deserves, jail time, and he'll be financially ruined (to the extent, if any, that he's not already largely judgment-proof).

But Mr. Smith's story is non-trivial. One of the young lawyers (or law students; I'm not sure which) at the self-styled "legal tabloid" Above the Law writes of this week's hearing: "Looks like the fry guy got off relatively easy, and we've all learned something: don't stoop to middle school insults while arguing in front of a federal judge, especially if you're appearing pro hac vice." That is indeed the gist of it — although the "pro hac vice" aspect of the story is really a sideshow irrelevant to the moral of the tale, and indirect consequences that already probably ran into the seven- or eight-figure range by the time of the hearing are certainly "easy" only in a "relative" sense. "Judge Isicoff basically gave Smith a stern talking to," according to that blogger. The judge certainly could have been much less forgiving and much more harsh. And yet ....

Apropos of my original post, entitled "The 'David E. Kelley Contempt Fallacy': TV versus real-world contempt of court," the second commenter on the Above the Law post wrote: "but Alan Shore does it."

And other commenters there continue to trivialize Mr. Smith's misconduct and even to blame the judge. If they are lawyers, or students who intend to be, they have indeed missed the point, and that means they're likely to become the next illustration, when and if they ever venture into court themselves.

On the off chance that any of them might find their way here, let me be very blunt: If you really can't understand why Mr. Smith's misconduct constituted entirely unacceptable courtroom behavior in our profession, you definitely shouldn't be in it.

Instead, you're probably the sort of doofus who is eventually likely to become fodder for "legal tabloids," a disgraced ex-partner or ex-colleague, a walking malpractice lawsuit of the sort that no client ever deserves. You're the kind of guy who, after an event like Mr. Smith's, would have doubled-down and shown up at the show-cause hearing with all guns blazing, determined to prove that this judge was short a couple of chicken nuggets too. You really don't have happy career prospects in a profession that depends on real-world judgment and integrity. Go see if you can get a job as a flunky for David E. Kelley instead, maybe. You might survive in a world where pretend lawyers who flip smart-assed insults at judges are bulletproof stars, and the only consequences show up in the post-production laugh-track and, maybe, the overnight ratings.

Posted by Beldar at 06:33 AM in Current Affairs, Law (2007) | Permalink | Comments (6)

Sunday, June 17, 2007

Cut to black = Tony Soprano's instant death?

Okay, I got a message from my domain registrar telling me that I can't renew my URL unless I post something about the final episode of The Sopranos.

If the ending scene is supposed to be from Tony's point of view, and if he was shot in the back of the head by someone outside his field of vision, then wouldn't his experience more likely have been a blinding flash of light — from neurons in the visual cortex (at the back of the brain) suddenly discharging due to trauma — even if that flash only lasted for the few hundreds of a second it took for his brain and brainstem to be pulverized? Shouldn't the ending have been FLASH/cut-to-black instead of just cut-to-black?

His protests aside, in the final scene, David Chase was clearly enjoying his ability to yank our collective chains. The buzz, outrage, even hysteria surrounding the ending will sell lots and lots more DVDs and guarantee lots and lots of residuals. And he's been thinking about this ending literally for years, meaning that whatever else it was or wasn't, this ambiguous ending was a studied ambiguity.

So: With due respect to all the other theories and their adherents out there, I am calm and secure in my own interpretation, which treats the seconds of silence and black screen as simply a gesture of respect for the series and an acknowledgment that there would be no previews of the next episode or season.

In other words, per the song lyric that was playing, I choose not to stop believing.

Posted by Beldar at 06:30 AM in Current Affairs, Film/TV/Stage | Permalink | Comments (4)

Sunday, June 10, 2007

Unhelpful commentary from Gen. Colin Powell, U.S. Army (ret.)

Powell_on_mtp Gen. and former Secretary of State Colin Powell is a remarkable man whose career contributions to the American military and to the Bush-41 and -43 Administrations, although sometimes mixed, nevertheless deserve respect. But speaking today in an unofficial capacity on Meet the Press, he added nothing but confusion when he insisted — repeatedly and, as he acknowledged, contrary to statements of our current military commanders and the Bush-43 Administration — that Iraq is in the midst of a "civil war": "The question is, are we doing it [i.e., the "surge"] in the best possible way? [Or] are we delaying the inevitable conclusion of this civil war that ultimately will be fought out between Sunnis and Shi'ias, Shias and Shias, Sunnis and al-Qaeda?"

Okay, then, General: If it's a civil war, then whose side are we on? Who do we shoot on sight now? Who are we rooting for, and which one of the groups you've listed do we want to see win the civil war?

If you can't answer that, then it's not a civil war, General!

If, somehow, we could magically wall off outside influence from state actors like Iran and Syria, and from non-state extrinsic terror organizations like al-Qaeda, would there still be a "civil war"? Iran and Syria and even al-Qaeda aren't engaged in a "civil war." Rather, they're engaged in what is essentially a proxy war — with us, via terrorist operatives and militia proxies. Their primary motivation for engaging in acts of anti-government terrorist against civilians is to create instability that weakens the West, and in particular the United States, as part of a struggle that they're convinced they'll win not on the battlefield of a genuine civil war, but via votes tabulated inside the United States Capitol Building. (That, after all, is where the communist Soviets and Chinese, who were never able to directly or indirectly best the American military, finally won their proxy war against the United States — and only then were the North Vietnamese able to win their civil war.)

It's not inconceivable that such a day might come when there will be Iraqi Kurds seeking to carve out their own independent nation, with Iraqi Shi'ite and Iraqi Sunni forces fighting to achieve some sort of ugly split, via ethnic-cleansing and mass-refugee creation, of the remainder of the country into Shi'ite and Sunni-dominated states. When and if there were combat going on, even guerrilla combat, to accomplish those ends, then that struggle could fairly be called a "civil war."

And I have no doubt, for example, that with military and economic aid, plus some air power and special forces support, we could readily enable the Iraqi Kurds to win a civil war. (Of course, we might end up having to call in air strikes on our NATO ally Turkey to do that. It's not a pleasant prospect.)

But they aren't at that point yet. If — as Gen. Powell also stressed is essential — the fledgling Iraqi government can succeed in reconciling Iraq's internal factions, there won't be a civil war. And the essential keys to permit that success by the Iraqi government — as Gen. Powell also acknowledged, and as everyone on our side ought to be able to agree — are the suppression of such outside influences while assisting the Iraqi army and police in achieving the difficult and inevitably stutter-stepped task of becoming professionally effective forces that can implement the Iraqi government's political decisions (including power-sharing, stake-spreading compromises).

And it's a toss-up right now whether the bigger challenge to that three-pronged strategy's success is the conflict among parties in and around Iraq, or instead the conflict among parties in and around the Washington Beltway. By holding on, by keeping the Iraqi experiment with democracy alive, until the Iraqis can ensure that there will be no genuine and outright civil war, we can indeed thereby also win the proxy war. But that is more a question of sustained willpower and political courage than of sustained firepower or military tactics — and those are indeed the areas in which, as a nation, our war-fighting abilities are the weakest and most vulnerable.

Precisely because of that vulnerability, ideas matter. Words matter. Labels matter.

Colin Powell would never go on American television and say, "I have no confidence in the 82nd Airborne Division. They're badly led, inadequately equipped, and they're almost certain to fail in their next assignment." Even if he thought that — especially if he thought that! — he would have better sense than to let his public words undercut their morale and their purpose and, thereby, their mission.

And Harry Reid and Nancy Pelosi can spout crap all day long about how this is a "civil war" that we're in the middle of, and it's unfortunate, but it's just not as big a deal. No one is under any illusion that the likes of those two can tell a civil war from a civil engineer from a civil disobedience rally. Everyone knows they're speaking to and for the likes of MoveOn.org and Michael Moore. So when it comes from their mouths, as then heard by our military forces, by our allies in Iraq, and by our friends and foes elsewhere in the world, the language of distortion, leading so literally and so directly to the language of defeat, can be somewhat discounted.

But when an American military leader of the stature of Colin Powell, though, goes on television and repeatedly, deliberately declares — nay, insists — that this already is a "civil war," then he adds no clarity to the situation. Instead, he hands a propaganda victory to the Iranian, Syrian, al-Qaeda, and other forces who so very much want the struggle in Iraq to be perceived as a civil war now, in large part so that we'll cut and run and thereby permit it to degenerate into a genuine civil war in the future.

This just makes me angry. Gen. Powell is a patriot, but in this particular regard, he's acting the fool. And as a fool he's giving our enemies for free something that our soldiers — and our allies in the fledgling Iraqi government, military, and police forces — are literally spilling blood every day to try to deny them.

Gen. Powell should know better. He doesn't owe a duty not to criticize or to engage in dissent. But he does owe a duty not to adopt the demonstrably wrong verbal distortions that are so desperately desired and relied upon by our enemies.

Posted by Beldar at 03:29 PM in Global War on Terror | Permalink | Comments (3)

Go Navy

I'm a fan of every branch of our armed forces. But I think there's probably a one-word rebuttal to the shock and surprise that the Los Angeles Times and others have expressed over Defense Secretary Robert M. Gates' selection of an admiral rather than a general as the next chairman of the Joint Chiefs, Carrier_strike_grouphard on the heels of the nomination of another admiral to run Centcom — and unlike the LAT, I don't think it has anything to do with the Army or the Air Force brass "not seeing the big picture."

The one word is:   Iran.

Need three more words of explanation? "Carrier strike groups." (If a picture is worth 1000 words, a two-carrier strike group must be worth about 200,000 pictures.)

Just think of the selection of Admirals Mullen and Fallon as a "leading indicator," Mr. Ahmadinejad — a portent of things to come. Kind of a compliment to you, really, in a back-handed, extremely awe-inspiring way.

Posted by Beldar at 11:05 AM in Global War on Terror | Permalink | Comments (3)

Beldar & kids see "Knocked Up"

Yesterday my sons, younger daughter, and I went to see Knocked Up. (Some spoilers follow.)

I suppose it is a noteworthy sign of growing up when one's kids unanimously choose an adult comedy over something like Shrek the Third.

My kids and I all liked this movie, even though — and actually, on closer examination, because — as my son Adam remarked, it was often "really painful to watch."

Katherine HeiglI noted afterwards that no one in the theater had laughed (or otherwise reacted) in response to what I thought was the most remarkable line in the movie, when pregnant Alison (played by Katherine Heigl) is reminded by her own mother of a step-sister who "took care of" an unwanted pregnancy — i.e., had an abortion — but then went on later, "when the time was right," to have "a real baby." "Well, that wasn't very funny, Dad," said my daughter, "that's just kind of sad, that a mother would say that."

Anyway, we agreed that it was a very realistic movie; and that even though it ends on a happy note, it doesn't necessarily have a "happily ever after" ending. In fact, we all agreed that it's a big "if" whether either of the two couples with kids would end up staying together, but that it was at least a very good thing that they were all going to try to. That's what made the ending happy.

I had a very different reaction to the movie than did Katheryn Lopez, reviewing it for the National Review Online:

[A]s delighted as I am for the Knocked Up message that sex has consequences (including unexpected joy and transformative love) and parents have responsibilities, there’s something about Knocked Up that still leaves one a bit disturbed — and a little depressed. It’s pro-life and pro-marriage in its crude way. And it’s important that Hollywood isn’t making pro-life, pro-marriage movies just for more conservative audiences. Maybe I’m getting old, but it seems to me that the Wedding-Crashers-40-Year-Old-Virgin crass-blockbuster fun has been had. While I’m all for redeeming messages (keep the baby, love the child, take some responsibility for your life) reaching us where we’re at, if this is where the culture is — 23-year-olds filling gas masks with marijuana smoke — is it really an excessively laughing matter?

K-Lo, you're missing the point. The movie was intended to leave you a little bit depressed and disturbed. The realism with which this movie treats the slacker/stoner culture of unexpectedly expectant young father Ben Stone (played by Seth Rogen) made it one of the most effective anti-drug movies I've ever seen! In the real world, people who smoke dope or take 'shrooms giggle a lot, and they do silly things that make them laugh, and those things can make audiences watching them laugh too. But in the real world, there are also negative consequences when being constantly stoned becomes the defining characteristic of one's life, and without going all preachy, this movie illustrates those consequences very effectively. A misunderstanding over a condom may make a funny scene too, but hey, the rest of the movie very expressly and repeatedly makes the point that there's a limit to how funny that can turn out to be in real life.

This is precisely the sort of R-rated movie that a parent ought to consider taking one's young teens to, because there are a wealth of issues that parents ought to be the ones discussing with their kids, for which discussion this movie provides a great jumping-off-place. Casual sex after overindulging in alcohol? Marital infidelity? Other barriers besides infidelity to marital intimacy? Too much intimacy as a barrier to a good marriage? Safe sex? Sex during pregnancy? Pregnancy outside of marriage? Compare and contrast male peer bonding at a Las Vegas strip club to female peer bonding at a dance club? This movie is filled with material for mature parent/teen discussions, and while those subjects are presented with humor, they're also presented with grit and an absence of gauzy romance.

So: The movie was entertaining and thought-provoking. There were no Oscar-caliber performances, but the characters were interesting and believable, which is to say, the actors were accomplishing their professional goals.  (A few short character actor showcase scenes are genuinely terrific — especially Ken Jeong as a pissy, prissy ob/gyn, Craig Robinson as a deeply conflicted nightclub doorman/bouncer, and Kristen Wiig as Alison's jealous, cynical, and cocooned co-worker at the E! entertainment network: "This is Hollywood. We don't like liars.") But, overall, in my judgment, this movie was worth the price of the tickets I bought. And whenever you can say that about a movie, that's a good review.

Posted by Beldar at 10:32 AM in Family, Film/TV/Stage | Permalink | Comments (5)

Beldar's ruminations on the challenges faced by Paris Hilton's lawyer

It appears that pampered, pouty, petulant Paris may have pivoted once again, bringing her a full 540 degrees from the outrage and claims of anti-celebrity discrimination that she (and her family, publicists, and lawyers) originally voiced after she was originally sentenced to 45 days in jail for repeatedly violating the terms of her probation, and then renewed when her house arrest release was countermanded. From yesterday, per the Associated Press (via WaPo):

Paris Hilton said Saturday she was "learning and growing" from her time behind bars and will not appeal her 45-day jail sentence for a probation violation in a reckless driving case.

The hotel heiress was at a maximum-security detention center, where she was believed to have undergone medical and psychiatric evaluations to determine the best jail to keep her in.

"Being in jail is by far the hardest thing I have ever done," Hilton said in a statement released by her lawyer, Richard A. Hutton. "During the past several days, I have had a lot of time to think and I believe that I am learning and growing from this experience."

Hilton, in tears and screaming for her mother, was taken to the downtown Twin Towers detention center Friday after a judge ordered her back to jail, ending her brief stint under house arrest....

"Today, I told my attorneys not to appeal the judge's decision," Hilton said. "While I greatly appreciate the sheriff's concern for my health and welfare, I intend to serve my time at L.A. County Jail."

I am not among the "Paris-haters" who hoot with glee to see her in tears, in cuffs, and in a squad car. Nevertheless, watching this all play out, I can't help but muse on the challenges that would be faced by whoever is in the position of acting as her lawyer.

Paris Hilton and fanI am certain that I have almost the fewest Hollywood/Los Angeles connections possible. That is to say, for example, that I have no "friend's brother (who works with [Sheriff Lee] Baca's assistant sheriffs," nor do I seek commenters on my blog who do, and thus I am poorly positioned to spread genuinely nasty rumors — and no, I'm not going to leak to the post with the nasty rumor from which I'm quoting, but I will link (disapprovingly) to the site (which might become a pretty entertaining one if its young lawyer-writers will grow up just a little). So I have utterly no inside information.

But I'm among many who've wondered to what extent Ms. Hilton's release to house arrest was the result of a deliberate strategy on the part of her legal team, or whether instead it mostly reflected a turf fight between L.A. County Sheriff Lee Baca and Superior Court Judge Michael T. Sauer, and/or their respective minions. I note, for example, that Los Angeles County had no fewer than five lawyers present — more than either Ms. Hilton or the Los Angeles City Attorney's office — at last Friday's hearing.

The problem for whoever is Paris Hilton's lawyer, of course, is that Ms. Hilton — apparently through plans of her mother, dating back to her birth — has a media persona based on being a media persona. She's famous for being famous. That being the starting point, the main challenge of any lawyer in representing her is going to be to get her back onto an "ordinary person" playing field.

For Ms. Hilton to get the benefit of any "slack" that the system regularly cuts ordinary people, she — and, especially, all of her entourage and family — have to cooperate with her lawyer to prepare her for the most extraordinary acting job she has ever undertaken: Acting like a grown-up who is not a celebrity.


Paris Hilton's original lawyer either counseled, or at least permitted, conduct in the courtroom guaranteed to do the exact opposite: Late to court, mother showing contempt of court both inside and outside the courtroom, promiscuous but utterly hollow threats of appeals, and conspicuous whining by all concerned. The order revoking her probation effectively gave Ms. Hilton et alia precisely what they seemed (stupidly but unequivocally) to be demanding from the judge, which is to say: A judicial spotlight on her further compliance with her legal obligations, including her confinement, to go along with the media spotlights.

That's why I don't agree with those bloggers and other pundits (including TV talking-head lawyers) who've argued in Paris Hilton's defense that she's being persecuted because she was a celebrity. If she'd ever once stopped acting like she thought she was above the the law before her probation was revoked, I might have gone along with that. But she didn't — probably because of bad legal advice, or else because she and her family were ignoring legal advice to the contrary. To those who sputter that no one else in the L.A. County Jail right now is doing 45 days for a probation violation after pleading no contest to an alcohol-related reckless driving, my reply is: Nobody else arranged the sort of media stunt that she did when the courts were considering revoking her probation. Nobody else challenged the courts' authority the way she did. Nobody else picked that kind of fight, and so nobody else was in one like it.

The first 180-degree turn toward responsibility, dignity, and acknowledgment that she was not above the law, about which I blogged previously, coincided with Ms. Hilton's change of lawyers. It looked to me as if new counsel Richard A. Hutton had fairly effectively put the kabosh on all that when she quietly surrendered herself to begin her stay. Not only were the statements he released on her behalf modest and contrite, but her public, oral statements for the inevitable cameras were too. (I assume he practiced those with her. That would be in the nature of appropriate legal counseling — even if it seemed awfully close to being an acting coach too.)


Were I Paris Hilton's lawyer, I would have had a mandatory attendance cattle-prod enforced "come to Jesus meeting" with Ms. Hilton but especially with her mother, father, and publicists, in which I would have threatened everyone except the client within an inch of their lives if they said more than two words — "no comment!" — to any press, paparazzi, or anyone else about the entire affair. No comments on the judge, no comments on the sentence, no comments on her medical or mental condition, no comment on the muffins — a complete media blackout.

And I'm not kidding about the cattle prod. I'd have insisted that everyone present sign a release authorizing me to use it on them if they leaked anything to anyone — else, find yourself another lawyer. (Yeah, it would have been a bluff, a dramatic gesture, at least to start with, but it is Hollywood, and what started as bluff might not have turned out to remain that! At a minimum, her lawyer needs the power to banish anyone, including her parents, to Siberia during the remainder of her incarceration.)

Controlling his client's family and entourage is, without question, the greatest challenge for the lawyer representing Ms. Hilton, but I don't mean to minimize the difficulty he may have dealing specifically with her too. She's 26. At 26, you no longer get full benefit of the excuse, "My mother raised me not to take responsibility." You don't in the eyes of the law, anyway, and you don't in the eyes of most of the public.

Whether she is just emotionally immature or genuinely mentally dim — and I don't assume her public image of being an airhead necessarily reflects reality — it would be essential for her lawyer to get her to the point of genuine understanding of the "act like a grown-up (if you want to catch any breaks)" strategy. Once she thoroughly understood the strategy, the lawyer ought then keep constantly reminding her of it. If she can't stick with the program, it's going to be her who pays the price, quite literally, and she has to have that kept constantly at the front of her thoughts.

Just as importantly, or perhaps more importantly, the lawyer would need to constantly threaten (cattle prod well charged) anyone else around her who might indulge any tendencies she naturally will have toward self-pity. If she slips, that might be excusable. It's her family, her entourage, and the other people around her — the ones who do get to go home from the jail every night — who can't and mustn't be excused if they treat her now as anything other than a grown-up who is not a celebrity. There is no doubt in my mind that those folks have been harming her legal interests — and probably her psychological interests too, although that's outside my expertise.


So whose plan was it to have her private psychiatrist furnish evidence to Sheriff Baca that became the ostensible medical basis for her release to house arrest? I wonder if it was someone other than Mr. Hutton's — because any lawyer with a lick of sense and three working olfactory bulbs could have smelled what was coming next. And given the trial judge's express written prohibition on house arrest, only an idiot — or a hyper-egotistical elected public official with a strong if unjustified sense that he's entitled to run the damn jail his way without interference from those damned judges, thank you very much — could have believed that gambit would work without having first sought the judge's permission.

That may have been a lost cause in any event, but for it to have had any chance of working, it would have had to have been arranged in a manner that was demonstrably, unquestionably within ordinary channels — channels starting with the lowest-level personnel responsible for supervising her custody (not with Sheriff Baca or anyone within about three levels of reporting directly to him) and then working up through county (not private) medical experts.

Anyway, according to the AP quote attributed to her — and I presume it was penned by Mr. Hutton — Ms. Hilton appears to be back on script. Let's hope she can stick to it; and if that takes a few sedatives prescribed by the county medical authorities, so be it. In any event, I again wish him, and her, the best of luck. (And I hope Mr. Hutton has his cattle prod fully charged.)


Last comment: Shame on you, people of Los Angeles County! If your jails are indeed so chronically overcrowded that people sentenced to them routinely are released after doing 10% of the time to which they are sentenced, then you, the public who have not insisted on better from your elected officials, are complicit in a fraud upon and mockery of the judicial system. I'm sure there are those among you who've pointed this out already and rail against it regularly; I'm sure that those charged with actually upholding the law and enforcing penalties for its violation must be horribly frustrated, to the point of cynicism. But if you have to build ten times as many jails as you have now, then build them. Otherwise, you're no more mature collectively than Paris Hilton when she's off-script — "Mommy!"

Posted by Beldar at 07:50 AM in Current Affairs, Law (2007) | Permalink | Comments (4)

Thursday, June 07, 2007

Anyone but Chuck

Hagel_looking_puzzled_as_always Yes, please. I've been wondering how long the good people of Nebraska could continue to support tolerate Chuck Hagel. The man is a walking, talking disaster — the senatorial equivalent of Ron Paul. I have to deliberately unclench my jaws after listening to him on the Sunday morning talk shows, whose producers I'm sure must get a huge kick out of inviting him simply to embarrass every rational Republican in the country.

It's not that I think he's unpatriotic. It's that I think he's too stupid to be left alone in a room with a book of matches.

Best of luck to his primary challenger, about whom I know nothing, but to whom I going to give some serious consideration of sending a campaign contribution.

Posted by Beldar at 09:18 PM in 2008 Election, Politics (2007) | Permalink | Comments (8)

Update from the trenches: A mid-trial mediation succeeded in settling what seemed an unsettleable case

On April 15, I blogged briefly about a commercial fraud bench trial that I was due to begin on the following morning, apologizing to my readers for the likelihood that my blogging schedule would be severely reduced while I was in trial.

My post was something of a rant, undoubtedly because I had my "game face" on and was winding up for my opening statement on behalf of my clients, the defendants in the case, on the next morning. And my opening statement was indeed pretty fierce and passionate. Even before it, I had a stout and very controversial pretrial motion to present, and I got most of the relief I sought from that. The first two witnesses called by my opponent during his case-in-chief went well for our side that afternoon. It's generally a good sign when, during the first day of a bench trial, your objections are mostly being sustained, and the trial judge has at least twice interrupted your opponent to say, "Now Mr. ____, I don't want to tell you how to try your case, but it seems to me ...."

The next morning, I received a phone call at 6:00 o'clock a.m. from my opposing counsel, who advised that he felt too unwell to attend court and that he was going to be seeing a physician that morning instead. He'd so advised the court staff as well, prompting an early morning teleconference at which the judge declared a recess long enough for him to see his physician. The physician's report later that day was that she had found my opposing counsel medically unfit to continue the trial due to "effects of chronic sleep deprivation and anxiety relating to the stress he is under at this time." Based on that, the trial judge extended the recess for the balance of that business week.

Let's take at face value my opponent's statements and his physician's diagnosis, for I lack either the medical expertise or a factual basis to dispute them. I suspect every trial lawyer who's ever tried a case — including even old dogs like me, who've tried a whole bunch of them — suffer from some degree of sleep deprivation and anxiety with just about every trial. From a tactical standpoint, I hated to see the trial interrupted; we thought we were winning, and that any delays were more likely to benefit our opponents than us. But as I told my client, opposing counsel, and the trial judge at the time, as important as this trial was to the litigants and their lawyers, not anything having to do with it was worth anyone's health being seriously jeopardized. I therefore did not object to the extension of the recess, and the trial judge's decision to grant it was absolutely the right thing to do on both a legal and a humanitarian basis.

Part of the art of being an effective trial advocate, however, is looking for ways to make lemonade out of whatever lemons pop up during a trial. Perhaps, it occurred to me, my opponent's physician would clear him to return to some duty less stressful than the trial itself even before he had fully recovered. And perhaps the events of the trial's first day would create possibilities that hadn't existed before.

I sent a lengthy email to my opponent, proposing that while he was recovering, we conduct a nonbinding day-long mediation before an experienced mediator chosen by the trial judge.  It's typical in Harris County, and I think throughout most of Texas, that trial judges much prefer it when the parties can choose a mediator by agreement without court designation of one; there's more paperwork involved if the judge has named the mediator, which is basically reporting done to ensure that judges aren't abusing their positions by funneling lucrative mediation business to special friends and cronies. Our case, however, had an almost 10-year history of profound mistrust between the litigants, and my opposing counsel and I agreed that this was one of the rare occasions when everyone would be better off knowing that neither of us had chosen the mediator. The trial judge agreed, and gave us three names to choose among; we compared schedules and availabilities, and quickly confirmed a full-day mediation session for the following week.

And at about 10:00 o'clock p.m. on the day of the mediation, we finally reached a negotiated compromise to settle the entire case. My opponent's health has continued to improve. And although we had some back and forth as we prepared the final documents to effectuate the settlement and end the lawsuit, we eventually were able to work out those problems too (again with some help from the mediator, who was superb throughout). Yesterday, the judge signed the agreed final judgment submitted by both sides.

The settlement terms aren't confidential, but they aren't really anyone else's business either. Nevertheless, I can say with confidence that those terms appropriately reflected both sides' risks (including litigation expense) had the case not settled, and the elimination of those risks justify the compromises each side had to make as compared to their "best-case scenario" had the case been tried to a conclusion. And I genuinely believe that even with the same mediator, and even with the same extraordinary efforts by the principals and their counsel, we would not have been able to reach a successful mediated settlement before that first day of trial had been concluded.

The moral of the story, then, is this: When something unexpected happens to you mid-trial, don't let your focus on the details of the close combat blind you to new possibilities that may have opened up in the bigger picture. Be creative; re-examine your premises; and don't just gnash your teeth and wail about your bad luck. Proposing this unusual mid-trial mediation probably wouldn't have ever occurred to me but for my opposing counsel's illness, but as things turned out, it became the proverbial blessing in disguise.

Posted by Beldar at 07:23 PM in Law (2007), Trial Lawyer War Stories | Permalink | Comments (4)

Commute Libby's sentence?

I am unimpressed and unpersuaded — I would go so far as to say disappointed — by the lack of depth in short pieces today from, respectively, PowerLine's Scott Johnson, the Weekly Standard's Bill Kristol, and the National Review editorial board, all arguing for an immediate pardon of Scooter Libby. (H/t Jonathan Adler at The Volokh Conspiracy.) I think it's a much, much harder question than any of them have acknowledged.

Mr. Kristol's piece is uncharacteristically harsh, I think, but certainly reveals the strength of the passions that the Libby case creates in the hearts of those who once were among George W. Bush's most ardent and articulate supporters:

For President Bush, loyalty is apparently a one-way street; decency is something he's for as long as he doesn't have to take any risks in its behalf; and courage — well, that's nowhere to be seen. Many of us used to respect President Bush. Can one respect him still?

That's just way too personal, and way too facile. The presidential pardon power is intrinsically more subject to unchecked, uncheckable abuse than any other power granted the President by the Constitution — and Bill Kristol and the rest of us were certainly reminded of that by the flurry of outrageous pardons Bill Clinton handed out as he left office. To savage George W. Bush's honor in this manner without even discussing the countervailing reasons against a pardon, and without even discussing the massive political reaction it would cause (think Ford pardoning Nixon), and without even discussing the inevitable damage that reaction will do to the prospects of the GOP nominee in 2008, whoever that may turn out to be, is unworthy of one who is normally such a thoughtful and perceptive analyst.

I'm much more intrigued by two pieces from former federal prosecutors, however. Edward Lazarus explains why Judge Walton's choice of a 30-month sentence can be justified under the federal Sentencing Guidelines, and yet why those guidelines and the Supreme Court's recent Booker decision left room for a lighter sentence that very arguably may have been more appropriate. And William Otis writes that the President ought not pardon Libby outright, but rather that he ought to commute his prison sentence (but not his fine):

To pardon Scooter Libby would not be consistent with the imperative that the mechanisms of law be able to demand, and receive, the truth. But to leave the sentence undisturbed would be an injustice to a person who, though guilty in this instance, is not what most people would, or should, think of as a criminal. Commutation offers a middle ground. Unlike a pardon, commuting the prison sentence would not erase the conviction. It would leave Libby with the disabilities of a convicted felon — no small matter for a lawyer and public figure. But commutation would alleviate the harshest, and unnecessary, aspects of the sentence. A partial commutation would send the message that we insist on being truthful, but in the name of a justice that still cares about individual circumstances, we will not insist on being vindictive.

Mr. Otis doesn't mention — or perhaps he did, and a WaPo editor left it on the editing room floor — a particularly interesting aspect of the commutation suggestion: Assuming Libby is denied bail pending appeal, an immediate presidential commutation of Libby's 30-month prison sentence would leave Libby and his team free (literally, in the case of Libby himself) to continue challenging his conviction through the normal appellate processes. The fine, the two years of supervised release, and the other disabilities associated with a felony conviction would leave Libby with ample legal standing and practical motivation to continue to do so. If Libby's appeals are then successful, no further presidential action need be considered; and if they are not, either President Bush or his successor might then consider whether further relief, in the form of an outright pardon, would be appropriate.

A commutation would certainly outrage the Left. But it would give the President an opportunity to make some important, principled distinctions that ought to at least partially subdue that outrage, and to speak out on the Libby matter with much more specificity than previously would have been appropriate. Perhaps he could say something like this:

We know that no one was ever charged, and never will be, with any substantive crime for the revelation of Valerie Plame's employment with the CIA. We know that a jury of his peers found Lewis "Scooter" Libby guilty of perjury and obstruction of justice in connection with the investigation of such possible crimes. Mr. Libby and his lawyers are in the midst of exercising their rights to have that verdict, and his conviction and sentence, reviewed in the normal appellate process. Whether his appeals are successful in whole or part, they will presumably eventually bring closure to his legal battles — and either way, there will be important lessons for us to learn from that final result. The respect we all share for the rule of law requires that we allow that process to reach its natural conclusion, and that we then seek out and pay attention to such lessons.

Nevertheless, it is already sufficiently clear to me that in the particular circumstances of this case and this individual, service of a lengthy prison sentence would promote no good end but cruelty. Scooter Libby is not a continuing threat to anyone. I know from first-hand personal knowledge how dedicated and devoted a public servant he has been, and what personal sacrifices he has already made on behalf of our country. I know this man's character; I have seen into his heart. And from that, I know that his abrupt, forcible exile from public service, his shame over the damage done to his reputation, and his agony at the effects of all this upon his family and friends and former colleagues — all these things have already combined to inflict upon him a greater punishment than most men would suffer from 30 or even 300 months in prison.

Without undermining our law enforcement system, the Constitution gives every President the power and the responsibility to weigh competing considerations, including very subjective ones, to ensure that genuine justice is done even in individual cases. And it is in fulfillment of that responsibility that I exercise that power today to commute Mr. Libby's 30-month prison sentence — while deliberately leaving in place, at least for the present, his conviction and the remainder of his sentence, including the very substantial monetary fines and two years of supervised release.

I do so without prejudging or even making any implied comment on how his ongoing appeal should turn out, and I do so without endorsing any of the conduct that the jury found to be blameworthy. I do so knowing that in the tragic story of Scooter Libby — as already written, and as yet to be finished until his appeals are done — there is already an ample deterrent to any public official who may ever be tempted to commit perjury or obstruct justice, so that this act of mercy will in no way encourage future lawlessness.

And finally, I do so knowing that reasonable men and women of decency and good will might reach a contrary conclusion to the one I have reached, or that they might have continued to reserve judgment until after Mr. Libby's appeals had been completed, even if that meant he would serve prison time on a conviction and sentence that might ultimately be overturned. I respect those views, but I cannot substitute them for my own. It would be easier, frankly, to permit Scooter Libby to simply go to prison, but I believe it would be wrong, and that it would be an injustice, and that my responsibilities under Article II, Section 2 of the Constitution in this particular case require me to take the opposite course to this limited extent.

So I act now with grave purpose, and with a humble acknowledgment of the imperfections of our species, and with thanks for the grace we enjoy as citizens under the Constitution and laws of these United States of America.

I'm not yet entirely sold on the idea. But I am intrigued by it.

Posted by Beldar at 12:33 PM in Law (2007) | Permalink | Comments (13)

"The war is lost; we are in a bocage quagmire; it's surely time to bring our troops home"

The thing about studying history is this: If you've done it, you can't help but see it influence — and more precisely, inform — your views on the controversies of the present day. And the more detailed your knowledge of history, the more meaningful and interesting the parallels you can draw.

Thus it is with this article from Victor Davis Hanson, which looks beyond the superficial meme — "D-Day was a great Allied victory over the Nazis," and yes, it was — to include the period that followed D-Day, during which Allied misjudgments and mismanagement caused massive, unexpected problems:

When the disaster in the bocage near the Normandy beaches ended over two months after D-Day, the victorious Americans, British and Canadians had been bled white. Altogether, the winners of the Normandy campaign suffered a quarter-million dead, wounded or missing, including almost 30,000 American fatalities — losing nearly 10 times the number of combat dead in four years of fighting in Iraq.

Gulp. I wonder why the Congress didn't pass resolutions deploring the war effort and demanding that our G.I.s be brought home by Thanksgiving 1944? Surely someone reviewing those casualty figures and the relative lack of Allied success by, say, the end of July 1944 would have reached the same profound conclusions that Harry "The Iraq War is Lost" Reid has reached today.

After all, the Nazis are a political party; surely only a political solution can ever resolve the problems they created. And after all, there was no operational connection between Pearl Harbor and the Third Reich! Roosevelt lied to get us into this war! Churchill had Hitler in his box anyway, why did we need to intervene?  Our Manhattan Project is based on fabricated intelligence, the Germans aren't really close to getting the Bomb, and they probably just want peaceful nuclear power. The French need to stand up so we can stand down. These communists and fascists are locked into a struggle that long preceded our arrival here, we can never change them, and we don't even really understand their culture; why should we be involved in Europe's internal fights? We should just leave, and let the Germans and the Soviets sort this all out between them. If we don't — if we try to impose our way of life on those barbarians, who clearly aren't ready for democracy — you just wait and see: We'll probably still have our troops garrisoned on German soil sixty years later!

Posted by Beldar at 10:47 AM in Global War on Terror | Permalink | Comments (4)

Wednesday, June 06, 2007

Ruminations on Libby's bail pending appeal

Yesterday I wrote an over-long post on Libby's sentencing and his apparently grim prospects for being granted bail pending appeal, at least by U.S. District Judge Reggie B. Walton. Summarizing as to the latter: Were I in Judge Walton's shoes, I would grant bail pending appeal, because Libby is no flight risk; he's not dangerous; his appellate arguments would, if successful, dramatically change the results of his trial and sentencing; he's not appealing to delay his incarceration; and his likely challenges to the conviction and sentence raise "substantial" questions in my view. 

That likely puts me in a very small sliver on the Venn diagram of conservative legal pundits' reactions to Libby's current situation:

For reasons I blogged about at the time of the jury's verdict finding him guilty (e.g., here, here, and here), I continue to be unconvinced by, and skeptical of, the arguments raised by Libby's lawyers and his defenders among pundits and public as to why he shouldn't have been found guilty, or why the prosecution against him was illegitimate. I'm decidedly unpersuaded of his innocence. 

But on the other hand: That's not quite the same as saying that I'm certain that he should have been found guilty, nor that I'm certain his appeals will be unsuccessful. For me to hold either of those two stronger opinions, I'd have to know a whole lot more than I do about all of the details of his trial, more than one can learn even from a very diligent search of the public information about the case that's on the internet. And in fact, there is much about the case that troubles me. Only some of what troubles me actually undercuts Libby's conviction: The suggestion that Fitzgerald ought to have prosecuted original leaker Richard Armitage, for example, even if accepted as valid doesn't logically mean that Libby ought not also have been prosecuted and convicted. But still, under any realistic assessment, this case was not a garden-variety perjury prosecution. Libby's legal team has a long list of potential appellate arguments, some of which I think are obviously weak (e.g., the exclusion of the "memory expert"), but others of which may be pretty robust (e.g., his sentence being enhanced by virtue of the unproved identity disclosure crime).

So I find myself thinking that the odds are good, but not overwhelming, that his conviction and sentence will be at least mostly affirmed. And yet: I think he ought remain free unless and until that happens.


I will confess, however, that my legal judgments may be colored by extraneous, purely political considerations. If bail pending appeal is indeed denied by Judge Walton, and if the D.C. Circuit were to leave that determination standing, then even were his appeal expedited, he'd likely have served a significant portion of his 30-month sentence by the time his appeal could be resolved, even at the circuit court level. In that event, there will be much strong pressure on the Bush Administration to take a hard look now at a possible presidential pardon, even before the appeal process has been barely more than begun.

And yet, I do not think that even in those circumstances, President Bush will let his hand be forced by that pressure. I think Dubya still might ultimately grant Libby a pardon, but only if the appeals have been concluded before the end of Dubya's term. It is virtually inconceivable to me that he would fail to let the appeals play out, given his history both as Governor of Texas and as President. And if he waits for a certiorari application to the Supreme Court to be denied before acting on a pardon application, that probably won't happen until after January 2009 — meaning that Dubya might very well leave the decision to his successor.

A pardon would be far from worthless then even if Libby has already spent a year and a half in prison; presidential pardons are valuable even after one has completed a prison term. But beyond the potential individual injustice — which I do not minimize; this incident aside, Scooter Libby has been a good man and a dedicated public servant — Libby's incarceration during his appeal will further erode conservative support for the Bush Administration, and cause further turmoil within the Republican Party.

With respect to the former: It's a bad thing, in general, for a President to suffer from a near-complete lack of political support during a time of war. I'm still in his group of fierce supporters, in general and on most issues. But that's becoming a lonely group, and that worries me for reasons having nothing to do with my continuing affection and appreciation for George W. Bush.

With respect to the latter: Did you note that when the Republican candidates were asked in last night's debate if they'd pardon Libby now, only one (Tancredo, if I recall correctly) answered with a square, unequivocal "Yes"? Everyone else, including the big three, left himself some wiggle-room, a la "I'd look at it carefully," and most made explicit reference to the appeals process playing out. I think that's entirely appropriate; I think there are huge risks to campaigning on a promise to use the presidential pardon power for particular individuals or in particular ways. So if you assume that this won't be an issue even within the Republican nominating process (i.e., if you're assuming everyone will effectively disavow the Bush Administration if it withholds a pardon decision pending appeals), I think you're being naïve.

I hasten to add: I emphatically do not think that the sorts of political concerns I'm discussing here should play any part in Judge Walton's or the D.C. Circuit's consideration of bail pending appeal. They definitely should not, and those judges must, as always, do their very best to try to make their decisions without regard to politics. I'm just saying that from my standpoint — speaking as a conservative political pundit, now — things would be awfully neater, sweeter, and less divisive if a pardon decision could continue to be deferred without the additional urgent pressure that will be created if Libby is denied bail pending appeal. It's essentially wishful thinking on my part.


UPDATE (Thu Jun 7 @ 12:30am): I hopped onto the online system for accessing federal court records, PACER, to look at the docket sheet for the Libby case. There are, at present, a whopping 361 separate docket entries. Based on my quick skim, neither the government's nor Libby's sentencing memos discussed bail pending appeal. The "minute entry" from the sentencing hearing on Tuesday, June 5, however, reads as follows:

Minute Entry for proceedings held before Judge Reggie B. Walton: Sentencing held on 6/5/2007 as to I. LEWIS LIBBY (1), Count(s) 1. SENTENCE STAYED until further sentencing hearing on 6/14/07. Defendant sentenced to Thirty Months incarceration to run concurrent with counts 2, 4 and 5; followed by Two years Supervised Release to run concurrent with each other; special assessment of $100.00 imposed. Count(s) 2, SENTENCE STAYED until further sentencing hearing on 6/14/07. Defendant sentenced to Fifteen Months incarceration to run concurrent with counts 1, 4 and 5; followed by Two years Supervised Release to run concurrent with each other; special assessment of $100.00 imposed. Count(s) 3, VERDICT OF NOT GUILTY. Count(s) 4-5, SENTENCE STAYED until further sentencing hearing on 6/14/07. Defendant sentenced to Fifteen Months incarceration to run concurrent with each other; followed by Two years Supervised Release to run concurrent with each other; special assessment of $100.00 imposed. Total amount due for special assessement $400.00 due within 30 days. Fine in the amount of $250,000 imposed. Special conditions: No arrest; seek and maintain full time employment; submit to DNA sample; perform 400 hours of community service; release of report to agencies upon request. Recommendation: Defendant will self surrender. Bond Status of Defendant: defendant continued on PR bond.

From the entry that follows it, I infer that Libby's brief on bail pending appeal is due today (i.e., Thursday, June 7); that the government's response is due next Tuesday (June 12); that any reply from Libby is due on the next day (June 13); and that the hearing on bail pending appeal will be on Thursday afternoon (June 14) of next week.

I would expect that as part of Libby's brief, his team will lay out in at least meaty outline form his likely appellate arguments, probably ranked best to worst, as part of their showing that they can raise a "substantial question" of law or fact in their appeal.


UPDATE (Thu Jun 7 @ 5:05pm): Jeralyn Merritt at TalkLeft has some discussion along with links to .pdf scans of Libby's motion for release pending appeal and its exhibit. I may start a new post after reading them, or I may wait until we see Team Fitzgerald's response next week.

Full disclosure: I've just noticed that the Washington office of Baker Botts is listed as co-counsel with Ted Wells of Paul Weiss and John Klein of Jones Day. I don't know the specific Baker Botts lawyers involved, but my readers are entitled to know, in assessing my own potential biases, that I was an associate at Baker Botts from 1981-1987, and I still have a great regard and affection for the firm and many of its lawyers.

Posted by Beldar at 10:57 PM in Law (2007) | Permalink | Comments (2)

Post-third GOP debate notes

Romney: Still polished, smooth, and clever. Relentlessly upbeat. Is it possible to be too upbeat? He's making me wonder. One of his handlers needs to smack him, though: He's gotten so bad at just ignoring direct questions that it's no longer just insulting to the questioners, but to the audience, and it's making him look robotic and corporate and processed.

McCain: Bless his heart, which is in the right place, but the world is passing him by. That doesn't mean he's always wrong; indeed, he's absolutely right, and solid, on some very important things. But he's so locked into immigration reform that he can't see anything else, and every time he opens his mouth on that subject he loses another point in the polls. He's just not up to the job he's running for, and it's increasingly obvious with every passing day. If you locked him and Romney alone in a room, Romney would either cause McCain to stroke out, or McCain would rip Romney's head off, but they wouldn't both survive the day.

Giuliani: He is just a mensch — alpha male, born leader, whatever you want to call it. He is not robotic or corporate or processed at all. When I hear the man talk, it makes me think about terrorists losing control over their bladders, their eyes glued to their rear-view mirrors waiting for the Hellfire missile. And that's my hot-button issue. That could make me forgive him a lot of other stuff. But I also particularly liked his heath-care stuff tonight — such a contrast with Tommy Thompson's double-talk and statistical mirrors (some of those ideas may be fine, but they're all premised on the notion that the system is basically sound, and that's just wrong, for reasons that Giuliani absolutely nailed) — and Rudy's free market emphasis in general.

Everyone else: Please buy them all cruise-ship tickets to Shanghai. And arrange for someone to sabotage the cruise liner's boilers mid-Pacific. Their continued presence saps these debates of seriousness. Fred Thompson can't afford to keep missing these, but I can sure see why he's not eager to have to participate while the Marginal Midgets are still cluttering up the stage and wasting time off the play-clock.

Posted by Beldar at 06:34 AM in 2008 Election | Permalink | Comments (5)

Tuesday, June 05, 2007

With a 30 month sentence for Libby, the urgent question now is: Bail pending appeal?

Just out from the WaPo, among other press sources:

I. Lewis "Scooter" Libby, former chief of staff to Vice President Cheney, was sentenced today to 30 months in prison and fined $250,000 for lying to investigators about his role in leaking the identity of an undercover CIA officer.

The federal judge who presided over the case indicated that he may not be sympathetic to allowing Libby to remain free pending appeal, but scheduled a hearing on the matter for next week.

I tip my hat to the WaPo reporters who composed that two-paragraph lede, because the second paragraph is enormously important. If Judge Walton denies bail pending appeal — and if that decision is not disturbed by the D.C. Circuit, pending the full appeal — then Libby would have to begin serving time. Even were his appeal expedited, it could well consume a substantial portion of the 30-month sentence.

So as a practical matter, the outcome of that hearing next week will determine whether this is a great deal of urgency, or not very much, in the Bush Administration's consideration of a possible pardon. The second paragraph of the lede is thus the dramatic foreshadowing for the political drama that's not yet fully unfolded, but seems now to loom more ominously.

Although I understand the rationale Judge Walton gave for imposing a relatively harsh sentence — which can be summarized as "the Spiderman Web" (with great power comes great responsibility) — I don't see how that necessarily would cut against bail pending appeal. "Walton's remarks were a surprise to several legal experts who had expected that Walton would follow frequent court practice of releasing white collar criminals pending appeal," say the WaPo reporters, and I don't doubt that a bit. Judge Walton may indeed be confident that the conviction will be upheld and that the evidence of guilt was overwhelming; but that has nothing to do with, for example, whether Libby is a flight risk or the other traditional factors that ought to go into that determination. [Edit: That last sentence is not quite right, as explained in the update and comments below: if the judge is convinced that Libby's team can't even raise substantial factual or legal questions on appeal, that is indeed a basis for denying bail pending appeal, and that may well be exactly what Judge Walton will end up concluding.]

In my past posts, I've been skeptical of those who've mocked the prosecution and conviction. I still am. But I certainly see room for good-faith argument on appeal, both as to the conviction itself and as to the sentencing considerations — and I'm hard pressed to imagine any good reason to deny bail pending appeal. That would be harsh, and it might be an abuse of discretion that the appellate court would step in to correct.

UPDATE (Tue Jun 5 @ 6:50pm): The grant or denial of bail pending appeal is governed now by statute, 18 U.S.C. § 3143(b). The presumption, or the default value, is that a convicted, sentenced defendant goes to prison pending appeal. However, if the judge finds by "clear and convincing evidence" (a high standard, higher than "preponderance," but less than "beyond a reasonable doubt") that the defendant "is not likely to flee or pose a danger to the safety of any other person or the community if released," and (my paraphrase) the appeal isn't just for delay, and it raises a substantial question of law or fact that's likely to change the result in an important way, then the prisoner may be released.

Libby's team can likely meet even the higher proof standard to show he's not a flight risk or dangerous. They can probably show that their likely appellate arguments would, if successful, be likely to change the result in a substantial way. They can probably show that the appeal isn't just for delay.

But where the prosecution will likely make its stand is on the subject of whether the Libby team's likely appellate arguments indeed raise a substantial question of law or fact. The prosecution will say, in effect, "Judge, the appellate court is going to sustain all your rulings. We've been over this before, and you know they're wrong, so why pretend that these are close questions where there's much likelihood of you being reversed?" Since they're just asking the judge to confirm what he's already ruled, that's a powerful argument, especially for a judge who seems not much inclined toward second-guessing himself.

But this case is so very, very far from a run-of-the-mill prosecution that I think the Libby team ought to be found to have met this requirement too. They don't have to show that they're probably going to win on appeal — just that they've "raise[d] [at least one] substantial question of law or fact." And one ought to be enough; they'll have a long list, some strong and some less so. On the other hand, there's some circuit court caselaw which says: "The term 'substantial' defines the level of merit required in the question presented, and the phrase 'likely to result in reversal [or] an order for a new trial' defines the type of question that must be presented." U.S. v. Montoya, 908 F.2d 450, 450 (9th Cir. 1990). I'm far from an expert on whether this caselaw loops back around enough to swallow the apparent generosity of the statute.

The best news for the Libby team, though, is that the D.C. Circuit is likely to be more confident second-guessing the trial judge on evaluations of the legal appellate arguments than they would be in second-guessing him on pure matters of fact.  "Is this particular guy likely to be dangerous? Is he likely to flee?" — those are questions that an appellate court isn't comfortable substituting its own judgment for the trial judge's on, because he's seen the defendant during the trial, heard all the testimony, and has the best handle on facts. Appellate judges are famously proud in general, though, of their own intrinsic ability to make determinations of purely legal issues.

Beldar's revised hipshot opinion remains: Libby ought to get bail pending appeal, and the trial judge might well be reversed if he denies it. But that, plus $2.75, will buy you a small mocha latte from a Washington street vendor. And I wouldn't be willing to bet that much on my revised hipshot opinion — not in this case.


UPDATE (Wed Jun 6 @ wee-small-hours): My blogospheric friend Patterico has always been generous in his support for my blogging, and he was gracious enough yesterday to post a quick link to this post, for which I'm grateful, as always. On the comments on his post, "wls" — who, as I understand it, is a federal prosecutor who has guest-blogged on Patterico's Pontifications from time to time; he's a sharp guy, a good writer, and I have no problem with him blogging under a pseudonym — offered his own views about the likelihood and propriety of Libby getting bail pending appeal.

<whiny rant>I have to admit to being stung by wls' opening sentence there: "Beldar’s lack of experience on this subject is evidenced by the fact that he had to 'Update' it to not[e] that bail pending appeal is governed by statute. It has been since the Bail Reform Act of 1984."

Like most lawyers who blog on legal topics, I'm constantly torn between competing concerns. If I wrote only about those legal topics on which I have deep and current expertise, I'd run out of things to write about pretty quickly. If I blogged about legal topics with the same degree of care that I use in my law practice when writing for judges' eyes at the behest of paying clients, my blogging output would likewise become a trickle. If you want authoritative legal analysis, in other words, you're probably in the wrong place. Neither the Libby team nor Mr. Fitzgerald and his minions, for example, are likely to need my ideas, and they're not likely to be cutting and pasting from my blog into their briefs in the D.C. Circuit.

Moreover, in an effort to offer timely punditry, I sometimes offer hipshot reactions without having made any effort to do legal or other research. That's how this post started: I knew the sentencing was today, saw a mention of the result somewhere, found the WaPo story, and dashed off a few quick paragraphs with my instantaneous reactions, such as they were. Because of the political overtones of this case, and in particular the drum of public opinion for and against a possible presidential pardon — and indeed, that was a question asked of the entire panel in last night's Republican presidential primary debates — I immediately knew that bail pending appeal would become the next key issue driving events both in the case itself and in the political context outside it.

wls is absolutely right: Unlike (I presume) him, I don't routinely write applications for bail pending appeal, nor responses opposing them. I dealt with those when I was a law clerk for a Fifth Circuit judge way back in 1980-1981. I did know, off the top of my head, what sorts of factors trial and appellate courts consider, and I knew that there had been a statute codifying and (somewhat) reforming that, but that was more detail than I thought my readers — especially my non-lawyer readers — would need to know for purposes of an "issue-spotting" post. And I thought, and still think, that I might be doing some small service to a few readers who've seemed interested in my views on the Libby case were I to immediately point out that the next key fight is likely to be: Just how strong are Libby's likely appeal arguments?

Having spotted the issue and written about it very briefly here, I then put in about a half hour on Westlaw. I found the citation to the statute in about 15 seconds and skimmed the circuit court opinions that referenced it, looking for something particularly on point or something from the D.C. Circuit in particular. Nothing popped out at me. So I then went back to add a more specific update to my original post, citing and linking the statute (from a public source, so those without Westlaw could find the statute themselves easily). Using it as a template, I tried to refine my hipshot analysis. My ultimate conclusions, though, were about the same as my hipshot ones: This judge probably won't grant bail pending appeal, but he might should, and he might be reversed by the D.C. Circuit if he doesn't.

wls' comment over on Patterico's is first-rate, and indeed, it reads like a "summary of argument" section from the brief Fitzgerald's team has written and will likely re-write. It's a very close variation on what every prosecutor says in every case in which they're opposing bail pending appeal. And quite often, prosecutors win those fights at both the trial and appellate court level. They write things like, "This is really a simple case" — whether it is or not, because they're advocates, and it's in their side's interest to characterize the case as simple.

I'm not persuaded that wls is necessarily right on that point, but I will immediately grant that his opinion is almost certainly based on more current and deep experience than my own. I've never flown any false flags about my practice experience, and my circumstances are such that, fortunately, I don't need to conceal my identity or my lack of deep or recent personal experience in a great many areas (including most of criminal law), so I don't think my readers are likely to be misled into believing I have more expertise than I really do. Some people, especially non-lawyers, nevertheless seem to find some value in my attempts to translate legal issues and concepts into language that's accessible to intelligent lay readers.

When wls or any other reader thinks it appropriate to specifically point out the limits of my experience, however, they're quite welcome to do so, here or wherever. If you think I'm talking through my hat, or that I don't have a clue, by all means, speak up about that. I hope such folks will do so graciously; but some won't, though, and some will take gratuitous shots in the process because they think it makes their own opinions more credible by contrast (and they may be right about that).

In any event, gentle readers, the ultimate power here is yours: You control that mouse pointer, and you ought not click on the URL that brings you here if you don't think what you read here is worth your time. </whiny rant>

Posted by Beldar at 02:46 PM in Law (2007) | Permalink | Comments (9)

Spin some Democratic scenarios with Beldar

When I made my predictions a few weeks ago about who the Democratic presidential nominee will be (Obama), I based that on my belief that the primary system, for all its flaws, is still sufficiently powerful to effectively preclude any kind of brokered convention, or major deal among candidates in advance thereof.

My Democratic friends, by contrast, were convinced that Obama, being young and ambitious, would ultimately consent to be Hillary's Veep nominee. But if she has the nomination wrapped up before the convention, I can't believe she'd actually offer the second slot to someone as potentially competitive with her as Obama. (That is, I believe a fundamental characteristic of the Clintons' ruthlessness is their unwillingness to permit any other Dem in the room who will use more than a fraction of the available oxygen; they want, need, insist upon having essentially all of it.) Thus, I think if Hillary has it locked up, she'll pick someone southern or western, or someone who's black or hispanic but of less national competitive threat to her than Obama has been. (Richardson seems to be busy working himself out of this picture in the debates, by the way, and if he is, as reported, even marginally vulnerable on "womanizer" charges, he's probably not in the picture.)

But overall, I continue to believe that although she's far more electable, Obama remains more likely to outpoll her in the primaries, and the enthusiastic cascade that will start with the Hard Left (who won't forgive Hillary for being less radical than her peers on Iraq) will end up giving Obama the lock before the convention.

But let's say I'm wrong, and that nobody has a lock on the nomination going into the convention.

Why isn't it more likely that — even if Hillary enters the convention with a slight lead in committed delegates — Obama does a Veep deal with Edwards instead of her? I think my friends are right that Obama might well take the number two slot, but that he'd be happier to take it from Edwards than her. And Edwards will need to cut a deal with Obama to overcome Hillary's lead.

I know it's still early, and this is wild hypothesizing. But why is, or why isn't, Edwards-Obama more likely than Clinton-Obama?

Posted by Beldar at 10:49 AM in 2008 Election | Permalink | Comments (6)

On failing to display a lifelong lean and hungry ambition to become the President

      I very much enjoyed, and commend to you, Joseph J. Ellis' 2004 biography, His Excellency: George Washington. I've read several other Washington biographies. But I particularly appreciated Ellis' analysis (at pp. 70-71) of the image of Washington as the reluctant hero — as when, for example, he protested to the Continental Congress that he was unequal to the job they would thrust upon him of leading America's fledgling, amateur, overmatched armed forces:

      One is tempted to read this kind of public modesty with a skeptical eye, as a ritualized statement of humility designed to demonstrate gentlemanly etiquette, rather than as a candid expression of what he truly felt.  After all, Washington had been talked about as the leading candidate for the job of military commander for several weeks, had done nothing to discourage such talk, and had been wearing his uniform [during the May 1775 sessions of Congress] as a rather conspicuous statement of his candidacy....

      What, then, is going on here? It helps to recognize that Washington engaged in the same pattern of postured reticence on two subsequent occasions: when he agreed to chair the Constitutional Convention; and when he accepted the office of the presidency. In all three instances he denied any interest in the appointment, demeaned his own qualifications, and insisted that only a unanimous vote left him no choice but to accept the call. The pattern suggests he had considerable trouble acknowledging his ambitions. His claim that he had no interest in the commander-in-chief post was not so much a lie as an essential fabrication that shielded him from the recognition that, within a Continental Congress filled with ambitious delegates, he was the most ambitious — not just the tallest — man in the room. He needed to convince himself that the summons came from outside rather than inside his own soul.

      I am not going to suggest a thoroughgoing comparison between George Washington and Fred Dalton Thompson — they have some things in common besides great height, but they obviously have a great many other differences from one another. But I do argue here that this particular trait of Washington's that Ellis' passage above (and others like it in his book) highlight so vividly is, in fact, an excellent trait for any would-be American president to have.


      Or perhaps it's actually just that the opposing trait is simply so ugly, inappropriate, and dangerous when it is extreme. One of the things that I most despised about John Kerry was (and is) that the man has been running for President since he was in pre-school. He picked a running mate who had not very much in common with him except that trait. And then he proceeded to campaign on the basis that 1600 Pennsylvania Avenue was his hereditary castle, and that only an idiot could fail to see how superbly suited he is to give the rest of us our marching orders.

      Others in the last half-century who've been similarly gripped by that same sort of life-long obsession with becoming POTUS — Lyndon Johnson, Richard Nixon, Bill Clinton — all saw their presidencies ruined by their own character flaws.

      "His Excellency George Washington," by contrast — the indispensable American, the man who could have been the American Caesar — was indeed ambitious, but he was redeemed by what Ellis calls "an essential fabrication that shielded" his own ambition even, and in fact especially, from himself. Were George Washington available today, however, to become the nominee of either party, he would be savaged by pundits like Richard Cohen, whose op-ed in today's WaPo positively insists that industrial-strength ambition is essential for the job!

[T]he presidency that Thompson now seeks is won not by the normal, the average, the ordinary, but by people fueled by an explosive combination of overriding ambition and charming megalomania. The world needs them, they are convinced. God wants them, they have been told. The country calls; they answer and march smartly into history. This is the stuff of parody (and I exaggerate a bit), but you don't get to be president by waiting for others to ask — unless you are the son of one. Let us not repeat that mistake....

[Thompson] indisputably lacks the passion, the concern, the fire-in-the-bellydom that Reagan had — not just for winning but about issues themselves. Thompson never showed [as a senator] that he was out to change matters, to right some major wrong, to fix the god-awful mess the country is in. I contrast him with a senator I recently chatted with who took virtually childlike delight in being a senator — being able, as he said, to be a player. He savored his power — as one of only 100. What a difference he could make!

I hate to tell you this, Mr. Cohen, but whoever the childlike senator was that you spoke with is deluding himself, and you're deluded too, if either of you think that being a senator gives one a reasonable shot at changing matters, righting the major wrongs, and fixing the god-awful mess the country is in. Recall, sir, that Ronald Reagan left the California governor's mansion in 1975, and did not thereafter seek to run for the U.S. Senate. Being a "big dog" there just ... isn't really that big a deal. Just ask former President Teddy Kennedy, for example.

      Perhaps, Mr. Cohen, we should let the race tell us who has the necessary desire, stamina, and other qualities required to win the race. That makes more sense to me than disqualifying candidates at the starting blocks because they didn't leave you with any memorable sound-bites when you waited around for a delayed flight with them in National Airport some years ago. I wonder, Mr. Cohen, if you said anything that Sen. Thompson found memorable that evening either? No? Well, then, I guess your "fire in the bellydom" (heh! ... how'd you get that past the WaPo editors?) to be a really well-connected op-ed writer must be pretty cold, bud.

      Mr. Cohen, you would, I presume, be equally savage in deriding the candidacy of Dwight Eisenhower, who also  failed to become a hard-driving difference-making U.S. Senator before running for President, and who was thought by most of his countrymen to be fairly indifferent to politics — until not long before he was nominated, and then elected in an enormous popular and electoral vote landslide.

      There has not been such an absence of an early-dominating GOP presidential candidate — neither incumbent seeking re-election, nor a vice president seeking elevation, nor an early favorite who has dominated fund-raising and early straw polls — since as far back as 1968, or maybe even 1964. But if there is one prediction I can make with great confidence about the primary campaign for the 2008 GOP presidential nomination, it is that nobody will find it a cakewalk; and certainly the general election will be as hard-fought an affair, from an underdog's standing and against major odds, as has likely ever been the case in American politics.


      Of Washington's decision to accept the commander-in-chief role, Ellis went on to write (at pp. 71-73):

While everyone around him was caught up in  patriotic declarations about the moral supremacy of the American cause, Washington remained immune to the inflated rhetoric, keenly aware that a fervent belief in the worthiness of a crusade was no guarantee of its ultimate triumph.

      And he was right. For the larger truth was that no one was qualified to lead an American army to victory, because the odds against such an outcome appeared overwhelming....

      If the decision to marry Martha Custis most shaped his own life, the decision to take command of the Continental army most shaped his place in history....

      Although there was no way he could have known it at the time, Washington was assuming command of the army in the longest declared war in American history....

But he persevered. By the end of that war, George Washington had become, and he has forever since remained, "first in the hearts of his countrymen." Shielded or not, there was indeed ambition enough inside him, to the extent that is a required part of the mix, to see George Washington through the Revolutionary War.

      Times have changed, and our struggles now are in many ways different. But whether it's Fred Thompson or some other Republican who wins the 2008 presidential election, that can only be done by someone who — by post-hoc definition — in fact turns out to have had "enough" ambition to persevere and to succeed. And that has been continuously true since the first President was elected, even though his own election was by acclamation: For he could have said, "No, I will not serve," and yet been assured of an immortal place in our pantheon of national heroes.

      So count me, contra Mr. Cohen, extremely unconcerned if Fred Thompson has been coy. Count me unworried whether he has enough "fire in his belly" — for if he doesn't, he likely won't get the nomination, and he certainly won't win the general election. Count me relieved and profoundly grateful that John Kerry is still the junior senator from Massachusetts, and that no one among the GOP field shares his sort of prideful, disdainful, consuming, ugly ambition. And count me pleased and amused that, indeed, it looks as though we'll have a genuine horse-race within the Republican Party this campaign cycle.

Posted by Beldar at 06:02 AM in 2008 Election, Books, Politics (2007) | Permalink | Comments (2)

Monday, June 04, 2007

Credit where due: Pampered, petulant, and pouty Paris pivots, and now primly and properly professes penitence in pokey

The third time the whirling red-and-blues show up in your rear-view mirror inside a six-month period, you need to start re-examining your basic premises about yourself, driving, and the law — especially if the first one resulted in your pleading no-contest to an alcohol-related reckless driving charge, and the second one resulted in your being ticketed for driving on a restricted license from the first offense.

So when Paris Hilton was sentenced to jail for a blatant, inexcusable violation of her probation — prompting normally sober, responsible lawyer-bloggers to write Free Paris!" blog posts and claim that she was being persecuted because of her celebrity status — I started on more than one occasion to write a curmudgeonly rebuttal, arguing that she clearly had defied the law and just as clearly needed to be taught a lesson in civic responsibility.

On the third occasion, she was allegedly speeding, with her headlights off, at 11:00 p.m. She claimed to be under the impression that even after the second stop, she had driving privileges that permitted her to go to and from work — but she was "on her way home from buying DVDs at [a] Virgin Megastore in West Hollywood." (I guess her theory was that if your "work" is being a celebrity party animal, going to buy DVDs is a job requirement, and you're "on the job" pretty much all the time.) Lines like this one gained her no sympathy from me:

"I feel that I was treated unfairly and that the sentence is both cruel and unwarranted and I don't deserve this," she said as she left for a shopping trip with her mother.

And her mother Kathy clearly needed a cold shower and a reality check, based on her conduct during Paris' sentencing and comments immediately after:

[Paris' mom] laughed [in the courtroom] when a city prosecutor argued that Paris deserved jail time. When a judge ordered the 26-year-old Paris to serve 45 days in county jail, Kathy Hilton blurted out: ''May I have your autograph?''

She also shared her feelings with reporters outside: ''This is pathetic and disgusting, a waste of taxpayer money with all this nonsense. This is a joke.''

Every time I started writing such a post, though, I ended up deleting it before publishing, on grounds that I don't want to reward selfish celebrity misbehavior even to the limited extent of recognizing it on my humble blog.

But then the younger Ms. Hilton got a new lawyer, Richard Hutton. We know not, of course, what he may have told her and her family in their private discussions, but she was clearly in need of some wise counsel — not necessarily better advocacy, for there is a time when the most effective counselor is he who counsels an end to the courtroom fighting. And almost immediately afterwards, in his public statements on her behalf, and in her own statements, appeared what seemed (at least to public eyes) to be a new attitude. Noises about an appeal disappeared. Someone dialed the martyrdom rhetoric back down to zero, where it ought to have been all along. Her original 45-day sentence was dialed back to half that, based not on her celebrity status or fortune but on L.A. County jail overcrowding.

Last night she surrendered herself at the L.A. County Jail for booking and transport to the womens-only Century Regional Detention Facility in Lynwood, and whatever were the respective proportions of sincerity and calculated spin, she appears to have behaved herself well:

"I am trying to be strong right now," she told reporters on the red carpet [at the MTV Music Awards before heading for the jail]. "I'm ready to face my sentence. Even though this is a really hard time, I have my family, my friends and my fans to support me, and that's really helpful."

Sheriff's spokesman Steve Whitmore said Hilton was easy to work with.

"Her demeanor was helpful. She was focused, she was cooperative," he said....

"I did have a choice to go to a pay jail," Hilton said Sunday, without giving details. "But I declined because I feel like the media portrays me in a way that I'm not and that's why I wanted to go to county, to show that I can do it and I'm going to be treated like everyone else. I'm going to do the time, I'm going to do it the right way."

And in a written statement released by her new lawyer:

"I am ready to face the consequences of violating probation. During the past few weeks, I have had a lot of time to think and have come to realize I made some mistakes."

Hilton added, "This is an important point in my life and I need to take responsibility for my actions. In the future, I plan on taking more of an active role in the decisions I make. I want to thank my family, friends and fans for their continued support. Although I am scared, I am ready to begin my jail sentence."

I approve. My own two teenage daughters haven't ever regarded her as a role model, but somebody's daughters do, and it's a good thing for them to hear contrite words directly from Ms. Hilton's mouth.

And hey, since this is apparently "post lots of pix of blondes" day on BeldarBlog:

Paris Hilton's mugshot from the L.A. County Jail

Her mugshot is genuinely lovely.

She has my sincere best wishes for a safe, reflective stay, and a future blessed with at least enough self-knowledge and wisdom to keep her free from trouble with the law.


UPDATE (Thu Jun 7 @ 3:45pm): And now she's been released to serve 40 days' home confinement (with an electronic ankle bracelet monitor) due to a "medical condition." The decision was reportedly made by the L.A. County Sheriff's Department officials, rather than the judge who sentenced her. I don't know what to make of that. One can hope she's still learned a lesson. One worries that it's the wrong one.

And a correction: I was wrong in saying her 45-day sentence was halved due to jail overcrowding. That was actually just a projection of her actual jail time based on the one-for-one "good behavior credit" all L.A. County prisoners receive if they behave.

Posted by Beldar at 11:14 PM in Current Affairs, Family, Law (2007) | Permalink | Comments (1)

Fred Thompson and Jeri Kehn: Trophy wife, trophy husband?

Fred Thompson and wife Jeri Kehn At 40, Fred Thompson's attractive, blonde wife of five years, Jeri Kehn, is considerably younger than he is. And while Fred is the TV and movie star of the pair, he looks his 64 years, while in the photos I've seen of her, she often looks younger than hers.

This has given rise to mumblings ranging from mildly gossipy (Dr. Stephen Taylor of Poliblog), to simply crude (Josh Marshall), to incredibly sexist and tacky (Boston Herald columnist Margery Eagan, who also manages to trash-talk the other GOP candidates' wives), to vile (Jim Henley, who predicts that she would "[end] up suppressing the rank & file evangelical vote and getting married vaginal-Americans to vote Dem in droves"). [Update: But see Mr. Henley's later post, and the comments to it also, for a less trenchant take.]

The Nashville Post, however, in a report entitled "The 'Inner Fred,'" lists her first among "political operatives who have been there for him on previous campaigns, are with him now, or can be expected to play a significant role in the coming months" (and that's consistent with other reports which have suggested that she's been a major, and very encouraging, factor in his deliberations over whether to run):

Fred Thompson married Jeri Kehn on June 29, 2002, in Naperville, Ill. She was an attorney [update: this statement is wrong; she's not an attorney — Beldar] and political media consultant at the once-powerful Washington firm of Verner, Liipfert, Bernhard, and McPherson and Hand.

Before that firm merged with DLA Piper in 2002, some of her "co-workers" were former presidential contender and U.S. Sen. Bob Dole (R-KS), the late Texas Gov. Ann Richards, the late Secretary of State Lloyd Bentsen, and Elliot Abrams, assistant secretary of state under President Ronald Reagan, to name just a few.

Prior to her tenure at Verner Liipfert, she worked for the U. S. Senate Republican Conference and the Republican National Committee.

She and her husband have a four-year-old daughter and a six-month-old son.

Laura Bush will, quite frankly, be a tough act for anybody to follow as First Lady, and I don't know enough yet about Ms. Kehn or Mrs. Thompson to even know, for example, which of those forms of address she'd prefer. But as with Thompson's reaction to Michael Moore's criticism of reports that the former senator has a fondness for Cuban cigars — which was to release a fabulous internet video response that features Thompson chewing a cigar — I very much like Thompson's very emphatic reaction to the possibility of a controversy over his wife's looks, as reported by U.S. News & World Report (emphasis mine):

Get ready for the comparisons between Nancy Reagan and likely GOP presidential candidate Fred Thompson's wife, Jeri. "America fell in love with the Reagans and they'll do it with Fred and Jeri," says a pal. Like Nancy, Jeri is her husband's adoring, hand-holding top adviser — and even his driver. She's also elegant, like Nancy. So much so that in preparation for Thompson's early July entry into the race, Jeri suggested to friends that she might "frump it up," to which Fred barked a "Hell no."

John Kerry and Fred Thompson both notoriously dated around as senators. Kerry, for example, dated Morgan Fairchild, Michelle Phillips, Catherine Oxenberg, and Dana Delany, but ultimately chose to marry another senator's widow who, as it happened, had finished raising a family, is older than Kerry, is ultra-rich, and is perhaps a bit, umm, idiosyncratic. Thompson chose to marry someone who wanted to raise a family with him, and who is apparently both smart and politically savy, but who's definitely younger and not at all frumpy. Who's to dispute that true love and deep compatibility drove both decisions, rather than the most superficial attributes of age, beauty, or wealth? But even if age, beauty, or wealth were among the mix of factors that went into those decisions, then who's to gainsay that either?

Fred Thompson and wife Jeri Kehn   Fred Thompson and wife Jeri Kehn

The New York Post's story about them, headlined "Babe Wife, 40, Boosts GOPER, 64," reports that after his divorce in 1985, Thompson "was one of Washington's most in-demand bachelors," and that "Kehn scored a coup in convincing Thompson, who had won the nickname 'The Tennessee Stud' during his D.C. bachelorhood, to meet her at the altar." If that's so, wouldn't Thompson be a "trophy husband"?

Fred Thompson and wife Jeri Kehn   Fred Thompson and wife Jeri Kehn

Wouldn't that make them, in fact, a "trophy couple"?


UPDATE (Tue Jun 5 @ 12:55am): I adhere to my position, even though it puts me in agreement with Andrew Sullivan and, far less worrisomely to me, Megan McArdle. See also Betsy's Page, Michelle Malkin, Captain Ed, Target Rich Environment, and Allah at Hot Air, who focus on the tasteless "pole-dancer" remark quoted by Josh Marshall (see link in my original post above) from former GOP congressman Joe Scarborough's MSNBC show.

UPDATE (Tues Jun 5 @ 7:15am): Add Jim Geraghty to the list of those peeved at Joe Scarborough.

Libby Spencer, who posted about this yesterday on Newshoggers, would now have us believe she didn't mean to use "trophy wife" as "necessarily a derisive term." (Yeah. Right.) But she thinks the marriage "does raise some questions about his character" — and explains in comments: "I think [the new] wife isn't so much the issue as his leaving his first wife after 30 years so he could go out and get laid by every groupie in town before he finally settled down with a the [sic] sweet young thang. Says a lot about his character, or lack thereof." After these lovely, balanced, and empathetic comments, backed by, umm, no supporting evidence, she whines: "It's a sad statement on the adversarial nature of our society, that I can't ask a legitimate question [i.e., how this will play with the "ordinary voter"] without being accused of attacking the woman."

Ms. Spencer: Most of us can tell the difference between asking a question and making an argument using loaded terms. And it's called "sexism" when you draw irrebuttable, conclusive inferences about why a particular man marries a particular woman, or vice versa, based on nothing more than their respective sexes, ages, and appearances: You're reducing her to a pair of breasts, a birth certificate, a marriage license, and a set of lame clichés. (It's a sexist view of men, too, but whatever.) Oppose her, or them both, for their politics if you want. But, with due respect, these sorts of comments make you look unattractive, and I don't mean physically. Your blog's motto, apparently, is "Blogging to the highest common demoninator." If so, you have an awfully bleak opinion of humanity.

UPDATE (Tues Jun 5 @ 8:25am): I'd read this before, but finally found a link (on dKos of all places): "At the Capitol Hill Club session ... [d]uring the discussion about his past, Thompson said he had recently spoken to his ex-wife, Sarah, and said she would campaign for him. He also spoke lovingly about his 'partner for life,' his wife, Jeri, and their two small children."

UPDATE (Tues Jun 5 @ 8:50am): I've read posts to the effect of, "Oh, she's a Britney Spears clone!" Mm-kay, I guess so. If Britney were 40 instead of 26. And had been married only once, but it was for five years, after dating the guy for six years before that. And hadn't shaved her head and gotten those tattoos. And had already had a career as a political media analyst with a top Washington law firm. And was a good friend of Mary Matalin. And had lots, lots better fashion sense.

Fred Thompson and wife Jeri Kehn

Other than that, they're just about twins, yeah.

UPDATE (Tues Jun 5 @ 9:30am): Ms. Spencer and I have a dialog going on in her blog's comments, and as always, I appreciate anyone from the opposite side of the political aisle who will carry on a civil debate with me, on my bandwidth or theirs. Have I misjudged her? Did she not intend that which I've attributed to her, and was she instead just asking, hypothetically, whether some bigoted person — not her! — might think Sen. Thompson dropped his first wife (who, as I read on someone else's post, he had "impregnated as a teenager!" gasp!) for the sole purpose of "go[ing] out and get[ting] laid by every groupie in town before he finally settled down with a[/]the sweet young thang"? Golly, if Ms. Spencer wants to disavow that accusation, she might want to actually expressly attribute it to some hypothetical other person, and join me in pointing out that it would be unjustifiable bigotry. We can probably agree, then, that there are indeed bigots and racists and sexists out there who will vote against Fred just because of Jeri's looks or who will vote against Hillary just because she lacks a Y-chromosome. But as always, gentle reader, decide for yourself; and feel free to comment here, or there, but always in civil tones please.

Meanwhile: Scarborough claims to have been merely secondarily suggestive rather than directly insulting, or something like that. Lame, but probably true. Note to Joe: "Doing the pole" has one fairly well-known meaning in gay street lingo, a different one in strip clubs, and the meaning you claim to have given it (increasingly commonly used exercise equipment?) basically nowhere except in your head. Be more careful.

UPDATE (Tues Jun 5 @ 1:35pm): I think my dialog with Ms. Spencer in her comments has concluded, and in a way that disappoints me. She writes in her latest comments, replying to mine:

As for Fred's promiscuity, judging from the various comments I've seen, it's legendary. And I don't think it's so untoward to speculate on what the timeline reveals about his character. I may not know much about insults, but I do know about cheating husbands and other womanizers and he fits the classic pattern.

If and when, his ex-wife comes out publicly to say he's a really swell guy who never cheated on her and starts campaigning for him — I'm happy to eat my words and apologize for suggesting otherwise.

So we now have a new standard from the likes of Ms. Spencer: Anyone who divorces, dates, and remarries — or maybe this is only Republican men? I'm not quite sure — is presumptively an adulterer from the time of his marriage and a liar then and ever after. (I thought she might disassociate herself from her earlier accusations, but she instead has chosen to double down on them.) I am quite confident that engaging in such presumptions, without evidence and regardless of evidence, is a form of bigotry, and as I said on Ms. Spencer's blog, I hope it will cause an appropriate backlash. Ms. Spencer has a new post up at Newshoggers, too, but I don't think that it adds anything, and I doubt that she and I have anything much more to discuss.

UPDATE (Tues Jun 5 @ 4:05pm): Mary Katherine Ham is inclined to let Scarborough pretty much off the hook. I don't disagree, but from the comments others are leaving here, the comments I've been trading with some of the left-of-center bloggers I've linked from here, and the (for my blog) very large volume of Google and Yahoo image searches that are pulling up this page today, I'm increasingly convinced that that's about the least interesting story here. I'm persuaded that at least some elements of the Hard Left blogosphere are deliberately, thoughtfully testing, and trying to sharpen, an ugly meme that they'll be using against Fred Thompson and spouse that has nothing to do with facts and evidence — that's actually scornful of facts and evidence — but that they think might be a useful wedge to play on the shallow, the narrow-minded, the sexist, and the bigoted.

Elsewhere: This post was certainly prescient, back at the end of April. And today's the first time I can recall having been linked on the NPR News Blog. Finally, I neglected yesterday to link this thoughtful post from Gaius at Blue Crab Boulevard, which also has some interesting comments after this blast in the body of the post: "That Libby [Spencer] at Newshoggers is cheerfully recycling the sewage from Wonkette in an attempt to get that little innuendo into the marketplace of ideas just plain wrong. Oh she does a pro forma preemptive denial, but it is despicable." See also this follow-up post from him, about her.

No more updates to this post, though. If I have more to say on this topic, I'll start a new one (and link and self-trackback from it to here as well).

Posted by Beldar at 05:19 PM in 2008 Election, Politics (2007) | Permalink | Comments (19)

Sunday, June 03, 2007

Admissions against interest

If you're a serious reader, and you hold me in some measure of regard as a serious blogger who writes about presidential candidates and constitutional law and the like, and then you follow this jump, you'll almost certainly think badly of me. You probably shouldn't keep reading. You've been warned.

So look: It's been right there in my "About Beldar" page since I started this blog in August 2003, and I admited it on my professional website too:

Among my hobbies are computer games. That's been true since, oh, about 1975, the year before I almost got expelled from UT-Austin for being a computer bandit sneaking time on the mainframe to play ASCII-graphics "Star Trek." The second post I ever made here in 2003 contained screenshots of my two main characters from EverQuest — one of whom was a seven-foot-tall Norse babe, a level 60 rogue with an, ahem, exaggerated figure and the name of "Mizchif." The screenshots are still posted, fer pete's sake, along with those of my male wood elf bard, "Pontifex."

And that year or so I took off from blogging, in late 2005 and 2006? I played World of Warcraft with my teen-aged sons for more dozens of hours than I can be compelled to admit without a subpoena, or than they or I would ever admit to my ex-wife, subpoenaed or not. I took two priests to 60 with Blackwing Lair gear, too — one Horde, one Alliance, one on a PvP server and one on a Care-Bear.

(Some few of you reading this are going, "O'RLY? Shadow, holy, or disc build?" And some of you who are saying that are also middle-aged professionals, including other lawyers! You know who you are, but I won't name any names for now.)

(But the rest of you are going, "Whaaa ...?" Or rather, you're not "going" anything, you're, ahem, saying to yourself: "Goodness! I do believe Beldar has gone mad!" And you'd be at least partially right, too.)

Yes, I'm an almost-50 computer games geek — no, not level 50, I meant 50 years old! — even though I'm currently cold-turkey, and I've been completely off the habit for several months now. Yeah, I gave the undead priest to my younger son, because his end-game guild, post-Burning Crusade, really didn't need another 70 rogue, and so he's leveled the priest up to 70 now to hang out with my older son's 70 warlock. I can't take that account back now! — it would be ... wrong and mean. But:

As a consequence of all that gaming, I've pounded a few million keystrokes in casual conversation with teen-something and 20-something and, yes 30- and 40-something gamers over the last half-dozen years. And one cannot do that without picking up some of the associated culture being created by folks younger than oneself. Not more than a fraction of it; I don't flatter myself to think that I'm anything other than a "tragically un-hip old fart" in these online crowds, but they at least pretend to tolerate me for the most part.

I mean, they needed the heals, and I was the dude with the mana, wasn't I?

So: When Lileks wrote, on Monday of this past week, as part of his genuinely gripping on-going job saga, "This week I find out whether or not I has a bucket" (referring obliquely to his job as being the "bucket") — I already knew the pictures that his link would take me to:



Indeed, I had already spent a ridiculous amount of time studying these two silly, brilliant photos and their sillier captions. When BoingBoing posted this picture this week:


I already knew it referred to this website (which should be read back-to-front). And specifically, to this photo:


Because yes, I had indeed already skimmed through every single page and caption on that website, laughing until my eyes watered. It is silly beyond the power of words to describe, silly in part because it imagines that really hep cats (to use a term my dad would recognize) speak in a kind of pidgin English called "LOLcat" that, in turn, requires them (and us) to know pop cross-cultural references to oldies but goodies like "All your base are belong to us" in order for the captions to be funny. But, ya know, my WoW priests did their fair share of pew-pew-pews too.

I'm not bragging about any of this. It's insane. The adult parts of me keep trying to seize control and delete this damned post.

But pictures like this one still just crack me up:


And even though I'm mostly a dog-person instead of a cat-person, I'm still willing to argue the elegance of the photo and caption above at great length. Unless my computer fails suddenly:


These are admissions against interest, but ... I admit them. I'll probably end up fighting a big relevancy fight about whether I can be cross-examined about them the next time I testify to prove up attorneys' fees.

Just drop it, Beldar. You've done enough damage for one morning. kthxbai.

Posted by Beldar at 09:19 AM in Current Affairs, Family, Weblogs | Permalink | Comments (11)

Oh, hand me again my teeny-tiny violin, to play a sad song for poor oppressed Time Inc.

Norman Pearlstine, former EIC of Time Inc. I thought I was out of things to say about L'Affair Plame and, in particular, the arrogant, short-sighted, whiny mainstream media snots from the New York Times and Time Inc. But I just read former Time editor-in-chief Norman Pearlstine's op-ed entitled "How Libby's Trial Hurt the Press." And I discovered that I have not quite lost my capacity to be made snark-filled and angry by L'Affair Plame's participants from the Fourth Estate.

"Was it all worth it?" Pearlstine asks — and he then proceeds to demonstrate that nobody can top Time when it comes to treating excellent questions as shallow, rhetorical ones that they have no intention of even trying to explore honestly.

Here, for example (italics mine), is just a great factual set-up for a frank admission using the benefit of hindsight:

During my tenure as Time Inc.'s editor-in-chief, we spent millions of dollars — on our own behalf and that of Matt Cooper — fighting the special prosecutor's subpoenas in the courts. We lost every round. Only when the Supreme Court refused to hear our plea did I agree to turn over our notes to the grand jury.

After that paragraph should come something like this: "Man, we were incredible idiots who — by picking the wrong fight in the wrong case on which to go all nuclear against the DoJ in federal court, and thereby solidifying all of the legal precedents against us — were actually grinding down to their smallest possible nubbins the very legal interests of our profession that we were purportedly trying to protect!"

But what lesson does Pearlstine actually claim to have drawn from all this?

Reporters Without Borders publishes a press-freedom index, based on responses from media organizations and other experts around the world. The U.S. ranked 53rd out of 168 countries last year, trailing embarrassingly behind Bosnia, Namibia and the Dominican Republic. Without relief from continued assaults on the press, we shall fall further toward Russia (147) and last-place North Korea.

Give me a blooming break, Norman! No, no — I don't want a break. Give yourself a floating press internship through Bosnia, Namibia, and the Dominican Republic, Norman.

And then report back to us in a year with about 600 words on a nice civics and journalism topic. Say, something like: "How I Learned that the First Amendment is Not to Be Mocked by Stubborn, Myopic American Magazine Editors With Unlimited Budgets to Pay Lawyers, Because Freedom of the Press in the U.S. Really Ain't In That Bad a Shape After All, and Police Nightsticks in Bosnia, Namibia, and the Dominican Republic Really Do Hurt!"

Like there are really 52 other countries where you could be this naïve for this long without anyone rather rudely bursting your bubble of idiocy?

Posted by Beldar at 05:01 AM in Law (2007), Mainstream Media | Permalink | Comments (1)

Should the Fifth Circuit's new Chief Judge Edith H. Jones top Dubya's standby list for SCOTUS?

Formidable Supreme Court newshound Jan Crawford Greenburg wrote for ABC News on Friday (h/t: Andrew Hyman at ConfirmThem and Prof. Jonathan Adler on Bench Memos) that the Bush Administration is keeping its list (and checking it twice) of who would be naughty and who would be nice as SCOTUS nominees — just in case a seat were suddenly to come open when the Supreme Court concludes its current session at the end of June.

Ms. Greenburg mentions several sitting judges from lower courts whose names have been bandied about in prior years and who are supposedly still on the short list. In what I'd characterize as the "wistful, wishful GOP thinking" category, she notes that "advisers are focusing on possible nominees who are believed to be solid judicial conservatives and would galvanize the base at a time when Bush desperately needs its support."

Chief Judge Edith H. Jones of the Fifth Circuit I think that's about right, and I suspect that the White House would be entirely giddy right now to be able to poke a thumb directly into the eye of the Democratic-controlled Senate, even recognizing full well that the likely result would be not a filibuster, but an outright defeat. Think of it as a martyrdom operation to help set up the 2008 presidential election. Having done that, Dubya could nominate someone who could actually get confirmed like, say, Ted Olsen (although he's actually my choice for AG in the Thompson-Romney Administration come 2009).

Ms. Greenburg's story started me wondering, however, about a name that's been bandied about in past years, but that isn't mentioned in her current story: the Hon. Edith H. Jones of the United States Court of Appeals for the Fifth Circuit, whose chambers are right here in downtown Houston. Call me crazy, but I think the stars may have re-alligned slightly in a way that makes her a more plausible nominee than she previously had been.

The knock on Judge Jones in the past, according to conventional wisdom as espoused by the punditocracy, has been that she's so demonstrably conservative that she'd have been unconfirmable even before the 2006 election — and indeed, that there was probably no other candidate quite so certain to prompt a Democratic filibuster, based on a long track record that would provide tons of grist for the mills of very adversarial Senate confirmation hearings.

(A lesser objection is that she was born in 1949; I tend to think that's silly, though, because as most of the current members of the SCOTUS are demonstrating, that could still leave her with two or three solid decades of reasonably foreseeable service. Pish-posh — she's not "too old.")

And there's one important thing that has changed about her as a potential SCOTUS nominee since her name was mentioned for the slots now occupied by Chief Justice Roberts and Justice Alito in 2005: Last year, by virtue of her seniority on the Fifth Circuit — where she's served since President Reagan appointed her in 1985 — Judge Jones became the Chief Judge of the Fifth Circuit.

That new credential might actually make a difference: It means instead of being one of 179 or so sitting active-status Circuit Judges scattered around the country, she's now only one of thirteen sitting "Chief Judges" from all twelve geographic circuits (plus the "Federal Circuit," which has a specialized and limited nationwide jurisdiction) put together.

Chief Judges aren't elected among their peers, and it's not unheard of, in fact, for them to be secretly quite unpopular, or even tyrannical — so the title doesn't say anything about collegiality as such. But simply by virtue of her seniority and resultant position, Chief Judge Jones is unquestionably now a "leader among Circuit Judges," having presided over the Fifth Circuit's en banc court sessions, and having wielded other administrative and substantive responsibilities that are unique to the Chief Judge positions. Anyone who's seen the workings of the Courts of Appeals from the inside will tell you: Being the Chief is a big, big deal, not only among the judges, but to the law clerks, staff, and lawyers who appear there.

(And I'm fiercely proud, by the way, of Judge Jones' immediate predecessor as Chief Judge of the Fifth from 1999-2006, the Hon. Carolyn D. King, for whom I had the privilege of clerking when I was new to the profession and she was new to the bench.)

With that title, no one — not even barking moonbats — could challenge the depth of Edith H. Jones' judicial experience.

The new title may make the biggest difference, I think, with respect to holding Republican senators' votes: If she'd been nominated in 2005, Judge Jones probably would have lost the votes of a small handful of Republican RINOs even in a filibuster fight. But if the Bush-43 Administration's next SCOTUS nomination is going to trigger the Charge of the Light Brigade anyway, then maybe that additional credential would give the GOP faint-of-heart some cover under which they could cast a symbolic vote for the sake of party unity.

Not that, umm, anyone in the Administration — or certainly not that anyone at, ummmmmm, the National Review — has been asking for my advice on judicial nominations since I was the last Republican blogger in the country left supporting Harriet Miers. But for what it's worth, that's what's running through my fevered mind on this topic right now.

Posted by Beldar at 03:10 AM in Law (2007) | Permalink | Comments (3)

"Inside the office, General Hamid had unslung his submachine gun and propped it up against the wall."

Mostly on this blog I rant. This, though, is a rave.

This is, by far, the most incredible, riveting first-person reporting from Iraq I have ever read, seen, or heard.

I've had a "tip jar" on my blog, as a lark, for three or four years now. I don't need a tip jar. I'm taking it down. Right now, in fact, I'm sorta embarrassed to have ever had it up, actually.

Michael Yon is putting his own skin on the line so that you and I and everyone who has an internet connection anywhere in the world can read and see for ourselves what kinds of challenges are facing our fighting men and women in Iraq — and how they're handling them. And the reports from Iraq that he's posting have verisimilitude that smokes, spits, and crackles like ozone off a high voltage electric wire.

You have to pay attention. It's not a simple war, and it doesn't always generate simple stories. But Yon provides the back story you need for context. And if you read Yon's latest report, entitled (without melodrama, but for a damned good reason) "The Final Option," out loud in an empty room, it will eventually, gradually raise the hair on your arms and the back of your neck, the way Hollywood thrillers wish they could do. You might well be afraid to touch a door-knob after reading this report.

There's enough polish to make his writing flow smoothly and seem effortless; and that's deceptive, of course, because that's the kind of polish that actually takes hard work and real talent. But I have the feeling that he's a willing conduit for this story, less a creator in his own right than a faithful conductor of powerful emotional currents bundled in a tough sheath of nitty-gritty facts.

The sentence I've extracted to use as the title of this post, for instance, isn't Yon's dramatic re-creation of something he heard about. It's part of what he saw happen. I could blog for another 50 years and never be in a position to write a sentence that powerful. The photos aren't what some Reuters stringer lucked into; they're what Yon saw through his own viewfinder before his finger pushed the button, and they're every bit as superb as the writing. In fact, in an absolutely literal sense, Michael Yon's camera became a crucial part of this story.

If you've ever given even a passing thought to paying for something you've read for free on the internet — just because you can afford to, and it would be right to, and because the person who wrote it actually has earned a tangible indication of your appreciation, and you don't want to be a greedy tick all your life — then go hit Mr. Yon's tip jar. Whatever you can spare, even if it's just five dollars. It'll take maybe 90 seconds, or less if you already have a PayPal account.

We need to know this stuff, and we damn sure are never, ever, in a million-trillion years going to get it from the mainstream media, and we can't expect to keep getting it from Mr. Yon unless we make sure he can afford to keep working. You could go buy a movie ticket that puts a couple of bucks into some Hollywood nut-case's pocket so he can preach at you from the next Academy Awards ceremony about how crappy Americans are, and at the end of the movie, you wouldn't be any smarter, nor much entertained, and you might even feel sort of greasy. Or you could put the price of that movie ticket into Yon's tip jar and feel not only like you've gotten your money's worth, but, well, proud about the whole dang episode (including your itty-bitty part in it).

If you're sick and tired of feeling confused and depressed and overwhelmed when you read about the war, then read Yon's work. Whatever your views are on the Iraq War, I don't think you can read this stuff without being amazed at the soldiers and Marines whom Yon regularly writes about, and amazed at him for writing it.

Posted by Beldar at 12:47 AM in Global War on Terror, Mainstream Media, Weblogs | Permalink | Comments (1)

Saturday, June 02, 2007

"Oh, really? I had no idea he's a 'name partner' in a Houston-based law firm. 'Who & Giuliani,' didja say?"

I've read lots and lots in the last few months about Rudy Giuliani, and from what I know of him, I definitely like the man. Considering him as a presidential candidate, I don't agree with him on every issue, but I've never seen a candidate with whom I agreed on every issue. I'm flirting with Fred; but if Rudy ends up being the Republican nominee, I won't have any hesitation giving him not only my vote, but my enthusiastic support.

GOP presidential candidate Rudy GiulianiGiuliani's a lawyer, so in sizing him up, I'm particularly interested in his legal career. And he's gotten lots and lots of attention, appropriately, as the former United States Attorney for the Southern District of New York.

But I would wager that if you asked 100 registered, rock-ribbed, but non-lawyer Republicans around the U.S. what Rudy's been doing with his law license, if anything, since the end of his tenure as the Mayor of New York City, not more than one or two of them (if that many) could tell you that he's now a name partner in a major Houston-based law firm with "approximately 400 lawyers practicing in nine offices worldwide":

Bracewell & Giuliani LLP. Ya know 'em?

I do. But unless you're from Houston, or you're a Texas lawyer, or you're an out-of-state lawyer who's just happened to bump into them on a case or a deal with a Texas connection, you probably don't.


I've known of the firm since I was a student at Texas Law School in the late 1970s because Bracewell & Patterson — as they were known until 2005 — was indeed one of the major Houston-based law firms back then, and it still is now. In terms of size, prestige, revenues, client list, and most of the other objective criteria that distinguish law firms from one another, it was then — and still is now — squarely situated in the second tier of first-rate big, full-service firms. Objectively, it's still a notch behind the traditional "Big Three" of Houston (Baker Botts, Vinson & Elkins, and Fulbright & Jaworski). But that's still very fine company to be in, and hanging in there with that crowd for several decades, despite market pressures that have toppled more than a few roughly comparable firms, is itself no small feat. And if you were to assume that Bracewell (as it was then generally called, and still is now) wasn't competitive on a day-to-day basis with the Big Three — fighting for the same clients and matters, handling the same kinds of deals and lawsuits, recruiting the same caliber of law students — you'd be badly mistaken. Bracewell was then, and still is, a damned good law firm.

But Bracewell wasn't, and isn't, a nationally famous one — not even now that its new second-named partner is one of the most famous lawyers in the United States.

As I recollect — and I haven't gone back to research it, I'm just going from memory — Bracewell was actually one of the "early adapters" in trying to open (or, as more often happens, acquire by merger) a New York office sometime in the mid-1980s. The big Houston and Dallas firms had long had at least small outposts — for lobbying and regulatory agency work, mostly — in Austin and Washington. But in the 1980s and 1990s, they became vicious competitors of one another, and of out-of-state firms, in trying to grab dominant positions throughout Texas. Those intra-state skirmishes continue to this day, with the firms originally based in Houston, in general, having done a somewhat better job expanding into Dallas (and the smaller Texas cities like San Antonio and Austin) than vice versa. In focusing on New York so early, though, Bracewell was definitely bucking the trend among its major Texas competitors — but with what success, I honestly don't know.

New York is a tough nut to crack — the most obvious out-of-state place where your big home-state clients are likely to need you (in addition, perhaps, to Washington), but definitely the toughest place to break into in a big way. It's the easiest place to drop a whole load of money on overhead. The band of lateral partners you lure away today from an existing NYC firm may turn out tomorrow not to have had such a tight grip on that book of business as they and you thought. And the competition among the firms that have been knife-fighting each other (metaphorically ... well, mostly) in Manhattan for the last 100+ years is just brutal.

From 1989-1991, I was a partner in the Houston branch office of a New York-based mega-firm — Weil, Gotshal & Manges. And without intending any insult whatsoever to any of the fine firms from not just Texas, but all other American cities, who'd tried to compete with the NYC big boys on their home turf, I think I can say with confidence that my New York partners back then hadn't lost any sleep worrying about losing their New York-based business to firms from Houston, Chicago, or LA — no more than the Yankees or the Mets spend time worrying about competition from, well, Class A farm teams. (That's mean to say, and that's not at all a fair analogy in terms of the quality of lawyers or legal work you find outside Manhattan. But that is how most of the New York big-firm lawyers I've known actually feel.)

Likewise, while I'm sure some non-NYC-based firms have made some decent profits from time to time from their New York branch offices, I'm not aware of any of them who've just hit a monster home run there, even today. Many are the out-of-town firms, both from Texas and elsewhere, who've opened NYC offices with champagne and press releases, then quietly had to sublease their office space (at a loss) a year or two later as they slunk home licking their wounds. According to the famous song, If you can make it there, you'll make it an-y-where. But the simple fact is: A great many out-of-town law firms who've "made it big" not only in their own home towns but also in some other tough markets, nevertheless haven't "made it big,"  or even made it at all, in New York, New York.


The Houston Chronicle's in-house law blogger, Mary Flood, writes today about Bracewell & Patterson's Giuliani's reaction to the most detailed piece I've seen in the legal press about the courtship between Giuliani and the firm, and their relationship since he joined  it (link in original):

This American Lawyer cover story has long been awaited and maybe even feared by the folks at Bracewell & Giuliani. They've known it was coming for months. The post-publication reaction at the firm seems to generally be positive. Managing partner Pat Oxford sent out an e-mail saying the story was basically OK with him.

It's a long, easy-to-read and nicely detailed report on how Houston's Bracewell & Patterson courted and joined forces with now-presidential candidate Rudy Giuliani.

And Ms. Flood is right. Susan Beck's article for the American Lawyer is indeed a good piece of reporting, with enough "inside baseball" to be interesting to those of us in the profession, and it contains the obligatory references to Karl Rove and presidential fund-raising from Texans that will set keep the dKossacks slavering and howling. The article is easily understandable by, and of ample interest to, non-lawyers for the most part. If you want to become thoroughly knowledgeable about Rudy Giuliani's career history, and especially his history as a lawyer, then you ought to include this article in your "required reading" list.

But really, there's nothing too surprising. You want it in two sentences? Bracewell wanted to "enhance[ its] 'overall patina.'" Rudy, in turn, wanted to find a good law firm whose people he liked well enough, and who were willing to accept a wee bit of his actual legal work, plus access to his name, reputation, and contacts, in exchange for some seven-figure folding money (along with a few jobs for his entourage).

It's just market capitalism — a set of arms-length, legal, not too obvious but not needing to be hidden transactions between willing buyers and sellers. Both Giuliani and the Bracewell lawyers will readily plead guilty to the charge of being motivated, capitalistic profit-maximizers. That "patina" quote from Bracewell's managing partner particularly tickles me, because I associate that word with patent leather shoes, which in turn I associate with the evocative, but odd and dated phrase, "white-shoe law firm." And if, as the article speculates, Rudy's been pulling down somewhere between $1-$3M per year from the deal, well, that is indeed a lot of money; but it's actually on the low end of "senior partner who's a major rainmaker" money for the best big firms in either Houston or New York.

Frankly, the clients and business Giuliani has brought to Bracewell, the fees it's charged them, and the partnership distributions Bracewell has made to him have undoubtedly all been transactions which everyone involved has known were certain to come under multiple microscopes — wielded by the mainstream press, political opponents in both parties, and both hemispheres of the blogosphere — at least by late 2007 and early 2008. Bracewell — whose managing partner aptly refers to the past and likely future inquiries as "cavity searches" — has, I'm sure, carefully documented all of its conflicts-checking, for example. Everyone's probably been duly sensitized, re-sensitized, and probably over-sensitized, and they've been walking carefully on a plush carpet of eggshells in every matter having anything to do with Rudy and his crew. If there are skeletons in the Giuliani closet, they're far more likely to be in his non-legal (which is not the same thing at all as saying "illegal") business ventures, "Giuliani Partners LLC, and its two units, Giuliani Security and Safety LLC and Giuliani Capital Advisors."


Could some New York-based firm — someone with a big name locally there, and a bigger name nationally than Bracewell — have offered a sweeter package to land Giuliani for one of the home teams? Oh, sure; and apparently one or two nibbled, according to the American Lawyer article. But Bracewell ended up being the gal whut Rudy chose to bring to the Post-Mayor Law-Practice Dance. And he sez, at least, that he's still willin' and eager to keep dancin' with her, if dances at the White House don't ever fill up his dance card. I have no reason to think Rudy's being insincere in this quote:

"There's not a single negative in it," he said in February about his tenure at Bracewell. "If I do not win, I would like to stay here for the rest of my life." ...

But do I think that's actually likely even if Giuliani doesn't get the GOP nomination, or if he loses in the general election? Naw, not very. You can insert your pre-packaged joke about the number and nature of Rudy Giuliani's literal marriages here. But his name partnership at Bracewell is plainly a marriage of convenience for Giuliani and Bracewell both — and it will last exactly as long as it stays mutually convenient.

Indeed, one thing the American Lawyer article got slightly off, I think — besides the groaner of a title, "Lone Star" — was in this introductory paragraph:

When Houston's Bracewell & Patterson called a press conference at the Waldorf-Astoria Hotel two years ago to introduce its new partner, Rudolph Giuliani, the firm's lawyers beamed. Their trophy mate was a real catch, someone who would bring instant name recognition for Bracewell's fledgling New York office. Like a good traditional bride, the firm changed its name to Bracewell & Giuliani.

A traditional bride would have put the Giuliani name first. The most obvious precedent was New York's Nixon, Mudge, Rose, Guthrie & Alexander, where Tricky Dick hung his shingle between being VPOTUS and POTUS, and which was "Mudge Rose et al." before and after.

But Bracewell didn't make Rudy its first-named partner, and for good reason. If — or more likely, when, according to his own wishes and their best wishes for him! — he leaves the firm, they'll go back to "Bracewell & Patterson," or "Bracewell & Somebody," or just plain "Bracewell."

I'm pretty sure Bracewell hasn't ordered more than one year's worth of office letterhead at a time in their new "married name" anyway. But then, not many other big law firms do that these days, either.

Posted by Beldar at 07:24 PM in 2008 Election, Law (2007) | Permalink | Comments (1)