BeldarBlog

Video proof that Fred Thompson can and will respond instantly and in kind to sneak attacks on American soil

Fred defends aide Bob Davis from Christine Byun of ABC and John Bentley of CBS in snowy Iowa.

The GOP nomination continues to be wide open. A campaign contribution right now to any of the major GOP candidates except Gov. Romney (who can self-finance and has indeed done so) is likely to have more impact than anything you've given to any national political campaign in the past. If Fred's your guy too, now would be a very good time to open your wallet, even if it's only for $25.

Christmas 2007 musings on politics and history

Journalist Matt Bai is a clever fellow and a good writer. His coverage of the Left has not infrequently been "critical" both in the sense of offering a critique and of offering an unflattering portrayal, and that's true too of his lengthy essay in today's NYT Sunday Magazine entitled The Clinton Referrendum. But sometimes, for those of us well-educated grown-ups not deeply embedded in the Left — and I use the word "embedded" in exactly the same sense it's used to describe modern war correspondents in Iraq who live, sleep, and eat with the troops of a particular military unit — Bai's most telling observations are the ones to which he himself is entirely oblivious.

To test how many of you have the same reaction I do, I won't use italics or bold-face to set it off, but here's one, which I include among quite a bit of before-and-after contextual material that gives a sense of the intended subjects and scope of Bai's essay:

... [Bill Clinton] almost single-handedly pulled the Democratic Party back from its slide into irrelevance. Liberals swallowed hard and endured Clinton’s pragmatic brand of politics because they assumed that Clinton’s success would beget more success and, ultimately, a more progressive government.

Of course, it didn’t work out that way. First came the election of 2000, which Democrats believed was swiped from their grasp with little protest from the party’s Washington leaders. Next came compromises with George W. Bush on tax cuts and education reform. Then came the back-breaker: in the vote on the Iraq war resolution in 2002, many Democrats in Washington — including, most conspicuously, Hillary Clinton, then an unannounced presidential candidate — sided with President Bush in a move that antiwar liberals could only interpret as a Clintonian calculation to look tough on terror. If so, a lot of good it did; Congressional Democrats were demolished at the polls a few weeks later.

After that defeat, many longtime liberals, often coming together in the new online political space, began to voice a different thought: What if they had gone along with Clintonism for nothing? What if the path to victory lay not in compromising with Republicans but in having the fortitude to fight ruthlessly and to defend your own convictions, no matter how unpopular they might be? This was the moment in which Howard Dean’s explosive presidential campaign — and the grass-roots progressive movement it spawned — began to flourish. It was grounded in the idea that Clintonism, far from representing the postindustrial evolution of Democratic thought, had corrupted the party of the New Deal and the Great Society — and, taken to its logical end, had led Democrats and the country into a catastrophic war.

Even before they knew for sure that she was running for the presidency, Hillary Clinton’s top aides had to figure out how best to handle the growing tumult inside their own party. As a senator, Clinton had been, if anything, more centrist than her husband; she worked across the aisle with the likes of Bill Frist and Lindsey Graham, and her voting record on foreign policy placed her among the most conservative Democrats, only a few paces to the left of Joe Lieberman. There is no reason to think such stances on the issues didn’t accurately reflect Hillary’s convictions, but they had the added bonus of positioning her as eminently moderate and “electable” — both in New York State, where she won 67 percent of the vote in her 2006 re-election, and in the rest of the country.

The party, however, seemed to be moving in a different direction....

If one plugs the phrase "catastrophic war" into Google, its mysterious search engine algorithms will indeed rank references (mostly from politicians and pundits) to the Iraq War very prominently among the top few dozen returns.  But the inhabitants of Carthage during the Third Punic War (149-146 B.C.) would certainly have sooner been able to grasp the technology behind internet search engines than they could the mind-set of those who could label, from an American point of view, the Iraq War as "catastrophic." There are no more Carthagenians, because after their besieged city of between a quarter and a  half million people was finally captured by the Romans, the 50-odd thousand Carthaginians remaining alive were all sold into slavery and the city was methodically leveled back to pastureland. That was a "catastrophic war."

From the perspectives of Germany, the Soviet Union, or the European countries in between or around the two, World War II was certainly a catastrophic war. There wasn't just "regime change, although there was certainly lots of that. Nation-states were erased from the map; others were partitioned and/or occupied by foreign armies for decades thereafter. And tens of millions of soldiers and civilians were slaughtered. Even the United States, which unquestionably emerged victorious and, relatively, unscathed by World War II, suffered thousands of soldiers killed in battle in a single day, sometimes for obscure specks of coral so lost within the vastness of the Pacific Ocean that Americans both then and now couldn't accurately locate them on the globe within a distance of 10,000 miles.

Any rational student of history would conclude that America has had at most only one truly "catastrophic war" — that being its own Civil War, in which something on the order of 620,000 Americans were killed. Yet most Americans, and most serious students of history around the world, think that the "catastrophe" of that war would have been if the Union had been permanently sundered, instead of only temporarily split. Even the grim KIA figures from the American Civil War are dwarfed by the death toll from the Battle of Stalingrad alone from World War II. And there were dozens of individual battles in either World War II or the American Civil War in which more American soldiers were killed in one single day than have been killed in battle in Iraq and Afghanistan in all the days put together since 9/11/01.

If it's your husband or son or sister who's killed or wounded, then of course any war may be "catastrophic" for you and your family. For some (blessedly small) number of Americans, the rescue that Ronald Reagan effected on the island of Grenada in 1983 was a "catastrophic war."

But from a national point of view, "catastrophic war" — to have any meaning at all — seems to me to be a term that ought to be limited to those wars in which, at a minimum, the country has incurred comparatively large numbers of killed and wounded, using other actual wars as a basis for comparison. And it probably ought also be limited to those wars that a country has actually lost.

Such is the breath-taking historical ignorance of the Democrats, however, that their candidates, their partisans, and the members of the press who cover them can all presume — without giving the matter a second thought — that the Iraq War is a "catastrophic war," and that all further interesting debate and analysis, and all primary elections and party nominations, must proceed from that premise of fact and judgment.

So the question I'm left to ponder — as I prepare for a quick holiday trip back to my hometown, where I'll give thanks this Christmas for God's boundless blessings upon me, my family, and my nation — is this: I think America can, if need be, survive the occasional presidency like Jimmy Carter's or Bill Clinton's. But is the historical ignorance of the Democrats becoming so pronounced that it's beginning to run the risk of becoming "catastrophic ignorance"?

I'm With Fred

I.  Why now?

There has never been, nor will there be, any question that I will vote against the Democratic Party's 2008 nominee for president. And because I don't care to waste my vote on a protest, it will be cast for the GOP's nominee, whoever that turns out to be.

Moreover, I'm not, and have never been, among those who thought that a Democratic win in 2008 is inevitable. To the contrary, notwithstanding Dubya's low polling numbers, I'm convinced that the GOP's chances are at least as good as his were in 2000 or 2004, and that every single one of the potential Democratic nominees is eminently beatable. Indeed, depending on intervening events, some of them may turn out to be beatable in a landslide; and I'm convinced that whether it's Hillary, Obama, or Edwards, the Dems are going to feel serious buyers' remorse on the day after their nominee is finally decided. So I think that it does matter — indeed, that it matters a whole lot — who the GOP picks from among the present major candidates.

I've been genuinely, and intentionally, undecided among most of those major GOP candidates until now. But by March 4, 2008, when votes including mine will be tallied in Texas' primary elections, the GOP nominee may already have been effectively decided. That's far from certain — the possibility of a genuine national nominating convention, brokered or otherwise, is no longer a silly notion — but the possibility of my own primary vote becoming moot is still high enough to impel me to publicly express my preference and open my checkbook now, in hopes of affecting things even slightly in other states with earlier primaries.

Thus go I on record today: Fred Thompson is my guy for 2008.

II.  Why Fred?

On every issue I care deeply about, Fred Thompson is a genuine, thoughtful conservative — without any major exceptions or doubtful areas that I have to forgive or ignore. And in the simplest possible words: I trust him because he's demonstrated that he has a real political spine.

Fred's my "Goldilocks candidate": On national defense and foreign policy generally, on taxes (and, in particular, income tax reform), on spending, on judicial appointments, on immigration, on increasing the size and capacities of the military, and on a host of other issues, he's "Just Right." And not only do his present views and positions match my own, but they've been consistent views throughout his career, so I don't have to worry that he'll be easily talked out of them through some rationalization in the name of "expediency."

Ironically, Thompson's political spine has been most evident in some of the very same episodes that his detractors will try to spin as grounds for conservative alarm. As a senator, Thompson cast lonely, politically unpopular votes grounded on a genuine understanding of and reverence for federalism, for example, that his political opponents have characterized as being "anti-tort reform." I could write for pages about all that, but let me boil it down to a sentence: Fred Thompson has far more in common with John Roberts (for whose SCOTUS confirmation he served as sherpa) than with John Edwards, and if you can't tell the difference, you ought not be voting in the GOP primaries anyway.

Even my biggest reservation about Thompson actually reflects well on his political spine: If simply getting elected and staying atop the polls were what Fred Thompson were all about, he'd be a much better candidate, but ultimately a much worse president. For better or worse, he's running his campaign the way he believes it should be run — meaning he wasn't stampeded into an early start, and there are definite limits to the indignities that he'll willingly suffer for the sake of retail campaigning. His abrupt refusal to participate in the recent "show of hands on global warming" in the televised Iowa debate, for example, was the act of a self-secure grown-up with a serious sense of statesmanship. Fred may be a good old boy, and indeed he's charming as heck, but he's just not a panderer.

Thompson has come a long way from a very humble start, so it's wrong to say that he's unambitious. But he does lack the overweening, compulsive degree of personal ambition that's characteristic of many presidential candidates in both parties. Too much ambition is a bad thing, and Hillary Clinton, in fact, is an example of pathological ambition — a trait she entirely shares with her husband (while utterly lacking his charm). But during the late summer and fall, prompted at least in part by Fred's critics among the pundit elites, I nevertheless wondered if Thompson had "enough" ambition. And indeed, if this were like 2000, in which a single, obvious GOP front-runner was cruising to the nomination with massive funding, and without serious missteps or questions about his candidacy, then the amount of fire in Fred's belly might be inadequate for him to secure the nomination.

But historically, Thompson has been a strong closer, and he's gotten sharper over the course of the fall. The GOP race — as evidenced by the remarkable Huckabee surge (which I am convinced will be followed with a Howard Dean-like collapse) — could not possibly be more wide open. I'm satisfied that Fred has plenty enough ambition to win the nomination in these particular circumstances. And at that point — when he's past the humiliating cattle-call debates and onto a national stage from which tedious retail politics become less key — I'm convinced that Thompson will rise ever more enthusiastically to the challenge, and that he can be at least as enthusiastic and effective a campaigner as Ronald Reagan was in 1976, 1980, and 1984.

III.  Why not Mitt?

The more I've learned about Mitt Romney, the more impressed I've become with him. And it's going to take a few paragraphs to explain why he's not my guy this time around.

Basically, as I've aged, I've gradually come to treasure genuine resolve and commitment over short-term expediency. As a young adult, I was a slow and late convert to Reaganism. I supported and voted for Gerald Ford in 1976, when I viewed Reagan almost with alarm as an "extremist." I supported George H.W. Bush in the 1980 primaries, and I still thought that he was the better man of the two when they beat Carter-Mondale. To this good day, I'm still a fan of Bush-41: his assembly of the coalition that drove Saddam out of Kuwait in the Gulf War remains the single most impressive feat of international diplomacy in modern history, and I believe he is a competent and decent and honorable man who would be better appreciated now if he'd won and served out a second term.

But Poppie ran for election in 1988 on the famous "read my lips" pledge of no new taxes — and he broke that pledge in 1990. He genuinely thought he had compelling grounds to do so; he let Democrats and his own advisers talk him into it; and he therefore rationalized a compromise that violated what he had portrayed as, and what many voters genuinely believed had become, one of his fundamental, core principles. He also over-relied on minions to select and vet SCOTUS nominee David Souter — an indefensibly reckless and indisputably awful-in-hindsight nomination. It's not that Bush the Elder's heart was in the wrong place, but rather, that it wasn't balanced by a stiff enough political spine: he wasn't stubborn enough, and he was too flexible. He was certainly not the kind of entirely spineless, calculating, cynical snake oil salesman that Bill Clinton exemplifies, but Bush-41's dazzling résumé and political history (e.g., his own conversion to pro-life from pro-choice as Reagan's running-mate) always clearly telegraphed that he was more about the perceivedly practical than the thoroughly principled.

Mitt Romney reminds me of George H.W. Bush in many respects. I believe he's a good man, one who's clearly energetic and capable. But "Romneycare" scares the hell out of me — not just because I think it's a poor template for national health-care reform, but because it bespeaks a willingness to make and justify compromises with his political enemies that looks an awful lot like Poppie Bush on taxes in 1990. Mitt Romney has been a political pragmatist, not a political idealist, and it's probably true that the former is the only sort of Republican who can be elected governor of Massachusetts. But that's also a damned good reason why the GOP generally ought not look to Massachusetts as a breeding-ground for its national presidential nominees!

Mind you, it's not that I actively distrust Romney, but rather simply that I trust Fred more. The objective consistency of Fred's record comforts me in my subjective evaluation of his political backbone, and I haven't had to be talked into accepting that Fred's a conservative in his bones. Indeed, Romney's my second choice behind Fred, and I'd be perfectly content to see Romney as the GOP's Veep nominee, with him playing fully as active a management role in a Thompson Administration as Dick Cheney has played in Dubya's or as Bush-41 played in Reagan's.

IV.  Why not McCain, Giuliani, or Huckabee?

John McCain is a genuine American hero, and he's been a thoughtful and steady pillar on matters of national security in particular — if that's defined to exclude security threats from our porous borders. But he, too, is a politician of "expedience" on immigration and far too many other areas — most prominently, as the leader of the Gang of Fourteen on judicial nominees and, of course, the abomination that is McCain-Feingold. I'm still offended, and doubtful of McCain's presidential temperament, based on McCain's May 2007 incident with my home-state senator John Cornyn, who was very professionally and effectively representing the position of many concerned Texans, including me: "'F**k you! I know more about [immigration] than anyone else in the room,' shouted McCain at Cornyn." I'll vote for McCain and support him if he gets the GOP nomination. But I cannot support him in the primaries, and I still think that he's extremely unlikely to be the GOP nominee.

Rudy Giuliani is a tough, smart S.O.B., and the country could do much worse. I don't doubt Rudy's backbone, but I'm still concerned about exactly where it's located. Most of the time, he would probably govern as a conservative. But he isn't one — he's just not, he's too liberal on too many issues to be considered, overall, as anything other than a political moderate who's in the left wing of the Republican Party. If I were more pessimistic about the party's chances in the general election or more impressed by any of the Democratic candidates, I might be persuaded to support Rudy on "electability" grounds, and I won't be distressed if he gets the nod. But I can't support him over Thompson.

And as I mentioned above, I think Huckabee won't hold up to intense scrutiny, and his campaign is likely to crash as fast as it has boomed. I was much amused and originally impressed by Huckabee's humor. But I've now concluded that his weak grasp of foreign policy — compounded by his subsequent incredible disingenuousness in claiming not to owe Pres. Bush an apology after twice referring to Dubya as "arrogant" and guilty of a "bunker mentality" — is by itself sufficient to make him a candidate I can't support in the GOP primaries. And I have other serious and growing doubts about Huckabee as well.

V.  What's next?

Due to pressing professional commitments, I'm still unlikely to be blogging regularly through the remainder of this year or January. But I may post a few observations about the political race from time to time, and/or such other whimsy as the muse dictates and time permits.

In the meantime, there's now a Fred08 contribution form on my sidebar. With the wide-open races in both parties, but the front-loaded primary season nearly upon us, the month of December is obviously an awfully good time for you to make a contribution, in terms of getting lots of potential bang for your political buck in the states that will decide the nominees. Whether it's to Fred or one of the other candidates, I hope you'll consider contributing.

Huckabee confirms worst fears re his foreign policy inexperience

I'm taking a very short break from my blogging sabbatical just to express a moment of disgust:

This — from a foreign affairs white paper purportedly written by GOP presidential candidate "Michael D. Huckabee" and entitledAmerica's Priorities in the War on Terror: Islamists, Iraq, Iran, and Pakistan" — is just awful:

Summary:  The Bush administration's arrogant bunker mentality has been counterproductive at home and abroad. American foreign policy needs to change its tone and attitude, open up, and reach out. In particular, it should focus on eliminating Islamist terrorists, stabilizing Iraq, containing Iran, and toughening its stance with Pakistan.

The first two sentences (emphasis mine) are Kumbaya diplomacy at its most deplorable, and if the candidate really believes them, then he's far too naïve to become president — at least as the GOP nominee. Anyone who really thinks that the problems of the world boil down to American unwillingness to "open up [and] reach out" is an irredeemable idiot.

Unfortunately, the balance of the article after that summary is also riddled with platitudes and soft-headed mush. Some of the platitudes are nominally "conservative" in tone, and Huckabee gets a few substantive points right, but that's almost (it seems) by accident, or in contradiction to other themes. His Obamaesque policy toward Pakistan is reckless and feckless (and even if it were wise to pursue, it would not be wise to telegraph). I agree with many (but not quite all) of the criticisms of this paper leveled or quoted by Dr. James Joyner on Outside the Beltway, and I found another jaw-dropper there in this NYT quote:

At lunch, when I asked [Huckabee] who influences his thinking on foreign affairs, he mentioned Thomas Friedman, the New York Times columnist, and Frank Gaffney, a neoconservative and the founder of a research group called the Center for Security Policy. This is like taking travel advice from Little Red Riding Hood and the Wolf, but the governor seemed unaware of the incongruity.

Friedman is a well-meaning crackpot who just barely manages to beat the stopped-clock accuracy rate (twice a day), and with even less profundity. I guess this means that Huckabee was one of several dozen Times Select subscribers. So is he also going to be influenced in the White House by Maureen Dowd?

I know that Huckabee is having to assemble a foreign policy platform on the fly and without any substantial experience in the field. But the fact that he's chosen to engage in mindless (and in my view, very badly unjustified) Bush-bashing in the lead sentences of his most important foreign policy statement troubles me a great deal. He literally doesn't know what he's talking about himself, and he's obviously repeating things from others who are either equally as clueless or else affirmatively hostile to at least some of the basic tenets that have characterized Republican presidential foreign policy for many decades.

I want a GOP candidate to identify with and promise to emulate Teddy Roosevelt, not Franklin. This article is enough to ensure that Huckabee won't get my vote in a GOP primary.

Jindal's prescription for the GOP

From his interview with Fox News' Chris Wallace on Fox News Sunday this morning, Gov.-elect Bobby Jindal:

WALLACE: We've got about 45 seconds left. There's a lot of talk — and I don't know whether you like it or hate it — that you're a new GOP rock star. What lesson do you think your party should learn from your campaign and your success in Louisiana?

JINDAL: Well, my primary obligation is obviously to Louisiana. But I think the reason Republicans did so poorly in 2006 wasn't that the country stopped being conservative, it was that the party stopped being conservative. It's not enough to want power for the sake of wanting power. We waged here a principled campaign against corruption, against out of control spending [and] pledged to cut taxes. I think as the Republican Party gets [back] to its principled roots, it'll see more enthusiasm among voters. Voters don't want you to pretend to be an imitation of your opponents. They want you to stick to your principles, and to be honest — even if you disagree with a voter, tell 'em where you stand. So if we'll get back to our roots — against the earmarks, the pork barrel spending, the bridges to nowhere — if we will get back to not just covering up corruption, but standing for the strongest ethical standards, I think the voters will reward that.

Jindal is a rock star. He's got his work cut out for him in Louisiana. But if he can do a good job there, his future political potential is boundless.

And I entirely agree with what he said in this answer, but I would go farther: It's not enough to put thin Republican clothes on Democratic memes.

To take one of the three most conspicuous domestic policy examples (tax reform and social security reform being the other two): We already can be absolutely certain that the Democratic candidate in 2008 will be pushing for a radical change in our national health-care system. And in percentage of voter terms, almost no one in America is satisfied with the current system (including me). Even though improvements can still be made, the quality and availability of health care (as distinct from health care insurance coverage) in the United States is by far the best that it's been at any time or any place in the history of the world. But our system of linking health insurance coverage to employment through (mostly large) businesses has effectively unlinked the entire system from market economics — and efforts to combat that problem via "managed care" have generally resembled the Soviet Union's management of its steel industry circa 1953.

Radical change is needed — but not to a single-payer government (or government micro-directed) system like the Dems want. Nobody — not even Bill or Hillary Clinton — is smarter than the market. Merely tacking on symbolic tax deductions or even tax credits to a program claimed to "expand personal choices" isn't going to remotely address the enormous economic distortions already built into the existing system — in which economic decisions and the resulting "marketplace" are continuously distorted by decisions made by insurance-covered patients and their doctors (mostly, really by the doctors) without any regard for those decisions' cost-to-benefit ratio.

Simply put, the existing system can't be fixed; it must be replaced. And that is going to mean (in the short term) the literal destruction of vast economic domains belonging to those whose livelihoods are tied up in the maintenance of the existing system. Decoupling insurance coverage from employment is actually a far more bold proposition than anything Hillary or the other Dems are proposing — but it's a return to a traditional Republican and conservative value, i.e., the paramount importance of individual decision-making in a genuinely free market environment.

Why Mike Huckabee could be on the 2008 GOP ticket

I still plan to blog at greater length, later this week, about my most-current views of the race for the 2008 GOP presidential nomination. But here's a teaser:

I'm now convinced that the party needs former Arkansas governor Mike Huckabee to be in one of the top two slots (the only remaining questions being, which one, and with whom).

An entirely sufficient reason: Having this ordained Baptist minister on the ticket is likely to make humorless lefties' heads explode.

Evidence: This post, from the normally good-humored Jeralyn Merritt, entitled "Huckabee: No Health Care for Dirty Hippies," and the forty-two comments prior to mine — none of which could recognize a terrific joke by Gov. Huckabee during Sunday's GOP debate in Florida that even the New York Times' debate transcriber caught.

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

UPDATE (Wed. Dec. 5 @ 8:30 pm): In the weeks since this post was written, I've continued, by and large, to be impressed by Huckabee's campaign skills. And I still would consider him for the second spot on the GOP's 2008 ticket. Enough serious questions have been raised about him, though — in particular, regarding his collaboration with tax-and-spend Democrats and soft-heartedness with pardons as governor, and regarding his lack of experience but worse, interest in serious foreign policy ideas — that I have grown unenthusiastic about him as a prospective top-ticket nominee. I've changed the title of this post from "needs to be on the 2008 GOP ticket" to "could be on the 2008 GOP ticket."

There are ways in which I continue to be dissatisfied with Romney, Giuliani, and Thompson in small to medium-sized measures, and with McCain in several large ones. But I am definitely, positively never going to be one of those "I'd rather stay home" Republicans come either primary or general election days. And, probably, around New Year's, I'll announce my own considered preference for the nomination.

"Don't Tase me, bro!" incident report due today

I haven't previously been able to find any sort of update on the disposition of the criminal charges that were filed against University of Florida student Andrew Meyer after he resisted arrest while being removed from a John Kerry rally. However, the UF student newspaper, The Alligator, reported on Monday that "[t]he investigation by the Florida Department of Law Enforcement into [Meyer's Tasering] is complete, but the report isn't available to the public yet." A university spokesman is credited with predicting that the 300-page report will be made public today (Wednesday).

As for the criminal charges, the article says: "The State Attorney's Office will make the final judgment on Meyer's criminal charges after it reviews the department's findings." Although cryptic, this suggests to me that the charges may have been put on hold pending the release of this report by agreement of everyone concerned. If the report is critical of the campus police's reaction, however, that conceivably might trigger a voluntary reduction or even a dismissal of the charges.

I continue to predict that the use of the Taser will be found to have been appropriate, and that at least the resisting arrest charge will be deemed appropriate for the prosecution to pursue. But I presume that short of a complete voluntary dismissal by the prosecution, "final judgment" will actually be made by a judge or a jury, either pursuant to a plea bargain or the results of a trial.

In the meantime, a Palm Beach newspaper reports that sales of "Don't Tase Me, Bro" merchandise (sporting graphics like the one I've reprinted here from Cafe Express) continue to be "shockingly profitable."

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

UPDATE (Thu Oct 25 @ 6:20pm): My thanks to commenter rfy for a link to the report, which is actually only 17 pages (presumably the 300 estimate included backup documentation). My prediction was correct:

The report found that the event organizers were within their rights and had ample justification in ordering Meyer to be removed, and that the campus police made reasonable choices in dealing with Meyer's resistance, including in the use of the Taser in "drive-stun" mode (using direct contact, rather than firing the prongs). It provides more detail than I'd previously read about Meyer's previous campus disruptions, along with further circumstantial evidence that he intended to provoke this incident and arrest.

According to the UF student newspaper, "Eddie King and Nicole Lynn Mallo — the two officers who were suspended with pay after the event — are back on duty, UF President Bernie Machen wrote in an e-mailed statement." My guess is that they'll get a fresh round of applause the next time they walk into the campus police station.

This report, of course, will be dismissed by Meyer's defenders on grounds that it's biased as coming from another law enforcement source, and it should indeed be read with awareness of that fact. But that doesn't mean it's wrong, and I don't think it is.

My guess is that Meyer is going to have to do some non-trivial jail time if he wants to plead out; and if he rolls the dice and insists on a jury trial, my prediction is that he's quite likely to be convicted on the "resisting arrest with violence" felony charge, which could mean serious prison time.

Were I Meyer's lawyer, I'd do my best to establish whatever credibility I could for my client's and my willingness to go to trial, and then leverage from that the best plea agreement I could get. I'd try to trade public service and acts of contrition for as much jail time as I could, and I'd try to negotiate for flex-time service that would permit Meyer to serve his sentence on weekends or holidays so that he could stay in school. That done, I might not Taser young Meyer in my private counseling on whether to take that best offer from the prosecutors, but I would indulge in every bit of verbal arm-twisting and brow-beating that I could manage. My guess is that Meyer and his parents would then fire me and get new counsel who's less candid and more publicity-hungry — someone who'll be happy for the TV time as Meyer's led back in handcuffs after the guilty verdict, at which point the lawyer can shake his fist and valiantly vow to appeal "Against These Fascists All the Way to the U.S. Supreme Court!"

Minnesota trial court rejects Craig's motion to withdraw guilty plea

Sen. Larry Craig's motion to withdraw his guilty plea has been denied. Here's Judge Charles A. Porter's 27-page order, along with the Metropolitan Airport Commission's one-page press release. I'll have more analysis after reviewing the order.

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

UPDATE (Thu Oct 4 @ 2:40 pm): I've now read the order. Craig is toast.

This is an order written by a judge who is very experienced; who knew that what he was writing is likely to be appealed; and who was therefore being very thorough and very careful to do everything possible to make his ruling bulletproof on appeal. He's almost certainly succeeded.

For example, Judge Porter's order recites (page 2 of the .pdf) that Craig "concedes for the purposes of this motion that the facts contained in the Complaint and in the affidavits and statements of the two Metropolitan Airport Commission ("MAC") Police Department officers are true." That is undoubtedly based on a concession sought and obtained by Judge Porter from Craig's counsel during the oral argument. It's the kind of thing that is incredibly important for purposes of a future appeal — but of course, none of the news media who covered the hearing bothered to mention it. The practical effect is that the prosecution's version of the facts hasn't been challenged at all. And any reviewing appellate court won't even consider any contrary factual arguments.

Similarly, the opinion recites (page 7 of the .pdf file) that Craig's lawyers conceded "that when he accepted the guilty plea, Judge Larson had access to the official court file, which included the Complaint." That's doubtless another concession extracted during the oral argument, and it further bolsters the factual worst-case scenario against Craig, while simultaneously expanding and maximizing the fact pattern from which Judge Larson could have found a basis to conclude that the disorderly conduct statute had indeed been violated. This concession renders moot, in other words, any argument that Craig's lawyers made to the effect that there was an inadequate showing in the written motion to accept his guilty plea, by itself, of facts tending to show a violation of the statute.

Mind you, I'm not faulting Craig's lawyers for making these concessions. As a practical matter, they had to do so if they were to maintain any credibility whatsoever. My point is that by nailing these points down,  first at the hearing and then again in the written order, Judge Porter was adding Kevlar to his ultimate ruling for appellate purposes — anticipating, and then pre-negating, what otherwise might have turned into appellate arguments for Craig.

On two subsidiary points on which he had discretionary rulings to make, Judge Porter actually ruled against the prosecution: First, he refused to reject Craig's motion in its entirety as being untimely; and second, he refused to strike the profoundly silly amicus brief filed by the ACLU. Contrary rulings would have given Craig (or the ACLU) something to complain about in an appeal. But they're deprived now of those arguments, and Judge Porter has also demonstrated that he wasn't just blindly following the prosecution's lead or wholly unreceptive to opposing positions. And yet these subsidiary rulings didn't affect Judge Porter's ultimate ruling in rejecting Craig's motion to withdraw his guilty plea. Though timely, Judge Porter concluded that Craig's motion lacked merit; and he spent a page near the end (page 26 of the .pdf) explaining why the ACLU's arguments also lacked merit.

The rest of the opinion just methodically examines and then demolishes every one of Craig's sprawling, sometimes conflicting arguments — often displaying a light sense of irony in the process. For example, after quoting from the petition to enter a guilty plea that prosecutor Renz prepared for Craig's review and signature, Judge Porter examines Craig's argument that his "guilty plea lacked a sufficient factual basis" (page 12 of the .pdf; emphasis mine):

This factual basis contains the requisite date, location, and elements of the offense, but clearly does not describe, in detail, the conduct that substantively supports each element of the offense. The Defendant argues that because the factual basis in the petition lacks detail, he was therefore not aware of the facts  underlying his conduct coinciding with the elements of the offense, or more importantly, that he was not admitting to having engaged in that conduct. This is illogical. The Defendant admits in his post-conviction affidavit that he pled [guilty] in haste in an effort to avoid the public disclosure of the very facts which he now maintains should have been painstakingly detailed in the petition and therefore of record memorializing his admission to specific facts. This Court believes that the Defendant's plea had a more than sufficient factual basis on the face of the petition.

In effect, this is chiding Craig (my paraphrase, not a quote): "Don't be faulting the prosecutor or the court for not rubbing your face in all the sordid details of your crime, Sen. Craig! We were cutting you some slack." But the opinion then proceeds to go through the rest of the conduct in all its detail as revealed in the complaint, lest there be any doubt.

And of course, by the end, there's really not. There never really has been — except in the minds of well-meaning civil libertarians whose zeal to protect gay rights blinded them to the simpler reality that, whether intended as part of a gay cruising ritual or not, an airport traveler's protracted staring into someone else's bathroom stall, and then poking his hand and foot into it to wave at and then rub against that stall's occupant, is just not acceptable conduct in a public restroom.

The opinion also includes an exoneration of both Sgt. Karsnia and prosecutor Renz from any blame or overreaching. It quite appropriately puts all of the responsibility — first for the crime, and then for the guilty plea — directly where it should be, which is to say, directly on Sen. Larry Craig.

What's missing from the opinion? The same damn thing that was missing — inexplicably to me — from Craig's lawyers' written papers: A focused discussion of Minnesota Rule of Criminal Procedure 15.02(3), as made applicable to mail-in pleas by Rule 15.03. In fact, there's no mention of either rule. That may well reflect the absolutely lousy job that Craig's lawyers did of pointing out that these proceedings didn't strictly comply with those rules. But as a result, what I and other legal pundits thought was Craig's very best argument isn't addressed at all. An appellate court would probably conclude, if asked, that Craig has waived that argument by failing to make it more clearly.

And now it simply remains to see whether Sen. Craig plans to become a professional pariah. His chances of successfully appealing this ruling are somewhere below 1% in my opinion; this motion was a farce, but an appeal from this ruling would be nothing but tragic. Will he add "oath-breaker" to his record by continuing to disregard his pledge to resign?

Just quit, Larry. For the sake of your family, if for no one else. Just ... quit.

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

UPDATE (Thu Oct 4 @ 5:10 pm): He says he's staying through the end of his current term (January 2009). As part of the press release, he says: "I am innocent of the charges against me. I continue to work with my legal team to explore my additional legal options."

Bring on the Senate hearings. Roll in the klieg lights. It looks as though columnist Dan Popkey was right in predicting that Craig actually wanted to lose this ruling because it would permit him to continue appeals through the end of his term while avoiding an actual trial. So: The Senate should force that trial upon him, in the context of an ethics hearing. Those proceedings are likely to be many times more nasty than a criminal trial anyway. Heat the tar, gather the feathers, and strike up the band, boys, the circus is coming to town.

A lawmaker who is a convicted lawbreaker says the law's rulings don't apply to him, and such a man can't be permitted to remain in office.

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

UPDATE (Fri Oct 5 @ 3:15 pm): James Joyner very ably fisks Craig's "not gunna resign nyah-nyah" press release.

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

Previous posts on the Craig matter, oldest to most recent:

1. The answer to the "Why was this a crime?" crowd on the Craig matter
2. Craig "reconsidering" resignation; and his chance to withdraw his guilty plea is probably better than Beldar first presumed
3. Has Larry Craig hired the part-time prosecutor who filed the complaint against him?
4. Craig swears that on the date of his arrest, he "decided to seek a guilty plea to whatever charge would be lodged" against him
5. In letter forwarding proposed plea, prosecutor Renz repeatedly reminded Craig of his right to counsel and warned that plea would result in "a conviction for Disorderly Conduct appearing on [his] criminal record"
6. ACLU files silly brief in support of Craig's plea withdrawal
7. Prosecution moves to strike ACLU amicus brief supporting Craig's motion to withdraw guilty plea
8. Of pleas and piñatas: No surprises in prosecution's response to Craig's motion to withdraw guilty plea
9. Craig plans to ditch hearing, but Renz should object to his affidavit as hearsay and force Craig to take the stand
10. Just "one procedural question" for prosecutor Renz as he opposed Sen. Craig's motion to withdraw his guilty plea
11. Is Craig's strategy "winning by losing," counting on colleagues and constituents to confuse "innocent until proven guilty" with "guilty (pending further appeals)"?

Should the C-in-C be able to distinguish hostile from friendly fire?

Sen. Joe Biden (D-DE), in the opening paragraphs of a Wednesday WaPo op-ed entitled "Federalism, Not Partition":

The Bush administration and Iraqi Prime Minister Nouri al-Maliki greeted last week's Senate vote on Iraq policy — based on a plan we proposed in 2006 — with misrepresentations and untruths. Seventy-five senators, including 26 Republicans, voted to promote a political settlement based on decentralized power-sharing. It was a life raft for an Iraq policy that is adrift.

Instead, Maliki and the administration — through our embassy in Baghdad — distorted the Biden-Brownback amendment beyond recognition, charging that we seek to "partition or divide Iraq by intimidation, force or other means."

Yes, damn those Republicans and their Iraqi stooges, always making their misrepresentations and untruths! Why, here's one:

Today, I joined with many of my colleagues in voting for Senator Biden’s plan — slightly different that he’d been presenting it, but still the basic structure was to move toward what is a de facto partition if the Iraqi people and government so choose.

Ah, except that was Sen. Hillary Clinton (D-NY), speaking at the September 27th debate among Democratic presidential hopefuls, standing about ten yards away from Sen. Biden. Now, I know Old Joe is Slow, but is his eyesight and hearing so bad that he really couldn't recognize Hillary's rather distinctive appearance and voice on the stage with him? He thought she was a Republican?

Well, at least Sen. Biden didst protesteth Hillary's misrepresentation and untruth, thusly:

BIDEN:  What we voted on was not partition.  I don’t want anybody thinking it was partition.  And it’s the only time we got 26 Republicans to reject the president’s policies.

KUCINICH:  You’re splitting...

RUSSERT:  All right, fine.

KUCINICH:  ... Iraq up.

RUSSERT:  Fine.  Fine.

KUCINICH:  That’s what it does.

Yes, that was noted hard-line Republican Dennis Kucinich, on that same stage on the same night, busily engaging — right to Sen. Biden's face! — in more Republican misrepresentations and untruths.

In fairness, Biden's op-ed also notes that "our plan is not partition, though even some supporters and the media mistakenly call it that." He simply expects the Iraqis and their struggling government to make more sophisticated and nuanced political distinctions than, say, a political neophyte like Hillary Clinton can manage to make.

Seriously, true federalism is a luxury — a finely calibrated system that the fledgling American states weren't able to embrace until years after they'd secured their own independence and a relatively stable (if highly unsatisfactory) sort-of central government under the Articles of Confederation. Even in the most enlightened American political debates today — e.g., that which recently went on between Sen. Fred Thompson and National Review pundit Ramesh Ponnuru — highly educated thinkers can have trouble reaching agreement on whether particular policies do or don't represent "true federalism." (With due respect to Ramesh, Fred kicked his butt in that argument, even though Ramesh is a very smart man.)

Encouraging the Iraqis out onto a tightrope that looks, tastes, and feels like "partition" — but that Sen. Biden (and, with equal blameworthiness, Sen. Brownback (R-KS)) insist on calling a fine-tuning of Iraqi "federalism" — is either a very foolish or very cynical approach. But Biden, of course, will always blame Dubya even for what Biden perceives to be the "shortcomings" in understanding on the parts of Hillary Clinton or Dennis Kucinich.

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

UPDATE (Wed Oct 3 @ 6:00am): Here's a not-bad ABC News piece on just what the "Biden-Brownback Amendment" is, and what it means. Biden wants to claim that this is some sort of triumph on his part — that he's engineered a long-sought "defeat" for the White House that marks some sort of significant new direction in Iraq. And that's just baloney.

This was a vague, non-binding sense of the Senate resolution that could be read to say nothing more than that the U.S. and other countries ought to respect and encourage the existing Iraqi federal system as part of the maturation of that nascent government. Nobody at the White House or anywhere else has a problem with that.

I'm dismayed, though, that Sen. Kay Bailey Hutchinson (R-TX) and quite a few other Republican senators voted for this amendment because of the surrounding context, which is quite unhelpful. Biden, Brownback, and others have been making vague and exceedingly ill-informed noises for months and months to the effect that (my paraphrase, not a direct quote) "This Iraq mess is likely going to end up in a three-way partition between the Sunnis, the Shiites, and the Kurds." At a minimum, the kind of "federalism" that Biden seems to have in mind is something that's a partition in all but name. In his op-ed, Biden writes,

[W]e are not trying to impose our plan. If the Iraqis don't want it, they won't and shouldn't take it, as the Senate amendment makes clear. But Iraqis and the White House might consider the facts. Iraq's constitution already provides for a federal system. As for the regions forming along sectarian lines, the constitution leaves the choice to the people of its 18 provinces.

So Biden clearly doesn't have in mind the kind of large-set federalism we have in the United States, with 50 "laboratories of democracy" coexisting and interacting with one another and with a robust and unified central federal government. He's not thinking in terms of the existing 18 provinces remaining the active elements of federal interaction, he's thinking in terms of only three. And that history and context, of course, is why — contrary to what Biden insisted at the debate and repeats in his op-ed — people like Hillary Clinton and Dennis Kucinich will take one look at this and immediately understand, "Ah, sure: This is about partition."

In another ill-advised Dallas Morning News op-ed from last March, Sen. Hutchison effectively endorsed partition. She wrote:

Such a plan would create at least three separate, semiautonomous regions in which local law enforcement, commerce, security and education would be managed by local authorities. A limited central government would be responsible for ensuring an equitable division of oil revenue, conducting foreign policy and protecting national security....

An international peacekeeping force would need to be utilized. Much as the long-term success in Bosnia has depended on the involvement of peacekeeping efforts by NATO and the European Union, long-term success in Iraq will require the involvement of many nations. Regional neighbors with a large stake in a peaceful outcome could make a major contribution to a successful transition in Iraq.

I'm sorry, Sen. Hutchinson, but this is the kind of drivel that I'd expect from John Kerry. "Let's all have an international conference and this will just sort itself out!" The only way that this makes sense is if the second paragraph I've quoted is a disguised code for, "We're going to keep sufficient American combat troops there that we'll be able to prop up the so-called Iraqi central government forever." Many of the "regional neighbors" — among them Iran, Syria, and Turkey — have their own agendas, and not even Turkey can be counted upon to always work with us to ensure a "peaceful outcome." Indeed, Iran and Syria both have vested interests in continuing the bloodshed. If the only thing the Iraqi central government is doing is dividing up national loot and "conducting foreign policy" (a/k/a hosting the American embassy), there's no reason for anyone to continue to pretend that there is an "Iraq." This only makes sense as a recipe for either overt American imperialism or failure.

Things may yet someday come to a partition. But there are a large number of reasons why that would be an awkward, unfortunate, and profoundly dangerous result. Because Slow Joe is looking for easy solutions in Iraq that redound to his political credit in D.C., he's overlooking or under-appreciating those risks (which include handing a huge victory to Iran on a silver platter and creating an enormous rift that could potentially lead to military conflict involving America's strategic ally Turkey). Ultimately, "Biden-Brownback" — toothless though it is — can't be seen as anything but indirect promotion of partition. And the U.S. Congress, in the guise of Slow Joe Biden, ought not be in the business of promoting that result, directly or indirectly.

Biden, though, wants to have his cake and eat it too. He — and here again, he's joined by the earnest but thoroughly naïve Sam Brownback — wants to claim some broad bipartisan achievement by the Congress in bringing about a change in course. But they know they wouldn't have picked up all of those Republican votes if they were candid about their real intended direction — toward not genuine federalism, but effective partition. So that's why you have the silly spectacle of Biden writing an op-ed insisting that what's really important is the fig leaf, and that all the naked partition ambition behind it should be ignored — and then blaming Dubya when members of his own party refuse to play along.

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

UPDATE (Thu Oct 4 @ 9:30am): In this WaPo op-ed, David Ignatius seems to be saying the same thing I've been trying to say, with some additional supporting historical details.

Is Craig's strategy "winning by losing," counting on colleagues and constituents to confuse "innocent until proven guilty" with "guilty (pending further appeals)"?

It's October 1st, and Sen. Larry Craig's self-imposed resignation deadline has passed without his formal resignation being tendered. Dan Popkey, a columnist for the homestate newspaper whose investigation Craig claims "panicked" him into pleading guilty, the Idaho Statesman, hypothesizes today that the senator may have a new plan — one that not only anticipates, but depends upon Craig losing last Wednesday's trial court hearing on his motion to withdraw his guilty plea (boldface mine):

On Sept. 1, Sen. Larry Craig told Idaho and the world he intended to resign Sept. 30. That's today. Instead, Craig says he plans to stay "for now." ...

... Now, Idaho Republican leaders tell me they've come to believe Craig will likely complete his term in January 2009.

"'‘For now' is permanent," said one. "He ain't leaving."

....

Craig has about $500,000 in the bank for his 2008 re-election campaign. He is authorized to use that to pay lawyers.

....

Craig's bid to complete his term would be best served by heading off a trial. A trial would mean testimony from the arresting officer and experts on the culture of anonymous homosexual sex. That's not something Craig, his family, Idahoans or the GOP want to endure.

So far, Craig's strategy is working. Minnesota's Fourth District Judge Charles Porter was skeptical of the arguments of Craig's lawyers. If Porter rules against Craig, as most legal experts expect, Craig won't face a jury anytime soon.

Porter might surprise us and set a trial date in coming months. But the likely scenario is Craig will head to the Minnesota Court of Appeals. He can expect oral argument within two or three months after filing his challenge to an unsatisfactory ruling. An appellate decision would come within another 90 days, extending Craig's battle to spring.

Next step: the Minnesota Supreme Court, with arguments to come two or three months after a second appeal. The average time between argument and a decision is 4 months. That gets Craig to term's end in January 2009.

Well. That certainly would explain the abysmal quality of Craig's legal team's strategy, tactics, and written work product so far: Maybe their instructions were to get in there and throw the game!

*******

As of today, as on every day since his guilty plea was accepted on August 8, 2007, in the eyes of the law, Craig is a convicted criminal — one conclusively proved by his own admissions to have committed the misdemeanor disorderly conduct offense alleged in the complaint against him. Unless Judge Porter permits him to withdraw his plea, Craig will remain a convicted criminal — subject only to the shall and successively diminishing chances of Judge Porter's decision being reversed on appeal.

I don't know whether Judge Porter will issue a written opinion, or simply issue a thumbs up-or-down ruling granting or denying Craig's motion. But if — as seems likely, given his taking the motion under advisement at the hearing, and waiting until some time this week to announce his decision — Judge Porter both denies the motion and issues an opinion explaining that ruling, the opinion is almost certain to contain language affirming that Craig's guilty plea (and waiver of associated rights as part thereof) was voluntary and uncoerced. In any event, if Craig's planning on "hanging tough" and "holding out," he has to anticipate doing so not only in the face of a continuing legal adjudication of guilt, but also in the face of Judge Porter's public re-affirmation of Craig's guilty plea (either implicitly or explicitly).

It's unlikely that Craig's misdemeanor crime (involving no abuse of his office), his breaking of his pledge to resign, or his general hypocrisy — even when taken collectively — are adequate grounds for his formal impeachment and removal from office. So in that very important sense, it doesn't matter what Judge Porter, the Minnesota Court of Appeals, or the Minnesota Supreme Court ultimately do with Craig's conviction, nor when they do it.

However, for purposes of the entry of a judgment of conviction, the Constitution presumes that everyone's innocent until proven guilty. That presumption of innocence is one of the rights that Craig waived when he entered his guilty plea. And with the waiver of that legal right, Craig also forfeited any moral right to ask his colleagues and constituents to reserve or withhold their own judgments. Asking them to withhold their political judgment for a month, while he asked for a mulligan at the trial court level, was damned presumptuous of him. Asking them to withhold their political judgment for many months, while he exhausts further appeals, would be outrageous, and indeed, insulting.

If Craig insists on staying even if Judge Porter rules against his plea withdrawal motion, the pendency of further appeals ought furnish him with zero political cover. The Constitution may grant Sen. Craig the effective opportunity to make a mockery of his own office, and to poke his thumb repeatedly in the eyes of everyone around him — and that's what he'll be doing if he stays on despite an unfavorable ruling this week. But that doesn't mean anyone whom he's thus abusing has to be nice, or polite, or even minimally respectful to him in return.

Whoever among his senate colleagues is presently shaking his hand and encouraging him, even by acting as though his continued presence is "normal" — and I'm looking directly at you, Sen. Specter, you great sanctimonious buffoon, but also at you, Senators Crapo, Smith, and Lott — is doing neither Craig, his constituents, nor his party any favors at all. You're not even being his "friend" by helping him block out reality; you're just enabling more bad behavior that will ultimately heighten and prolong his disgrace. And even if it's likely to result in no more than a public censure, the Senate should definitely proceed with its threatened open ethics hearing (complete with klieg lights, C-SPAN, and vigorous inquiries into "patterns" of misbehavior), and his office space should be relocated to a post office somewhere in central Virginia or Maryland.

Right now, I mostly still pity the man. Is he going to deliberately earn our contempt as well?

I hope columnist Popkey is wrong, and that "for now" really does mean "for now while my motion is still pending at the trial court level, which will be the immediate end of it when and if my pending motion is denied."

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

Previous posts on the Craig matter, oldest to most recent:

1. The answer to the "Why was this a crime?" crowd on the Craig matter
2. Craig "reconsidering" resignation; and his chance to withdraw his guilty plea is probably better than Beldar first presumed
3. Has Larry Craig hired the part-time prosecutor who filed the complaint against him?
4. Craig swears that on the date of his arrest, he "decided to seek a guilty plea to whatever charge would be lodged" against him
5. In letter forwarding proposed plea, prosecutor Renz repeatedly reminded Craig of his right to counsel and warned that plea would result in "a conviction for Disorderly Conduct appearing on [his] criminal record"
6. ACLU files silly brief in support of Craig's plea withdrawal
7. Prosecution moves to strike ACLU amicus brief supporting Craig's motion to withdraw guilty plea
8. Of pleas and piñatas: No surprises in prosecution's response to Craig's motion to withdraw guilty plea
9. Craig plans to ditch hearing, but Renz should object to his affidavit as hearsay and force Craig to take the stand
10. Just "one procedural question" for prosecutor Renz as he opposed Sen. Craig's motion to withdraw his guilty plea

Memorandum to Sally Quinn

TO:	Sally Quinn
FROM:	Beldar
DATE:	October 1, 2007
RE:	Vice President Cheney

Sally, it's been three full months now since the WaPo's "blockbuster series" about him, but your big scoop — that senior Republicans were plotting ways to force Vice-President Dick Cheney's immediate resignation, in favor of former Sen. Fred Thompson — hasn't come true yet.

Do you think it's time to consider a retraction? Or would you rather wait until January 2009?

Of pleas and piñatas: No surprises in prosecution's response to Craig's motion to withdraw guilty plea

Think of the motion filed by Craig's lawyers to withdraw his guilty plea as a piñata. Now, piñatas are often donkeys, but Craig's a Republican. I can't find a good picture of an elephant piñata, however. So think of Craig's motion as being a clown piñata.

I've been to enough kids' birthday parties and, heck, bought and hung enough piñatas for my own kids, to appreciate that the darned things (the piñatas, not just the kids) can sometimes be tougher than they look. But at least since I read the cover letter under which part-time prosecutor Chris Renz mailed Sen. Larry Craig the proposed motion to enter a guilty plea to disorderly conduct in exchange for the dismissal of a far more serious peeping charge, I've known that this particular piñata is paper-thin. It may be festooned with lots of colored paper and ribbons, but it's poorly crafted. And at its best moment, it was already hanging from a slender, very frayed thread.

To extend the metaphor: Think of prosecutor Renz' 41-page response to Craig's motion (a hefty 2.3 megabyte .pdf file) and 33-page supporting affidavit with exhibits (which weighs in at a comparatively svelte 1.7 megs in .pdf) as large broom handles. They're a bit rough in a few spots; they're workmanlike, functional tools, not works of art. And as wielded, they don't quite knock the piñata all the way out of the park.

But then again, it's just a piñata, after all, and not a horse-hide covered baseball — and these broom handles are far more than adequate to knock it down and pound it repeatedly until nothing is left but dozens of messy little clown piñata pieces.

And the piñata turned out to be empty inside anyway, which I guess really isn't that much of a surprise after all. I think this Wednesday's party hearing is likely to be a grim one for Sen. Craig and his team.

*******

Renz' filings today, now available as part of a handy court website, add more texture and detail that largely confirm the inferences I've previously drawn about the plea negotiation process. Not counting voicemails, Renz spoke with Craig by telephone on three different occasions — on June 25th, just as Sgt. Karsnia and Renz were finishing up the paperwork for the complaint; then again on July 17th, when they discussed in detail the plea bargain terms that Renz had  outlined in their first conversation; and then again briefly on July 31st. In terms of what's new and important, here are the two key paragraphs (from pp. 3-4 of the affidavit; emphasis mine):

     13.     On July 17, 2007, I spoke with the Defendant and explained that in exchange for a plea of guilty to the charge of disorderly conduct, the interference with privacy charge would be dismissed. I told the Defendant that the sentence would be 10 days of jail, all of which would be stayed for a year on the condition that the Defendant have no same or similar violations, and a $1000.00 fine, $500.00 of which would be stayed for one year on the same condition. I told the Defendant that this offer was similar to offers made to other defendants with similar charges. I spoke with the Defendant about the process that would occur for entry of the plea, such as how it would be processed, the people that would see the petition, and the ultimate destination of the petition. I explained that the plea petition would be filed with the court and the petition and conviction would be a matter of public record.

     14.     During the July 17, 2007 telephone conversation, the Defendant expressed that he was in a difficult situation as a result of the nature of the charges and his position as a United States Senator. I responded to the Defendant that I had appreciation for the fact that this was probably a difficult situation and [I] told him that it was a situation regarding which he should seek advice from an attorney. In that phone conversation, the Defendant asked that I send the plea offer to the same address as the Complaint so that he could review it with an attorney. I also told the Defendant that I would continue his arraignment date that had originally been set by the Court for July 25, 2007 for two weeks so as to allow time for him to consider the plea agreement.

Although more detailed, all of this is entirely consistent with Renz' cover letter (Exhibit B at pp. 13-14 of the affidavit; also here) forwarding the proposed plea motion to Craig, which I discussed at length in my September 12th post, and which I concluded then had already effectively sunk Craig's present hopes to withdraw his plea. Unless Craig is willing to take the stand to deny the authenticity of the cover letter or deny that he received it — and I don't think that's going to happen — Craig's unlikely to be able to effectively challenge any of these supplementary factual details from Renz' affidavit either. Craig's lawyers may try to spin the facts and the inferences that flow from them differently than Renz has, in other words, but they aren't likely to dispute them directly.

And that creates even more serious problems for Craig. One of the most effective portions of Renz' memorandum is his argument (at pp. 35-37) that this history shows that Craig took a calculated gamble that the plea wouldn't be discovered by the press — a gamble that turned out to be a spectacularly bad one, but that after the fact can form no proper basis for Craig to withdraw his guilty plea.

Renz also does a decent job, I think, in arguing (at pp. 37-41) — notwithstanding some incredibly pro-defendant, wishy-washy Minnesota precedent creating no effective or even nominal deadlines for motions to withdraw guilty pleas — that in these circumstances, Craig's plea is nevertheless "untimely." He did not argue (as I would have) that it's particularly significant that Craig failed to file a timely motion for new trial (or to set aside the judgment based on the guilty plea); there's none of the "direct attack/collateral attack" distinction that Texas law makes, and that I think the Minnesota cases may permit even if they don't mandate it. Nevertheless, finding Craig's motion untimely is appropriate, Renz argues, "not because the raw amount of time between the plea and motion is itself necessarily substantial," but rather because Craig "appears to be playing games with the plea and its finality" by "announc[ing] that he planned to seek withdrawal of his plea, but wait[ing] in filing his motion to determine the consequences of waxing and waning public opinion, the support of his fellow politicians, and committees of the legislature." 

*******

Otherwise, today's filings do pretty much what I expected they would. They hammer (and re-hammer) the prosecution's obvious strong points, but also touch on a few more subtle ones. They include a good-sized smattering of helpful precedents (which I haven't double-checked, but I have no reason to doubt that they say what they're represented to say, which is all pretty straightforward). Wisely, they don't re-tread the ground already discussed in the prosecution's motion to strike the ACLU's silly amicus brief, which I've previously discussed (here and here).

What's entirely missing is potentially important, but — given how Craig's motion was constructed — no surprise, either: There's no mention, much less discussion, of Rule 15.02 of the Minnesota Rule of Criminal Procedure, as made binding on mail-in pleas by Rule 15.03. Neither is there any mention of Appendix B or Appendix C to Rules 15, which contain forms that at least on their face it would seem that Renz should have followed in drafting the motion to enter the guilty plea. Nor is there any mention of Form 11 — which at least looks like something that either Renz or the court personnel should have insisted that Craig complete before permitting him to represent himself pro se, and that would have certainly cured any alleged Rule 15.02(2) problem with the failure of the plea motion to contain a specific confirmation that Craig knew of, and was making a well-informed and voluntary decision to waive, his right to counsel at every stage of the proceedings, including in connection with the negotiation of his plea bargain and entry of his guilty plea.

But Craig's lawyers did an incredibly poor job of showing the violation of any of those rules or procedures in the first place, or of making any credible argument as to how Craig could have been prejudiced by those violations. And on the whole, Renz' memorandum does a decent if a bit blurry job of at least dispelling the notion that Craig could possibly have been prejudiced by such violations (of the rules Renz' memorandum pointedly fails to discuss).

It may not be too late for Craig's lawyers to remedy their sloppiness, however. Muddled and ineffective as their written motion was, perhaps at the oral argument they can bring laser-like clarity and precision to their showing that these rules were violated. To the extent that Craig has any hope of winning, that, in my judgment, is what they absolutely have to do. And they'd better come up with at least some straight-faced argument — one better than the utterly stupid and implausible "panic" argument from their motion — to show how Craig was actually harmed by the clear violation of those rules.

In fact, to the extent Craig was indeed harmed by failing to have a lawyer, it's not because he necessarily would have fought both charges through trial and won, but because he might well have been able simply to negotiate a much better plea through a lawyer. And thus, if I were Craig's lawyer, I'd pop Renz on the stand specifically to explore the statement in his affidavit that the deal Craig got was "similar" to offers made to comparable defendants (a proposition which the NYT has suggested may be in doubt):

And so, Mr. Renz, did you tell Sen. Craig that in some other 'similar' cases arising out of this same police sting, you'd agreed to pleas involving deferred prosecution or deferred adjudication? You didn't? Oh-ho, I see. And isn't it true that in all those other cases, the defendants did have lawyers to negotiate such a plea on their behalf? I thought so. So the bottom line, Mr. Renz, is that despite all your mouthing of hollow assurances to Sen. Craig about his rights to see a lawyer, you — knowing full well that he was in mortal dread of anyone finding out about this — were content to see him take a 'similar' but really not very good deal, knowing that if he actually did get a lawyer, that lawyer almost certainly would have explored options that didn't necessarily involve any permanent criminal record, much less a guilty plea — isn't that right, Mr. Renz?"

But then again, I also continue to think that Renz ought to pop Craig on the witness stand on Wednesday — and that Craig has far more to lose than the prosecution does if what's scheduled as "oral argument" turns instead into a contested evidentiary hearing. If Renz intends to do that, however, he probably ought to have objected on hearsay grounds to Craig's affidavit as part of his written response to Craig's motion — and he didn't. So maybe his intention is to play it safe, hope that there's no live testimony, and hope his pre-existing advantages from before the hearing carry the prosecution safely through the end of it.

Make no mistake: I continue to think that Craig ought to lose, and that it's overwhelmingly probable that he will lose. But as much fun as I'm having watching and reading about all this from afar, like any real trial lawyer, I wish I were going to be down in the center ring of the circus on Wednesday. And yes, I could have fun representing either side. I'm like an old calvary horse, trained to ride to the sound of the guns. And there will likely be a fair amount of pyrotechnic glory in Minneapolis this Wednesday afternoon (even if it's less than I'd try to set off if I were there in person representing either side)!

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

Previous posts on the Craig matter, oldest to most recent:

1. The answer to the "Why was this a crime?" crowd on the Craig matter
2. Craig "reconsidering" resignation; and his chance to withdraw his guilty plea is probably better than Beldar first presumed
3. Has Larry Craig hired the part-time prosecutor who filed the complaint against him?
4. Craig swears that on the date of his arrest, he "decided to seek a guilty plea to whatever charge would be lodged" against him
5. In letter forwarding proposed plea, prosecutor Renz repeatedly reminded Craig of his right to counsel and warned that plea would result in "a conviction for Disorderly Conduct appearing on [his] criminal record"
6. ACLU files silly brief in support of Craig's plea withdrawal
7. Prosecution moves to strike ACLU amicus brief supporting Craig's motion to withdraw guilty plea

Hillary on the Sunday talking heads shows

Okay, I have to admit: I need treatment myself. Only someone with a serious, serious problem could force himself to watch (via TiVo), back to back, Hillary Clinton appear on Sunday morning talking-head shows from Fox, NBC, CBS, and ABC on one day, but I've just finished doing exactly that. (I don't regularly watch or TiVo CNN's show, but I gather that she was on it, too.)

Stupidest soft-ball masquerading as a question, from a gushing, stumbling, dare we say fawning George Stephanopoulos:

You know, Senator, we're just about out of time. I just want to ask you one, final question. You've seen the presidency from a perspective unlike any first-time candidate ever in American history, up close, unlike any first-time candidacy ever in presidential history. So you know a lot about being president. But what is something that you don't know, that only a president can know?

Answer (completely unscripted and off the cuff, I'm certain) in exactly ninety* tightly packed seconds (with no pause for breath mid-answer):

Well, George, as you have just said, I've seen the presidency in a very, you know, front-row seat on history way, and I know how hard this job is. And you know, you can read books about it, you can think hard about it, and of course, people running for president do. But it is hard to be prepared for the pressure-cooker that the American presidency is today. We have only one person in our country who represents both our state and our government. Most countries divide those responsibilities. So you're the symbolic head of state and you are running the government. And every single day that goes by, the pressures increase, with the 24/7 media environment, with all of the, you know, advances in communication. You have to be grounded. You have to know what you believe. You have to be guided by what you think are the right principles for your country. But there is still no predicting what is going to happen on your watch. And, you know, I know how hard it is, and I think, following President Bush, with some of the problems we have, will make it especially hard. But I'm also confident and optimistic that our country can rise to this challenge. I wouldn't be running if I didn't think that I was the person at this point in our history who could summon that extraordinary resilience and commitment from America again. And I think that we will be able to start both repairing the damage, but more importantly, starting to act like Americans, solving our problems, restoring our leadership in the world. And that's what I look forward to.

The really great jazz musicians can perform a technique called circular breathing, in which they breathe in through their nostrils while continuing, temporarily, to force a simultaneous steady stream of air through their instruments using their cheek and mouth and throat muscles, so as to never stop for a breath during a long solo. Today is the first time I've seen a politician do that.

"Hitting All the Sunday Talk Shows, Clinton Says a Lot but Reveals Little," says the WaPo. Well, yes, but ... you can't help but be impressed with her stamina. Unless ...

Unless she's been cloned. Or ... re-manufactured into multiple android duplicates. Because that would explain a lot, wouldn't it? How did Bill manage to keep Hill standing by her man through all that? Unplug the last one, adjust the memory circuits of the next one, and plug 'er in.

I'm thinking in terms of some sort of DARPA/Disney black ops project run amok. Either that, or something undead.

By far the most scary things were the two mechanical "belly laughs" she delivered in response to questions from Fox News' Chris Wallace. They made my skin crawl. Seriously, if you could digitize those laughs and put them into a small plug-in appliance that would rhythmically pulse them through your house's electrical system, you could drive out all the insects and small vermin, and the FTC wouldn't challenge your advertisements — they'd give you a testimonial endorsement. (I suspect the FDA would find your product to be carcinogenic, though.) As I listened to those laughs — the exact same length, pitch, and timbre both times, and I suspect you could overlay their wave forms in a sound editor and prove that they were both from the same pre-recorded source — I could just imagine the focus group technicians looking at the dials and gauges, one saying to the other, "Have her deliver just one more 'hah!' as part of that, and let's see if the residual marginal antipathy-plasticity factor goes down another half percent, okay?"

The GOP doesn't just need a candidate, friends and neighbors. It needs ... a Slayer.

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

UPDATE (Mon Oct 1 @ 5:10pm): I'm only mildly surprised that the "Hillary's laugh" meme has turned out to have some legs. Jeralyn Merritt at TalkLeft cites several pundits who've commented negatively about it, and she thinks their comments are sexist. Although some of the language they've used may have sexist overtones, I don't think that Hillary's XX-chromosomes are really the basis of the most of the commentary. The laughs struck lots of people as odd — not for anything having to do with her sex, but partly because of their seeming inappropriateness to the context, and largely because of timing, the latter of which (as I've discussed already in comments below) is almost certainly due to the satellite link lag between her Chappaqua studio and the host sites for the talking heads shows in Manhattan or D.C. Jon Stewart's riff on The Daily Show gets it right: It's not about her being female, it's more about her being "some sort of synthetic being that cries mercury." And — as I've also tried to make clear in my comments below — it's a fairly trivial issue even to the limited extent that it's a legitimate comment on her personality (or the ruthless suppression thereof), in the nature of a backhanded compliment for being such a disciplined candidate. I no more think Hillary's laugh is a good reason to vote against her than that I thought John Kerry's hairstyle or Boston accent was a good reason to vote against him. I have ample good reasons to vote against either of them based purely on issues of policy and on genuinely important aspects of personal character.

De gustibus cerevesiae non scit lex

I'm deeply skeptical of attempts by reporters like the NYT's Adam Liptak to draw broad conclusions about how a nominee for a cabinet post might perform based on the nominee's rulings in a handful of cases he's presided over as a judge. I'm even more skeptical of attempts to compare one such judge's stats against other judges' stats — as if it's meaningful that, in a single particular year,

in criminal cases, he was reversed 20 percent of the time, compared with an overall reversal rate from his court of roughly 15 percent in 2006. But in civil cases, his 24 percent reversal rate compared favorably with the overall rate of roughly 30 percent.

Nonetheless, Liptak's attempt to apply these analytic techniques to Attorney General nominee Michael Mukasey is entertaining, including for the bastardized Latin quote above, a holding that the law does not trouble itself to write about the taste of competing brands of beer. And I'm untroubled by the prospect that the future Attorney General may be "fiercely intelligent, prickly, impatient, practical and suspicious of abstractions." The less polite formulation may be "kicks butt and takes names." For an AG-nominee, that counts as good press. The more I read, the more eager I am to hear from Judge Mukasey at his confirmation hearings. I'm ready to get some cerevesiae chilled down, and I might pop popcorn.

Prosecution moves to strike ACLU amicus brief supporting Craig's motion to withdraw guilty plea

Yesterday the prosecution in Sen. Larry Craig's case filed a very short motion to strike the very silly amicus brief previously filed by the ACLU in support of Craig's pending motion to withdraw his guilty plea. The prosecution's supporting memorandum argues that Minnesota law doesn't permit amicus briefs in trial court proceedings, but then goes on to address the ACLU brief's merits, or rather, the lack thereof.

I doubt there will be a formal ruling on the motion to strike before the oral argument scheduled for next Wednesday, September 26th, on Craig's motion. And I suspect that the real point of yesterday's filing was not such much to try to make the judge pretend he hasn't even read the ACLU's brief as, instead, to (a) rebut it and (b) give the judge a ready excuse (if he wants or needs one) for not bothering to address the ACLU's arguments directly if he makes an oral or written explanation for his ruling on Craig's motion.

I didn't see any particular surprises in this filing, but I'm still looking forward to seeing the prosecution's response on the merits to Craig's motion, hopefully next Monday.

*******

In the meantime, Craig continues to leave open the possibility that he might not leave the Senate by his self-imposed September 30th deadline:

U.S. Sen. Larry Craig said Thursday that he's waiting to find out whether a judge dismisses his guilty plea next week before he decides whether he'll step down from the Senate at the end of the month.

"I just don't know yet," Craig said, when asked whether he would resign Sept. 30.

His decision to continue in office past his self-imposed deadline will depend on "the legal issues, and those kind of things I'm working on," Craig, R-Idaho, told McClatchy Newspapers in a brief interview.

I don't suppose Sen. Minority Leader Mitch McConnell (R-KY) has the power to require Craig to file a written motion to withdraw his "intent to resign" announcement. But he may have other remedies in mind to crank up the pressure on Craig to keep his promises at least in that respect, even if Craig is successful at next week's hearing.

I continue to believe Craig won't be, however. And I continue to hope that the prosecution call Craig to the witness stand at the hearing next week — which, as I've previously written, I believe the prosecution is entitled to do based on Craig's having submitted a sworn affidavit with his motion. Faced with a snap decision whether to take the stand to face cross-examination or not, Craig might drop his motion to withdraw his guilty plea on the spot. Of course, that would presume that he and his lawyers have a rational appreciation of their risks and benefits, and there's no evidence yet to support that theory, and considerable contrary evidence.

*******

Finally for now, just in case this case isn't bizarre enough for you yet, there's this:

[T]he American Land Rights Association, based in Battle Ground, Wash., says that Craig's misadventures were actually just another salvo in the "War on the West."

As the ALRA explained in an e-mail to members: "By ambushing Senator Larry Craig, the Minneapolis-St. Paul Airport Police have effectively declared war on the West. They are primarily responsible for greatly weakening private property rights and Federal land use advocates in the Senate Energy and Natural Resources Committee and in Congress. We are urging you to make all your flight arrangements avoiding the Minneapolis-St. Paul Airport for at least the next year and probably longer. We'll keep you posted as the boycott develops."

Oh, yes. Please keep us posted. From there in the second stall on the left, Sgt. Karsnia seems likely to grind all free Westerners under the heel of, umm, Minnesotan hegemony.

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

Previous posts on the Craig matter, oldest to most recent:

1. The answer to the "Why was this a crime?" crowd on the Craig matter
2. Craig "reconsidering" resignation; and his chance to withdraw his guilty plea is probably better than Beldar first presumed
3. Has Larry Craig hired the part-time prosecutor who filed the complaint against him?
4. Craig swears that on the date of his arrest, he "decided to seek a guilty plea to whatever charge would be lodged" against him
5. In letter forwarding proposed plea, prosecutor Renz repeatedly reminded Craig of his right to counsel and warned that plea would result in "a conviction for Disorderly Conduct appearing on [his] criminal record"
6. ACLU files silly brief in support of Craig's plea withdrawal

Adjusting Mary Mapes' meds

Generalissimo Francisco Franco is still dead. Dan Rather is still nuts. And Mary Mapes is still a fraud:

We reported that since these documents were copies, not originals, they could not be fully authenticated, at least not in the legal sense. They could not be subjected to tests to determine the age of the paper or the ink. We did get corroboration on the content and support from a couple of longtime document analysts saying they saw nothing indicating that the memos were not real.

Instantly, the far right blogosphere bully boys pronounced themselves experts on document analysis, and began attacking the form and font in the memos. They screamed objections that ultimately proved to have no basis in fact. But they captured the argument. They dominated the discussion by churning out gigabytes of mind-numbing internet dissertations about the typeface in the memos, focusing on the curl at the end of the "a," the dip on the top of the "t," the spacing, the superscript, which typewriters were used in the military in 1972.

It was a deceptive approach, and it worked.

It's possible that some of the readers of the Huffpo who are nodding and saying, "Yeah, that's right!" as they read Mapes' op-ed are so ill-informed about the facts that they might be excused for being misled by her. But the only explanation for how Mary Mapes could write that last sentence is that she is a genuinely pathological liar. And having herself been the producer for the broadcast, only someone genuinely, clinically psychotic could deny that CBS' own experts alerted them to massive indicators that the documents were forged before the broadcast. An ordinary liar, one who still has a grasp on objective reality in the world, would surely come up with a better argument than that.

The only remaining question to me, then, seems to be this: Haldol, or something newer like Clozapine?

(Some of you reading that will say, "Wow, that's so snarky as to cross the border into meanness. Beldar's usually not that harsh." If so, you misunderstand me. I really am saying that I literally believe she is psychotic, and that her particular mental illness involves a compulsion to tell and re-tell lies. It's obviously a lay opinion, for I don't have any medical training. But I'm not engaging in any hyperbole.)

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

UPDATE (Fri Sep 21 @ 8:00pm): This is a very measured but detailed reaction to Mapes' op-ed from someone who self-identifies as being "a member of the 'reality-based community'" who aptly concludes: "Mary Mapes' attempt to rehabilitate those forged documents is not based in any kind of reality that I understand." (H/t Eugene Volokh.)

A cheer for Sen. Cornyn for sponsoring Senate resolution condemning MoveOn.org's "Gen. Betray-Us" ad

Sen. John Cornyn (R-TX) made me feel today like he was directly representing me in the United States Senate. He introduced an amendment to the National Defense Authorization Act for Fiscal Year 2008 in order to add a "Sense of the Senate" resolution for the following purpose:

To express the sense of the Senate that General David H. Petraeus, Commanding General, Multi-National Force-Iraq, deserves the full support of the Senate and strongly condemn personal attacks on the honor and integrity of General Petraeus and all members of the United States Armed Forces.

It passed by a vote of 72 to 25. Sen. Barack Obama (D-IL) wasn't present to vote. Neither was Sen. Joe Biden (D-DE), but from his previous public disapproval of the MoveOn.org ad, it's safe to assume that he would have voted in favor.

But among the 25 who've cast their lot with MoveOn.org, instead of with Gen. Petraeus and all members of the United States Armed Forces, was Sen. Hillary Clinton (D-NY), a/k/a She Who Would Be Commander-in-Chief.

Thank you, Sen. Cornyn — you've made a lot of Texans who voted for you feel proud today, and you've put a much-needed spotlight on the precise portion of the U.S. Senate of whom MoveOn.org is obviously speaking when it says that it has bought and paid for the Democratic Party.

And here's a metaphorical tip of my hat, as a recognition for bravery and decency notwithstanding particular personal political risk, to Sen. Dianne Feinstein (D-CA), who voted in favor.

ACLU files silly brief in support of Craig's plea withdrawal

After I'd just graduated from Texas Law School, but before taking the bar exam and starting my judicial clerkship, I spent most of the summer of 1980 working in New York City for Sullivan & Cromwell. The firm helped its "summer associates" (a/k/a law clerks) locate housing, and for half of my stay I was very fortunate indeed to be permitted to apartment-sit, rent-free, for one of the firm's litigation associates whose husband's position at Columbia entitled him to a fabulous pre-war apartment on Riverside Drive at about 118th or so, with a wonderful view over the park and the river. I only briefly met the associate as she was leaving for her own summer vacation. But anyone doing any apartment-sitting can't help but feel as if he's gotten to know the regular occupants a little bit, if only from seeing what take-out food menus were on the fridge door and what magazines came in the mail.

As it turned out, the young S&C associate, Nadine Strossen, left the firm not too long afterwards, and since 1991 she's been the president of the American Civil Liberties Union. And my lingering gratitude to Ms. Strossen, along with the vague feeling of unshared intimacy that I had as a long-term guest in her home (but without her present), has probably made me less skeptical than I otherwise would have been of much of the ACLU's activities. Some of them, from time to time, I've even agreed with, and doubtless would have done so whether I'd known Ms. Strossen or not. But far more often, I've thought that the ACLU's causes were ill-advised and naïve, albeit at least mostly well intentioned.

And such is this amicus brief that the ACLU has now filed in support of Sen. Larry Craig's pending motion to withdraw his guilty plea. (H/t Jeralyn Merritt at TalkLeft.) Even if I were to accept all of its legal arguments as being correct and fairly stated (and I don't; many of them are badly overblown and over-simplified to the point of being misleading), I'd still conclude that it's a profoundly silly brief that is very unlikely to have any effect on those proceedings, for at least two reasons.

*******

First, all of its arguments go to the "as applied" constitutionality of the Minnesota disorderly conduct criminal statute to which Craig pleaded guilty. There is no doubt, and the brief properly concedes, that the statute may be constitutionally applied in at least some cases. But arguments of this sort have to be made by the defendant before he pleads guilty. They're waived, along with all of his other potential factual and legal defenses, when he pleads guilty. And they do nothing to show that his guilty plea should be permitted to be withdrawn now, because they have nothing to do with the voluntary, informed, or knowing quality of his waiver of rights when he entered the guilty plea. The brief makes a truly pathetic attempt to sidestep this in its next-to-last paragraph:

The record shows there is a very significant possibility this defendant pled guilty on the basis of conduct that could not constitutionally have been the basis for a conviction. Given that very real possibility, the interests of justice would best be served by allowing him to withdraw his plea so that the Court can determine if a constitutional prosecution was possible at all here, and if so, whether the defendant could constitutionally be convicted.

Beware the brief whose best and most specific argument for its own relevance is that it will serve "the interests of justice." Often, as here, that's code for: "To reach these arguments, you have to ignore all the ordinary rules." There's no reason to think that the judge who hears Sen. Craig's motion will do that.

The brief could have argued, but didn't, that the plea should be set aside unless there is an affirmative showing in the record of a basis in fact for his plea — and that's true, as far as it goes. But in accepting a plea agreement, a court need not — indeed, ought not — go out of its way to figure out and raise on the pleading defendant's part every potential factual or legal defense that he might have asserted. In particular, courts accepting guilty pleas aren't required to independently re-validate the statute that created the crime to which the defendant is pleading guilty. The allegations from the sworn complaint that Craig stared into the officer's stall, then intruded his hand and foot into the officer's stall, by themselves are sufficient to meet the "basis in fact" requirement. (Indeed, even if that conduct was intended as speech, it would be enough to qualify for the "fighting words" exception to the First Amendment protections argued by the ACLU's brief: Staring and then physically intruding one's hands or feet into someone's bathroom stall is indeed a good way to start a brawl, regardless of whether it was specifically interpreted as part of a homosexual "cruising" code or was instead simply interpreted as intrusive upon reasonable privacy expectations.)

*******

Second, all of the ACLU's arguments presume that Craig was arrested and prosecuted for speech, or for conduct that amounts to speech. Its entire premise is that Craig was soliciting sex, and its resulting argument from that premise is that soliciting sex can't be prosecuted as disorderly conduct without violating First Amendment protections for free speech. But Sen. Craig emphatically denies that he was soliciting sex, or engaged in any other kind of expressive conduct that amounts to "speech."

To the contrary, he insists that he was peering into Sgt. Karsnia's stall only to see whether it was vacant yet, and that his foot tapping was meaningless fidgeting (rather than a code), and that his intrusion of his foot into the officer's stall was accidental (due to his "wide stance"), and that his reaching beneath the barrier between the stalls was intended to pick up a piece of paper (rather than send hand signals). A defendant simply can't simultaneously claim to have been engaged in protected speech under the First Amendment while denying that he intended to do any communicating. And as much as it may want to be one of the trial court's chums via this amicus brief, the ACLU can't claim that on Craig's behalf when it's contrary to Craig's own position.

Bottom line: There's no need for anyone to get outraged over the ACLU's position in this case. It's just silly and irrelevant, and therefore harmless. And I think I can say that without feeling at all ungrateful for the use of Ms. Strossen's marvelous apartment twenty-seven years ago.

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

Previous posts on the Craig matter, oldest to most recent:

1. The answer to the "Why was this a crime?" crowd on the Craig matter
2. Craig "reconsidering" resignation; and his chance to withdraw his guilty plea is probably better than Beldar first presumed
3. Has Larry Craig hired the part-time prosecutor who filed the complaint against him?
4. Craig swears that on the date of his arrest, he "decided to seek a guilty plea to whatever charge would be lodged" against him
5. In letter forwarding proposed plea, prosecutor Renz repeatedly reminded Craig of his right to counsel and warned that plea would result in "a conviction for Disorderly Conduct appearing on [his] criminal record"

Beldar's initial reaction to the Mukasey nomination for Attorney General

Let's get something straight right off the bat. I disagree on matters of politics with Sen. Chuck Schumer (D-NY) almost all of the time. But I don't worry that, if given the chance, he'd wire a gas tank to explode my family car or mastermind a plot to crash a jet airliner into the Capitol. He's not my enemy in that sense.To the contrary, I genuinely believe that in his own mind, he says what he says and votes the way he votes because he thinks that's the best way to serve the country that he and I both love. So the mere fact that Chuck Schumer may not be bouncing off the ceiling to oppose new U.S. Attorney General nominee Michael B. Mukasey is no valid reason for me to doubt the wisdom of that appointment.

I'm better acquainted with Ted Olson's history and credentials. It's been funny to watch pundits on the left foam at the mouth at the prospect of him being nominated instead. "Too partisan!" they shriek ... by which they mean, he and his team whipped David Boies and his team during Bush v. Gore in 2000. But there's certainly more than one person in the U.S. who's qualified to be Attorney General. Judge Mukasey looks to me like he's one of them, and probably very near the top of what's not a very large heap.

I'm impressed that Judge Mukasey (pronounced "mew-KAY-see") has not only prosecutorial experience (four years as an Assistant U.S. Attorney in the Southern District of New York), but management experience within the DoJ (two years as Chief of the DoJ's Official Corruption Unit). I'm impressed that he has many years of private practice experience — because yes, it's useful for government attorneys to have gain perspectives from the "real world" outside of government. I'm impressed that he's got judicial experience, again from the Southern District of New York, whose dockets include the richest and deepest mix of civil and criminal matters imaginable. Top that off with more administrative experience, this time as Chief Judge of the Southern District of New York. Altogether, that's an impressive mix and combination of experiences.

And forgive me, but I have very little patience for "Righter-than-thou" skeptics like Mark Levin. Over sixty-two million Americans voted to put the power of nominating cabinet secretaries from January 2005 to January 2009 into George W. Bush's hands. That's the way the system works: He picks, he's accountable. He's accountable for decisions that look bad in hindsight, and if you want to criticize him for the outgoing AG, the buck does indeed stop in the Oval Office. But he's also accountable for nominating Supreme Court Justices — and credit for that is also due, and must be considered when someone's impugning a nominee without much more basis than a lack of sufficient trust in the nominator. Nothing in the system requires the president to pick the potential nominee whom pundits like Levin would like best. And indeed, the system obliges the president to consider factors that Levin may ignore outright. Rabid dog-slobber may well be the best thing for Levin's radio ratings, but that doesn't necessarily coincide with what's best for the Bush-43 Administration, the Republican Party, the DoJ, or ultimately for America. Levin is entitled to express and argue his own opinions. But I am not at all receptive to the suggestion that I'm "insufficiently conservative" if I support the president both in big fights when he picks them, and on those other occasions when he's chosen not to.

In the meantime, Judge Mukasey's record is out there for all to see. Lawyers whose judgment I respect, including but not limited to Andy McCarthy, who have extensive first-hand experience with him praise him highly. He'll run the nationally televised gauntlet in the Judiciary Committee, where perhaps a few Democratic senators will manage to behave like grownups and maybe even nonpartisan Americans for long enough to vote. I'll come to a final opinion based on his performance then, but for now, I pronounce myself well satisfied with this nomination.

In letter forwarding proposed plea, prosecutor Renz repeatedly reminded Craig of his right to counsel and warned that plea would result in "a conviction for Disorderly Conduct appearing on [his] criminal record"

As a result of my telephone conversation with him and my follow-up email request yesterday, Patrick Hogan, the director of public affairs for the Minneapolis-St. Paul Metropolitan Airports Commission, graciously emailed to me today the two-page letter dated July 20, 2007, under cover of which part-time prosecutor Chris Renz forwarded to Sen. Larry Craig the three-page written motion to enter a guilty plea that Renz had drafted for Sen. Craig's review and possible signature. Sen. Craig signed the motion on August 1st and returned it for filing with the Hennepin County District Clerk. I had noticed a reference to and short quote from Renz' cover letter in an August 28th Associated Press report, but I had not been able to find the full text or an image of the letter anywhere on the internet.

Renz' July 20th cover letter is a precise, entirely fair, and altogether professional piece of work. The AP reporter who only quoted it briefly obviously didn't appreciate its full significance, because in my opinion, it spells the absolute doom of Sen. Craig's efforts to withdraw his guilty plea.

Of critical importance for purposes of the upcoming hearing on September 26th on Sen. Craig's motion to withdraw his guilty plea: In its very first paragraph, this letter repeatedly reminds Sen. Craig that he still had the right to have the assistance of counsel for the specific purpose of deciding whether or not to enter his plea of guilty to the disorderly conduct charge as part of a proposed plea bargain for the dismissal of the peeping charge (emphasis mine):

Please find enclosed a Petition to Enter Plea of Guilty-Misdemeanor in the above-referenced matter. Please review the document and to the extent that you wish, review the same with legal counsel. If you understand the contents of the Petition and agree thereto, please sign the bottom of pages 1, 2 and 3, as well as sign and date top most signature block on page 3. To the extent that you review the agreement or consult with an attorney regarding the agreement, please enter that attorney's name at paragraph 7 and have them complete the final signature block on the agreement. To the extent that you are not consulting with an attorney or represented by an attorney, please appropriately circle "am not" in paragraph 7.

The letter confirms my previous inference that Renz and Craig had spoken by phone before Renz drafted and sent Craig the proposed motion, and that — far from trying to stampede Craig — Renz had actually arranged for a two-week continuance of Sen. Craig's original July 25th appearance deadline in order that Sen. Craig could have time to consider the plea carefully:

Please return the petition and the [fines and fees] payment so that it is received before August 8, 2007, which is the date to which your arraignment appearance is being continued, as we discussed....

More importantly, however, compare Sen. Craig's attorneys' current spin from his motion (at page 2 of the .pdf file; boldface mine) —

While in this state of intense anxiety, Senator Craig felt compelled to grasp the lifeline offered to him by the police officer [on June 8th after his arrest]; namely that if he were to submit to an interview and plead guilty, then none of the officer's allegations would be made public. Thus, rather than seek legal advice from an attorney to assist him in publicly fighting these charges and potentially protract the issue, Senator Craig's panic drove him to accept a guilty plea, the terms of which offered him what he thought was a private, expeditious resolution of this matter.

— with this sentence from prosecutor Renz' letter that Sen. Craig quite literally had placed into his hands simultaneously with the proposed plea agreement (boldface mine):

Agreeing to the Petition will result in a conviction for Disorderly Conduct appearing on your criminal record.

Point, game, set, match. If you can't hear the fat lady already finishing her warm-ups, it could only be because you've got your fists plugged into your ears and you're singing "LA-LA-LA-I-can't-hear-you" at the top of your lungs. (Or because you're a once-powerful U.S. senator in a serious state of denial.)

I don't know how to say this politely, so I will be blunt: It is inconceivable that when they drafted Sen. Craig's motion, his lawyers did not know of this cover letter. And it is inexplicable to me how any competent lawyer could let his client commit under oath to the notion that he thought his conviction under the guilty plea would not be a matter of public record when he also knew that a letter like this existed. Failing to acknowledge and describe the contents of this letter to the court in their motion borders upon the unethical, and as a tactical decision, it's likely to be about as smart as lighting a barbecue grill aboard the Hindenburg.

Previously, I was guestimating that Sen. Craig had about a 50/50 chance on his motion succeeding. That was based almost entirely on the apparent fact that the motion to enter his guilty plea didn't contain the specific recital required by Minnesota Rule of Criminal Procedure 15.02(3) to establish that "the defendant [knew] there is a right to the assistance of counsel at every stage of the proceedings and that counsel will be appointed for a defendant unable to afford counsel." But this letter almost certainly, and almost conclusively, remedies that omission. And it destroys Sen. Craig's remaining tatters of credibility — and frankly, that of his lawyers, too — by exploding their claim that Sen. Craig had pleaded guilty based on some explicit or implicit understanding that this would all be hushed up if he'd only go along with the guilty plea.

My revised estimation is that Sen. Craig's odds of prevailing on his motion are somewhere below 5%. The only kind of judge who could grant this motion would be the kind who elevates procedural form over all substance, who cares nothing about whether procedural violations have even arguably prejudiced the defendant, and who is also remarkably unoffended by lawyers and litigants who lack fundamental candor. Personally, either as a lawyer or a citizen, I find Sen. Craig's and his lawyers' duplicitous effort to mislead the court considerably more disgusting than anything Sen. Craig is alleged to have done in the men's restroom of the Minneapolis-St. Paul airport.

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

Previous posts on the Craig matter, oldest to most recent:

1. The answer to the "Why was this a crime?" crowd on the Craig matter
2. Craig "reconsidering" resignation; and his chance to withdraw his guilty plea is probably better than Beldar first presumed
3. Has Larry Craig hired the part-time prosecutor who filed the complaint against him?
4. Craig swears that on the date of his arrest, he "decided to seek a guilty plea to whatever charge would be lodged" against him

Do you care if national security criminal Sandy Berger is re-embraced by The Triangulatrix?

This is a story about a buffoon who became one of our nation's top national security officials, and then became a confessed national security criminal. His probation ended last week, and he still can't be given access to classified documents or information. But he's once again part of the "triumvirate" of senior officials advising She Who Would Be President on foreign policy matters.

Do you care?

*******

On Thursday, September 8, 2005, former Clinton Administration National Security Advisor Samuel R. "Sandy" Berger pleaded guilty to one count of violating 18 U.S.C. § 1924, "Unauthorized removal and retention of classified documents or material." Section 1924(a) provides:

Whoever, being an officer, employee, contractor, or consultant of the United States, and, by virtue of his office, employment, position, or contract, becomes possessed of documents or materials containing classified information of the United States, knowingly removes such documents or materials without authority and with the intent to retain such documents or materials at an unauthorized location shall be fined under this title or imprisoned for not more than one year, or both.

Because the maximum term of imprisonment authorized is one year, a violation of section 1924 is considered a "Class A misdemeanor" under 18 U.S.C. § 3359(a)(6), that being the most severe category of federal misdemeanor. (Crimes punishable for more than one but less than five years are Class E felonies.)

Under the terms of the judgment of conviction signed on Tuesday, September 13, 2005, Berger was fined $56,905.52 and "placed on probation for a term of 2 years," with his probation conditioned on his not committing "another federal, state, or local crime," and on his performance of 100 hours of community service. In addition to other standard conditions of probation (such as not associating with persons engaged in criminal activity, permitting visits by probation officers, and so forth), U.S. Magistrate Judge Deborah A. Robinson also approved an unusual plea bargain term as a further condition of Berger's probation: "Defendant shall have no access to any classified material for a period of three (3) years."

Law professor Jonathan Adler sums up Berger's conviction and underlying crime(s) this way (h/t InstaPundit):

Berger repeatedly stole and destroyed classified documents, resulting in the temporary loss of his security clearance. Berger has never provided a plausible explanation for his actions. By voluntarily giving up his law license, he avoided a cross-examination from bar counsel, so we still do not know precisely what he was doing and why. Indeed, the only assurance that Berger did not destroy unique copies of classified national security documents — such as copies of reports containing notations in the margins and the like — comes from Berger himself, something that the 9/11 Commission was not told when it was preparing its report (as I noted here).

Betsy Newmark also has more recent links and quotes about the scope of Berger's thefts and document destruction.

*******

Berger proceeded to show the world just how very, very seriously he took the conditions of his probation. According to the Washington Post, less than 48 hours after his sentencing

Berger was clocked going 88 mph in a 55-mph zone while driving eastbound on Interstate 66 in Fairfax on [Saturday,] Sept. 10, according to court records. Berger told court officers that "he was speeding because he was late to a meeting, and he was not aware of how fast he was traveling," according to a probation violation report filed in federal court.

The charge comes as some judges in Fairfax have begun cracking down on excessive speeding and other reckless driving violations, sentencing violators to jail time in some cases, defense lawyers said.

Reckless driving is a Class 1 misdemeanor in Virginia; it carries a penalty of up to 12 months in jail and a $2,500 fine, although those limits are rarely approached, experts said. At the very least, Berger is likely to be fined and to have his driver's license suspended for several months if he is found guilty, according to traffic lawyers not connected to Berger's case.

An October 5th memorandum from the District of Columbia's Chief United States Probation Officer pointed out to Magistrate Judge Robinson that her options included revoking Berger's probation and re-sentencing Berger to a full one-year custodial term in a federal prison. But apparently, the quality of Magistrate Judge Robinson's mercy was not strained: According to the WaPo story, she "admonished Berger ... for the traffic charge during a brief hearing in U.S. District Court for the District of Columbia but left him on probation as recommended by the federal probation office, according to court records."

The WaPo article closed by reminding us all that "Berger stepped down as an adviser to the presidential campaign of Sen. John F. Kerry (D-Mass.) after the investigation [into his document theft] was disclosed last year [i.e., in 2004]."

As it turned out, Berger was only fined $250 when he pleaded guilty to the reckless driving charge in November 2005. But that guilty plea establishes that within 48 hours after being sentenced to probation for a crime punishable by a year's imprisonment, he proceeded to commit yet another.

According to my check today of the U.S. District Clerk's online docket sheet for Berger's criminal case, he appears to have satisfactorily completed the balance of his two years of supervised probation — that supervision having ended last week on September 7, 2007. But the special condition of his probation — the prohibition on his having access to classified materials — still has another year to run.

*******

Although the accusation that Berger had committed an intentional, shameful abuse of the public trust was sufficient to shame John Kerry into disassociating himself from Berger in 2004, even Berger's guilty plea and conviction are obviously insufficient to similarly shame front-running 2008 Democratic presidential candidate Sen. Hillary Clinton (D-NY). And beating John Kerry in shamelessness is an impressive accomplishment.

Last month, Newsweek's Michael Hirsh revealed, as part of a story about younger Clintonistas who were "defecting" to Barack Obama's campaign, that Berger was indeed functioning as a close adviser to Sen. Clinton (second ellipsis by Newsweek, boldface mine):

Younger former Clintonites ... are also wary of what one describes as Hillary's "closed circle," including her husband and a triumvirate of senior officials from his presidency — Holbrooke, Albright and former national-security adviser Sandy Berger. "There is a sense, consciously or subconsciously, that we don't want to just go back to the same team: Holbrooke, Sandy, Madeleine ... the same people having the same arguments about who's going to be in the room," says the midlevel Obama adviser. The Obama campaign has played on those fears, telling recruits they can rise faster with the Illinois senator. "The Obama pitch is, 'You'll never be in the inner circle' with Hillary," says Gene Sperling, Senator Clinton's top economic adviser.

In a follow-up online-only story this week, Hirsh wrote:

The more experienced Hillary Clinton, meanwhile, has relied largely on her husband and a triumvirate of senior officials from his presidency — former secretary of state Madeleine Albright, former U.N. ambassador Richard Holbrooke and former national-security adviser Sandy Berger (who tries to keep a low profile after pleading guilty in 2005 to misdemeanor charges of taking classified material without authorization).

Oh, how droll is that parenthetical — "tries to keep a low profile"? As of today, a Google search of Hillary's campaign website reveals only one reference to Berger, and that's in a blog comment quoting Berger from 1998 on the likelihood of Saddam having and being willing to use WMDs. By contrast, there are more than two dozen references to Madeline Albright.

*******

Sen. Clinton is, of course, a member of the Senate Armed Services Committee, and serves on its Airland, Emerging Threats and Capabilities, and Readiness and Management Support subcommittees. I presume that as a senator with those assignments, she has regular and routine access to classified documents and information. I also presume that, as a presidential candidate, she has regular and routine meetings with her senior staff to advise her on political aspects of her foreign policy positions.

Golly, I hope she's being careful not to let a shred of classified information slip into her discussions with the Triumvirate. Receiving classified information from Sen. Clinton over the coming year, even if unintentionally and inadvertently disclosed by her, would be a violation of Berger's probation. Him having voluntarily put himself into a situation in which he was likely to be privy to such unintentional and inadvertent disclosures would certainly be something a federal judge considering probation violations could and should consider. And even though he's no longer under active supervision, a violation of this continuing term of his probation could still send him back to prison for a year.

Brave, brave Sandy! I say that because surely he knows that if Hillary were to have a slip of the lips, then honest and ethical Hillary would be the first person to blow the whistle and report the probation violation to the court system and the press.

Wouldn't she?

*******

Sen. Clinton's shamelessness with respect to convicted national security criminal Berger is, of course, entirely unsurprising, given who she chooses to remain married to. And I wrote as far back as July 2005 that the political rehabilitation of Sandy Berger had begun even before his formal sentencing, when the WaPo published an op-ed that Berger co-wrote with Bush-41 National Security Advisor Brent Scowcroft.

Blogging today on Outside the Beltway, Dr. James Joyner wonders whether

maybe we've reached the point where such things [as Berger's conviction and continuing court-ordered non-access to classified documents] don’t matter. Clinton’s husband left office with remarkably high public approval despite impeachment and conduct which led to him being stripped of his license to practice law. Meanwhile, the current administration continues to run war policy despite a string of scandals and near-record low approval ratings. Perhaps fealty to the law is no longer high on the list of public expectations for executive office.

Dr. Joyner's comparison is inapt. Whatever "scandals" surround it in the eyes of its partisan opponents, the only high-level official of the Bush-43 Administration who's been convicted of anything in a court of law is Scooter Libby — and he doesn't still work for Dick Cheney, and hasn't since he was indicted, and almost certainly never will again, even if his appeal succeeds in overturning that conviction. But Dr. Joyner's right on his implied main point — which is that it's only public opinion that can effectively disqualify someone like Sandy Berger from returning to extraordinary public power and influence.

I guarantee you that somewhere in the bowels of the Clintonista Research Room, right now there is someone running Technorati searches on Hirsh's Newsweek articles about Berger; someone's checking Google News; and someone's probably writing questions for the next focus group session or telephone poll to see just how strongly the name "Berger" skews the needle in the window of the public approval meter.

If lying down again with this dog gives her visible fleas that the voters may notice, then The Triangulatrix will drop him in the proverbial New York minute. Otherwise, she won't. If there's no furor now, he'll stay in the inner circle through the election. If she wins and there still hasn't been a public furor, or a very big one anyway, then you can bet the ranch that the U.S. Senate will again be asked for its advice and consent on Samuel R. Berger. In my post of April 2, 2005, which was entitled Beldar on Berger: If he comes back, blame politicians, not the prosecutors, I wrote (emphasis in original):

It's not a felony conviction. The buffoonish schtick — "he stuffed the documents into his pants and his socks, fer pete's sake, har har har!" — is what will stick in the public memory, not the federal criminal conviction for a confessed and indisputable breach of a public trust. And the groundwork has been laid for what suddenly seems to me to be a very likely PR campaign by the once-and-would-be-future Clintonista spinmeisters:

"That crazy Sandy, what a wonk! Yeah, he had that slap on the hand, but hey, he took his medicine like a mensch, Senators — and look at his career in context! Can you let this silly misstep from years ago, during the crazy post-9/11 hysteria, disqualify him from distinguished service in the Hillary Administration? Will you deny the public the benefit of his expertise and his insights for such a trivial matter? Why, that would be crass partisanship, Senators. The President and the public have forgiven him; indeed, the President pardoned him on her first day in office. Onward and upward, Senators!"

... The Constitution requires the Senate either to consent, or to withhold consent. But with respect to Sandy Berger, that future political judgment on the Senate floor ought to be — may not turn out to be, but ought to be, if principle can indeed prevail over spin — preordained by this week's legal judgment in a court of law: GUILTY.

He is guilty. Forever, undeniably — guilty. Pardoned or not, rehabilitated or not, penitent or not, buffoonish or not — self-admittedly guilty of deliberately, intentionally, cynically, cravenly betraying the public trust and the national interest of this country. And then he lied about it to the public, before finally confessing as part of his guilty plea.

Bookmark this post for 2009 — just in case. You might want to email a link to it to your senators then.

Or you might want to leave a blog comment now. Or write a letter to your favorite newspaper's editor, or maybe to the Probation Office for the U.S. District Court for the District of Columbia. Or phone in to your favorite talk radio program. Or mention it to your co-worker at the water cooler or your neighbor over the back fence. Because The Triangulatrix doesn't care herself — but she will care if enough of us care.

Craig swears that on the date of his arrest, he "decided to seek a guilty plea to whatever charge would be lodged" against him

Via Jeralyn Merritt at TalkLeft, here is a 39-page .pdf file containing Sen. Larry Craig's motion to withdraw his guilty plea, including a new three-page affidavit from him in support of it. In it, one finds (at pp. 19-20 of the .pdf file, in paragraph 12) this extraordinary statement under oath (boldface mine):

Deeply panicked about the events [of my arrest and post-arrest interview], and based on Officer Karsnia's representations to me regarding the potential outcome, my interest in handling the matter expeditiously, and the risk that protracting the matter could lead to unnecessary publicity, I did not seek the advice of an attorney on the date of my arrest, and I made the decision on that date to seek a guilty plea to whatever charge would be lodged against me.

Oh, really? Capital murder and treason included? This is a ridiculous statement — one that's not only almost certainly untrue, but that actually undercuts Craig's motion: If Craig had indeed come to an irrevocable decision to plead guilty to whatever they charged him with, and he came to that decision immediately after being Mirandized and with full knowledge that he was entitled to an attorney, then any later violation of or compliance with Minnesota's procedural rules designed to ensure that his waiver of his right to counsel was a knowing and voluntary decision was causally irrelevant, either way, to the actual entry of his plea.

(Christopher P. Renz' name, by the way, isn't on the new pleadings as part of Craig's legal team. But I still haven't heard back from him with a denial that he's been retained by Craig. Maybe I'll phone his office tomorrow.)

Craig's whole "I panicked" argument can be ground firmly into the dust with no more of a cross-examination tool than a calendar. Craig was arrested on June 11th and didn't sign his motion to plead guilty until August 1st.

Nor do I think it's a great idea to lead with an assertion that Craig's "panic" was justifiable because a homestate newspaper was investigating his lifestyle, including rumors of homosexual activities. That's not only not a crime on the part of the press, it's not something that any senator has any basis to claim surprise about. "Boo hoo, poor overwhelmed and picked-upon me" is an emphatically stupid defense strategy for a U.S. senator.

Overall, I am decidedly unimpressed with the motion and supporting exhibits that Craig's lawyers filed today on his behalf. It does a barely adequate job of making what is clearly his best argument — that the written motion to enter a guilty plea, drafted for him by the prosecution, failed to comply with Minnesota Rule of Criminal Procedure 15.02. They have what appears to be a crystal clear violation of an important pretrial rule designed to protect fundamental constitutional rights, and they wait until the seventh page of a sixteen page brief to even cite that rule!

To give you just an idea of the lack of care paid to this argument: At the top of page 8, in an intended explanation for how Rule 15.03 requires mail-in pleas to conform to the standards of Rule 15.02, appears this sentence: "Rule 15.03, which governs 'pleas by mail' such as the petition entered in this case, requires the same protections as Rule 15.03." Now, that's just a typo — they clearly meant to end the sentence with "Rule 15.02." But some typos are less excusable than others, and getting a rule number wrong in the most important portion of your argument is pretty damned sloppy.

The motion does not argue that the sting operation unconstitutionally discriminated against gays — no doubt because to make that argument, Craig would have to admit that he's gay, but also perhaps because it would be a bogus argument. Nor does it focus on the "'or' for 'in' typo," or the Article I, Section 6 "arrest en route to a Congressional session" immunity, both of which would also have been completely bogus. (I discussed all of these in more detail here.)

And indeed, other than the Rule 15.02 point (which can be made solely from the written record as it existed at the time the court accepted the plea), Craig's lawyers' only other argument was that neither the plea agreement nor the complaint make out conduct that even arguably violated the disorderly conduct statute. That's an argument that I think is badly, obviously wrong for all the reasons I explained in my very first post on the Craig matter. It might win with a jury; it's not going to persuade many, if any, judges that the prosecution's complaint didn't even allege a prima facie case from which a jury could find a violation of the statute.

By submitting Craig's sworn affidavit, his lawyers have chosen to attempt to prove his entitlement to withdraw his plea by relying on evidence outside the existing record. The prosecution should object on grounds that even though his affidavit is sworn, his statements in it were made out of court, not subject to cross-examination — and therefore they're hearsay. His motion asks for oral argument, but not an evidentiary hearing; yet without an evidentiary hearing, with live witnesses subject to cross-examination, they ought not be able to rely on anything outside the record when the court accepted the guilty plea. (The court could consider the affidavit for the purpose of deciding whether there have been allegations sufficient to justify having such an evidentiary hearing, without giving any evidentiary weight to the hearsay allegations in the affidavit as substantive evidence.)

Unsurprisingly, as CNN reports, the prosecution intends to oppose Craig's motion:

Patrick Hogan of the Metropolitan Airports Commission said the prosecutor will oppose Craig's motion, according to The Associated Press. The commission runs the airport and handled the prosecution of the case.

"We do feel we have a strong case, and he's already made his plea, and it's been accepted by the court," Hogan told the AP. "From our standpoint, this is already a done deal. Mr. Craig was arrested and signed a guilty plea, and from our standpoint, this case is already over."

I would love the opportunity to cross-examine Larry Craig on the quoted statement above from his affidavit, plus others that I think have a very questionable ring, plus the huge subject areas that his affidavit and motion carefully avoid.

• Does he now claim under oath, for example, that he was unaware that he had the right to counsel to advise him on how taking the plea bargain compared to his other options?


• Does he claim that if the written plea agreement had contained the warnings required by Rules 15.02 and 15.03 to the effect that he was entitled to counsel at every critical stage of the proceedings, including in connection with plea negotiations and the entry of his guilty plea, he would have suddenly decided — inconsistently with what his affidavit swears — not to enter a guilty plea? [Update (Mon Sep 10 @ 9:20pm): This is an awfully important point, and it prompted me to add the additional concluding sentences in the paragraph near the top of this post, just after "treason included?"]


• Does he claim that Sgt. Karsnia promised him to seal the court files so that no one, whether the Idaho Statesman or anyone else, could find out about his guilty plea?


• As a U.S. senator, did he not understand that criminal proceedings, including trials and pleas and court records about them, are generally open to the public? Or was he instead working on the assumption — notwithstanding the dozens or hundreds of votes he's cast as a law-maker — that American criminal justice operates through secret Star Chamber-like trials?

Despite the average-or-less quality of this motion and supporting affidavit, I still think (as I wrote at length last week) that the chances are still fairly good that Craig can get his plea withdrawn — something on the order of 50/50, anyway. Today's New York Times confirms that, as I suspected, some defendants caught up in the same sting that netted Craig had negotiated pleas through their lawyers for "deferred prosecution." If the judge reviewing Craig's present motion takes that into account, he may conclude that Craig was indeed materially harmed by not having a lawyer, and thus pay particularly close attention to whether the record confirmed a knowing and voluntary waiver by Craig of his rights to counsel before his plea was accepted.

But Craig may now have to climb onto the witness stand for what potentially could turn into a very embarrassing evidentiary hearing even to get that far. [Update (Mon Sep 10 @ 10:30pm): I haven't researched it, but I'm reasonably sure that by filing this affidavit, Craig has voluntarily waived any Fifth Amendment privilege against self-incrimination that he might otherwise have asserted to prevent the prosecution from calling him to he witness stand as an adverse witness during an evidentiary hearing (at least on the topics covered in the affidavit and for purposes of the plea withdrawal). If the prosecution's hearsay objection to the affidavit is sustained, it would be stricken from the record, or at least not considered for any evidentiary purpose other than as a proffer to show why an evidentiary hearing would be justified if the Craig team asked for one. But even if the affidavit is stricken, and even if Craig's team is willing to lose the benefit of the affidavit rather than ask for an evidentiary hearing, the prosecution should still insist on an evidentiary hearing. The more I think about it, the more I think that filing that affidavit was a colossally bad idea, and that whoever helped Craig draft it used particularly abysmal legal judgment. — Beldar]

More importantly, as I've said from the beginning, Craig may win this battle only to be thrust back into the larger war — a trial on the merits on both the disorderly conduct and the peeping charges, as a result of which he may well be convicted of both and have to do serious jail time, in addition to incurring considerable expense and subjecting himself and his family to continuing ruthless public scrutiny. From today's CNN story, we hear more from Sen. Arlen "Super-Precedent" Specter:

In a CNN interview Sunday, one of Craig's Senate colleagues compared the guilty plea to a motorist paying an undeserved parking ticket. Sen. Arlen Specter, the ranking Republican on the Senate Judiciary Committee, said Craig should stay in the Senate and fight to overturn his conviction.

"He thought that this matter would not be publicly disclosed, and that was very foolish," Specter said. "Now look here, you have 27 years in the Congress, you have his reputation, you have his whole life on the line. I think he's entitled to his day in court. Maybe he will be convicted, but I doubt it."

Specter said Minnesota law allows a defendant to withdraw a guilty plea "if there is manifest injustice, and that is defined that a plea can be withdrawn if it was not intelligently made," Specter said. "And what Sen. Craig did was by no means intelligent."

Well, yeah, we can all agree that Sen. Craig has been foolish. The problem is, he's apparently not getting any smarter even now that he's lawyered up.

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

UPDATE (Tue Sep 11 @ 11:10am): I phoned the Hennepin County District Courts this morning and waded through the automated messages until I got to a live deputy clerk, who advised me that as best she can tell from her computerized court records summary screen, there was no "Form 11" (or as she called it, "pro se form") on file in Sen. Craig's case. She also advised that an "oral hearing" has been set for 1:30pm on Wednesday, September 26th — which fits with Sen. Craig's announced intention to try to get this "disposed of" before his announced Senate resignation effective date of September 30th. I've got voicemail messages pending for Chris Renz and for the spokesperson for the Airport quoted above, Pat Hogan; maybe one or both will call me back.

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

UPDATE (Tue Sep 11 @ 7:10pm): I received a prompt return phone call from Mr. Hogan, who's the director of public affairs for the Minneapolis-St. Paul Metropolitan Airports Commission, around mid-day today. He confirmed that to the best of his knowledge, Chris Renz has not been hired by the Craig team, contrary to the Congressional Quarterly report; like me, he could only speculate that they got a name wrong somewhere. Mr. Hogan explained that the Minneapolis-St. Paul airport functions like a municipality in many respects, including in hiring Renz' law firm to prosecute its misdemeanor charges. He said that same firm will be responding to Sen. Craig's motion to withdraw his plea, and that they'd make whatever decisions were appropriate about, for example, whether to try to call Sen. Craig to the witness stand, have stand-by counsel if Renz should become a witness, and so forth. Understandably, however, he was unable to discuss specific tactics or positions with me.

The September 26th oral hearing setting came, according to Mr. Hogan, directly from the court. He noted that there's no assurance that the court will actually rule on Sen. Craig's plea right away, however.

Finally, consistent with what the deputy clerk had told me, Mr. Hogan also said that he was unaware of any motions or pleas being filed by Sen. Craig before the motion to accept his guilty plea by mail. So that's some further confirmation that Sen. Craig didn't fill out and file a Form 11, either on his own initiative or at the prompting of prosecution or clerk's office personnel.

MoveOn.org's new ad campaign: "Nanny nanny boo boo, Petraeus is stinky and Bush is too!"

I gather that "the antiwar group MoveOn.org is running a full-page advertisement in the New York Times [today, i.e., Monday,] under the headline: 'General Petraeus or General Betray us? Cooking the books for the White House.'"

I know there are mature, thoughtful, and patriotic Americans who will listen to and consider what Gen. Petraeus says this week, and who will nevertheless find it unpersuasive, or judge his testimony to lack credibility, or will accept it in part and yet reject the conclusions that the Bush-43 Administration will urge based upon it. Many, but not all, of the mature, thoughtful, and patriotic Americans who react in these ways will be Democrats. Some of them will be leaders in the Democratic Party at national, state, or local levels.

I don't feel obliged to make a blog post every time some hard right nut-case updates his website on how the real explanation for American history over the last two dozen years can only be explained by Hillary Clinton's involvement in Vince Foster's suicide. But MoveOn.org channels dozens of millions of dollars to Democratic Party candidates. It demands attention. It buys full-page ads in the NYT. It's hard to ignore.

So my question to those mature, thoughtful, and patriotic Americans, and especially Democrats, who end up not being persuaded by Gen. Petraeus' testimony is this:

Will you condemn and disassociate yourself from MoveOn.org's scandalous character assassination? Or will you associate yourself with them, including their "Petraeus --> Betray Us" wordplay, a juvenile antic of which any moderately self-respecting third-grader would be ashamed?

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

UPDATE (Tue Sep 11 @ 2:10am): Here, from blogger Big Tent Democrat at TalkLeft, is an example of a grown-up, intellectually honest disassociation. I heard some Democratic Congresscritters doing the same on TV earlier tonight as well. I wish there were more like that, and fewer like the folks who are making the decisions for MoveOn.org.

Fran Townsend and Mara Liasson

As Bush-43 Administration public spokesmen go, I haven't seen any who have impressed me more than Homeland Security Adviser Fran Townsend on Fox News Sunday this morning. A former prosecutor, she was sharp and articulate, exuding competence and confidence on national security issues.

And she just looks mah-vellous, which isn't a job requirement, but doesn't hurt in terms of being an effective communicator.

(Yeah, I'm mildly smitten — two screencaps worth, anyway, albeit from a July appearance I missed. So what of it?)

For another notably candid statement on that same program from another elegant woman, here's Fox and NPR contributor Mara Liasson, speaking of the new Osama bin Laden videotape, after Brit Hume had said bin Laden sounded like nothing more than a madman and a crackpot (including on global warming and sub-prime mortgage markets):

But he's still here! And that's a problem. And his networks, or at least, networks that have been inspired by him, have expanded. And whether or not they can carry out an attack, they certainly can plan one, which we saw by the arrests in Germany. So I think that, you know, on this sixth anniversary, it's — terrorism is as much a threat as ever. No, there hasn't been another attack on U.S. soil, which is good. But I do think that you're going to see that the 9/11 hold on the American political debate has really changed. And I thought — you saw John Edwards this week, talking quite, you know, dismissively of the Administration's policy on terrorism. And I do think you will see Democrats being more willing than they ever have to break with the Administration on fighting terrorism.

Gosh, I hope so. I hope that all the Democrats bet the ranch on Americans' short memories. I hope the John Edwards approach sweeps the party. Certainly some Americans do have short memories. I just don't think they all have memories as short as, for example, Harry Reid's. And I don't think quite 50% of the voting ones do.

Of Thompson and Clark and sports metaphors used in politics

At Outside the Beltway, James Joyner's post today is the latest of many I've seen comparing Fred Thompson's entry into the GOP presidential race this year with Wesley Clark's entry into the Democratic presidential race in 2000, but Dr. Joyner's, quoting one from blogger Publius at Obsidian Wings, is considerably more thoughtful than most of the previous comparisons I've read. Dr. Joyner notes that the "gap from any job to the presidency is wider than any other career progression I can think of," but apropos of today being the beginning of the NFL's regular season, he employs a sports metaphor, with this conclusion:

Thompson (and Clark before him), though, are like the rookie who missed training camp because of injury or a contract holdout. I can’t think of a single case where one of those guys did well his first season.

My response (in a comment there, reprinted here with slight modifications):

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

I agree that there's a huge "gap from any job to the presidency," but we're actually talking here about the gap from something else to credible presidential candidate.

Thompson's coming at that gap from the position of a twice-elected senator. He may not have a history at funnel-cake stands in Iowa, but he does have a history that includes small-town barbecue joints scattered across Tennessee. That was a while ago, though, and his previously demonstrated skills in those contexts may indeed be rusty, and the menu of key issues now are different.

Clark had been in the very top tier in his career, but having never run for any elected office, he had nothing remotely comparable to being a presidential candidate, or any kind of candidate, in his background.

So if you want to extend your sports metaphor, Thompson's in the position of a high-draft pick quarterback from, say, the University of Tennessee being expected to start at quarterback in the NFL. Clark was in the position of a third baseman from the New York Yankees being expected to start at quarterback in the NFL.

Clark was an absolute political novice. He may have been a good general (although I have my doubts about that), but not even his biggest fan can suggest that he came to the presidential campaign as an Eisenhower- or Grant- or Washington-like conquering warrior and savior of the nation. He never had a snowball's chance in hell to compete in the toughest political race imaginable. He's a political punch-line now, but anyone who ever took him as anything other than a political punchline was, with due respect, being naïve even before his campaign imploded on contact with, well, actual politics.

Thompson, by contrast, has at least as good a chance as Peyton Manning had as a rookie at Indianapolis:

Peyton Manning was the first draft pick of the 1998 NFL Draft, selected by Indianapolis, and started immediately for the team. Manning passed for 3,739 yards with 26 touchdowns and 28 interceptions. He set five different NFL rookie records, including most touchdown passes in a season and was named to the NFL All-Rookie First Team. [But the] Colts finished 3-13.

How much does being a veteran presidential candidate help? Perhaps not very much: Among the Democrats, the only candidate who has, in his or her own right, been on a national ticket is John Edwards, and his campaign has gone nowhere and has little prospect of going anywhere. On the GOP side, the only repeat candidate is John McCain, who's widely perceived to be doing substantially less well in this campaign than he did in 2000.

However, while she has run in exactly as many senatorial elections as Thompson (two), Hillary Clinton's campaign reflects her and her staff's experience with Bill Clinton's two presidential campaigns. It ought not be a surprise to anyone, then, that her campaign has been ruthless, disciplined, and nearly error-free. To extend the sports analysis further, she's been on a team that twice won the Super Bowl, but just not as the starting QB. It remains to be seen whether her experience will continue to allow her to cruise to a Clinton family three-peat. But objectively, she is, and she is performing like, the most experienced major presidential candidate from either party right now.

Finally: The NFL regular season started today, but the political regular season hasn't. All you have to do is look at the bloated roster to see that the cuts haven't been made, and while there might be season-ending injuries in these preliminary skirmishes, there hasn't been a delegate awarded yet, much less a presidential elector. Fred has a little bit of time to sharpen up, but he has to use it productively.

Has Larry Craig hired the part-time prosecutor who filed the complaint against him?

[UPDATE (Tue Sep 11 @ 7:40pm): Since writing this post, I've confirmed to my own satisfaction that the answer to the question posed in the post's title is almost certainly: "No." See the updates at the bottom of this later post. — Beldar]

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

The prosecuting attorney who signed the complaint against Craig that was apparently filed on July 2, 2007, was one "Christopher P. Renz."

On August 28th, the AP reported: "[The] judge [who accepted the guilty plea], Gary Larson, and the prosecutor named on the criminal complaint, Christopher P. Renz, did not return phone messages left Tuesday." The Minneapolis Star-Tribune likewise reported on August 29th: "Because the case remains open, Larson's clerk said he couldn't comment. Christopher Renz, the prosecuting attorney, declined to comment." And also reported by the AP on August 29th:

The case was prosecuted by Christopher Renz, an Edina attorney in private practice who also prosecutes cases for the Metropolitan Airports Commission, and Craig was sentenced by Hennepin County District Judge Gary Larson.

But Congressional Quarterly reported on August 29th: "Craig said he did not consult a lawyer before pleading guilty, but this week he hired a local expert: Chris Renz, a former prosecuting attorney for the Metropolitan Airports Commission in Minneapolis."

I've seen this same CQ story reprinted elsewhere on the internet, but no other reports to this same effect. Other, later press reports (for example, here and here) that were contemporaneous with Craig's announcement of his intent to resign didn't mention Renz in describing the members of Craig's legal team.

And then there's this today from the AP — the first part of which is consistent with my post from last night, but in the last part of which attorney Renz' name pops up again:

A defendant who wants to overturn a guilty plea has to demonstrate a "manifest injustice" under the state's Rules of Criminal Procedure, said Steve Simon, a law professor at the University of Minnesota who has run a clinic for defense lawyers for 30 years. That's a high hurdle, he said.

"Very few motions to withdraw pleas are brought," Simon said. "Of those that are brought, few are granted."

He added, however, that in Craig's case "there are some very serious problems with the validity of that plea" because of the possibility that Craig may not have specifically waived his right to an attorney.

The police officer's Miranda warning to Craig covers only the police interrogation — not the later court process. In his plea agreement Craig waived five specific rights, including the right to a trial, but not his right to an attorney. Hennepin County's standard plea petition includes a waiver of a right to an attorney but that wasn't used in Craig's case, Simon said.

A July 20 letter from prosecutor Christopher Renz to Craig laying out the proposed plea agreement made several references to an attorney. "Please review the document and to the extent that you wish, review the same with legal counsel," the letter said. The Metropolitan Airports Commission, which prosecuted the case, declined to make Renz available for comment on Wednesday.

I haven't seen this letter yet, but I'm looking for a link to it somewhere.

Ethically, it would be ... extraordinary, to say the least, for a former prosecutor, whether full- or part-time, to undertake the representation of a defendant whom he helped prosecute. I've got to think that CQ just got the name wrong, but I've emailed Mr. Renz and CQ to inquire.

The fact that Mr. Renz is only a part-time prosecutor, though, is a potentially interesting twist that potentially might shed light on questions regarding how the plea bargain was struck, how the motion to enter the guilty plea was prepared, and how the details of this particular case's progression might have compared to those of comparable cases handled directly by the Hennepin County Attorney's office.

Craig "reconsidering" resignation; and his chance to withdraw his guilty plea is probably better than Beldar first presumed

On Sunday, I spent a good seven hours doing legal and factual research, all going into a post that would have explained why there was not a chance in hell that Idaho Sen. Larry Craig could succeed in trying to retract his guilty plea.

Law-blogger and real-life criminal defense lawyer Jeralyn Merritt argued last week that that Craig's written motion to enter his guilty plea didn't fully comply with the requirements of Rule 15.02 of the Minnesota Rules of Criminal Procedure as that rule was made applicable to mailed-in guilty pleas by Rule 15.03 — a failure made especially obvious by comparing it to the more much thorough forms provided in Appendix B and Appendix C to Rule 15. Specifically, the form Craig signed and mailed in didn't include a representation that Craig knew of, and was deliberately waiving, his right to counsel at every crucial stage of the criminal proceedings, including specifically in connection with his decision to accept a plea bargain and to enter a guilty plea to the disorderly conduct charge in exchange for the dismissal of the peeping charge.

I agree with Jeralyn that when such arguments are presented in a timely fashion, they can be surprisingly robust, even though they seem awfully picky. There's a good reason that the appendices included the language that was specified in Rule 15.02 but omitted by the Hennepin County prosecutors: Those picky little rules, collectively, both ensure and constitute due process. The more important the value being protected by the rule, the less strict courts tend to be in requiring a direct showing of causation between the violation of the rule and any particular harm to the defendant. And faced with a defendant who was proceeding without a lawyer, who's not a lawyer himself (even if he is a "lawmaker"), whose operative documents were being written for him by the advocates for the State (and they didn't follow the rules), and who's now maintaining his factual innocence and making a timely complaint about a violation of even such a picky little rule, I agree with Jeralyn that Craig would have a reasonably good chance of getting his plea withdrawn.

But I was prepared to disagree with Jeralyn because I was convinced that any attempt by Craig to make that argument now would be deemed untimely — sort of like asking for an instant replay review after the game has been whistled over.

*******

Rule 15.05 of the Minnesota Rules of Criminal Procedure permits withdrawal of a guilty plea "upon a timely motion and proof to the satisfaction of the court that withdrawal is necessary to correct a manifest injustice." The missing language from Craig's written plea might be enough to satisfy the "manifest injustice" requirement, but I had already confirmed earlier last week that, based on the judgment date of August 8th, Craig had already missed his fifteen-day deadlines under Rule 26.04 for filing either a motion for new trial or a motion to vacate the judgment of conviction in the trial court, as well as missing his ten-day deadline under Rule 28.02 for filing a notice of direct appeal as of right.

Based on those deadlines, I was therefore working on the reasonable assumption that any motion by Craig under Rule 15.05 would therefore be considered "untimely," and that he would therefore be restricted to a so-called "collateral attack" on his conviction. In some states that would be done through a writ of habeas corpus, but in Minnesota, all such collateral attacks are made under Minn. Statutes § 590.01 et seq. I saved until last the task of looking for cases interpreting those statutes, again working on the assumption that they would at least roughly parallel the collateral attack standards I was familiar with from Texas and other states within the old Fifth Circuit.

My intended grand conclusion was that because he'd missed these bright-line deadlines, Craig would have to show something vastly more than the sort of technical defect that Jeralyn had spotted. He'd need to show that a fundamental constitutional right was violated, and not just in some technical way, but in a way that had actual consequences for him. He'd therefore need to show, I assumed, something like (a) a complete failure of anyone to ever advise him of his right to counsel, plus (b) an actual ignorance on his part of those rights, plus (c) a convincing argument that if the missing language had been in the form plea motion sent to him by the prosecutors, it would have tipped him against pleading guilty and instead into seeking a lawyer's advice, plus (d) an argument that on the basis of such advice, he would have reevaluated the charges and evidence against him, and would have decided instead to fight both charges rather than taking the plea bargain. Since we've heard the arresting officer Mirandize him in the post-arrest audiotaped interview, I thought it would be impossible for him to meet that burden in a traditional collateral attack.

My assumptions, though, were wrong. Minnesota law on withdrawing guilty pleas is just damned generous, at least as compared to Texas and other states I'm more familiar with. Minnesota's caselaw treats Rule 15.05 as having no bright-line deadline, and motions to withdraw pleas under it aren't automatically considered to be "untimely" even after new trial motion and notice of appeal deadlines have passed. Instead, the Minnesota courts have engaged in the sort of sliding scale balancing of interests tests that judicial conservatives (including me) so tend to mock. They weigh the magnitude of the right supposedly deprived against the delay in asserting it, with special emphasis on whether that delay will prejudice the prosecution in proceeding to trial if the plea is permitted to be withdrawn. The presumption of validity for final, no-longer-appealable judgments gets mouthed by the Minnesota appellate courts, but sometimes seems to count for very little. My research was far from exhaustive, and of course I'm not admitted in Minnesota, but in an hour or so I came upon a goodly handful of Minnesota cases permitting plea withdrawals months and even years after they'd been made, sometimes without anything approaching the kind of rigorous examination for both violation of fundamental rights and the resulting causation of prejudice that I would have expected.

Surprised and frustrated — partly with the squishy laws of Minnesota, but mostly with my own assumptions that they were probably like other states' laws I was already familiar with — I hit the "Delete Post" button, and went back to Jeralyn's blog to leave a "never mind" comment after the questioning comment I'd left earlier. (She apparently had seen some of the same cases I had.)

(The wild-card: If by chance the Hennepin County prosecutors also had Craig execute and file Minnesota's "Form 11," through which defendants are supposed to ask permission of the courts to exercise their rights to proceed "pro se" (that is, without counsel), then all bets as to whether he can withdraw his plea are off. But I'm working on the assumption that if there were such a document in the court's file, one of the mainstream media sources who've been swarming around this story would have mentioned it by now. If it's not there, its absence is yet another factor that would support Craig in withdrawing his plea.)

*******

Now, though, as Jeralyn and K-Lo have blogged, various MSM sources (including ABC, WaPo, and the Idaho Statesman) are reporting that Craig is "reconsidering" his announcement that he may resign, in part based on encouragement from Sen. Arlen Specter that he ought to fight rather than bow out. Specter is indeed a former state-court prosecutor, which probably gives him just enough credibility that his advice seems to Craig like a life vest thrown to a man who'd already given himself up for drowned.

But that Specter may be right in saying Craig could get his plea set aside doesn't mean Specter's advice to fight is wise. One of Jeralyn's co-bloggers at TalkLeft who's also a criminal defense lawyer wrote a fascinating post last week reporting his/her poor success rate in trying cases like Craig's:

Does he want a trial? Can he win a trial? I don't think so.

I have tried about a dozen cases involving men arrested in bathrooms or in similar situations. My record:  1 and 11. Why? These cases are hard to win because the credibility determination always favors the officer. Judges feel compelled to rid their communities of gay men trolling for anonymous sex in public bathrooms, as a "quality of life" crime.

That record sounds about right to me — and that's presuming that Jeralyn's co-blogger is a capable and experienced lawyer doing a very competent job. There's a very real possibility — one that I'd go so far as to call a substantial probability — that Craig might get his plea withdrawn in the next week or two, withdraw his statement of intent to resign effective September 30, and then still end up being convicted. Indeed, he might be convicted not only of the simple misdemeanor disorderly conduct charge, but of the much more serious "gross misdemeanor" peeping charge. The trial would be, of course, a media circus; the result would likely come down largely to Craig's on-stand credibility as compared to that of the arresting officer, Sgt. Dave Karsnia, and to the jury's sensitivities in their legitimate role as "conscience of the community."

If I had a client in Craig's position and he was genuinely convinced of his innocence, and if he was therefore insistent upon proceeding to trial despite all the potential downsides — not just the criminal penalties he faced, but the expense and distraction, and most of all the intense embarrassment and hardship on him and his family and friends — then I'd certainly have no trouble buckling on my armor and picking up my sword and going to do battle on his behalf in court. To ensure that his decision was well-informed and truly well-considered, however, I would be as brutal as I could be in describing the risks. I'd do an extended and very realistic mock cross-examination of him on videotape, and then go over the playback with him — and with his wife. I'd beat him up in private as badly as I expect the prosecutors will beat him up in public. Because while a trial here would be very interesting for the public, it won't be pretty. And even if he risks it and wins, it still may not solve his political problems.

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

UPDATE (Tue Sep 4 @ 11:10pm): This lede gets my vote for "droll reporting of the week":

Just when Republicans thought things could not get much worse for their scandal-stained party, Idaho Sen. Larry Craig leaked word Tuesday night that he is reconsidering his abrupt plan to resign from the Senate in the wake of his arrest in a police sex sting operation.

Top Republican strategists were neither delighted nor amused by the senator's decision to rethink retirement after pleading guilty to disorderly conduct following his arrest in a Minnesota airport men's bathroom.

By way of further explanation of the difference between "direct" and "collateral" attacks on a guilty plea, let me give you an example of just how strict the Texas courts are with respect to the latter.

This past May, in Ex parte Douthit, the Texas Court of Criminal Appeals considered a collateral attack by a capital murder defendant who pleaded guilty as part of a plea bargain in 1987. As part of the plea, he escaped the death penalty and received instead life imprisonment with no possibility of parole. Eighteen years later, he filed a petition for a writ of habeas corpus in which he raised, for the first time, an absolutely valid argument: Prior to 1991, Texas law quite literally did not permit a defendant charged with capital murder to waive his right to a jury trial. Douthit's plea bargain squarely violated the then-existing statutes, and the judge ought to have required the prosecutors to dismiss the capital charge and re-indict him on a non-capital murder charge before accepting his plea. Had that happened, he would have been eligible, eventually, for parole. In effect, the pre-1991 statute prevented over-charging of capital murder by prosecutors who would then be able to plead down to get a life with no parole sentence; so although it looks like a restriction on defendants' rights, it arguably actually expanded them (albeit at the expense of prosecutors' flexibility in the plea bargaining system, which might come back around to hurt at least some defendants).

On similar facts, the Texas Court of Criminal Appeals and the intermediate Texas appellate courts had granted writs in several previous cases, but the Douthit court reconsidered and then overruled those decisions. The "right" in question, it emphasized, was merely one conferred by statute — it was not a fundamental constitutional right guaranteed by either the U.S. or Texas constitutions, and indeed it had been dissolved for capital defendants accused after 1991 by unquestionably valid action of the state legislature. "The Great Writ [i.e., habeas corpus] should not be used to litigate matters which should have been raised on appeal or at trial," said the court.  And more fundamentally, collateral attacks through habeas corpus — those made after the time for a direct appeal has expired, or those that were not included in the original direct appeal — could not be used to correct procedural errors, or even violations of supposedly "mandatory" statutes. Douthit thus reminds courts that habeas corpus actions aren't meant to give unlimited bites, nor late bites, at every apple. Deadlines have consequences; finality is a value; and sometimes bright-line rules are preferable to balancing tests.

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

UPDATE (Wed Sep 5 @ 1:55am): In a new post, besides graciously linking this one, Jeralyn discusses, and I think correctly discounts, the possibility that Craig might have a defense based on his rights under Article I, Section 6 of the Constitution to be free from "arrests" while traveling to and from congressional sessions. And she again mentions the possibility that, if Craig were to succeed in getting his plea withdrawn, he might then, through counsel, try to re-negotiate a better plea bargain — perhaps one for delayed adjudication, in which his case could be placed "on hold" for a year-long probationary period. If he keeps his nose clean, the charges would then be dismissed without his having ever had to enter even a conditional guilty plea. That is indeed the kind of deal that good lawyers often can get for nonviolent clean-record clients, especially if there are other weaknesses in the State's case. It would be the "best case scenario" for Craig: He could maintain his innocence, but avoid both trial and conviction.

But Craig has already very publicly claimed that he's been "railroaded," and he's probably going to have to point more fingers at the prosecution to get his plea withdrawn. Once that's done, I can't imagine the prosecution cutting him any slack in plea negotiations. He shouldn't try to withdraw the plea unless he's really ready and willing to go the distance, all the way to a jury verdict, on both the disorderly conduct and the peeping counts.

Josh Marshall, meantime, gives us partial benefit of his Roll Call subscription in quoting reports which suggest that Craig had actually consulted Washington lawyer Billy Martin many times over the past several weeks — an inference from what seem to have been a large series of mis-dialed phone calls that Craig intended for Martin, and that included a voicemail message in which Craig was coordinating the language of his "intent to resign" announcement with Martin last Saturday. That actually would not surprise me at all; it's always been hard to swallow the suggestion that Craig returned to the airport police station to ask for a "contact person" for his lawyer, but that he hadn't yet consulted a lawyer, and didn't at any point before entering his plea. (On the other hand, he says he didn't tell his wife or his staff, and the mailing address in his motion to plead guilty was for a D.C. residence, presumably to keep them out of the loop.) Confirmation of pre-plea contacts with a lawyer would weaken Craig's arguments for withdrawing his plea, though, to the extent that such a motion is based on the (already ludicrous) suggestion that he really didn't know he had a right to counsel.

Regarding the voicemail message that's now public (and quoted in full at TalkLeft among other places), here's what I left as a comment there:

There's a good chance that Craig could get any evidence of the voicemail suppressed as an unintentional disclosure that didn't amount to a valid waiver of attorney-client privilege — meaning he could keep the prosecution from making any use of it at trial.

Of course, it will be pretty hard to find a jury in Minneapolis who doesn't already know that he pleaded guilty, even if he is permitted to withdraw his guilty plea.

But he's very, very lucky there wasn't anything more sensitive in the voicemail. If he'd said, for instance, "I've got to keep fighting this thing in court or else my wife will realize I'm really gay and divorce me, and I can't afford that," then it would have been cold comfort for him that he might be able to keep that from being formally offered into evidence at a trial.

Moral: When speaking to your lawyer on voicemail, limit yourself to, "Billy, this is Larry, call me back, k thx bai."

Finally: I've updated this post to add, gratuitously, a screencap of Sen. Specter on Fox News Sunday, urging Craig to fight. My question to you is this: Would you take legal advice from a man who matches that tie to that suit? (Or who wears that tie with anything?)

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

UPDATE (Wed Sep 5 @ yes I suffer from occasional insomnia o'clock a.m.): Josh Marshall quotes at length from an unidentified Oregon attorney who says that whether Craig can or can't withdraw his guilty plea "all depends on the transcript of the plea and sentencing [colloquy]." Well, yeah — except there wasn't a colloquy, so there won't be a transcript.

I don't blame this lawyer for jumping to that conclusion, because if this were a felony, or if it were what Minnesota terms a "gross misdemeanor" (like the peeping charge that was dismissed; and no, that's not an intentional double entendre), Craig would have had to show up in person to enter his plea, and there would have been a conversation on the record between him, his lawyer, and the judge. Dr. Marshall's correspondent is just behind the learning curve in failing to have figured out that this was a mailed-in plea.

But that is an important fact here. And frankly, it's hard to tell how it cuts.

One the one hand, the U.S. Supreme Court has been notably reluctant to impose the full range of constitutional requirements and protections for misdemeanors (a term whose meaning varies from state to state, but normally means a crime punishable by fines and a year or less of jail time) as compared to felonies (normally crimes punishable by fines and more than a year of prison time). That's one reason that the Minnesota Rules of Criminal Procedure require a more detailed set of inquiries by a judge who's accepting a guilty plea for a felony or a gross misdemeanor (Rule 15.01) than for a simple misdemeanor (Rule 15.02). That's also why an unsworn plea-by-mail, for the convenience mostly of the defendant, may be okay (per Rule 15.03) for a misdemeanor, with all of the admonitions that would normally be part of an on-the-record colloquy being instead reduced to a written form.

But on the other hand, given the fact that they're already short-cutting the procedures required for more serious crimes, there's an argument to be made that it's particularly important to follow strictly every one of the relaxed rules that have been permitted for the less serious offenses. Arguably, that's where the greatest dangers of prosecutorial abuse lie — in the little cases, where people likely want to just get it over with, and paying a fine that costs less than what a lawyer would bill you in two hours looks pretty damned attractive.

In most of those smaller cases, no one is going to end up fly-specking the written motion to enter a guilty plea. And this is just another simple misdemeanor, sure. But most simple misdemeanors, with no jail time and a $550 fine, don't end up abruptly ending the careers of prominent national figures.

Craig certainly knew — and regardless of what's in the record, the judge will know Craig knew — that he (Craig) had a right to a lawyer. But did Craig know that if he had a lawyer, he might have been able to negotiate a deferred adjudication plea — exactly the sort of thing that a prosecutor might not volunteer to a pro se defendant, even a U.S. senator defendant, but that even a semi-decent defense lawyer would have known to ask for? If I were Craig's lawyer, I'd have minions down at the courthouse this week developing a statistical model to try to establish just how much better similarly situated defendants did on their plea bargains with and without lawyers. But an experienced judge will know that anyway, and bringing him the actual numbers is probably carrying coals to Newcastle. This judge will presumably have seen many, many plea bargains, both mail-in and in-person; he will have a strong sense of what's "normal," and if he has the slightest hint that the prosecution extracted more from Craig than from other pro se defendants, that will help Craig enormously. Even if he senses that the prosecution took advantage of Craig as compared just to defendants who have lawyers, that will help Craig.

On balance, I think the fact that this was a mail-in plea probably makes the odds of getting the guilty plea withdrawn better rather than worse.

And if Craig's attempt to set aside his plea really ought to have been filed within 15 days to be unarguably timely, it will end up being filed no more than a few days after that. The prosecution can't plausibly claim that it's "prejudiced" in the sense of evidence having been lost, or witnesses having died or wandered out of touch, by virtue of the trial taking place in September instead of August.

All of this is what goes into my informed gut hunch about the likelihood of Craig getting his guilty plea withdrawn. The gut hunch of someone who actually practices regularly in the Hennepin County criminal courts would be better, but frankly, I've seen some press reports from people who look like they fit that criterion and yet have been making wilder guesses than Jeralyn or I have.

Rove on Dubya on Rove's last day at the White House

It's too soon to be discussing Dubya's long-term legacy, but nevertheless, I pretty much agree with this from yesterday morning. (H/t Hugh Hewitt.)

The answer to the "Why was this a crime?" crowd on the Craig matter

Ed Morrissey, Garrance Franke-Ruta, James Joyner, Dale Carpenter, Jack Shafer, and Radley Balko, among many others, all question whether Sen. Larry Craig actually committed any crime. As Mr. Balko writes,

Craig didn't actually engage in the lewd behavior. Didn't get that far.  Aside from the peeping charge, which was thrown out, the only thing I can see that he's guilty of is looking for a willing sex partner. And I can't see how that is or should be a crime.

Mr. Balko's confusion comes from his assumption that the peeping charge was "thrown out." It wasn't. Instead, the peeping charge was pleaded out — and that's a very, very big difference in this context. In fact, it's the peeping charge that almost certainly explains and makes justifiable Craig's plea to disorderly conduct (even if the latter crime was less obvious or more questionable on these facts).

*******

Prof. Ann Althouse links, quotes, and examines the two statutes under which Craig was charged. Here's the peeping statute:

(c) A person is guilty of a gross misdemeanor who:

(1) surreptitiously gazes, stares, or peeps in the window or other aperture of a ... place where a reasonable person would have an expectation of privacy and has exposed or is likely to expose their intimate parts, as defined in section 609.341, subdivision 5, or the clothing covering the immediate area of the intimate parts; and

(2) does so with intent to intrude upon or interfere with the privacy of the occupant.

The intent requirement is obviously key, since it is what separates criminal peeping from a casual glance to see if a stall is occupied. Was Craig just casually glancing? The prosecution, I'm sure, felt that with testimony at trial which would be consistent with this paragraph from the police report, and with all of the other circumstances, the State could prove beyond a reasonable doubt that Craig intended to "intrude upon or interfere" with the undercover cop's privacy (emphasis mine):

At 1213 hours, I could see an older white male with grey hair standing outside my stall. He was standing about three feet away and had a roller back with him. The male was later identified by Idaho driver's license as Larry Edwin Craig [redacted]. I could see Craig look through the crack in the door from his position. Craig would look down at his hands, "fidget" with his fingers, and then look through the crack into my stall again. Craig would repeat this cycle for about two minutes. I was able to see Craig's blue eyes as he looked into my stall.

Prof. Althouse correctly notes that the peeping statute much more closely tracks the facts alleged in the police report than the disorderly conduct statute, but she goes on to write, also correctly: "I have to suspect that he decided to plead guilty to disorderly conduct to resolve the matter and that if he hadn't agreed to that, he would have faced the peeping charge."

I would take that a step further with considerable confidence: The dismissal of the peeping charge was not because it was improper or because it would be shown to lack evidentiary support. Instead, the peeping charge was dismissed without objection from the prosecution because that was what the State gave up as its key part of the plea agreement. Thus, Sen. Craig was almost certainly given an accommodation here by the prosecution and the court in being allowed to plead guilty to the crime that, of the two charged, has by far less social stigma attached to a conviction.

Yes, disorderly conduct is a broad and vague charge — one that doesn't much seem to fit the facts alleged. And Craig’s presumably intended but uncompleted conduct (some sort of sex in a public men’s room) would certainly have been considerably more disorderly than anything he actually did before he was arrested. But disorderly conduct's very vagueness — encompassing "offensive, obscene, abusive, boisterous, or noisy conduct or in offensive, obscene, or abusive language tending reasonably to arouse alarm, anger, or resentment in others" — makes it stretchy enough to cover, if barely (and if only for purposes of a plea bargain) what Craig actually did do. Indeed, it's entirely possible that it was charged in the first place as an obvious, attractive basis for compromise, i.e., a charge with at least some factual correspondence to what happened, and upon which a more attractive plea could therefore be negotiated (especially for someone with no criminal record or other indications of dangerousness).

I am not in the least suggesting, either, that the prosecution or the court gave Sen. Craig a better deal than they would have given any non-famous non-senator average citizen. There's no reason to think that Sen. Craig was treated anything but routinely. This sort of plea happens every day in criminal courts around the country, and so long as there's at least some factual basis for the plea, there's nothing exceptional or remotely wrong with it. It's altogether possible that the prosecution would have declined to pursue the disorderly conduct charge if the case had gone to trial; or they might have left it in, figuring that it would give the judge or jury an alternative basis to punish, but less severely. From the prosecution's standpoint too, the peeping charge would have required proof of intent — making it, appropriately, a harder crime on which to secure a conviction. And if the prosecution's case had been objectively less strong, then perhaps the alternate charge (and the resulting plea) would have ended up being, say, "loitering" instead. But since the stigma would have been vastly greater from a peeping conviction, then dropping it — as opposed to dropping the disorderly conduct charge — was a much greater boon to the defendant.

Thus did this plea, like countless others every day, aptly reflect the litigants' well-informed judgments as to their respective risks and benefits from going to trial. This defendant pleading guilty to disorderly conduct, in exchange for the prosecution dropping the peeping charge, made sense for both sides, even if disorderly conduct was not the crime whose elements most obviously and more closely fit the facts. For these reasons, no libertarian ought to be concerned about whether Sen. Craig's been abused by the system, or whether some terrible precedent has been set.

*******

That said: Once Sen. Craig voluntarily pleaded guilty, he became guilty of disorderly conduct — conclusively and irrebuttably — under the Rule of Law as it speaks for our society. Our system of law emphasizes "the particular importance of the finality of guilty pleas, which usually rest on a defendant's profession of guilt in open court, and are indispensable in the modern criminal justice system's operation," United States v. Dominguez Benitez, 542 U.S. 74, 75 (2004). At the moment Sen. Craig's plea was accepted by the court, then, whether he mighta, could, shoulda won if he'd fought all the way through trial became forever irrelevant. It's unproductive even to speculate about. Sen. Craig has deliberately forfeited his right to even hint — ever, to anyone, for any purpose — that he was "really not guilty" of disorderly conduct in that airport men's room.

My sympathies are with his family and with the people of Idaho who find this whole thing terribly embarrassing, and I can even dredge up sympathy for Sen. Craig to the limited extent that he suffers from inner demons that have caused him to engage in such self-destructive behavior (i.e., committing a crime in an airport toilet), regardless of whether he's straight or gay or bi or whatever.

But I have absolutely no sympathy or patience whatsoever with him attempting to weasel out of the fact of his conviction or the consequences for it. His attempts to do so are gutless and pathetic and offensive, completely without regard to whether he really is or isn't gay. Indeed, I know plenty of openly homosexual men who, when under pressure, have displayed vastly more of the so-called (and it's an admittedly sexist construction) "manly attributes" of character and virtue than Sen. Craig has in his attempts to defend and justify himself. His are the sort of arguments that can only be made a scoundrel who thinks he's arguing to fools — arguments that are insulting to us, and only further degrading to himself.

He should simply resign — immediately and without further ado — and then set about salvaging his personal life in such privacy and dignity as he can find.

-----------

UPDATE (Fri Aug 31 @ 11:00am): In an update with a gracious link to this post, Prof. Althouse tweaked me for being overbroad in my arguments about the conclusiveness of Sen. Craig's guilty plea, as have several of my commenters here.

I'm not licensed in Minnesota, but my quick skim of that state's law leads me to conclude that before all this went public, Sen. Craig had already missed his fifteen-day deadline to file a motion for new trial, as well as his ten-day deadline (disorderly conduct being an ordinary instead of a "gross" misdemeanor) to file a notice of direct appeal as of right. My strong hunch, then, is that his conviction is already considered "final." I did not say, and do not wish to be read to suggest, that there are no legal procedures for challenging a conviction after it has become final. But such "collateral attacks" are highly disfavored and rarely successful. Nothing I've heard or read suggests that Sen. Craig has even alleged facts that could possibly support a successful collateral attack.

I therefore reemphasize that unless and until his conviction is overturned — and that's a possibility that now seems very, very remote — he is guilty in the eyes of the law, and he should be so viewed by every element of society that believes in the law.

Of course he can still call press conferences and pound the table and insist that he's "really innocent." Prisons are full of people who express that opinion about their own convictions. Legally, such assertions are absolutely meaningless; legally, while their convictions are still in place, they are conclusively estopped (i.e., forbidden by the law) from disputing their guilt for any purpose. Thus, for example, Sen. Craig can't sue anyone for defamation for saying he is guilty of the misdemeanor crime of disorderly conduct. Every court would treat the truth of that assertion is having been conclusively established; they will not entertain any contrary proposition for any purpose.

Some of my commenters assert that innocent people sometimes plead guilty. That's a logically and linguistically flawed assertion. Everyone who pleads guilty has, until the moment they've entered their plea, been "innocent" in the eyes of the law. And once their guilty plea is accepted, then unless and until it is set aside, they are guilty in the eyes of the law.

What my commenters presumably mean is, "Well, I'm really sure that if the defendant had gone to trial on Charge X, he would have been acquitted." Fine, then. Go to trial; once the defendant is acquitted, he can say that the state has failed to prove him guilty and that his constitutional presumption of innocence remains intact. Otherwise you're just guessing, no matter how confident you say you are, and you're talking about a species of "innocence" in which that word means something different than what it does in our criminal justice system.

"I just couldn't be bothered to go through with the trial," or "I wanted to be spared the publicity," or "I didn't have confidence in my lawyer," or countless other such motivations may in fact have prompted some defendants to enter guilty pleas in cases in which — from an omniscient point of view — one could opine that had they in fact gone to trial, they would have turned out to have been acquitted. But in the eyes of the law, any statement to the effect of "Oh, I was really innocent" after you've entered a guilty plea, while your conviction is still standing, is simply meaningless nonsense. The law doesn't have a category for "guilty (but really innocent)," and your engaging in that pretense still doesn't make you any less guilty in the eyes of the law, no matter how often you or anyone else says it.

And for other purposes — in our consideration as voters and citizens, for example, of a politician like Craig who makes such a statement — we ought, at a minimum, to be extremely skeptical; we're each entitled to reject such a statement altogether (which is my position here and in almost any similar situation); and we have to acknowledge that the statement may only have any persuasive force if it is offered outside a legal context (i.e., outside "the eyes of the law," to repeat the phrase I've used so often already).

-----------

UPDATE (Sat Sep 1 @ 8:40am): Here is a link to the audio tape of the arresting officer's post-arrest interview with Craig. From an Idaho Statesman article about it:

Despite the denials, Steve Simon, a University of Minnesota law professor, said Craig would not want to have such a tape played before a jury.

"There is an extremely damning statement on that tape. If you listen to the tape, at the very beginning there is an explanation of what's going to happen," Simon said. "Then, totally out of the blue, Craig said, ‘You solicited me.'"

Simon said a prosecutor could argue that Craig interpreted the officer's behavior with the feet as soliciting, and that would raise this question: Why would a proclaimed straight person like Craig recognize that?

"It's an extremely powerful piece of evidence," Simon said.

Whether Craig is gay or straight, and whether or not he was soliciting a sexual encounter or not, his apparent knowledge of the foot-tapping and -rubbing protocols certainly would be relevant to show that he "knew or should have known" his own tapping and rubbing would tend to be offensive and to cause alarm or resentment.

Federal prosecutor WLS, guest-blogging at Patterico's, argues  that the police, prosecutors, and judge all abused Sen. Craig, whose conduct couldn't have been "offensive" to anyone:

Question: If a deaf gay guy used sign language to proposition another deaf gay guy in a gay nightclub, would it be a crime?

If not, then why is a toe tap and a hand gesture under the partition of a men’s room stall a crime?

Answer: Because when a citizen goes into a bathroom stall in a public restroom at an airport, he has a different expectation of privacy than he does standing on the floor of a gay nightclub (or any nightclub). WLS asks (ellipsis his):

So, a toe tap and a running one’s hand along the bottom of the men’s room stall ....

Offensive?  To whom?

Answer: The prosecution was counting on it being offensive to the hypothetical average person who doesn't expect to be stared at while sitting in a public bathroom stall, and then to have the offender's hand and foot intrude into that stall, and then have the offender's foot pressed against the hypothetical average person's. And by pleading guilty, Craig forfeited his right to any benefits of the doubt as to whether his conduct was offensive, and as to whether he knew or should have known that it would tend to arouse alarm or resentment. I respectfully disagree with WLS' analysis, especially insofar as he faults the judge, for reasons expressed both here and in Patterico's comments (so far, here, here, here, and here).

Reports are that Craig is expected to resign this morning.

-----------

UPDATE (Sat Sep 1 @ 11:40am): Craig just announced his intention to resign, effective September 30th, in a short and fairly dignified statement. He apologized "for what I have caused" and for his inability to serve out his term. And he said that "to pursue my legal options as I continued to serve Idaho would be an unwanted and unfair distraction of my job [sic] and for my senate colleagues."

Fox News interprets that as him committing that he will indeed "pursue his legal options," but I am not at all sure he intended to make such a commitment. For reasons I discussed above, I think the chances of his setting aside his conviction via a collateral attack are very small — I'd rate his odds at well under 1%. If he were to succeed, he'd again be subject to the more serious peeping charge, which carries a much stiffer potential penalty. Even trying to set the conviction aside will cause this to linger in the press, with the overwhelmingly likely result simply being to further convince any doubters that his plea was voluntary and binding. And but for its potential political repercussions — which now have played out fully — this was a pretty sweet plea bargain. It will not surprise me if he makes no serious effort to get the plea set aside, and in fact were I his lawyer, I'd advise against it.

WaPo sez Obama knew he should vote for Roberts' confirmation, but voted against for purely political reasons

Does the Washington Post not understand that in the rest of the United States outside the Beltway — and at least outside enclaves of refined intellectual disingenuousness like New York and San Francisco — a story like this ought to be headlined "Presidential candidate admits he allowed craven lust for office to override studied judgment on SCOTUS confirmation vote"?

Sen. Barack Obama had hired Pete Rouse for just such a moment.

It was the fall of 2005, and the celebrated young senator — still new to Capitol Hill but aware of his prospects for higher office — was thinking about voting to confirm John G. Roberts Jr. as chief justice. Talking with his aides, the Illinois Democrat expressed admiration for Roberts's intellect. Besides, Obama said, if he were president he wouldn't want his judicial nominees opposed simply on ideological grounds.

And then Rouse, his chief of staff, spoke up. This was no Harvard moot-court exercise, he said. If Obama voted for Roberts, Rouse told him, people would remind him of that every time the Supreme Court issued another conservative ruling, something that could cripple a future presidential run. Obama took it in. And when the roll was called, he voted no.

"Pete's very good at looking around the corners of decisions and playing out the implications of them," Obama said an interview when asked about that discussion. "He's been around long enough that he can recognize problems and pitfalls a lot quicker than others can."

Hypocrisy, thy name is Barack — and yet the WaPo seems to be oblivious to how its reporting of facts compels that conclusion:

"His familiarity with Washington makes him somebody whose judgment I trust," Obama said. And yet this is the Washington of "cheap political points" and "petty" partisanship that figures prominently in Obama's public speeches these days. "I know I haven't spent a lot of time learning the ways of Washington," Obama tells his audiences. "But I've been there long enough to know that the ways of Washington must change."

Unless ....

Could this be a Hillary-inspired venomous bite disguised as a puff-piece about a key Obama staffer? It's a sad state of affairs when a pundit from the heartland like me can't distinguish between simple MSM cluelessness and inspired MSM intrigue in cooperation (or at least sympathy) with a particular candidate. But there you have it, friends and neighbors. Perhaps you can sort this out in my comments section.

Sen. Kerry permits last statute of limitations for defamation to lapse, forever barring any defamation claim against SwiftVet authors O'Neill and Corsi

When I first brought it to his attention in September 2005, I reminded Sen. John F. Kerry that — based on the publication date on or about August 25, 2004, of Unfit for Command: Swift Boat Veterans Speak Out Against John Kerry by John E. O'Neill and Jerome R. Corsi — Sen. Kerry had already allowed the one-year statutes of limitations for defamation to expire in Texas (where Mr. O'Neill resides), New Jersey (where Dr. Corsi resides), and the District of Columbia (where their publisher Regnery Publishing, Inc. has its principal place of business and Sen. Kerry has his own regular place of business).

But as I noted then, Sen. Kerry's home state of Massachusetts has a very unusual, extremely generous and pro-plaintiff three-year limitations period for defamation claims. Massachusetts' three-year statute of limitations for defamation claims made it the very last feasible venue in which Sen. Kerry conceivably could file suit and gain his public vindication, if the SwiftVets' allegations about him were false. Those claims were certainly, indeed deliberately, injurious to his reputation; his damages arguably include the loss of the 2004 presidential election, however that might be valued in dollars and cents; and if John Kerry could hope to find a home-town advantage anywhere, surely it would be there. But now he's let the incredibly generous Massachusetts statute of limitations run out, too.

In my 2005 post, I offered this free and helpful legal advice to Sen. Kerry (who may need it, since his own bar membership is still on inactive status):

Seriously, though, Senator, some folks might draw the inference that rather than your having just forgotten the one-year anniversary of the publication of Unfit for Command — oopsies! — you're instead desperately afraid to ever face cross-examination under oath, or [to face] document subpoenas of yourself and your hagiographer Doug Brinkley, or the rest of the brilliant spotlight that accompanies a public lawsuit. Folks might become more and more convinced that you've very deliberately let most state statutes of limitations expire already, and that you'll continue to allow the clock to run on any that haven't yet.

So let's drop the snark and call a spade a spade: The very last thing John Kerry wants is to ever give the SwiftVets the legal tools they'd need to conclusively document their claims, because truth is, of course, a complete defense to defamation claims. Kerry doesn't deserve vindication, and he knows he could never get it in court. In court, there would be compulsory discovery of witnesses and documents, followed by a fair and disciplined adversary process, followed by a definitive determination of the truth or falsity of the SwiftVets' charges — a determination that he damn well knows would go against him. Instead, the haze of time and the near-universal bluster of his mainstream media allies (who continue to insist that the SwiftVets' claims were "debunked" and that Kerry was victimized) has given him a far better result than he could ever get in court.

I'll tell ya what, though, Senator: On the off chance that I'm misreading what's behind your allowing limitations to lapse against O'Neill and Corsi, and you really intended to sue them but just, I dunno, forgot:

You have a standing offer from me: Just sue me here in Houston for defamation. After all, I've republished most of the SwiftVets' claims here on my blog, and I've made many of them again in my own voice. I use a pseudonym for my blog name, but it's not anonymous — my name and address are linked on every page of this blog, and have been since the day it started. I'll waive any statute of limitations defense. I'll waive service of process. Hell, I'll meet you at the federal courthouse doors for the Southern District of Texas, Houston Division (you have diversity jurisdiction), and I'll even pay your filing fee!

You think it will be too expensive to have big teams of lawyers? Fine — since you were once a big-time courtroom lawyer, let's just you and me tangle one-on-one, both of us pro se. (I'll agree not to oppose your application for admission pro hac vice to the federal court here in Texas, and I'll even pay the fees to get your law license reinstated in Massachusetts.) Just me at my table, you at yours, and then a set of jurors good and true in the jury box. (I may need a napkin, though, or maybe even a drool-bucket, because the very notion of going one-on-one with you in court is causing me to salivate.) Or, hell, you can have as many lawyers as you want, and I'll still go pro se. Go fetch David Boies, he might do it for free (unless he's already figured out what a loser your case would be). Whatever. As long as there's a judge who can make you shut up each time your turn is over and who'll then give me a fair turn, I'll be satisfied.

My one stipulation is: No confidentiality orders, and no motions to quash. Everything that's uncovered in pretrial discovery has to become part of the public record without delay. We'll put it all on the internet via a neutral host (say, the WaPo). We'll do the pretrial depos on video, too, and jointly move the court to permit TV coverage of the trial, so that the public (and the jury, eventually) can see who sweats under oath under the bright lights.

Doesn't that sound like fun, Senator? Gosh, it does to me.

On the other hand, about that sock, Carl ...

A day after I scolded Sen. Carl Levin (D-IL) for an egregious case of speaking out of school, this WaPo article may lead some credibility to a possibility that I mentioned but discounted as very unlikely: that Levin's comments about the Maliki government's continued parliamentary viability were made with the Bush-43 Administration's advance approval, as part of a coordinated signals campaign. They're certainly consistent with what Dubya himself said on Monday:

President Bush pointedly declined Tuesday to offer a public endorsement of embattled Iraqi Prime Minister Nouri al-Maliki, expressing his disappointment at the lack of political progress in Iraq and saying that widespread popular frustration could lead Iraqis to replace their government.

"The fundamental question is: Will the government respond to the demands of the people?" Bush said. Stopping short of directly endorsing Maliki, as he has on several previous occasions, Bush continued, "If the government doesn't respond to the demands of the people, they will replace the government."

In apparent response to congressional calls for a change of leadership in Iraq, Bush added, "That's up to the Iraqis to make that decision, not American politicians."

White House aides said later that Bush's comments did not mean he was withdrawing support from Maliki but were simply a statement of reality — that Iraqis were growing frustrated and that under the country's new democratic system, the people could decide to replace the current government with a more capable one. But the president's tough words — together with similar strong statements from the top U.S. diplomat in Baghdad — suggested that the administration's patience with the current leadership is wearing thin....

Bush's remarks came a few hours after the U.S. ambassador to Iraq, Ryan C. Crocker, made similar comments in Baghdad, calling the Iraqi government's political progress "extremely disappointing" and telling reporters that stabilizing the country would require reconciliation among rival factions.

Another possibility is that Levin was ahead of where the Administration yet wanted to be publicly, but the Administration was prodded by Levin's remarks into going public. But if Levin was actually speaking according to a common plan with the Administration, then consider this post to be Beldar dribbling crow feathers down his chin. (Among my potential guests for this meal may be Duane Patterson and Ed Morrissey, good company the both of them.)

In any event, it's fair to conclude that Dubya's comments pretty much mooted any potential fall-out from Levin speaking with a different voice than the Administration on this particular issue and occasion. Pursuant to plan or not, all the American voices seem to be expressing a common sentiment. That's good.

What may be the biggest surprise is near the end of the same WaPo story, though:

Meanwhile, French Foreign Minister Bernard Kouchner used a surprise trip to Baghdad to call on European countries to help the United States repair Iraq. Kouchner's comments represent a major departure from former French president Jacques Chirac's stance on Iraq. Relations between France and the United States were severely damaged after Chirac led global opposition to the 2003 invasion.

Since his election in May, French President Nicolas Sarkozy has sought to strengthen ties with the United States. Kouchner told a French radio station that Iraq's leaders are "expecting something" from the French government and that he planned to assist U.S. efforts.

"The Americans can't get this country out of difficulty all alone," Kouchner said.

That's very good indeed. (My friend and frequent commenter DRJ, guest-blogging at Patterico's, appropriately wonders if this might have more to do with French interest in getting a piece of the Iraqi oil action. It might; but I'd settle for an enlightened French self-interest which recognized that chaos in Iraq is not in the interests of any civilized capitalist country.)

Novak's anecdote regarding JFK's November 1963 trip to Dallas

Over at Patterico's Pontifications, guest-blogger WLS promises a multi-part review of Bob Novak's wickedly titled new memoir, The Prince of Darkness: 50 Years Reporting in Washington. In his first installment, WLS writes about "an incredible anecdote about an [Evans & Novak Report] column that sparked an incident that seems to have contributed to JFK making the fateful trip to Dallas in late Nov. 2003":

Novak received a tip from a Texas confidant of his wife that LBJ was secretly planning to put the weight of his vast Texas political machine behind  a run by Jim Wright — LBJ’s Texas protege’ and future Speaker of the House — to run for the Senate in 1964 against an incumbent Democrat Senator, Ralph Yarborough.  Yarborogh was an extreme liberal with whom LBJ had long clashed when they were both in the Senate, and Yarborough was clearly in the Kennedy camp after the 1960 election.  The E&N column detailing LBJ’s plan to go after Yarborough was published on November 8, 1963, and titled "Johnson v. Kennedy."

The column made JFK very unhappy because Yarborough was one of the few southern Democrats that JFK could count on for unqualified support of his New Frontier programs.  After the E&N column was published on Nov. 8, and knowing that Johnson’s muscle against Yarborough put Yarborough at risk, Kennedy scheduled the swing through Texas for the benefit of showing his support for Yarborough’s reelection, and to try and short-circuit LBJ’s plan.  That trip, as everyone knows, ended with JFK’s assassination in Dallas on Nov. 22 — two weeks after the column first ran.

It is a fascinating anecdote, and I'm grateful to WLS for recounting it so succinctly as part of a longer post that includes one other meaty anecdote and associated commentary. I'm thoroughly intrigued by the entire complex history of the relationship between JFK and LBJ (and its subsequent effects on LBJ's presidency). That's one reason I'm (metaphorically) holding my breath waiting for the fourth and presumably concluding volume of Robert A. Caro's series, The Years of Lyndon Johnson, which will pick up with LBJ's service as vice president; Caro's third volume from 2002, Master of the Senate, remains the single best book on modern American politics I've ever read.

Here, though — in keeping with Patterico's oft-repeated advice to me that I spend too much time writing comments on others' blogs, when I ought to be posting on my own — is a cross-post (without block quotes) of the mildly cautionary comment I left there:

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

WLS: Thanks for this first episode in a running book review!

With due respect to Novak, however, the split within the Texas Democratic Party between conservative (LBJ-protégé) Gov. John B. Connally and populist/liberal Sen. Yarborough was obvious without respect to anything Novak or any other Washington pundit might have said about it. Yarborough was a reliable supporter on New Frontier domestic programs, but he was just as likely to be a gadfly to JFK on foreign affairs, as Yarborough later proved in spades during the Johnson Administration. Yarborough's liberalism, including his anti-Vietnam War position, eventually led to his defeat in the 1970 Texas Democratic primary by Lloyd Bentsen.

And I don't doubt that showing support for Yarborough was one reason for the November 1963 trip, but there were certainly others. Texas was, and is, an enormous source of fund-raising opportunities for candidates from both parties (which is why you'll see Hillary Clinton in Texas these days). LBJ certainly had his fingers on large parts of that pulse, but JFK was independently interested.

Kennedy also wanted to shore up his support in Texas and Florida (the latter of which he had visited earlier in November 1963) because of concerns that his civil rights proposals might make those states go Republican in 1964. Kennedy had only carried Texas by 46,000 votes in 1960, notwithstanding the presence of favorite-son LBJ on the ticket. (Wags said that with LBJ’s fate at stake in any important election, however, there would always be at least a 40,000 vote margin, at least until Duval County and other parts of South Texas ran out of corpses willing and able to vote Democratic in alphabetical order.)

Kennedy also wanted to run in 1964 against a "hard Right" candidate like Goldwater, not someone like Nelson Rockefeller. Dallas was famously the home of John Birch Society right-wingers like retired general Edwin Walker (whom Lee Harvey Oswald had already tried, unsuccessfully, to assassinate). Visiting Texas, and Dallas in particular, was a thumb to the hard Right's eye, intended both to show that Kennedy wasn't awed by the hard Right and, perhaps less directly, to begin framing the 1964 election as being between their values and his. The enthusiastic crowds in Dallas, of course, were what led Nellie Connally to say the last words JFK would ever hear: "Mr. President, you certainly can’t say Dallas doesn’t love you!"

Stuff a sock in it, Carl

Elections have consequences. Unfortunately, sometimes those consequences are to push previously mostly-harmless idiots into positions from which they can exercise a genuinely dangerous megalomania.

The one in November 2004 meant that George W. Bush will be the President of the United States until January 2009. But the one in November 2006 apparently meant, among other things, that a magnificent idiot like Sen. Carl M. Levin (D-MI) has suddenly come to think he's leap-frogged the office of the Presidency of the United States to become Czar of the World, including Iraq — and thus he's entitled to tell the Iraqi people "that Iraq's parliament should oust Prime Minister Nouri al-Maliki and his cabinet if they are unable to forge a political compromise with rival factions in a matter of days."

Let me be precise: Even if he's right, he's wrong. Even if this is good advice, it's incredibly, unequivocally, unarguably bad for a United States senator, even the chairman of the Senate Armed Service Committee — especially the Chairman of the Senate Armed Services Committee — to start acting in this way as a free agent, an unguided missile, in sensitive matters of foreign policy.

Bodadpaf, but Sen. Levin should be metaphorically horsewhipped by every politician and pundit of either party who has the slightest notion about how foreign policy ever has worked or ought to work now. He's out of his field, out of his expertise, and so far outside of his mandate as to be out of his mind. This is the kind of colossal misjudgment and misconduct that, in a sane era, would result in this nincompoop being stripped not only of his chairmanship, but of his committee membership. This is the kind of thing a willful, not-very-bright sixth-grader, pretending to be a senator, might do before he's corrected by his civics teacher.

Will Hillary or any other prominent Democrat tell him, "Stuff a sock in it, Carl"? Or are we just going to hear more from the Dems about how "amateurish" the Bush-43 administration is in its foreign policy efforts?

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

UPDATE (Tue Aug 21 @ 6:50pm): "Stormy70" has this comment over on a post by James Joyner on Outside the Beltway:

By all means, lead the way, Levin. Show Maliki how to aspire to the heights of a 14% approval rating, and a do nothing label. You are the man.

That's genuinely funny. What's not funny — and what I failed to articulate adequately in my own original post — is that statements by someone in Levin's current position, i.e., Chairman of the Senate Armed Forces Committee, may be read by both our allies and our enemies to mean more than they really do. "That's why we have a State Department, to explain to foreigners how little most of this speechifying really means," says my commenter Steve Forsberg below; and he's correct, too, that some abroad will indeed treat Levin's remarks dismissively.

But either the very unsophisticated (who aren't privy to our State Department spin) or the very sophisticated (who already thoroughly understand the American system and therefore draw their own conclusions) are likely to read Levin's remarks as a not-very-veiled threat, made by America's most senior legislative branch official who has specific responsibility for funding and oversight of the American armed forces that could either foment or block an Iraqi coup d'état pretty much at will. When I read Levin's remarks, what I immediately recalled were the disastrous and equally inappropriate comments made by Henry Cabot Lodge, Jr. when he was the U.S. Ambassador to South Vietnam — comments that were way ahead of, and very possibly contrary to, the intentions of the Kennedy Administration, but that nevertheless directly brought about the Diem coup, with a resulting multi-year set-back in the war effort there. Before that coup, Kennedy knew that Lodge was habitually out of line, but he refused to recall or replace Lodge because of concerns about how that might play in the 1964 presidential election, in which Lodge was expected to be a leading candidate for the GOP nomination.

My point in this post is not to defend the Maliki government. But whether, and how, the United States of America withdraws its support from that particular Iraqi political coalition is a damned important, and damned dangerous, and damned delicate subject. Unless his comments were made at the suggestion of the Administration (e.g., as part of a "signals campaign" designed to exert pressure that's not directly traceable to the White House), which strikes me as quite unlikely, then he was out of line in making them.

R.I.P. Bloomberg 2008 independent campaign — hah!

The utter silliness of the idea that NYC Mayor Michael Bloomberg might mount an effective challenge in the 2008 presidential election is demonstrated by his apparent choice of information medium through which to announce his decision not to run: Dan Rather. (H/t NRO Meida Blog.)

Conservative pundits (and candidates) should avoid uni-dimensional analyses of our candidates' positions on multi-dimensional issues

Hugh Hewitt writes on his blog today:

"If the defense of traditional marriage is one of your key issues, Fred Thompson can't be your candidate."

Hugh and I agree about most things, and I like and respect him immensely, but I'm disappointed in the single-dimensional analysis of Hugh's post. It's based on this post in which NRO's K-Lo quotes a Thompson campaign statement which includes this sentence: ""Fred Thompson does not support a constitutional amendment to ban gay marriage."

It would be equally true — but equally shallow and potentially misleading — for me to write of Romney:

"If curbing the power of the federal government to override the States and intrude in Americans' personal family lives is one of your key issues, Mitt Romney can't be your candidate."

I know beyond any doubt that Hugh is as thoroughly familiar with principles of federalism as anyone on the planet. I know that he supports the notion at least most of the time. And I know he must have read the rest of the Thompson campaign's statement, which makes very, very clear that Thompson's lack of support for a federal constitutional amendment banning gay marriage is based on Thompson's very traditional federalist belief that laws affecting family relationships are for the state governments to make — not the federal government. Thompson also pointedly insisted that one state ought not be able to force its views on another, and that he's against these issues being decided by courts instead of state legislatures.

Here's the question that Hugh ought to be putting to the Thompson campaign, if he wants to flesh out the rest of Fred's position in a fair way that acknowledges his federalism concerns: "Sen. Thompson, if you were a state legislator voting on a proposed state statute that would permit gays and lesbians to marry, how would you vote?"

Fred, or any politician in his shoes, would probably answer that in the first instance by saying, "But I'm not running for any state legislature; I'm running for president of the United States, and you should vote for me, or refuse to, based on what I would do in that office." And that too is a valid point.

But I don't think presidential candidates can avoid sharing their views even on subjects that they would not be in a position to decide or directly influence as president. Someone at that level should have a well-developed, fully integrated viewpoint, including views on matters that traditionally — and I would say appropriately, for I agree with Thompson's federalism point — are matters for the states to decide upon. That fully-integrated viewpoint in turn gives important indications as to how a candidate will react when some new twist or turn on one of these issues pops into public discourse.

Being willing to stake out a position in which one believes, but which polls and focus groups and traditional wisdom about "party bases" tells us may be unpopular with primary voters, is something that ought to distinguish Republican candidates. I'm not sure how Fred would answer the "If you were a state legislator" question. But when and if it's asked, if it hasn't been yet "on the record," I hope he'll address it directly, and let the chips fall where they may.

Likewise, if Mitt were pressed by this question — "Isn't your support of a federal constitutional amendment depriving states of their rights to define marriage inconsistent with the principles of federalism?" — he should freely admit that. And then he should explain why he thinks that's justified in this particular instance.

The hints of that explanation are in Hugh's post: "[P]roponents of the amendment have long pointed to the threat of sudden, judge-imposed changes in the law that would see DOMA struck down without warning." That's a short-hand rendition of an argument that I know Hugh has elsewhere discussed in more length. It's basically a concern that depending on how Justice Kennedy interprets the sweet mysteries of life in any given Court Term, the SCOTUS might suddenly turn America upside down by purporting to require every state to give full faith and credit to, for example, gay marriages from Massachusetts — notwithstanding the existing federal statute from the Clinton era designed to prevent that.

Romney's arguing for a prophylactic federal constitutional amendment that would not only tie the hands of the Supreme Court, but of state courts and state legislatures. That would be a radical step. Conservatives, including even conservatives who vehemently oppose gay marriage, can disagree in good faith as to whether it's justified by the current risk. And one can't meaningfully assess that risk without also talking about SCOTUS appointments. If the GOP can hold the White House in 2008, then there will almost certainly be a chance to add to Dubya's good works in the Roberts and Alito appointments, such that Justice Kennedy's mysticism would be unlikely to be a factor when and if a constitutional challenge to the existing federal Defense of Marriage Act makes it to the SCOTUS docket.

All of which is to say: You simply can't discuss these things intelligently — or fairly! — in one dimension. They're genuinely multi-dimensional problems. And it's not fair, when conservatives are discussing our various candidates' positions, to frame the issues in a way that truncates half of one candidate's rationale. If pundits like Hugh or me have a "job," it's to illuminate and educate.

That's also part of the challenge for our candidates. And for them, being candid, even when it means telling people other than what you think they want to hear, is what ought to define our side. Otherwise, our candidates are just Hillary in a necktie, triangulating madly every time they speak to a different audience.

Beldar re-thinks his handicapping of the Democratic presidential primary

My own intensely negative reaction to Sen. Hillary Clinton (D-NY) makes me doubt my objectivity in trying to handicap the Democratic presidential race. But that can't stop me from trying. My working assumption is that Clinton has no political soul, and that she will say or endorse anything that she and her advisers (and their polls and focus groups) tell them will attract a plurality of Democratic primary voters; then she'll shed that skin, and say or endorse whatever's necessary to attract a plurality of general election voters. My certainty in this regard is based on close observation of her husband's political life going back to the early 1980s. It worked for him, and she rightly regards herself, I think, as a more disciplined candidate, so it ought (she believes) to work for her too.

My working assumption has also been, however, and to some extent continues to be, that when we get past the excruciatingly long run-up of pre-primary debates and rallies, when Democratic voters actually cast their votes in the primary, some very significant segment of them who would indeed be satisfied by all of Hillary's policy positions will vote against her. Some will do so out of generalized populist anti-dynastic concerns. Some will do so out of sexism — for yes, even among Democratic primary voters, there are still some people (of both sexes) who in the privacy of the polling booth will show themselves still unready to vote for any female presidential candidate. (That's going to be an enormously smaller segment than it would have been in 1968 or 1988, but it's a non-zero number — my wild guess is 3%.) Some will do so because even though Hillary's policies smell good to them, even delicious (for they've been lab-crafted to that purpose), those voters can't help sniffing out the corruption and insincerity and viciousness that wafts from the Clintons like the smell of rotting carrion cuts through even a continuous mist of Glade air freshener. All of which is to say, my working assumption has been, and continues to be, that Hillary is vulnerable because of her combination of "high negatives."

That led me to conclude sometime during the past spring that Sen. Barack Obama (D-IL) would beat her in the Democratic primaries.

Obama, I knew, was inexperienced on the national scene, but if there's a tough training and proving ground for producing sharp-elbowed, canny politicians, it's Cook County, Illinois and the Illinois legislature. He's smart, hungry, charismatic, and above all, new. He is an ideal candidate to exploit fully the residual guilt that many white voters (not just liberals) carry, or to describe the flip-side of that coin, their hunger to prove that a black man can be elected president despite our national history with racism. (There's a corresponding guilt/hunger to see a woman president among most of those same voters, but I don't think Hillary exploits it well, precisely because she's been First Lady for eight years and, in the eyes of many, already a co-president.) So my working assumption was that most of the voters who'd refuse to vote for Hillary in the Democratic primaries would turn to Obama, rather than to the transparently shallow and callow (and comparatively slow-witted) John Edwards. In a sentence: I've thought that Barack Obama would become 2008's John F. Kennedy, edging out more experienced and accomplished rivals (including the "Master of the Senate," Lyndon B. Johnson, among many others).

I'm beginning to think, though, that I failed to take into sufficient account the effect of the long, long run-up to the primaries. There's not yet been anything remotely like a permanent, fatal error, but the Obama campaign continues to pop out small- to middle-sized unforced errors just about every week. Here's the latest:

Inundated by dozens of invitations, Sen. Barack Obama will turn down requests to join future debates and forums this fall, his Democratic presidential campaign announced Saturday.

Strategically, the decision itself is a sound one. But they could have simply made that decision at the top, and stopped accepting invitations without ever revealing that it was pursuant to a new policy. It's not like he's short of individualized excuses. If the pattern of refusals began to look suspicious, he could accept one or two in particularly low-risk situations and favorable venues. But what incredible moron decided to announce this decision to the world? And if it wasn't his own decision to make the announcement, how could Obama have failed to detect, and override, that moronic decision?

The Obama campaign might as well have taken out an advertisement on the front page of every major newspaper in the country that reads: "OBAMA CAMPAIGN RUNNING SCARED, SEEKS TO LIMIT FURTHER FREQUENT DEBATE GAFFES."

I'm not yet convinced that Hillary has the nomination sewn up. I genuinely don't believe that the polling numbers are meaningful, which is to say, I believe her negatives are higher than the polls reflect because many people don't want to admit, even to themselves, that they're affected by those negatives. But Obama has already shot off several of his own toes. I'm not sure if he can remain standing — i.e., if he will still be a credible candidate — when Hillary's negatives finally kick in at the primary polls. Her campaign is professional, and his, so far, has been amateurish — and the long campaign season is grinding away the charisma veneer from his campaign that might otherwise have largely concealed that.

Giuliani in Foreign Affairs: "Stay the Course ver. 2.0"

I was prepared in my guest role in OTB's BlogTalkRadio broadcast tonight to also discuss Rudy Giuliani's article in Foreign Affairs entitled "Toward a Realistic Peace." My host there, probably not alone among conservatives and certainly with vast numbers of liberals, have reacted with outright derision; Dr. Joyner's post, for example, is entitled Rudy Giuliani’s Dangerously Stupid Foreign Policy Vision. And at least his co-blogger Alex Knapp was prepared to agree; I'm not sure about Steve Verdon. So I was prepared for a spirited discussion in which I'd be heavily outnumbered. Alas, we ran out of time. (The others may think I filibustered to achieve that result, but I didn't intend to!)

I've left a couple of comments on Dr. Joyner's post already that I won't repeat here, but for those of you whose other commitments as such that you can't spare time to read the roughly 6000 words in Rudy's piece, I'll give you my take here.

The article's own summary is kind of bland, although generally accurate:

The next U.S. president will face three key foreign policy challenges: setting a course for victory in the terrorists' war on global order, strengthening the international system the terrorists seek to destroy, and extending the system's benefits. With a stronger defense, a determined diplomacy, and greater U.S. economic and cultural influence, the next president can start to build a lasting, realistic peace.

The key big-picture paragraph is at the end:

After the attacks of 9/11, President Bush put America on the offensive against terrorists, orchestrating the most fundamental change in U.S. strategy since President Harry Truman reoriented American foreign and defense policy at the outset of the Cold War. But times and challenges change, and our nation must be flexible. President Dwight Eisenhower and his successors accepted Truman's framework, but they corrected course to fit the specific challenges of their own times. America's next president must also craft polices to fit the needs of the decade ahead, even as the nation stays on the offensive against the terrorist threat.

Giuliani is prepared to be Ike to Dubya's Truman, in other words (except for Ike's defense spending cuts). But he's still going to be somewhere between 178 and 182 degrees directly opposite the course that Sen. Clinton or Sen. Obama would take. (If you want to bring John Edwards, Dennis Kucinich, or Ron Paul into the comparison, we're going to need to extend the metaphor into at least four dimensions, and my math isn't that good.) This is traditional Daddy-party Republicanism, and Daddy's wearing a tie, but he also is wearing a belt and he sometimes has a short temper, so don't make him come back there. And if there's an over-riding theme to the entire piece, it's that we should play to our strongest points, not stand pat on them or let them degrade.

Another shorthand description: Giuliani's talking a continuation of the Wilsonian/Neocon approach rather than a Brent Scowcroft/James A. Baker III "realism" approach. "Idealism should define our ultimate goals; realism must help us recognize the road we must travel to achieve them." I read that to mean: "If possible, I'll be 'realistic' enough to keep us out of any new specific engagements that will require longer commitments than the American attention span is suited for. (But no guarantees.)"

One major revision between ver. 1 and ver. 2: No more Pollyanna. Rudy promises to tell it grim when it looks grim.

If Afghanistan and Iraq can get "accountable, functioning governments that can serve the needs of their populations, reduce violence within their borders, and eliminate the export of terror," that's a win there in Rudy's book. He's pretty clearly thinking South Vietnam circa 1972 as the model, where our ground forces are mostly out, our young allies can stand up mostly on their own, but we're still actively backing them as necessary with air and naval power, intelligence, and economic and military aid until they can grow to look more like South Korea does now.

More defense spending, and a bigger military, starting with 10 new combat brigades. (I interpret this to mean Stryker-type forces for counter-insurgency operations.) Tanker aircraft, subs (probably rigged to drop SEALs and gear), and long-range bombers, all of which I again read (contra Dr. Joyner) to be intended jointly for strategic and counter-insurgency use. Star Wars ver. 2.0 to shoot down a North Korean nuke or the like.

Re-evaluate NATO and foreign basing. Don't talk to enemies just for the sake of talking; be willing to menace silently, glower, and manipulate with gusto whenever appropriate. (Those are of course my blunt paraphrases, since they'd be undiplomatic for him to write.) Teddy Roosevelt "speak softly/carry a big stick" diplomacy, in other words. Ad hoc coalitions as need be, regionally or otherwise (special hat tips to Britain, Japan, South Korea, Australia, and India). A vigorous slap for the U.N., which "can be useful for some humanitarian and peacekeeping functions, but we should not expect much more of it." And this will pucker some orifices in one particular balmy Caribbean "people's paradise": America "must stand ready to help the Cuban people reclaim their liberty and resist any step that allows a decrepit, corrupt regime from consolidating its power under Raúl Castro." (Apparently the 1962 missile crisis deal expires when Fidel does, the Soviet Union having already preceded him to Hell.) Similarly: Get really righteous with us on terrorism if you ever want to see that Palestinian state, y'all over in Gaza and the West Bank; in the meantime, we're standing in Israel's corner.

Finally: Giuliani's "respect yourself enough to insist on fixing the damned broken windows every time they get broken" theory writ global: Use capitalism aggressively to win everywhere long term around the world. Make have-not countries into stakeholders in civilization. Private direct investment, not foreign aid. Cultural exchanges between the U.S. and "Muslim countries that we hope to plug into the global economy."

That's about it. I like it. This is meat and potatoes for the GOP base. I'll be surprised, though, if the other major GOP candidates have much more or different to say on these same foreign policy topics. The question is: Can they say the same stuff as convincingly as Rudy does?

Biggest political whopper of the month of August

From Saturday's Houston Chronicle (boldface mine):

Saying "it will take a woman" to clean up the problems in the White House, Sen. Hillary Rodham Clinton today urged about 1,000 Houston-area voters to support her campaign to change America.

"Bring your brooms," the Democratic presidential candidate told the crowd at a union hall in downtown Houston.

"There's a lot of work that needs to be done. Stay with me all the way to November. We're going to make Texas blue again."

It would have been much more honest, and even refreshing, if she had said instead, "Candidly, I don't have a snowball's chance in hell here in Texas, but please donate some money so I can buy advertising in other states where I do!" That's the subtext anyway, for all but the most naïve among her Lone Star State fans.

Fund-raising birds' nests on the ground for Fred Thompson in Texas (and an unrelated Beldar trial lawyer war story about Iowans)

Reading the press accounts of the Iowa straw polls, anyone with any sense of proportion can't fail to be struck with how incredibly silly they are.

Now, I spent a lovely winter in Des Moines back in 1983-1984. (Okay, it was just a couple of weeks in November and December, but it seemed like a whole winter.) It's a fine state full of very fine people.* And I don't say this as a knock on Mitt Romney: He and his campaign staff are to be congratulated on their win if only because it's something they set out to do, spent a ton of time and money on, and accomplished. Maybe a year from now, in hindsight, his win in the Iowa straw poll will be viewed as having been the true beginning of his roll to the nomination, and in fifteen months, maybe it will be seen as his campaign's first big step toward general election victory in November 2008.

But on its own, as a national political event, the Iowa straw poll is a distraction and a diversion, important only to the extent it's dangerous, dangerous only to the extent that anyone anywhere else thinks it really mattered after it's over. I rank it right up there in cosmic significance with the cell-phone text-messaging polls on the GOP "debate winners" that Rep. Ron Paul's team have so effectively ballot-stuffed.

If you want a genuinely interesting political story this Sunday morning, friends and neighbors, it's in this article in today's Houston Chronicle: "Bush's loyal Texas fundraisers on sidelines: Supporters who raised millions for 2000, 2004 races take their time to choose candidates." The money quote — and I mean that very literally — is right there in the two-paragraph lede:

Two-thirds of President Bush's most loyal Texas campaign supporters, whose record-breaking fundraising vaulted him into early dominance in the 2000 presidential race, remain on the sidelines in the wide-open race to replace the state's favorite son.

A Houston Chronicle analysis of Federal Election Commission disclosure reports found that only 97 of the 296 Texans who pledged to raise at least $100,000 for Bush's presidential campaigns in 2000 or 2004 have donated to any candidate in the 2008 White House race.

I'm no fund-raiser. I'm a partisan pundit, but I'm not much of a political donor myself. But I am very confident that I am well enough acquainted with my fellow Texans who are major political donors to say with a very, very high degree of confidence that they haven't suddenly become uninterested in presidential politics. Nor have they likely become permanently tight-fisted. Nor are they likely to sit out the 2008 presidential election. Nor are they likely to give less money in 2008 than they did in 2004 or 2000.

The Chronicle's story says that Giuliani and Romney can each so far claim the backing of only around 10 percent of "Bush's Pioneers, who each raised at least $100,000 in campaign cash for Bush, or Rangers, who gathered upward of $200,000." That's notwithstanding the fact that they've both been formal candidates for months. That's notwithstanding the fact that Rudy Giuliani, in particular, is (and has been since 2005), a name partner in a Houston-based law firm, Bracewell & Giuliani.

The Chronicle describes these big Texas donors as being "on the fence." That's the wrong metaphor, because it's entirely possible that an upside-down turtle balanced on a fence post might just stay there, and these folks won't. No, these donors are birds' nests on the ground waiting for someone to scoop them up — and I'm sure that the Giuliani, McCain, and Romney campaigns have been trying already, obviously without conspicuous success.

Romney winning the Iowa straw poll isn't going to knock any of these donors off the fence, nor make them into suddenly graspable birds' nests.

Nor will making his formal campaign announcement, by itself, be enough for Fred Thompson to suddenly acquire gluey fingers for these birds' nests either. But if Fred's the candidate I frankly hope he'll be, then someone right now in his (proto-)campaign had better be far advanced in planning for the dramatic events — well earlier than year-end or January primaries that will suddenly turn some of those birds' nests into graspable items. Texas campaign money could catch him up to his GOP competitors in, well, a New York minute.

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

*A trial lawyer's war story, by way of a footnote about my own limited Iowa connection but affection for Iowans:

The reason I was in Des Moines in late 1983 was to represent a large health insurance company headquartered there in a nasty federal court lawsuit that was pending here in Houston. I was there producing hundreds of thousands of documents and many, many deposition witnesses (including the company CEO) as part of an extraordinary expedited discovery plan. It was in a high-profile case in which the trial judge had already announced his intention to grant summary judgment against my client, and to proceed to a jury trial in January 1984, during which he was going to instruct the jury from the outset that my client had deliberately breached its contractual and fiduciary obligations, and that the jurors' sole job was to decide how severely my client ought to be punished for that. Thus, to say that the trial was going to be an uphill battle was a considerable understatement. That made my time in Des Moines more grim than it otherwise probably would have been.

As things happened, when our trial began, Houston was experiencing one of its rare genuine winter cold snaps — three or four days in a row with below-freezing temperatures, sleet, and high winds. We don't handle such things very well; there were busted pipes and fender-benders galore, all over town.

On the third or fourth day of the trial, I was riding the elevator down for lunch with Craig and Sandy — he, the senior claims manager from my client who was serving as the corporate representative, and she, an in-house lawyer who was also there to observe and assist. They were both tall, clean-cut, wholesome folks in their early 30s who looked like they could have stepped right out of a Norman Rockwell painting. And they were genuinely decent and competent people with whom I'd enjoyed working even under these very challenging circumstances.

With us on the elevator was one of the jurors — an elderly woman, probably in her late 70s, who was accompanied by a (non-juror) friend who'd come to meet her for lunch. The two Iowans and I, of course, clammed up to avoid any hint of improper contact with the juror, but other folks in the elevator were making predictable small-talk about just how cold it was outside. At that point, the little-old-lady juror — without ever speaking directly to us — suddenly seized the sleeve of Craig's overcoat between her thumb and forefinger, and with her other hand gestured to him and to Sandy. "These young people," she told her friend, "are from way up north in Des Moines, Iowa! Ooooh! I'll bet they know what freezing-cold winter weather is really like up there!"

We all shivered involuntarily, but for differing reasons. I was afraid the juror was about to pinch one of Sandy's naturally freckled and apple-colored cheeks, and both Sandy and Craig were blushing wildly while all three of us bit our lips. My team literally fled the elevator as soon as we reached the ground floor, lest we do anything that could be deemed improper, or lest the juror stray beyond what was probably permissible (but very borderline) small-talk into outright juror misconduct.

But were we heartened by the elevator incident? Oh, yeah. It was consistent, mind you, with the looks and body language we had been getting from both this juror and the rest of the jury all week — just much more vivid. And I supposed (and warned my client) that it was still entirely conceivable that this juror could still vote to punish my client with a seven-figure award, and in any event, she was only one juror out of six. But I had a hard time reconciling the hypothetical notion that this juror was eager to punish my client with her spontaneous, affectionate tug on Craig's overcoat sleeve.

The case ended up settling while my motion for directed verdict was pending. Even two decades later, as much as I'd love to — because there are many other war stories, ranging from funny to sad and disturbing, from that case's pretrial proceedings and trial — I still wouldn't feel comfortable blogging about many of the other details of that case, or even generally describing how the settlement came about. I can say, I suppose, that we enormously improved our settlement position during the course of the trial.

Yet while the elevator incident does provide anecdotal evidence that reflects well on Iowa and at least these two of its business-people, I never had the chance to find out just how appealing my corn-fed Iowans were to either that juror or her fellows when it came to answering the specific questions the judge would have asked them. It was the client's fully-informed decision to settle the case on the terms it did, and I'm confident that I did my very best in representing that client (and, indirectly, the many cheerful, earnest Iowans who worked there). Nevertheless, on a personal basis, for a variety of reasons, I've always wished the case had gone to a verdict — even though that would have meant a certain appeal, even if we'd won with the jury.

Kerry's and Beauchamp's shared pre-traumatic stress disorder

Others have noted the parallels between fraud Scott Thomas Beauchamp and fraud John F. Kerry in their lies about their fellow servicemen, but it wasn't until I read Charles Krauthammer's op-ed today — in which he noted (as have others) that the "whole point of [the "melted face in the Iraq mess hall"] story was to demonstrate how the war had turned an otherwise sensitive soul into a monster" — that I suddenly remembered Sen. Kerry's own episodes of pre-traumatic stress disorder, about which I blogged at some length (albeit without that wonderfully descriptive diagnosis) on August 29, 2004, in a post entitled "The war-torn soul of John Kerry."

Although I wrote it during the middle of the SwiftVets controversy, that particular post — and the transparent phoniness it demonstrated — relied solely on Kerry's own wartime writing, and on the date and place from which he was writing to his then-sweetheart:

From biographer Douglas Brinkley's Tour of Duty: John Kerry and the Vietnam War, we get this powerful portrait of young John Kerry's anguish, quoting a lengthy letter he wrote to his sweetheart (pp. 82-83; boldface mine):

Judy Darling,

There are so many ways this letter could become a bitter diatribe and go rumbling off into irrational nothings.... I feel so bitter and angry and everywhere around me there is nothing but violence and war and gross insensitivity.  I am really very frightened to be honest because when the news [of the combat death of his college friend, Dick Pershing] sunk in I had no alternatives but  to carry on in the face of trivia that forced me to build a horrible protective screen around myself....

The world I'm a part of out there is so very different from anything you, I, or our close friends can imagine.  It's fitted with primitive survival, with destruction of an endless dying seemingly pointless nature and forces one to grow up in a fast — no holds barred fashion.  In the small time I have been gone, does it seem strange to say that I feel as though I have seen several years experience go by....  No matter [where] one is — no matter what job — you do not and cannot forget that you are at war and that the enemy is ever present — that anyone could at some time for the same stupid irrational something that stole Persh be gone tomorrow.

You can practically hear the mortar rounds shriek overhead Kerry's foxhole, can't you?  Everything around him "is nothing but violence and war" — "endless dying," the enemy "ever present."

Except that this letter was written in Febuary 1968, while Kerry was an ensign aboard the missile cruiser U.S.S. Gridley as it plied the dangerous waters of war-torn Pearl Harbor, Honolulu, Hawaii, USA.  The Gridley was still almost 6000 miles and many weeks away from the waters offshore of Vietnam....

Same sort of drama queens; same exaggeration; same self-aggrandizement; even the same bad writing (especially if the comparison is to Beauchamp's blog writing, which obviously lacks the benefit of TNR's copy editors). They're definitely birds of a feather, those two. Sort of a three-way cross between peacocks, vultures, and mocking-birds (although I suspect even vulture-lovers would object to that comparison, and it's definitely unfair to mocking-birds, but they're the first kind of bird I can think of who're frauds, sort of).

Mainstream media flunks basic fact-checking by ignoring No. 2 & 3 Google returns on whether Jeri Kehn Thompson is or isn't an attorney

Entitled "The Truth About Jeri Thompson," this post today by WaPo staffer Alec MacGillis on the newspaper's campaign blog, "The Trail," follows up on a Sunday, August 5th front-page news article from MacGillis and his colleague John Solomon that was entitled "The Rise Of Jeri Thompson." I don't know if the text of MacGillis blog post will also be in tomorrow's print edition or not, but as I write this, the breathlessly provocative title is prominently featured on the main WaPo web page. In it, MacGillis claims (boldface mine):

It is a measure of how rapid Jeri Kehn Thompson's rise to prominence has been that there has been widespread confusion about a basic fact of her background: whether or not she is a lawyer.

Several major news organizations — including USA Today, the Associated Press, Chicago Tribune, and The [Washington] Post — have in recent months referred to Jeri Thompson as both a political consultant and lawyer in articles about Fred Thompson's nascent presidential campaign, in which his wife has taken a leading role.

And supporters of the Thompsons have repeatedly invoked Jeri Thompson's status as an attorney to challenge insinuations that the 40-year-old mother of two is a mere "trophy wife" for the 64-year-old actor and former Tennessee senator. On Fox News last week, host Chris Wallace quoted a letter from a viewer attacking NPR's Juan Williams for having previously used the 'tw' phrase in reference to Thompson: "You chauvinist pig. Jeri Thompson is an intelligent, accomplished woman. She is a lawyer. And she has worked in the public policy arena." Added conservative blogger Ed Morrissey last month: "Anyone with access to Google knows that Mrs. Thompson worked as an attorney and media consultant in DC."

Well, presumptuous as it may be to challenge the holy writ that is Google, the hard fact is that Jeri Thompson is not a lawyer. There is no trace in public records of Thompson holding a license to practice law in D.C. or any of the states in which she has resided. And today, campaign spokeswoman Linda Rozett said conclusively, "Jeri Thompson does not have a law degree."

Despite the reference to the WaPo itself as having made this error "in recent months," Solomon and MacGillis' August 5th story made no assertion one way or the other about whether Mrs. Thompson is or isn't an attorney; perhaps they were still waiting to hear back from Ms. Rozett, and decided to finesse the question in order to make the Sunday front page. And notably missing from MacGillis' blog post is any claim that either Sen. Fred Thompson, Jeri Thompson, or the Thompson campaign has ever misrepresented her non-lawyer status. In another WaPo blog post today, Mary Ann Akers asserts that the Thompson proto-campaign "hasn't done itself any favors by being so evasive when it comes to questions about Mrs. Thompson." Nevertheless: The only even moderately interesting issue here is whether those writing about Mrs. Thompson, whether in the blogosphere or the mainstream media, ought to have figured out sooner whether she is or isn't an attorney.

*******

As is unfortunately but typically sloppy for posts in many mainstream media newspaper "blogs," MacGillis didn't bother to link to either the WaPo's own previous error (which presumably occurred before the August 5th news article), nor to any of the other MSM errors, nor to the July 8th post from Captain's Quarters from which he included a direct quote from Ed Morrissey, but here's the link to Captain Ed's referenced post. (And here's one to Ed's post about MacGillis and Solomon's August 5th front-page article.) It would be very interesting to know, however, whether MacGillis or Solomon had found Ed's July 8th post before they wrote their August 5th news article. If they had, and if they'd actually bothered to even skim its comments, they surely would have found my comment on that post (posted "July 11, 2007 10:32 PM," and currently fairly prominent as the very last comment to that post), the first paragraph of which reads:

Ed, here's a small correction of no great weight: In response to my emailed inquiry as part of my follow-up to a couple of posts I've written about Jeri Thompson (here and here), a trusted source close to the Thompson organization (one whom I believe you'd also have grounds to trust) confirmed for me that although she was employed as a political and media consultant in the Washington office of the Verner Liipfert law firm (which merged into DLA Piper in 2002), she is not, by training, an attorney. Verner Liipfert employed a number of other high-profile non-lawyers for the services it offered in addition to legal representation, including, for example, the late former Texas governor Ann Richards.

Now, how had I come to post that comment in mid-July?

I'm not a high-powered, well-connected Washington, D.C. political reporter, nor even a very high-powered political blogger. But some time after writing my first post about Mrs. Thompson on June 4th — about the time that the first round of nasty "trophy wife" remarks started circulating in the blogosphere and the mainstream media — I had become curious about whether Mrs. Thompson was or wasn't a lawyer. In my second post about her (on June 24th), I ended with a long parenthetical note:

(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!)

One of my regular commenters posted a link to another media source that had listed Mrs. Thompson only as being a "media consultant" at Verner, Liipfert, but I still decided to do some very light non-Google research of my own.

And it took me exactly one email exchange to get a provisional answer from a very reliable source I know who is, as they say, "close to the campaign" — someone whose name I already knew from blog and newspaper reading. After doing his own upstream checking, my source followed up with a more confident answer within a few hours. On June 26th, then, I published an update to my June 24th post stating that I'd been "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."

*******

Whether or not its writers were sloppy in not reading the comments on Captain Ed's post that they quoted from directly, how much solace can the WaPo take in the fact that it and other mainstream media outlets jumped to the same mistaken conclusion that he did? Well, let's start by checking — as MacGillis' blog post suggests — the "holy writ that is Google."

As of this moment, if you Google search on "Jeri Kehn Thompson attorney" (either with or without internal quotation marks around her name), my June 4th and June 24th posts are the second and third entries. Indeed, if you simply enter the term "Jeri Kehn Thompson" into Google with quotation marks around it, my June 4th post is the third result listed out of 26,600. (Without the quotation marks, my post only drops to fifth.) From that post, you're only one link away (via my own trackback there to my June 24th post) from my update on June 26.

This precisely fits what the National Review's Byron York quotes Sen. Thompson as saying:

Some [recent mainstream media] reports, Thompson said, have contained substantial factual errors. "Things that you would think could have been checked fairly readily," he told me, "but things that are clearly erroneous — like she’s not a lawyer and she’s never been married before. I listened to a news show with an expert commentator about a week ago talking about Jeri, and in a short segment he had four totally erroneous factual errors about her."

The bottom line: Back as of early June, neither Captain Ed nor I nor anyone else could very easily have determined, via the first few entries in the "holy writ that is Google," whether Jeri Kehn Thompson is or isn't an attorney. But certainly as of late July or August, someone damn sure could have. And should have. So the only story here is that WaPo and other mainstream media have been very, very sloppy in their basic fact-checking. And as I wrote at the beginning of this post: That's only moderately interesting at best, and hardly a surprise anymore.

Beldar on AG-AG

A fellow attorney, good friend, razor wit and intellect, committed Democrat, and thus frequent informal debating partner — one of the three lunch companions I wrote about in April, when he and I and a couple of other friends hazarded our predictions for the two major parties' 2008 presidential and vice presidential tickets — left the following comment for me this week on another post:

Beldar, I sense a groundswell. Your loyal readers demand to know what you think of the Fredo Gonzales mêlée. Is it perjury, political posturing, or both? What say you?

BTW, we're still very much on track for a Giuliani/Frist ticket in '08.

In reverse order: I think Giuliani is still quite possibly going to be the GOP nominee, but the main change since April is that I'm more certain that McCain won't be. I'm still sticking to my Thompson/Romney prediction, though, at least for now. And I continue to think Frist would bring little besides a theoretical and entirely unnecessary geographic balance to a Guiliani-headed ticket.

I have never written much about Attorney General Alberto R. Gonzales here. If you were to draw an inference from that, you'd probably be at least partly right, but probably only partly.

*******

Attorney General Gonzales and I have some mutual friends at his former law firm, Houston-based Vinson & Elkins, and he and I were rough contemporaries as Houston lawyers at cross-town rival firms in the 1980s and early 1990s. But our practice areas did not overlap, and I never encountered him while he was in private practice. His Hispanic heritage may have made a few preferences available to him that plain old Albert Smith might not have gotten, but I'm relatively certain that on balance, those were far more than outweighed by lingering prejudices that he had to overcome. Beyond what I know or can infer from our common experiences, most of what I know about him comes from reading about him in his various public roles — as Texas Secretary of State, as an associate justice of the Texas Supreme Court, and as a lawyer and adviser in various capacities for first Governor and then President George W. Bush.

Essentially all observers would agree that Dubya values loyalty very highly, and most observers would agree that most of the time, Dubya returns loyalty to those who've been fiercely loyal to him. That AG-AG has generated that loyalty, and that he has maintained it over so many years and through so many different positions, is a remarkable accomplishment in and of itself. Whether, politically speaking, you are a friend or foe of the current occupant of the Oval Office, I think that any thoughtful American has to acknowledge that it is a rare and noteworthy thing to have inspired such long-lasting confidence and trust from any American president.

Nor can anyone plausibly deny that Mr. Gonzales is genuinely motivated by a desire to render public service. He's left quite literally millions of dollars of partnership earnings from Vinson & Elkins behind in exchange for roles with no job security and, quite often, very little visible power. By no one's definition is he a power-monger or an empire-builder. He's undertaken very hard jobs in very difficult times, and for the past several months he's been the Democrats' favorite bogey man and punching bag — to the point that they've virtually canonized John Ashcroft, who was AG-AG's predecessor both as Attorney General and as punching bag/bogey man.

Vast amounts of Alberto Gonzales' public service — all but the tip of the iceberg of it — have taken place out of public sight, and indeed, out of sight of high-placed observers. I place almost no trust in tales from leakers, but even the senior-most of them, or those journalists given privileged temporary seats near the workings of power, aren't truly positioned to assess the relative value, or lack thereof, of his advice and counsel and assistance to his principal, George W. Bush. Cabinet officers traditionally say, when asked if they plan to resign, that they serve "at the pleasure of the president." That is not an empty formal statement, but the quite literal and encompassing truth. And I genuinely respect and support the system by which 62 million popular votes and 286 electoral votes gave Dubya the authority to decide, subject to non-revocable Senate consent, who ought to be the Attorney General. Probably more than most pundits of either political persuasion, then, I genuinely mean it when I say that the fact that the POTUS hasn't fired him is a good and sufficient reason for AG-AG to continue as AG.

There is much about the man that I admire, and for which I think he gets insufficient credit.

*******

Having written all that, and meant it, am I, personally, tickled pink with Alberto Gonzales' tenure and performance specifically as Attorney General of the United States? No, I'm not; to the contrary, I'm disappointed.

Perhaps because I'm a lawyer, my expectations for the holder of that cabinet post may be quite different than President Bush's. There are certainly other executive departments of comparable cosmic importance. Especially at times like the present, when we are at war or immersed in its functional equivalence, State and Defense and, now, Homeland Security are awfully important; Treasury is always important, if mystical; and none of the other departments are unimportant. And I'd have a hard time saying what makes, for example, a really first-rate Secretary of Transportation or Labor or Agriculture. But I have some affirmative expectations of U.S. Attorneys General, and some negative expectations as well.

Affirmatively, I expect a U.S. Attorney General to be a competent manager and CEO — the executive head of what effectively amounts to the world's oldest, largest, and by far most important law firm, serving the world's most powerful and needy client. The Department of Justice has enormous institutional momentum and tradition, and historically it has attracted some of the most talented and dedicated lawyers our nation could produce. I'm concerned that the recent recruitment and retention and promotion of talent from top to bottom in the DoJ may have suffered. But I confess that I lack the appropriate perspective and detailed information to draw confident conclusions about that. Let me just say that if AG Gonzales has been a brilliant and inspiring administrative leader, I'm unaware of evidence to show that.

Affirmatively, I also expect an Attorney General to be a loyal and effective advocate for his principal, the Chief Executive. There is no doubt of AG-AG's loyalty, nor that the substance of what he's been pitching corresponds precisely with what the Administration wants its Attorney General to pitch. And he has been persistent; a thinner-skinned man would have never taken the job, given the hostility he faced at his confirmation hearings (ostensibly due to his work as White House Counsel).That he perseveres in it despite near-universal criticism and considerable calumny is proof of astonishing personal strength.

Nor can there be any doubt that because of those substantive positions, because of the degree of political acrimony, and because of the violent times we're in, it would be extraordinarily hard for anyone to be a thoroughly successful advocate for the Bush-43 Administration before Congress or the mainstream media. To take the simplest example: Congress is rarely, even in wartime, going to want to accept any Attorney General's pro-Executive views on the relative powers among the branches of government. But right now, when the political opposition is more universally characterized by its rabid, personal hatred of George W. Bush than any other attribute, no spokesman for the Administration is going to get many pats on the back and hearty thanks from the likes of Sens. Reid, Leahy, Schumer, Durbin, or Kennedy. The mainstream media, in turn, love nothing better than a good circus, relish poking any presidential administration in the eye with a sharp stick as often as possible, and have their own philosophical disagreements with, and reflexive hostility for, Dubya and his minions in particular.

Nevertheless: AG-AG has been a weak, wishy-washy, inconsistent, stumbling, uncharismatic, inarticulate advocate. I know he has a lot on his plate. But every week, PBS and the commercial networks manage to pull talking head lawyers from the woodwork (well, actually, usually from the Reagan or Bush-41 Administrations) who do a far better job of articulating the Bush-43 Administration's case than it has done for itself. And I watched Fox News' Chris Wallace absolutely tongue-tie and humiliate Russ Feingold last Sunday morning, for example, on whether the Dems have any evidence at all to support the notion that some crime was committed in connection with the firings of the U.S. Attorneys. It's not like the Administration's opponents are intellectual supermen, and it's not like there aren't holes in many of their arguments, and it's not like the Administration is without ammo. But it needs a big gun to fire back. And as a public advocate for the Administration and its policies, AG-AG has been a low-caliber pop-gun.

Worse, he's been a pop-gunner who has far too often shot himself in the foot — which leads me to my negative expectations for anyone holding the role of Attorney General. If you are unprepared, if you are inarticulate, and if you are inconsistent, then you cannot project the probity and integrity that ought to be the shining, obvious, and unquestionable attributes of the Attorney General of the United States. The job position demands an occupant who will not appear to be either a liar or a fool, especially in (but not limited to) his dealings with Congress and the press. For the last several months, AG-AG has fallen short of that standard. Now, I can understand that an old coot like Sen. Arlen Specter might get confused and think someone's been lying when he really hasn't been. But when non-mavericks with no bone to pick like Sen. Jeff Sessions — himself once a prominent victim of a politicized bum rap, and one of the more astute questioners and oral advocates on the floor of the Senate or in committee — start voicing public doubts about you, then you are no longer even arguably serving as an effective advocate of the Administration of which you're a part.

*******

Is Alberto M. Gonzales really a liar and a perjurer? Oh, please. John Hinderaker at Power Line — using as his primary factual source that bastion of conservatism, the New York Times — punctures that thin balloon here. (See also this post, which explains why the Power Line guys are less enthusiastic defenders of AG-AG than even I am, but why they still bother doing so; and this op-ed in the WaPo.)

Taking two steps back for perspective: This entire meme suffers very badly from the internal incongruity that has always affected the Hard Left in its relationship with George W. Bush and his minions: Either they're evil geniuses intent upon, and capable of, subverting the Rule of Law through their wicked schemes, or they're the Keystone Cops. But it's impossible for them to be both. By his own admission, AG-AG has made many mistakes and misstatements, and he's shown poor preparation and no polish. I'm sad to say that he's a Keystone Cop, and he's certainly fed his opponents massive amounts of ammunition as well as blowing off most of his own toes (pop-gun or not). The nature of the job requires him, or any Attorney General, to sometimes be less than forthcoming and perhaps even evasive. But I do think he's basically an honest Keystone Cop, to the extent a consistent tale can be assembled from his many lusterless performances as a congressional witness.

And here's the conclusion I'm most loathe to state, because it's the one that makes me the saddest: I don't think there would be any point at this juncture in replacing him, even though he's become a huge net negative for the Administration. Scanning the list of the 80 Attorneys General in the history of the United States, I don't see a single one whom I'm confident could thoroughly "rescue" this cabinet position for the balance of the Bush-43 Administration. It's unlikely, in fact, that Dubya could get a new AG confirmed who would be at all to his liking: He'd rather have someone loyal and ineffective, even if a negative on the Hill or with the media, than someone whom he doesn't trust and whose loyalty he can't count on to issue the orders that need to be issued day to day at the DoJ. And politically, he's already at rock bottom, so it's entirely possible that the Dems will overplay their hand in a way that would improve things for the Administration.

I think we're all pretty much stuck with AG-AG until January 2009 or the string breaks on his pop-gun.

Why I think Obama won, and Hillary lost, the "YouTube" debate among the Democratic candidates

I watched most of the Democratic presidential candidates' debate on CNN tonight, the main point of which was to demonstrate, I think, that two guys from Tennessee wearing overalls and named Bubba and Dwayne can do at least as good a job of formulating questions for candidates as Chris Matthews. Two moments stood out for me, but I haven't read any other bloggers who've reacted to them in the same way I did, and at least one had a very different reaction to one sequence.

*******

The first was in response to a question as to whether the candidates would be willing to forgo their salaries and work for only minimum wage if they were elected. Among the responses:

[CNN's Anderson] COOPER: Senator Dodd, would you work for the minimum wage?

DODD: I have two young daughters [and] I'm trying to educate them. I don't think I could live on the minimum wage, but I'm a strong advocate to seeing to it that we increase it at least to $9 or $10 to give people a chance out there to be able to provide for their families.

That seemed okay when he said it. But then, after both Edwards and Clinton gave short, affirmative responses to the question, Sen. Barack Obama weighed in (emphasis and bracketed portion mine, parentheticals in CNN's not-very-complete transcript):

OBAMA: Well, we can afford to work for the minimum wage because most folks on this stage have a lot of money. It's the folks ...

(APPLAUSE) [Dodd begins to interrupt, laughing, with a further objection, and camera switches back and forth between him and Obama]

... on that screen who deserve — you're doing all right, Chris, compared to, I promise you, the folks who are on that screen.

(LAUGHTER)

(APPLAUSE)

DODD: Not that well, I'll tell you, Barack.

OBAMA: I mean, we don't have -- we don't have Mitt Romney money, but...

(LAUGHTER)

But we could afford to do it for a few years. Most folks can't.

Now in fact, I'm perfectly willing to accept that Chris Dodd isn't a wealthy man and that he spends his salary as a Congressman on family expenses, including raising and educating his daughters. I think he was being nothing but truthful and straightforward in his response to the question. And as fat cats go, there were far richer targets on the stage all around him, certainly including Clinton and Edwards. But Dodd protesteth too much, and thus made himself the focus of Obama's comparison. And Dodd — silver-haired, prosperous looking, old, and translucently white-complected — looked at that moment exactly like a charicature of "politics as usual." (And, indeed, he is, even if he's not personally wealthy because of it.)

Obama was pointedly including himself among the "folks on this stage [who] have a lot of money," but he nevertheless used this question to set himself apart from the others and to align himself much more effectively with voters who care deeply about the minimum wage — which includes a whole lot of Democrats who are earning a whole lot more than the minimum wage. It was deft, and it was far more effective than John Edwards' blatant class-warfare "Two Americas" spiel.

*******

Another question, addressed specifically to Sen. Clinton, was from a member of the military serving overseas:

QUESTION: Hello, my name is John McAlpin (ph). I'm a proud serving member of the United States military. I'm serving overseas.

This question is to Senator Hillary Clinton. The Arab states, Muslim nations, believe that women are second-class citizens. If you're president of the United States, how do you feel that you would even be taken seriously by these states in any kind of talks, negotiations, or any other diplomatic relations? I feel that is a legitimate question.

CLINTON: Thank you, John, and thank you for your service to our country.

You know, when I was first lady, I was privileged to represent our country in 82 countries. I have met with many officials in Arabic and Muslim countries. I have met with kings and presidents and prime ministers and sheiks and tribal leaders.

And certainly, in the last years during my time in the Senate, I have had many high-level meetings with presidents and prime ministers in Iraq, Afghanistan, Kuwait, Pakistan and many other countries.

I believe that there isn't much doubt in anyone's mind that I can be taken seriously.

(APPLAUSE)

I believe that other countries have had women presidents and women prime ministers. There are several serving now — in Germany, in Chile, in Liberia and elsewhere — and I have noticed that their compatriots on the world stage certainly take them seriously.

I think that it is...

COOPER: Time.

CLINTON: It would be quite appropriate to have a woman president deal with the Arab and Muslim countries on behalf of the United States of America.

(APPLAUSE)

I absolutely agree that this was a legitimate question — and it's not a sexist one, even though it's a question about sexism. It was therefore entirely appropriate that Sen. Clinton try to answer it directly, rather than bristling at the fact that it was asked.

That said, however, in contrast to Prof. Althouse (see paragraph 19 of her post), I thought Hillary's answer was incredibly lame — and amazingly so, because you absolutely know that even if not many people have been gutsy enough to ask it this bluntly on the campaign trail, she must have been fielding this exact question and variations on it for months, even for years, in her debate preparations and focus groups.

Starting with a reference to visits she made as First Lady is, I am convinced, a careless use of that double-edged sword. None of those visits she made as First Lady were anything more than ceremonial. I don't doubt for a minute that during the Clinton-42 Administration, Hillary had enormous practical power; but it was mostly hidden after the health-care reform debacle, and it wasn't in an out-front role on foreign policy.

More significantly, though, referring to her history as First Lady in this context is entirely inconsistent with the message she ostensibly ought to be trying to give, which is that any female American President could and would and should be taken seriously by the rest of the world, including the sexists heads of other countries, precisely because she's the President of the United States of America! (Cue that vulgar but apt Track No. 3 from the South Park "Team America" movie!) And by failing to say all of that, or any of that, in so many words, she missed a huge opportunity to score points with American voters, of both genders, who are committed to the idea of gender equality.

If one is going to cite examples of notable national leaders who were effective notwithstanding their lack of a Y-chromosome, then then screamingly obvious example is former British Prime Minister Margaret ("The Iron Lady") Thatcher, followed (equally obviously) by Golda Meir and Indira Gandhi. Babbling about little-known women heads of state from Germany, Chile, or Liberia — Liberia?!? — cuts against her case, since none of those countries, whether headed by a male or a female, is going to be perceived by American voters as having a role remotely comparable to that of the United States in world affairs. For that matter, although Madeline Albright is despised (and rightly so) by conservatives, she's still a good Clintonista, and Hillary could have pointed out that both Albright and now Condi Rice have been the United States' top representatives to foreign governments for most of the last two decades, with neither of them having been obviously hindered by their gender.

Ultimately, Hillary took the question as being mostly about her personally, and what her answer boiled down to was her assertion that "there isn't much doubt in anyone's mind that I can be taken seriously." And that actually may be true, or partly true, at least with respect to at least some foreign leaders. An even more honest answer would have been: "Look, I'm renowned not only in the U.S. but across the world for my capacity to be vengeful, aggressive, brutal, and ruthless, and I'm already about ten times as intimidating to any foreign despot as John Edwards could be even if he shaved his head and got some tattoos." That's the kind of truthful answer she has to limit to the subtext, though, I guess. Her actual ending note — a variation on "that'll show 'em!" — is, of course, exactly the kind of stick-in-the-eye diplomacy of which she claims the Bush-43 Administration is endlessly guilty.

This was a question that begged for a thoughtful, articulate statement of principles. There are so many things she could have said about how we must not abandon our values just to gratify those cultures and countries who don't yet embrace sexual equality. This question was a medium-speed fastball right over the center of the plate — and she laid down a not-so-good bunt with it.

*******

For most of the rest of the debate, Obama looked and sounded inexperienced, and Hillary played it safe. And by the conventional wisdom, on the scorecards of most political pundits, that means "Hillary won." But those two moments illustrate why I continue to believe that when the battle moves outside the realm of pundits, and when one escapes the cautious dynamics of the political movers and shakers and instead gets out among the actual primary voters, Obama is going to eventually kick her butt. Her implacable opponents from the Hard Left will unite with those who ignore Obama's lack of experience but ignite in the presence of his charisma. And that will give him, I still predict, the Democratic nomination, no matter what today's polls say.

Do the views of a tangential client who represented 0.5% of Fred Thompson's law practice over two years more than a decade and a half ago disqualify him from the Presidency?

I've been "of counsel" to a couple of law firms, and a partner in a couple of other much larger ones. I've never been a single-issue voter. 

But presumably, some theoretical slice of the potential electorate, large or small, is considering whether to disqualify Fred Thompson from their presidential consideration based on lobbying work he apparently did for an abortion rights group in 1991-1992 while he was "of counsel" to a Washington, D.C. law firm.

If you're trying to assess the relative importance of that three hours of active "lobbying," plus another seventeen or so hours of other consultation during a two-year period — work likely amounting to something like 0.075% and of 0.425% respectively of Thompson's total law practice over that two-year period fifteen years ago — then I'd like to share some of my perspectives.

As hills of beans go, this is a very, very short stack.

*******

First, in thorough and long-winded Beldar style, the background. This story has been bouncing around the mainstream media and the blogosphere intermittently this month, with about half of the furor centering on whether and when Fred Thompson could have acted a part in a cowboy movie.

On July 7, the Los Angeles Times breathlessly reported that Judith DeSarno, then the Executive Director of the National Family Planning and Reproductive Health Association, reported having hired Thompson as a lobbyist in 1991, during the Bush-41 Administration, to advise and represent it in connection with the possible withdrawl or relaxation of a so-called "gag rule" that barred abortion counseling at clinics that received federal money. The LAT published a two-page .pdf file, the second page of which (italics mine) summarized Ms. DeSarno's as having told an NFPRHA board of directors meeting on September 14, 1991, that

Congress was continuing to move forward on legislation affecting the gag rule. The Senate had approved the Labor/HHS appropriations bill by a vote of 78 to 22 but with a parental notification for minors abortion amendment that was very troubling. The bill would now move to a House/Senate conference committee. Judy reported that the Association had hired Fred Thompson, Esq., as counsel to aid us in discussions with the Administration. Negotiations are in progress between Senator Chafee and the White House to try and reach a compromise on the HHS regulations. NFPRHA has played an active, if behind the scenes, part in the negotiations along with PPFA.

She noted that because of the gag rule she had concentrated most of her time on governmental relations. However, since the last board meeting, she [also did some other stuff, including yada yada] ....

I mean no disrespect to Ms. DeSarno in noting that during quarterly board meetings of the sort being reported here, paid executive staff for interest groups like this one are doing their dead-level best to, among other things, justify their salaries and their existence to the board members who hire and theoretically supervise them. In a Washington board meeting of a Washington-based national abortion rights lobbying group, then, it's entirely unsurprising to see that Ms. DeSarno, the group's executive director, claimed to have spent "most of her time on governmental relations" during the preceding calendar quarter.  But let us not therefore jump to the conclusion that she spent most of the preceding calendar quarter, or much of it, or more than a tiny, tiny fraction of it, in consultations with Fred Thompson, Esq.

Rather, this one-sentence reference in these minutes was most likely present as part of the predicate paperwork necessary for the association to eventually cut Thompson's firm, Arent Fox, a check for its fees in due course. Executive directors who report, "I spent the last calendar quarter with not a damn soul on Capitol Hill bothering to return my phone calls, and I couldn't even figure out what staffers had responsibility for the language in the new appropriations bill dealing with the gag rule," don't generate warm fuzzies for their constituencies, and neither are they likely to get salary or expense account increases. So it's also reasonable to infer that Ms. DeSarno — among the champions of a liberal cause during a conservative presidential administration — was reporting to her similarly liberal board members and fellow staffers about what were, in effect, outreach efforts to negotiate with their natural enemies.

To do that, she didn't need a true believer or even a convert. Oh, no! She instead needed a conservative pro-life Republican — one who could tell her about other conservative pro-life Republicans. She didn't need someone who would make outright converts on the Hill on the Association's; that simply wasn't doable, not by anyone. She needed someone who help get her names, phone numbers, and some background information — and who maybe, if she were lucky, could help get a few of her phone calls returned by people connected with the conservative pro-life Republican administration then in power.

I mean, hell, NFPRHA could get free advice and favors and introductions from pro-choice Democratic lawyers by the handfuls. They'd do backflips for NFPRHA simply in exchange for an additional line on their résumés when they made their applications to the next Democratic administration, whenever that was going to come around. So why would NFPRHA agree to pay out good money (that might otherwise go to, I dunno, say, executive staff salaries or bonuses or expenses) to hire someone who already agreed with them?

I therefore start off being pretty skeptical about the idea that NFPRHA hiring Thompson even indirectly supports an inference that he supported their goals.

*******

Nevertheless, the story's latest resurrection comes from a report in today's NYT:

Billing records show that former Senator Fred Thompson spent nearly 20 hours working as a lobbyist on behalf of a group seeking to ease restrictive federal rules on abortion counseling in the 1990s, even though he recently said he did not recall doing any work for the organization.

According to records from Arent Fox, the law firm based in Washington where Mr. Thompson worked part-time from 1991 to 1994, he charged the organization, the National Family Planning and Reproductive Health Association, about $5,000 for work he did in 1991 and 1992. The records show that Mr. Thompson, a probable Republican candidate for president in 2008, spent much of that time in telephone conferences with the president of the group, and on three occasions he reported lobbying administration officials on its behalf....

The billing records from Arent Fox show that Mr. Thompson, who charged about $250 an hour, spoke 22 times with Judith DeSarno, who was then president of the family planning group. In addition, he lobbied “administration officials” for a total of 3.3 hours, the records show, although they do not specify which officials he met with or what was said.

So what should we make of this? The first question probably ought to be: How significant a part of Thompson's legal practice was this engagement?

Well, that's just a matter of doing the math. Most full-time lawyers shoot for 2000 recordable hours (not all of which may be "billable") every year (representing 50 weeks at 40 hours per). If so, then over two years of Thompson's practice in 1991 and 1992, the three hours of actual lobbying amounted to 0.075% of his practice (3/4000 = 0.00075). It might well take three hours of phone inquiries simply to find out who was actually "carrying the ball" on the respective House and Senate committee staffs and within the key Congressional leaders' offices, simply so that he could point Ms. DeSarno in the right direction — because it was she, after all, who was spending "most of her time" lobbying for this organization.

And recall, too, that in politics, the Association's natural enemies among conservative lawmakers would nevertheless want to know who was whom at the Association, and what they had planned, and what their liberal allies on the Democratic side of the aisle had planned. The only way you get information is by trading information. So in the nature of things, some of the time Thompson spent in active lobbying was probably actually being helpful to conservative pro-life Republicans, even though NFPRHA was paying him by the hour. That's just the nature of the beast.

Remember also that at this time, Thompson wasn't a former senator yet, nor a very likely prospective one. He was another lawyer, one who'd had important staff positions at important moments in Congressional history (e.g., during Watergate, when his questions triggered the revelation of the secret White House taping system that brought down the Nixon presidency), and who'd been in a handful of movies and TV shows. But most of his actual law practice was still back in Tennessee, and it wasn't related to lobbying at all. Nevertheless, his inside the Beltway history would mean that he had useful context and information to share with someone like Ms. DeSarno, whose own natural contacts didn't include the conservative Republican side. And as someone with more information than clout, it makes perfect sense that the vast majority of the time Thompson billed to this matter was not for lobbying, but for other consultation — most likely meaning, here, client education.

But even those hours of non-lobbying consultation — let's round them up to 17 — still would have constituted only 0.425% of Thompson's career efforts during those two years. So what's the one thing we can conclude with near certainty from the NYT story and the newly found billing records? The twenty-hour total altogether was likely no more than one-half of one percent (0.5%) of Thompson's total legal work over 1991-1992.

Quantum physics, rocket science, and difficult related mathematical computations (like fractions) being beyond the ken of the average NYT reporter or editor, this percentage figure is missing from the NYT story.

*******

So how much, if anything, does that half of one percent tell us about Thompson's own views on the National Family Planning and Reproductive Health Association? Can we draw any inferences at all, from the fact that he did this work, that he was sympathetic with their goals?

And the answer to that is: No, it would be highly unfair and misleading to try to draw that inference.

Let's start with the proposition that in general, it's unreasonable and unfair to impute to a lawyer the beliefs or attributes of his clients. Sen. Thompson made this point well in an op-ed he published via PowerLine, and I've also chipped in to make the same point at my usual ponderous length and with a personal war story recently.

Some pundits have suggested that that rationale is less persuasive with respect to lobbying clients than with respect to regular clients, but they've got it exactly backwards. When a lawyer undertakes to represent a party in court, he incurs certain ethical obligations to the tribunal as part of that representation. He may not knowingly, for example, put his client (or any other witness) on the stand to adduce testimony that he knows to be perjured. Similarly, a lawyer arguing in court (or in court papers) may not make an assertion of fact without having a good-faith basis to believe that there's a factual underpinning for it, and he may not misstate the existing status of the law in an attempt to mislead the tribunal.

But if Fred Thompson "lobbied" some Capitol Hill staffer to return a phone call from Judy DeSarno at the NFPRHA, that doesn't include any express or implied endorsement, nor any vetting, of anything that Ms. DeSarno might claim or say. And in Washington, D.C. — where even people who aren't obviously identified as selling a viewpoint of a political interest group are conclusively presumed, until otherwise proven beyond a reasonable doubt, to be peddling some idea for somebody, an introduction, or even a summarization of someone's (decidedly unsworn) talking points, is just about the farthest thing in the world from a binding personal endorsement.

*******

Some pundits will nevertheless sputter: But surely the fact that Thompson would align himself with this sort of client, even for purposes of transmitting viewpoints he disagrees with, says something important about him and his lack of principles! But that's also a bogus argument that flies in the face of both theory and the reality on the ground.

As for the theoretical:

Someone thoroughly versed in our system of government, someone thoroughly committed to the Rule of Law and the marketplace of ideas, would have no hesitation in introducing, and then facilitating discussions between, someone whose goals and beliefs he absolutely rejects (on the one hand), and someone whose goals and beliefs he absolutely shares (on the other).

The public image of lobbyists as handing out favors and bags of ill-concealed bribes is odious and hard to combat; but the practical reality is that without some level of civil discussion between sharply opposing interest groups, no compromises would ever be possible, and neither side could ever win in whole or part on anything because the entire system would grind to a halt. Facilitating that dialog — and helping each side understand who the players are on the other side, what their hot-buttons are, what their core values are, and where there is and is not potential ground for compromise — isn't a "sell-out" of either side's position, and instead renders both sides a genuine service.

As for the reality on the ground, can we conclude at least that Thompson was willing to get "in bed" with the abortion rights crowd, at least briefly, based on this engagement?

I don't think so. If Thompson wanted to have an office in Washington, he was going to have to display some flexibility. Being inflexible would have made him essentially worthless to anyone in that town, including not only existing major law firms but himself.

According to an American Spectator article, during 1991-1992,

Thompson, was "of counsel" at the Arent Fox law firm in Washington, D.C. (meaning he was not a partner, but was provided an office for his use, in part because Thompson's own practice was based in Nashville, TN), and was used by the firm's partners as a "draw" for clients and potential clients, according to a source at the firm familiar with the arrangements with Thompson and others with the "of counsel" designation.

"You'd get partners walking people into Thompson's office all the time, none of whom had any business dealings with Thompson, because he wasn't a partner with the firm," says the firm source. "But having Thompson there during a Republican administration helped with business."

Arent Fox is a well-known, heavily Democrat firm with strong ties to the Clinton administration.

The only part of this quote I'm at all skeptical of is whether it's fair to tag Arent Fox as "heavily Democrat." It may well be, but that's actually beside the point. I remember interviewing with Arent Fox when I was a law student at Texas Law School in the fall of 1978 because I was considering spending a summer in D.C. and it was one of the D.C.-based firms large and powerful enough to recruit nationally from schools like UT-Law. The partner who came down to recruit stressed their substantive law practice (mostly in antitrust, if I recall correctly), but also was frank about their lobbying. He told me, in effect, that part of what they and other Washington powerhouse firms offered was the certainty that year-in, year-out — and regardless of whether a Democratic or Republican administration was currently in power — someone at their firm would know someone on the Hill or at the White House who would have something to do with just about any issue then being debated in the federal government.

That's the context which explains this comment, from today's NYT story:

The family planning association became a client of Arent Fox through Michael Barnes, a former Democratic congressman who was then a partner at the firm. The firm’s current chairman, Marc Fleischaker, said, "Regardless of whatever the political ramifications are, Fred was being a good colleague by helping out one of the firm’s partners."

That's a polite way of saying, "You're no damned good to us or yourself if you are only willing to represent the people who are already your friends, and you're also no damned good to us or yourself if you're unwilling to even talk to your friends when the firm's busy representing their political enemies."

So why the reference by Mr. Fleischaker to former Democratic congressman Barnes? Because it's a crucial fact in assessing Thompson's responsibility — or the lack thereof — for this particular engagement. Being "of counsel" meant that Thompson — despite his seniority and prior experience in Washington, which is what made him valuable to the firm — was nothing more than an at-will employee at Arent Fox. He didn't own a piece of the firm; he didn't get a slice of the pie at year-end when the profits were divided; and he had no role whatsoever in any firm management decisions. Obviously, Barnes was the partner-rainmaker who brought the Association in as a client — not Thompson. Barnes was presumably in the NFPRHA's corner any time. And it would have been Barnes' role — not Thompson's, nor any other non-partner's role — to have said, either, "No, our firm is not going to take on this client," or "Nope, this may be a regular client but we're not going to take on this particular matter for them." Any associate or "of counsel" who regularly refused to assist in representing clients whom the partners (like ex-Democratic congressman Barnes) brought in would quickly find themselves unemployed and, in Washington, unemployable.

Indeed — and this will cause mutterings, I know, from those of you who believe that all legal fees are shocking and outrageous — but Thompson's $250 billing rate as reported by the NYT would have been very, very modest compared to rates of major D.C. law firm partners back in 1991-1992. Barnes' or any other partner's time would probably have cost the Association at least twice as much. At a firm like Arent Fox, it might have been quite important to the firm overall to maintain a stable of clients like the NFPRHA — simply because access to, and knowledge about, special interest groups is the flip side of access to, and knowledge about, people in government. But this particular engagement, generating a mere $5k in revenues over two years, would have been at best a footnote to a line entry at the bottom of an appendix to an addendum in a supplementary table contained in an index of the firm's finances, if that. "Drop in the bucket" would seriously overstate the financial importance of this kind of engagement, in and of itself. Much less would the revenues from this engagement get Fred a bonus or a corner office; it would kinda sorta help pay the cost of the electricity he used and the floor space his (likely temporary) office in Washington took up.

*******

To the very, very limited extent that there's actually a "story" here, in my judgment it relates solely to whether the Thompson proto-campaign was slow-footed or lacked candor in reacting to this. As my blogospheric friend Patterico notes, the appearance now of the billing records directly contradicts something that the LAT reported from the campaign earlier this month:

Thompson spokesman Mark Corallo adamantly denied that Thompson worked for the family planning group. "Fred Thompson did not lobby for this group, period," he said in an e-mail.

In a telephone interview, he added: "There's no documents to prove it, there's no billing records, and Thompson says he has no recollection of it, says it didn't happen." In a separate interview, John H. Sununu, the White House official whom the family planning group wanted to contact, said he had no memory of the lobbying and doubted it took place.

But Patterico and others have, from time to time, found occasions in which the LAT has been, shall we say, less than scrupulous in matching up its purported quotes with their fair contexts. When Corallo spoke, he may have been under the genuine impression that no billing records existed, perhaps after making inquiry. Or perhaps he said, or meant to say, or should have said, in the follow-up telephone interview (a notorious source of misquotes and context slippage) that he hadn't yet been shown any bills (which NFPRHA presumably would have had, just like their meeting minutes) or billing records to that point.

If it was indeed White House Chief of Staff Sununu (now famous mostly as the misguided mouthpiece through which Warren Rudman inflicted David Souter on Bush-41 as a SCOTUS nominee) who was the focus of discussions when Corallo made the purported quotes, then in that context, there may still be no conflict today, even after the billing records have appeared, because they certainly don't seem to support any suggestion of active lobbying at anything remotely approaching that high a level. What struck Fred as "lobbying" when he was filling out billing records (if he's who filled them out, which is also just a guess) may be different, in other words, from what Corallo thought he was being asked about or intended to be speaking about a decade and a half later on the phone with the LAT.

However, even if we assume that the LAT was absolutely fair and scrupulous — and truthfully, I don't know of a single damned reason why we should so assume, but let's do so anyway, for purposes of argument — I tend to agree with Ed Morrissey and John Hinderaker that the appearance of the billing records and the NYT's new story is still much ado about nothing much more than a possible mistake or loose misstatement by an ill-informed or insufficiently careful campaign spokeman.

Bluntly: The notion that Fred himself has been engaged in some sort of cover-up or duplicity here is an absolute non-starter — even if you're among the small segment of the population who believes that his half-a-percent one-off representation of this abortion rights group a decade and a half ago somehow affects his current fitness to be President. [UPDATE (Thu Jul 19 @ 11:55am): I'm sorry to see James Joyner among those who seem awfully quick to claim that Thompson himself has told a deliberate "lie," and with due respect, I don't think he's made out a basis for that claim.)]

I'm not sure this hill is even one bean tall. Actually, I tend to doubt it.

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

UPDATE (Thu Jul 19 @ 1:15pm): From my continuing civil discussion with Dr. Joyner in his comments, this from me there:

"Lying" is a very, very serious accusation.

Yet you're making guesses based on press summaries of documents we haven't seen, based on NYT reporting about them (and we all know the NYT never makes mistakes?), and comparisons of those against a mish-mash of written and oral statements by the candidate and others in a variety of settings and contexts (again, assuming scrupulous and thorough reporting).

Even the records themselves don't necessarily provide conclusive answers. I don't hold law firm billing records in quite the same regard that I do gospel, because I know just how often they're screwed up, or compiled second-hand by a secretary or a paralegal making guesses from inconclusive source documents (rather than reflecting personal knowledge).

Some of the terminology here is also incredibly slippery. If the context of Corallo's follow-up phone call with the LAT, for example, was about "lobbying" Sununu or other top officials, then that's something that might well have been categorically denied, truthfully and in good faith, and after checking with the candidate and doing some due diligence.

And yet that might have happened without anyone ever wondering, "Hmm, did perhaps a phone call ever get made to the second assistant junior staffer to find out if the conference committee had transmitted back to the Senate subcommittee the minority report on the supplemental HHS appropriations bill as amended?" Yet exactly that sort of phone call might have ended up as a 0.1 hour entry in Thompson's scribbled work records as "TC lobbying."

This whole episode makes me strongly suspect people are talking past each other. I want to see the records, but producing them may involve privilege issues on which NFPRHA's cooperation might be needed, and they may have reasons to be horsey about that.

Beldar on Mark Levin on Hillary Clinton and Jeri Thompson

I can't listen to Mark Levin's radio show. Completely apart from content, his voice affects me like fingernails on a chalkboard. But completely apart from his voice, he's just been too over-the-top, pretty much all the times I've tried listening. Him screeching "I'm sick of ___" will cause me to turn off the radio, whatever he's got in that blank at the moment.

So it is, too, with this op-ed from Monday on NRO entitled "Hillary Clinton, Trophy Wife." In it, he catalogs and links left-leaning mainstream media sources, including some I hadn't previously seen, who've made mocking and belitting comments about former Sen. Fred Thompson's wife Jeri as being a "trophy wife." And I have no problem with his conclusion:

The Left likes to lecture us about sexism and gender discrimination. But when it comes to Republican women, they’re all for a glass ceiling. The truth is that if Jeri Thompson was the wife of a leading liberal Democrat candidate, or spent her life working for liberal causes, they would fall all over her with adulation. They’d fawn over her good looks, grace, and charm. They’d praise her for balancing family and public life. The age difference between Fred Thompson (64) and Jeri Thompson (40) would go unmentioned — as it has with Chris Dodd and his young wife. And in the case of JFK, his marriage to the younger Jackie was said to be a huge asset. It unquestionably was.

The personal attacks on Jeri Thompson are meant to damage Fred Thompson’s undeclared presidential bid. They’re afraid of you, Fred! All the more reason to join the battle.

But he apparently can't resist going into attack mode himself, when he writes earlier in this same op-ed:

The ultimate exploiter of the "trophy" spouse would be Hillary Clinton. But for Bill Clinton, she would be a nobody. If Hillary was only a Rodham, she’d be just another Chicago liberal. She’s stood on Bill Clinton’s shoulders for three decades. In fact, she’s still relying on him to help deliver campaign contributions and the votes in early primary states like Iowa and New Hampshire. And that’s why she "stood by him" when he was accused of rape and other forms of criminal assault. It’s called power.

I'm very sure that Sen. Thompson and his wife would never, ever in a million years let this kind of attack slip from their lips, and it's just not very smart on Levin's part.

I am not a Hillary fan. There are no circumstances, including waterboarding, that could induce me to vote for her for anything. I think she's actually the potential Democratic nominee who'd be easiest to beat in a general election, but I don't favor giving her even a temporary amnesty from Republican criticism until after the primaries.

And yes, Hillary has exploited, and will continue to exploit, her husband's name, status, contacts, and popularity. She is at least as ruthless as Bill Clinton was in his pursuit of the presidency, and if only America could somehow harness her thirst for power and convert it into electricity, we'd solve our energy dependency overnight.

But it's stupid to underestimate her, and that's what Levin's characterization does. "Only another Chicago liberal?" Obviously, Levin has forgotten the superb political joke told about Hillary:

While on a tour bus campaigning in New Hampshire, Hillary and Bill Clinton are shaking hands with some of the workers at a truck stop where their bus is being refueled when Hillary recognizes one of the workers who's actually doing the fueling. She stops to chat with him while Bill's working the rest of the crowd, and Bill thinks she doesn't notice when he sneaks off to grab a plate of truck-stop nachos.

The pumper turns out to be "Chip" — a guy from her home town of Park Ridge, Illinois, and upon whom she'd actually had a crush on during seventh grade.

They laugh about old times for a minute or two, and then, as they watch Bill sneaking back onto the bus, Chip says, "Hey! I wonder what would have happened if that seventh-grade crush had ripened, and if you and I had ended up getting married, instead of you and Bill Clinton?"

"Oh, that's easy, Chip," replies Hillary. "I would still be touring New Hampshire in a campaign tour bus, but with you instead. You would be the ex-President of the United States. And instead of wiping melted nacho cheese off his chin, Bubba over there," she says, pointing at Bill, "would be wiping diesel off his hands after filling our tank."

Calling Hillary a "trophy wife" seriously misunderestimates her. And it's pointlessly, genuinely sexist, just like the attacks on Jeri Thompson.

There's no shortage of negative things to say about Hillary Clinton, and if you start making up stuff that lacks a factual basis — if you were to call her lazy or stupid, for example, or even politically inexperienced — you lose all credibility. You can quite appropriately point to her relationship and history with the forty-second POTUS as part of a legitimate critique. But calling her a "trophy wife" is just unjustified; that's not what she is, in any sense of that term. Levin should cut it out.

"Hott 4 Hill" video

Am I wrong in thinking that this very funny, sexy music video (h/t Xrlq), just like the Obama Girl video that inspired it, also ends up helping Obama?

Would it be possible to do a very funny, sexy video (either with or without music) that somehow helped Hillary?

Just askin'. (That video of her and Bill and the carrots, even apart from the scary "Sopranos" overtones, was mildly funny in a "heh, that's weird" sort of way, but overall it affected me about like a dose of potassium nitrate was once thought to affect men.)

Meanwhile, I gather that sometime Monday we'll see the debut of Obama Girl versus Giuliani Girl (although the "trailer" is already out ... at this rate VH-1 will be able to do a complete weekend on the "2008 Election Rock Videos" before election day).

UPDATE (Mon Jul 16 @ 7:00am): Sez the WaPo of the new "versus" video: "Unfortunately, the Republican candidate comes with some other negatives: 'It turns out,' says [Obama Girl a/k/a Temple University senior Leah] Kauffman, 'nothing rhymes with Giuliani.'" But here it is, complete with pillow fight (the mud-wrestling will have to wait until after Labor Day, surely).

Video clip of Sen. Fred Thompson with wife Jeri and kids

You may or may not already seen this two minute 40 second video of a statement former Sen. Fred Thompson gave on June 14, 2007, to the National Right to Life conference, but I only came across it tonight. Nothing in it surprised or distressed me. I find myself warming more to this man with pretty much every additional exposure.

It starts off, however, with a short sequence in which Fred introduces his wife Jeri and their two young children, 4-year-old Heyden and infant Sammy. None of them speak, and they're quickly out of the shot — off, explains Fred, to a birthday party for one of Heyden's friends. But if you want to decide whether the age difference between Fred Thompson and his wife utterly creeps you out, to the point that you can't imagine yourself or anyone else voting for you, this video may be more useful to you for that purpose than the various still pix (for example, here, here, and here).

Would you think he's her father and their grandfather if you saw them all together at a restaurant? Yeah, probably; and the age difference is assuredly enough that he could be. But does he strike you like some sort of power-mad white slaver who's lured this poor young thing into his clutches so he can exploit her? I'm sure he likes showing her and the kids off; but did he marry her, and start a new family, primarily for the purpose of being able to show them off? That's not my reaction, as a male and father of four who's a little closer to her age than to his.

But decide for yourself. We're talking brain-stem reactions here, not cerebral cortex (except as it evaluates brain-stem reactions and then tries to crystal-ball some electoral projections based on them). 

Meanwhile, K-Lo at The Corner writes that when Mark Levin (who I cannot stand to listen to, sorry) asked as his first question of Sen. Thompson on Levin's radio show, "Is Hillary Clinton Bill Clinton's trophy wife?" the former senator, soon to be candidate, "wisely didn't answer, but used his good 'I thought I was the trophy husband' line." I wish I could take credit for inspiring that line, but I'm sure it occurred to Sen. & Mrs. Thompson long before I used it here.

Dean Barnett fouls a pitch off his foot in trying to tag lawyers with their clients' views

Former Soxblogger Dean Barnett is a bright guy. None of us gets a hit with every at-bat, but Dean usually avoids fouling pitches painfully off his own feet — which makes it surprising to read something from him that's as profoundly misinformed or ill-conceived as this (emphasis mine):

This week, Fred’s non-campaign made a seamless transition from smooth to bumpy, and his team has looked decidedly not-ready-for-primetime. The story about who he represented as a lawyer and lobbyist resonates. The dodge that lawyers/lobbyists don’t need to share the views of their clients and shouldn’t be held responsible for them is a pile of hooey. Each lawyer, like every other member of society, is the conservator of his own talent. If a lawyer chooses to use his talents to try to spring Khalid Sheikh Muhammad, perhaps other lawyers will salute him and see nothing wrong with the effort. But I know and you know that said lawyer wouldn’t have much of a political career in front of him.

If I were a general contractor and profited from building a Planned Parenthood facility, I don’t imagine that fact would endear me to America’s conservative community. If I sought office as a conservative Republican, I would expect my primary opponent to make an issue of it. Lawyers want to play by a different set of rules, and in the eyes of their fellow members of the Bar, they do. But the rest of the country won’t buy it, nor should they.

Putting aside his criticisms of the Thompson organization's oblique responses to the underlying criticisms (which may or may not have been politically deft and astute), I hope that Dean's naïveté about the unfairness of painting lawyers with their clients' positions comes from the fact that he's never had legal troubles of his own, nor had to put himself in the position of those who do.

General contractors are honorable tradesmen, and I don't mean to disparage or understate the degree of judgment and skill that can distinguish one from another. Just like every other businessman, they certainly should operate within a framework of general business ethics. To my knowledge, however, they do not operate within a system of fiduciary responsibilities in which they agree to be bound to put their customers' interests ahead of their own. (That's one reason why they have "customers" instead of "clients," in the common vernacular.) When one chooses general contracting as a profession, one does not commit to help ensure that constitutionally adequate buildings are available even to the blackest and most evil members of society. Nor does the contractor appear as the public face of his customer, acting on his behalf, speaking out for him in public at the very time when the customer is under the most intense public scrutiny. And while a general contractor's work may determine whether your home or business falls down when the wind blows or leaks when the rain falls, it generally won't determine whether you spend years in prison or get a lethal injection. Dean's oversimplifications notwithstanding, there are excellent reasons why the rules are, and should be, different for lawyers and contractors.

*******

Early in my career, I spent many hundreds of hours representing a convicted capital murderer — the getaway driver on an intended empty-home burglary gone bad in which, while he waited unknowingly outside, his fellow felons had executed a Montgomery County juvenile officer with his own gun in front of his wife and children. I undertook the case at the specific request of a Fifth Circuit judge who discerned, correctly, that the legal issues involved were very important ones, and that the state of the Fifth Circuit's precedents on them was badly muddled — all of which meant that for the good of the entire judicial system, this man needed a first-rate constitutional lawyer to advocate his position.

The work was entirely pro bono, and the firm with which I was then employed — Houston-based Baker Botts — cheerfully ate all of those lost billable hours, along with thousands of dollars in out-of-pocket expenses. My client wasn't as depraved as his accomplices, but neither was he anything approaching innocent; and under any view of the facts, he was vastly more culpable than someone arguing about what may or may not be discussed during counseling on contraceptives!

When I was done with his representation (after two Fifth Circuit decisions with an intervening evidentiary hearing in federal district court), I was proud of the commendation I received from the court and of the service that I had performed to the Rule of Law. I had done my duty to my client, but not out of love for or identification with my client, and certainly not because I approve of cop-killers. As it happened, he ended up serving something over six years, which I thought was at least roughly appropriate, and which the State agreed to accept in lieu of re-trying him when I succeeded in having his original conviction overturned. (Of my client's two cohorts, one was executed by lethal injection, and the other was slain in the midst of another violent crime.)

So tell me, Dean — does that case disqualify me from being a "good conservative"?

*******

Just as we have ethical obligations to attempt to put personal feelings about a client aside, both for the good of that client and for the good of the system, lawyers also have ethical obligations to recognize that we are fallible human beings who sometimes will be unable to succeed in those attempts. If, through chance, I'd been personally acquainted with the slain juvenile officer or his family from the case I just described, then when the Fifth Circuit asked me to represent someone complicit in his execution, I'd very likely have had to decline — not because I lacked faith in the system, nor because I lacked the willingness to support it even at the cost of doing things unpleasant to me, but because I would have such a disabling conflict of interest that I could not expect myself to genuinely represent that particularly client diligently and ably. As it happened, I had no personal connection to his case; but I could still only take it because I was satisfied that I could control my personal reactions to his conduct and therefore I was satisfied that I would not unintentionally throw his case.

Drawing those lines requires a deep look by each lawyer into his own soul and character. I have colleagues whose personal histories or deeply held views are so intense that they could not, despite their best efforts, render diligent service to any defendant accused of a violent crime. Or maybe they hold such rabidly anti-abortion views that they also couldn't defend a general contractor in unrelated commercial litigation simply because that contractor had once built a building to house a Planned Parenthood clinic. I'm equally as loathe to second-guess those self-recusals as I am to second-guess someone for failing to self-recuse.

*******

Most people as smart as Dean grasp all this without much trouble. You don't have to be a lawyer to understand it, and it's frankly disingenuous to suggest that this is all some lawyer game or professional conspiracy. If you think you can't understand these principles, then try to imagine yourself in the hot seat — falsely accused, say, of being a child molester — and then decide whether you want your field of potential legal advocates reduced to those who positively approve of child molestation. What Dean refers to as Fred's "much-discussed essay on PowerLine" includes Sen. Thompson's reference to past political opponents who've badly stubbed their toes by underestimating the voting public, or overestimating their own abilities to fool the public using this kind of argument.

If you genuinely believe in the system, then you must accept that it depends on both sides in any given dispute having the benefit of capable advocates who are representing their respective clients diligently within the bounds of the law and the canons of legal ethics. You cannot dispute that principle without endorsing mob justice — which is, all too often, injustice, and which is never justice under the Rule of Law.

Does Dean realize that his argument about Khalid Sheikh Muhammad would put him right at the front of any mob opposing the Rule of Law? Is that really where he wants to make his stand? Because that's also a popular position to take in the sharia "justice system"— at least in the version favored by Khalid Sheikh Muhammad and practiced in some parts of the Islamic world.

Quite frankly, Dean should know better than this, and I suspect that he actually does (and would so acknowledge were he to give it further thought). I'm absolutely certain that his blogging host for this particular post, Hugh Hewitt, not only fully understands these principles, but has lived them and (as an accomplished legal educator) could more vividly and concisely explain them to Dean than I have.

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

UPDATE (Fri Jul 13 @ 10:35pm): I'm disappointed to read that Ramesh Ponnuru thinks the argument that a lawyer ought not be tarred with his clients' views is a "very weak argument." I'm genuinely baffled how such smart, principled pundits can have such a poor grasp of the legal system's fundamental precepts, and I genuinely do believe the rank-and-file public aren't so likely to be confused.

If your legal career has been as the general counsel of the A.C.L.U., or if you chose to devote most of your private practice to representing accused Mafia mobsters, that would be one thing. But one client, on one representation? That's so unfair as to be silly.

R.I.P. Lady Bird Johnson, 1912-2007

My own feelings about fellow Texan and former President Lyndon B. Johnson have evolved and become quite a bit more complicated over time. After starting with very negative opinion, I've generally become more admiring and sympathetic, and more appreciative of his great qualities that so highlighted the depth of his tragic flaws. And you cannot be a well-informed Texan without understanding how his legacy has profoundly affected, and indeed still affects, this state. But as I've read more biographies and other books that have added to my knowledge of him, I've also became more and more of a fan of his wife — born Claudia Alta Taylor, but universally known as "Lady Bird" since long before she married. My admiration for her is unmixed with the negatives that must color my views of her husband.

She passed away, peacefully, today at her home in Austin at age 94.

I don't think it's sexist or demeaning to recognize that one may be ennobled by what one undergoes and contributes on behalf of a spouse. And as a spouse, as in all other respects, LBJ was, to put it mildly, a challenge and a handful. Most of the country, probably including their own two husbands, saw Lady Bird as a dull sparrow compared to swanlike, glamorous Jackie Kennedy. But that's a very shallow view, and in more meaningful terms than glamor — in terms of service, direct and particularly indirect, to one's country and civilization — Mrs. Johnson comes off the superior of the two with the perspective of time.

This quote from the Austin American-Statesman's very good report of her passing is pithy and apt:

"I was once asked to describe her in one phrase," Harry Middleton, former director of the LBJ Library and Museum, said in a 1995 interview about Mrs. Johnson. "And the phrase I came up with was 'grace and steel.'"

And I'll also steal and reprint here the Statesman's photograph, which resonates for any Texan who knows her story and has ever reveled in a springtime hike or drive among the roadside bluebonnets and other wildflowers.