Renaming Albany “Trump City”?

If you missed it yesterday, the Daily News is floating the rumor – backed, apparently, by a tantalizing quote from State Senate Republican leader Joseph Bruno – that Donald Trump is thinking of running for governor as a Republican. The News is pushing this story again today. Random thoughts:
*Is the NY GOP this desperate? Why, yes, in fact, they are. I haven’t followed the travails of Bill Weld lately, but I’m not feeling very optimistic about him at this stage.
*Would I rather have Trump as my governor than Eliot Spitzer? Yes, but that’s hardly saying much.
*Trump does have some obvious selling points. He’d be self-financing. He understands business, which makes an effective contrast to the business-hating Spitzer. He knows how to get things done, and likely would work better and less confrontationally with the Legislature than celebrity governors like Schwarzenegger and Ventura have. He’d finally get the Trade Center site working.
*I have neither the time nor the energy here to recount the downsides of Trump as a public official (or as a campaigner), but let’s just say there’s no shortage of those, either. And he’d be only the most nominal of Republicans, even compared to Weld.
*The NY tabloids could not invent a better candidate for the purpose of selling newspapers.

Donkeys in a Nutshell

Dave Barry’s political humor, like the rest of his humor, is always hilarious and often true as well, which is just one of many reasons why news that his weekly columns won’t be returning is too bad. Barry’s a libertarian, which explains why he’s able to consistently target both sides of the partisan aisle. Anyway, there’s one line in the first segment of his 2005 in review column (which has plenty of laughs at Bush’s expense as well) that captures the Democrats in a nutshell:

In a strongly worded rebuttal, angry congressional Democrats state that, because of a scheduling mixup, they missed the President’s speech, but whatever he said, they totally disagree with it, and if they once voted in favor of it, they did so only because the President lied to them.

One Penny At A Time

*Jon Henke calls for Line-Item Budgeting – not just a line-item veto by the president, but forcing Congress to vote on each expenditure. More here. There would obviously be some practical hurdles: how do you decide what is a separate item? For example, can the Army budget include tanks and guns in the same item? One could see how even the hardiest advocate of creating obstacles to government spending might blanch at this if it’s not carefully crafted, even leaving aside the practical poilitical obstacles to either (1) amending the constitution to require this or (2) getting our legislators to agree to it, to the detriment of their own influence.
A similar problem besets two similar ideas I keep coming back to. One is the idea of some sort of prohibition on items of spending and taxation that are, in effect, special-interest legislation. I do think you could, if you were writing this all from scratch, devise a fairly clear test for expenditures and tax breaks that do not benefit the general public, and perhaps even use the courts to enforce that line. But there would still be problems in policing the marginal cases.
Similarly, my other idea, which would require a narrow exception for certain critical national security functions: prohibit the federal government from sending money to state and local governments, or from imposing most mandates on them. Each governmental entity should raise through taxation whatever it needs, and no more than it can justify to the voters in its own jurisdiction.

Same Sex Marriage and Children

Last Thursday, the New York Appellate Division, First Department – the intermediate appellate court in Manhattan – upheld, against constitutional challenge, the New York Domestic Relations Law’s extension of marriage only to opposite-sex couples. (H/T: Althouse). In so doing, it touched on some arguments on the issue that I’ve been thinking about for some time now.
In particular, our democratic polity has a rational basis for preferentially allocating scarce resources to benefit opposite-sex rather than same-sex married couples to promote two vital interests: promoting the population growth needed to sustain a healthy society and discouraging illegitimacy and abortion.

Continue reading Same Sex Marriage and Children

The Cost of Abortion

A new study from the University of Oslo compared women who miscarry and women who have abortions:

The Oslo team found that, after 10 days, 47.5% of women who had miscarried suffered from some degree of mental distress compared with 30% of the abortion group.
The proportion of women who had a miscarriage suffering distress decreased during the study period, to 22.5% at six months and to just 2.6% at two years and five years.
But among the abortion group 25.7% were still experiencing distress after six months, and 20% at five years.
The researchers also said that women who had an abortion had to make an effort to avoid thinking about the event.

Naturally, the article reporting the study, from the BBC, includes quotes from representatives of the British abortion industry denying any ill effects from their product. As you would expect the industry to say. But avoidance of the truth requires a sustained commitment to avoiding empirical study of the facts.

The Other Novak

This doesn’t sound good for Karl Rove:

Viveca Novak, a reporter in Time’s Washington bureau, is cooperating with Special Counsel Patrick Fitzgerald, who is investigating the leak of CIA operative Valerie Plame’s identity in 2003, the magazine reported in its Dec. 5 issue.
Novak specifically has been asked to testify under oath about conversations she had with Rove attorney Robert Luskin starting in May 2004, the magazine reported.

It can’t be good news that the special prosecutor is looking at things done and said after the investigation began, although of course there are many explanations for why, any number of which end without anyone else getting indicted.
Is there anybody reporting on this story who isn’t part of the story? Next we’ll hear that Kaus and Maguire have testified.

Rove on the Courts

A rare speech by Karl Rove, to the Federalist Society on the topic of the courts. Rove notes a familiar refrain in recounting the battle over the Alabama state courts:

It began in 1994, when Republican Perry Hooper challenged sitting chief justice and trial lawyer-favorite Sonny Hornsby. Hooper pulled off a stunning upset. Outspent, outworked, he won by 262 votes out of over 1.2 million votes cast. And then, the day after the election, several thousand absentee ballots mysteriously surfaced, none of them witnessed nor notarized, as required by Alabama law, and Sonny Hornsby tried to have them counted. It took a year of court battles before Hooper was finally seated.

Status Quo 6, Reform 0

At least among the six campaigns I paid any attention to yesterday – the Governor’s races in NJ and Virginia, the Mayor’s races in NY City and Detroit, and the referendum packages in California and Ohio – if there’s any lesson to be drawn from yesterday’s votes, it’s one that conflicts with the apparent public mood: the voters chose the status quo and rejected calls for reform:
1. Incumbents and incumbent parties won. Virginia and NJ stayed in the same party hands. Incumbents were re-elected in NYC and Detroit.
2. Packages of reform-minded referenda, anchored by anti-gerrymandering efforts, were defeated in Ohio and California.
3. Longstanding concerns about corruption in the state-level New Jersey and California Democratic parties, the state-level Ohio GOP and the local government in Detroit were brushed aside by the voters. No wake-up calls were sent, except perhaps to the Virginia GOP to offer a choice, not an echo.

Ackerman Ducks The Question

You may recall my effort, in connection with the “porkbusters” campaign, to get my Congressman, Gary Ackerman, to commit to give back local pork-barrel transportation spending (including money for parking lots, sidewalks, bike racks and public parks in Queens) to help offset the cost of Hurricane Katrina. Well, yesterday I received his response, which is set forth in full in the extended entry. As you can see, Ackerman fails to even acknowledge the question; his response includes not a word about transportation funding. Instead, he scrolls through the usual hot buttons – Iraq, tax cuts, no-bid contracts, etc. – and appears to oppose any effort to cut any spending of any kind:

Continue reading Ackerman Ducks The Question

Trying to Hit a 5-Run Homer

Mickey Kaus notes that it is the wrong approach for Democrats, should there be indictments in the Valerie Plame case, to try to use the case to re-argue the entire case for war in Iraq rather than just stick to the basic charge of jeopardizing the CIA:

Shouldn’t it be a general premise of Democratic politics that it’s reality-based and not spin-based? And while Dems might get a majority of Americans to agree that the Iraq War was a bad move, they’d get about 95% to agree that compromising covert American agents is a bad move. Why not make the latter the issue?

It’s not just that this would be a mistake, but that it’s the exact same mistake they’ve made before: most notably in 1987 when the Democrats discovered the Reagan Administration doing something politically explosive and contrary to its stated principles – trading arms to Iran for hostages – and frittered away all the political benefits of this revelation by instead staging a huge fight over the Nicaraguan side of the Iran-Contra scandal, which to most of the general public amounted to the allegation that Reagan’s people were going too far in fighting Communism in the Western Hemisphere. This was, of course, an issue on which the Dems had been whupped by Reagan in the past, and they were so eager to settle the score that they wound up getting a lot less mileage out of the scandal than they probably should have.
We may see a related mistake brewing in the Harriet Miers hearings – there have been rumblings that the hearings will turn into a rehash of the Ben Barnes/National Guard story, a mistake the Democrats just can’t stop making.

The Legend of Dagger Chuck

The New York Sun mocks Chuck Schumer for overuse of a metaphor:

No sooner had [former] Senators [Connie] Mack and [John] Breaux unleashed their ideas on making the federal tax code more simple and fair than Senator Schumer unsheathed his rusty old dagger, describing the idea of eliminating the federal deduction for state and local taxes as “a dagger to the heart of the people of New York.” Voters might be inclined to listen — except for the fact that Mr. Schumer sees a dagger virtually everywhere he looks.
A 2003 plan for flexible work schedules instead of overtime? “A dagger to the heart of the middle class,” Mr. Schumer said, according to the Associated Press. A 2002 plan by federal regulators to urge Wall Street firms to establish backup facilities outside New York City? A “dagger pointed at the heart of New York,” Mr. Schumer said, according to the Daily News. High gas prices? “A dagger at the heart of our economy,” Mr. Schumer said in 2000, according to the New York Times. A unilateral declaration of Palestinian statehood would be “a dagger through the heart of the peace process,” Mr. Schumer said in 2000, according to the Agence France Presse.
Hate crimes “put a dagger in the heart of what America is all about,” Mr. Schumer said in 1999, according to USA Today. A proposal to change the federal transportation funding formula was “a dagger pointed at” New York and California, Mr. Schumer said in 1999, according to the Washington Post. School vouchers? “Daggers that plunge into the heart of what is the American way,” Mr. Schumer said in May 1999, according to the New York Post. Cuts in federal student aid? “A dagger to New York’s college students,” Mr. Schumer told Newsday in 1995.
Not to put too fine a point on it, but Mr. Schumer sees daggers more often than a four-eyed knife thrower looking through a kaleidoscope.

(Emphasis added). Via Taranto.

Don’t Drink The Water

Responding to Hugh Hewitt’s taunts about “Evian Flu” among conservative pundits, Ramesh Ponnuru writes:

[M]y impression is that the proportion of our population that consumes either wine or brie, or both together, has gone up since [1997] . . . Hasn’t the insult lost its bite? I thought of this when I read a crack against elites that mentioned bottled water. It sure seems as though drinking bottled water has ceased to be an elite activity. Back in 1997, conservatives could mock latte towns–but you can find latte in any town you’re in nowadays. Conclusion: We need some new put-downs. (Confession: I like brie and wine, have occasionally had a latte, and buy bottled water for my family–but that last point reflects the high lead content in D.C. water rather than a preference on my part.)

At least as to the bottled water thing, Ramesh is right on. Most of us have an instinctive belief that paying good money for water in a bottle is ridiculous. And yet, if you live in a city like New York or Washington (or Worcester, Mass., where I went to college and where the tap water was brown), where drinking the tap water is not a sane option, bottled water has become a necessity – and all the moreso after September 11 and especially after Katrina, when bottled water has become an emblem of disaster preparedness.
(As for wine, I believe recent surveys have shown that Americans as a whole now drink more wine than beer.)

Ackerman’s Pork

Getting back to the original reason I was checking the website for my Congressman, Gary Ackerman (D-Queens), I was looking for examples of pork barrel spending in my district that could be a target for the Instapundit/N/Z. Bear “Porkbusters” campaign to put pressure on Senators and Members of Congress to accept spending cuts on pork projects in their states and districts to help pay for the massive rebuilding efforts needed in the wake of Hurricane Katrina (and, perhaps, Hurricane Rita as well).
Now, Ackerman’s not shy about bringing home the bacon. He prominently displays a link to this September 2002 press release:

U.S. Rep. Gary Ackerman (D-Queens/L.I.) today announced that his fifth Congressional district is number one in New York State and 37th in the nation for receiving the most in federal dollars – $9.5 billion in 2001 – according to a study conducted by the Associated Press (AP).
The news wire service’s analysis compared total federal government spending among the nation’s 435 congressional districts. The totals include demographic-based funding such as Social Security and Medicare, direct spending on regional projects and government loans and insurance.
Ackerman noted the high ranking despite the fact that he’s a Democrat in a Republican controlled Congress. The Congressman’s district stretches throughout the north shore of Queens, Nassau and Suffolk counties.
The only other New York district to make the top 130 on the AP list, was upstate Rep. Mike McNulty, a Democrat from Albany who placed second in the state and 45th in the nation with $8.8 billion.

Well, let’s take a look at where that money goes, from First up is a July 30, 2005 press release on Ackerman’s own websiteannouncing Ackerman’s cut of the transportation bill (more here, here and here). I’m posting this now, but I will try to follow up with Ackerman via email to get a response.

Continue reading Ackerman’s Pork

Ronnie Earle, Movie Star

Apparently, the Austin, Texas DA has been letting a film crew record his pursuit of Tom DeLay. And Earle’s methods of pressuring corporations to pay off his favorite causes in exchange for leniency are . . . unorthodox, to say the least. And we remember Earle’s use of the DeLay investigation to raise money for Democrats, which the Houston Chronicle called “a stunning display of prosecutorial impropriety.”
You know, I was appalled by the personal attacks heaped during the Clinton years on Ken Starr, an upstanding public servant and a man whose previous career had been one of unblemished integrity and civility. I felt then – and still do – that the relentless attacks on Starr, as a means of delegitimizing his inquiry and distracting from the merits of the case, were bad for the administration of justice. And so, I have deeply mixed feelings about the “pig pile on Ronnie Earle” playbook. But the more I see of Earle’s record, the more obvious it is that this is a guy with a long track record of troubling behavior with regard both to this investigation and other politically charged investigations. Maybe he has the goods on DeLay; I’m still in the process of absorbing the ins and outs of Texas campaign finance law in the hopes of making sense of this whole thing. But his behavior certainly doesn’t inspire confidence.

Time For DeLay To Step Aside

Now, unlike Bill Frist, Tom DeLay has now reportedly been indicted. [Report confirmed]. We shall see what merit there is to the charges, given the history of partisan prosecutions here, but either way, an indictment does warrant DeLay stepping down as Majority Leader until and unless he is aquitted or charges are otherwise dropped or dismissed.
UPDATE: Here’s the indictment in PDF form, via CNN; you can read the whole thing yourself, as it’s only four pages. You will notice that DeLay is not charged with any violations of law in his own right, nor with having committed any “overt act” in furtherance of the conspiracy. In other words, he’s not accused of doing anything.
Of course, in the context of an elected official’s role in his subordinates’ raising of campaign funds, that’s not surprising. Under conspiracy law, what is unlawful is the act of agreeing that the other conspirators will seek an unlawful objective. Thus, whether there’s any basis for this indictment depends almost entirely on what DeLay knew about what these guys were doing, when he knew it, and whether there is any proof that he agreed to it. The indictment, rather typically of conspiracy indictments, gives almost no indication of what that proof might consist of. It does, however, allege that the unlawful agreement was formed “on or about the thirteenth day of September, A.D., 2002,” the date on which the Texans for a Republican Majority PAC delivered a check for $190,000 to the Republican National State Elections Committee (RNSEC). One would ordinarily expect proof of some meeting or other contact by DeLay on or about that date, although with whom is left a bit vague, since he is alleged to have conspired with “one or more of” John Colyandro, James Ellis, “or with . . . Texans for a Republican Majority PAC,” so that the charge could be satisfied by proof that DeLay agreed with some person affiliated with Texans for a Republican Majority PAC other than Colyandro or Ellis.
More on this another day, and of course, while I’m familiar with federal conspiracy law, I can’t say I know anything offhand about any peculiarities of conspiracy law in Texas. If Texas is like federal law, the jury would be instructed that it needs to find that DeLay personally knew he was breaking the law and had the specific intent to violate the law. But the bottom line here is that a charge of this nature will have to go to trial to determine what DeLay’s personal involvement was.

Selling Frist Short

Well, the latest Beltway feeding frenzy is on, and Bill Frist is the main course. If you haven’t followed this story, which as Jon Henke notes has already hit the front pages of the New York Times and the Washington Post, Frist

is facing questions from the Justice Department and the Securities and Exchange Commission about his sale of stock in his family’s hospital company one month before its price fell sharply.
The Tennessee lawmaker, who is the Senate’s top Republican and a likely candidate for president in 2008, ordered his portfolio managers in June to sell his family’s shares in HCA Inc., the nation’s largest hospital chain, which was founded by Frist’s father and brother.
A month later, the stock’s price dropped 9 percent in a single day because of a warning from the company about weakening earnings. Stockholders are not permitted to trade stock based on inside information; whether Frist possessed any appears to be at the heart of the probes.
A spokesman said Frist’s office has been contacted by both the SEC and the U.S. attorney’s office in Manhattan about his divestiture of the stock.

In contrast to the Democrats, Republicans have a tendency to panic and throw their leaders under the bus at the first whiff of ethical trouble. Sure enough, even hardy souls like Captain Ed and Leon H, as well as the libertarian Henke, are calling for Frist to step down, and Tom Maguire doesn’t much seem to have his heart in defending Frist. The desire to have nothing to do with this kind of trouble derives from a healthy impulse, and in Frist’s case – as was true with Trent Lott – it is driven in part by unrelated frustrations over his shortcomings as Majority Leader. But based on what we know so far, there is absolutely zero reason to believe that Frist did anything wrong, or that he will or should be in any legal jeopardy.
As an initial matter, some people have questioned whether there was a problem with Frist making any investment decisions at all, given that his assets were supposedly in a “blind trust” to comply with Senate ethics rules. Shockingly, however, Senate ethics rules on the matter turn out to be fairly porous, as Tom Maguire notes: precisely because ethics rules require federal officials to make regular disclosures about their assets, it’s not really possible for them to be entirely unaware of their holdings.
Professor Bainbridge, who was one of the first people on the Right to jump on this story, gives the necessary legal background. Basically, under the securities laws – my own area of practice, by the way – the initial question in an “insider trading” case is whether the trader was aware of information about the company that is material (i.e., information that would be important to an investor making a decision to buy or sell) and nonpublic (which means what it sounds like: information not in the public domain). As Prof. Bainbridge notes:

If some SEC enforcement lawyer in fact were to start looking into this, the first question will be whether Frist had material nonpublic information about HCA at the time he ordered the sale. If he had the common sense God gave gravel, the answer to that will be a resounding no. For somebody in his position to retain access to such information would exacerbate the inherent conflict of interest that arises when he deals with health care issues, as well as potentially exposing him to insider trading liability.
Assuming Frist did not possess such information, there’s no legal problem with the sale.

He goes on to discuss the longstanding dispute over whether the SEC needs to show trading while in possession of material nonpublic information, or whether it needs to show that the trader actually used the information. That is indeed a vexing issue, albeit one that is somewhat theoretical in many cases (the evidence of use is often circumstantial anyway). Prof. Bainbridge suggests that it might matter here if Frist could show a different motivation for selling, such as a desire to eliminate a conflict of interest that would no doubt only become a larger issue if he runs for president. But if Frist can be shown to have had access to information about HCA’s upcoming earnings news before it became public, he is politically toast no matter what the legal outcome.
The same goes, I suspect, for a second part of the legal inquiry that Prof. Bainbridge doesn’t address. Frist, as far as I can tell, has no formal relationship with HCA, so he is not technically an “insider” who owes legal duties to its shareholders. Thus, at least under the securities laws, he can only be prosecuted if (1) he was a “tippee,” i.e., some person inside the company tipped him off to inside information in violation of that person’s own duties to the company and in exchange for some benefit (such as a share in the profits), or (2) he “misappropriated” confidential information that was entrusted to him by the company in some relationship of trust and confidence. The misappropriation theory would likely not apply to information Frist may have received from members of his extended family who were involved in running HCA; the Second Circuit rejected application of the theory in such circumstances to a member of the Waldbaum (grocery chain) family in United States v. Chestman, 947 F.2d 551, 570-71 (2d Cir. 1991).
It’s not entirely clear if the “misappropriation” theory could be extended to, say, someone who learned information in his capacity as a government official. The Fourth Circuit rejected such liability in the case of officials of the West Virginia Lottery who bought stock in a company before awarding it a contract in a lengthy and scholarly opinion by Judge Michael Luttig in 1995, United States v. Bryan, 58 F.3d 933 (4th Cir. 1995), but on grounds of wholesale rejection of the theory, which was later approved by the Supreme Court. It should be noted, however, that in Bryan and United States v. ReBrook, 58 F.3d 961 (4th Cir. 1995), the same court upheld the same defendants’ convictions for mail and wire fraud. Thus, again, the issue of whether Frist is really in any trouble here all comes down to whether he had any inside information about HCA, which he denies.
On that score, what we know now suggests that there’s no reason to be concerned. At the moment, there is only pure speculation that Frist had any material nonpublic information. The suggestion (or assumption) being made by his critics is that if Frist sold a huge, long-held block of stock before bad news made the stock drop, he must have had some inside information, absent some other, rational explanation for why he sold. But Tigerhawk, in a post that’s a must-read for anyone attempting to discuss this issue intelligently (link via Instapundit), looks at the trading history of HCA and provides an obvious explanation: HCA had just had a huge run-up in value, and it was publicly known (due to SEC reporting requirements) that a lot of HCA insiders had sold stock (which can be and often is perfectly legal, by the way, depending on the circumstances):

Bill Frist, if he had any information at all about HCA when he ordered his trustee to sell his shares, knew what everybody else knew: that the management was shoveling stock out the door. That fact alone would be sufficient for many investors to sell their shares, and so it should have been for Frist, who was probably trying to get rid of them anyway in advance of his presidential campaign.
Moreover, we — and HCA investors — should applaud Frist for having handled the transaction the way he did. It was well within his rights to sell his shares much earlier in the spring, before the extent of the selling by insiders (including his own relatives) came to light via filings at the SEC. Instead, he waited to give his instruction to his trustee until after all the management selling had been disclosed. The result was that HCA’s public investors had every opportunity in the world to sell their own shares on the basis of the management selling before Bill Frist. The timing of Frist’s sale benefited those HCA shareholders wise enough to act on the insider selling, insofar as they got out the door before Frist.

Now, this is speculation, just as assumptions of Frist’s guilt are speculation, and maybe we will learn something later that changes this picture. But Tigerhawk’s analysis certainly shows why – in the absence of any evidence to the contrary – the most logical explanation is that Frist, having sound political reasons to want to sell the stock anyway, chose to instruct the trustee to sell at what looked to be an opportune time to sell.
(One final point: while they don’t happen in every case, SEC investigations of trading in advance of big announcements – particularly by people, like Frist, who are related to management – are sufficiently routine that there’s really no significance that should attributed to the existence of the investigation by itself.)
Two concluding notes:
1. I don’t have time here to address the fact that Frist seems rather clearly to have lied in TV interviews about the degree of his knowledge of the HCA stock in his “blind” trust except to say that it’s an incredibly stupid lie, given that his ownership of HCA stock was sufficiently public knowledge that interviewers kept asking him about it.
2. As I commented on Leon H’s post, it’s all too easy to bail on Frist’s ineffectiveness as Majority Leader. Remember how disenchanted we Republicans were with Trent Lott? Remember how disenchanted we were with Bob Dole? Remember how happy we were to see both of them go? Have you noticed how unhappy Democrats are with Harry Reid? How miserable they were with Tom Daschle? (Moreover, neither Reid nor Daschle nor Nancy Pelosi nor Tom DeLay nor Dick Armey nor Dick Gephardt has, within the last several years, been an effective spokesperson for his or her party.)
Face it, being a Senate leader is hard, and on issues where the caucus splinters, I’m not sure that personal leadership can do much to pierce the armor-plated egos of Senators with either fear or persuasion. I think the last really popular Senate leader, within his own party, was George Mitchell.
In short: Frist has been a disappointing Senate leader in a number of ways, and certainly his public statements on this issue haven’t helped him. It will be a good thing for the GOP to get a new Senate leader yet again in 2006. But I wouldn’t call for his head over an investigation that shows no sign of being anything more than a routine inquiry that is likely to clear him.
UPDATE: I should add that the mail/wire fraud theory pursued in the Bryan and ReBrook cases wouldn’t be available here – the government’s theory in those cases was that the defendants defrauded the government because their investments deprived the government of the defendants’ “honest services” in the process for awarding the lottery contract. Here, since there’s no allegation of anything affecting Frist’s performance of his legislative duties, that theory would be unavailable.

Tax and Spend

There’s been a lot of talk going around lately about government spending, and I thought I’d add some hard data in here on the percentage of GDP consumed by federal taxes and by federal spending. These are official government historical data and projections based on the Fiscal Year 2005 budget. I’ll hold the analysis for now, but this chart gives something to refer back to in later posts:

Continue reading Tax and Spend

Gary Ackerman Goes Blue

From a July 29 press release by my Congressman, Gary Ackerman:

Ackerman noted that “since last fall, I have tried again and again to work with FEMA on this rule so that 9/11 first responders and their families could start collecting the funds raised by the 9/11 Heroes Stamp. But at every step, FEMA – which does a spectacular job responding to disasters and emergencies throughout the country – refused to accept input or provide any feedback as to the content of the rule or when it would be published. I have enormous respect and admiration for what FEMA does in crises, which is why I’m so disappointed in this rule. Unfortunately, more than 45 months since the stamp was created, 38 months since the stamp went on sale, and more than six months since beginning work on the rule, what’s been produced is, frankly, half-a__ed bureaucratic bulls__t. New York’s best and bravest deserve far, far better than this.”

(Emphasis added). I’ve omitted the language here, which is unfortunately not omitted from Ackerman’s press release. Isn’t this crossing a line that should not be crossed? I mean, it’s one thing when a politician uses foul language in a private conversation and it somehow goes public, most famously in the case of Nixon’s White House tapes but also, more recently memorably, in the case of George Bush in 2000 calling a New York Times reporter an unprintable name while talking to Dick Cheney in front of what turned out to be a live microphone. And it’s another thing when that conversation is had in a setting where the politician should have known his conversation would be overheard and publicized, as with Cheney’s use of an expletive to Patrick Leahy in a meeting on the Senate floor. And it’s another thing still when a politician uses a bad word in a magazine interview that’s expressly intended for publication (even if, as in the case of John Kerry’s Rolling Stone interview, the magazine in question is one that uses such language freely), or in a radio interview (as in Ray Nagin’s outburst during the hurricane).
But this is a new low, putting this sort of language in a press release. Now, while I refrain from using bad language on this blog, I’m certainly not innocent of doing so in my daily life, so I’m not getting squeamish here about the words themselves. My point is, simply, that it is yet another step to the coarsening of our culture to incorporate obscenties into the public vocabulary of our elected officials, one of the few areas of public discourse in which that is still taboo, and in which a measure of formality and civility is still expected to prevail. Recall Lileks’ prediction, in August 2002:

Once vulgar words are commonplace in the papers and the television, there’s no going back – and public life just gets cruder and cruder. I know it’s a losing battle. Fifty years down the road a presidential candidate will say “My opponent says I’m soft on the military, and to him and all his advisors, I can honestly say: f**k you.” He’ll be celebrated in some corners for connecting with the genuine people, with those not bound by musty conventions. The authentic people! The ones who really f**kin’ live!

It turned out to be one year and four months down the road, not 50. And Ackerman’s press release is another step down that road. By 2008, will we have candidates who, like Atrios, call everyone who disagrees with them “f___ers” and leave it at that? Even if we don’t, we are headed in that direction.
UPDATE: Jesse Taylor makes the opposite case, and in the process pretty well plays right into the popular caricature of the Angry Left as over-agitated, immature, reflexively oppositional and utterly lacking in perspective.

Mr. Chirac, Tear Down This Wall!

We already knew that George W. Bush was a (rhetorically) committed free trader, even if his actions haven’t always lived up to his rhetoric (ahem, steel tariffs). But this call for the total worldwide abolition of trade barriers, as pie-in-the-sky as it may be under present international political conditions, ought to warm the hearts of conservatives, libertarians and Clinton-style liberals everywhere. Nothing wrong with shooting high and setting goals we can work to, even if it takes the next few decades.

The Flood and The Recriminations, Part I

Like a lot of people on the Right, I was appalled last week at the rush of people on the Left seeking to blame anything and everything related to Hurricane Katrina on President Bush, even at the height of the disaster when partisan point-scoring should have been the last thing on anyone’s mind. We saw at work two classic features of a left-wing swarm: (1) the belief that you can win an argument by being the angriest guy in the room, and (2) the effort, as we’ve seen so often in the past, to nail down the perception of events before the truth has a chance to lace on its boots.
Now, we see the same people reacting in shock and horror at the thought that the White House might try to get its side of the story out. Go figure.
It is, for the most part, still too early to reach any kind of definitive judgment about where the blame lies and what things can’t fairly be blamed on anyone. If you don’t believe me, think back to September 11, and all the times over the first few weeks after the attacks that we had to revise the things we thought we knew. (See Matt Welch here – updated here and here, via here – and McQ here on the slew of initial reports, especially regarding violence at the Superdome, that may have been overstated or outright wrong).
That being said, obviously, the effort to hold off on the fight over “who lost New Orleans” is one that can’t be won. (There don’t seem to be similar questions for the rest of Louisiana, Mississippi, or Alabama, none of which faced the same catastrophic breakdown of government services, nor are there questions about how New Orleans handled the hurricane itself, so much as the ensuing flooding). And in the long term, recriminations and finger-pointing will be a necessary and healthy part of the process; without that, nobody gets held accountable, and nothing gets changed. So, in the spirit of preliminary assessments, I offer my own framework for thinking about the issue. As usual, I’m trying to frame the questions; I don’t pretend to have answers to all of them.
I. Primary Issues
There are four primary questions that need to be answered in the wake of the flood that devastated New Orleans: why did the city flood, why were so many people trapped in the flood, why were they without basic supplies, and why did it take so long to get supplies, evacuation and law enforcement to the people trapped in the flood?
A. Why Did New Orleans Flood?
The initial question is why the levees were breached. In part, as far as I can tell, this was a result of a long-ago decision made at multiple levels of government not to reinforce the levees beyond the strength needed to survive a Category 3 hurricane; Katrina was a Category 4 or 5 (depending on when you measure it). On the other hand, Katrina didn’t score a direct hit on the city. The question of why the specific sections of the levees gave out is mainly an engineering question, and thus one that will take some time and patient investigation to figure out.
Aside from “why” is the question of “who”. Apparently, the construction and maintenance of the levees had been principally a federal responsibility since the Army Corps of Engineers, in what was apparently one of its signature early successes, took over the job as part of the War of 1812 (in which the Battle of New Orleans was a key engagement), and – in a development that should be familiar to observers of federal agencies – never relinquished that role. However, it appears that much of the work is carried out by local contractors, and it’s unclear to me what role the state and local governments play in implementing federally funded projects. Tom Maguire predicts that before this is over we will see the relevant local contractor investigated for corruption or other improprieties.
Some commentators have fairly asked why, as a policy matter, funding and execution of projects protecting one city in one state should be a federal responsibility, and specifically why – if Louisiana officials actually believed that the levee maintenance project was dangerously underfunded – they didn’t step in with funds of their own. These are good questions in the abstract, and they do point to some local responsibility for getting serious on the issue, but in the real world, if the feds have been funding something for 190 years, it’s presumptively a federal responsibility unless there is a clear statement by the Administration that the state will now be on its own.
The Bush Administration has come under fire for cutting the funding in recent years for the Southeast Louisiana Urban Flood Control Project, an initiative begun in 1995. It’s deeply ironic, of course, that an administration that has shown so little willingness to fight to cut spending would end up in hot water for actually succeeding in the task. Still, while there may have been pork in this project – one pre-Katrina account quotes project manager Al Naomi saying that “When (former Rep.) Bob Livingston (R-Metairie) was chairman of the Appropriations Committee, we didn’t have a monetary problem. Our problem was how do we spend all the money we were getting” – even most conservatives would agree that preventing catastrophic floods should not be one of the first places you look to cut the budget (As Mark Steyn observed, “why did the porkmeisters of the national legislature and national executive branch slash a request by the Army Corps of Engineers for $105 million for additional flood protection measures there down to just over $40 million, at the same time they approved a $230 million bridge to an uninhabited Alaskan island?”). Unless there’s a real good explanation from Bush as to why these funds were cut (and if there was, I suspect we’d have heard it by now), he’s going to deserve the criticism he gets on this.
Of course, just because Bush cut funding on the project doesn’t mean that those cuts actually contributed to the breaches that flooded the city. In fact, at least one of the major levee breaches was in a concrete section that had just been upgraded. Democratic critics conceded that the funding cuts didn’t cause the floods. And there is reason to believe that a genuine fix for the levees would have been decades away anyway.
And the Bush Administration wasn’t alone in questioning levee-maintenance projects. The New York Times repeatedly criticized the Army Corps of Engineers’ levee-building and maintenance plans on environmental grounds and called for funding cuts, and environmental groups stopped an earlier, more comprehensive project with a 1977 lawsuit. So, Bush may have some strange bedfellows in the dock on this issue.
UPDATE: Instapundit points to an article in this morning’s Washington Post fingering Louisiana Senators and Congressmen for diverting hundreds of millions of dollars from flood control to other water projects in Louisiana. Louisiana Democrat John Breaux’s words may be an epitaph for a generation of Louisiana’s political class:

“We thought all the projects were important — not just levees,” Breaux said. “Hindsight is a wonderful thing, but navigation projects were critical to our economic survival.”

And a perspective-giving excerpt:

Louisiana’s politicians have requested much more money for New Orleans hurricane protection than the Bush administration has proposed or Congress has provided. In the last budget bill, Louisiana’s delegation requested $27.1 million for shoring up levees around Lake Pontchartrain, the full amount the Corps had declared as its “project capability.” Bush suggested $3.9 million, and Congress agreed to spend $5.7 million.
Administration officials also dramatically scaled back a long-term project to restore Louisiana’s disappearing coastal marshes, which once provided a measure of natural hurricane protection for New Orleans. They ordered the Corps to stop work on a $14 billion plan, and devise a $2 billion plan instead.
But overall, the Bush administration’s funding requests for the key New Orleans flood-control projects for the past five years were slightly higher than the Clinton administration’s for its past five years. Lt. Gen. Carl Strock, the chief of the Corps, has said that in any event, more money would not have prevented the drowning of the city, since its levees were designed to protect against a Category 3 storm, and the levees that failed were already completed projects.

(Emphasis added).
SECOND UPDATE: John Berlau at NRO has a closer look at environmental lawsuits, including one in 1996, obstructing the building and maintenance of the levee system. Also, Rich Lowry notes a 2004 federal indictment of Louisiana officials for “obstruction of an audit of the use of federal funds for flood mitigation activities throughout Louisiana.”
THIRD UPDATE: Looks like Louisiana’s state and local governments didn’t make levee building and maintenance much of a priority, to the point that “local and state officials did not use federal money that was available for levee improvements or coastal reinforcement and often did not secure local matching funds that would have generated even more federal funding.” (Via QandO . . . really, I think I’m gonna end up linking to everything McQ has written on this in the past week; you should be over at the QandO site for all the latest on Katrina and the recriminations).
TO FOLLOW: The other three primary issues, the secondary questions, and the red herrings.

Ironies of the Day

Two of them, from this AP report:
1. Now, Ray Nagin orders a genuinely mandatory evacuation of New Orleans. Great timing there. Yet, even now, we see who continues to drag their feet:

The new evacuation order has been drafted and will be issued shortly, Mr. Nagin said, even though Louisiana state officials question his authority to issue such a command. “I don’t care, I’m doing it,” he said. “We have to get people out.”

2. Guess who said this, in calling for “an independent commission to investigate the federal response to the disaster, saying neither Congress nor the administration should do it”:

“I don’t think the government can investigate itself.”

Yes, that’s right: Hillary Clinton. Oh, the irony.
I’m heartened to see that the Senate and House are launching their own investigations; back in the days when John Dingell and Henry Waxman were committee chairmen, Congress didn’t punt all of its investigative powers to secretive prosecutors and unelected commissions. It’s about time Republicans acted like they were elected by the people to be in charge.
Inevitably, there will also be an “independent” or “bipartisan” federal commission to study the question, and I suppose there’s nothing wrong with that, too, although if it follows the 9/11 Commission model it will consist of Kathleen Blanco, James Lee Witt, a left-wing lawyer and a handful of retired liberal Republicans. As we have seen in the past, though, such commissions tend to redirect public attention away from the facts (see Claudia Rosett on the UN Oil-for-Food inquiry, due to issue a report today) and to be treated in their bottom-line conclusions as gospel by a lazy media, even when their investigative work has been shoddy or biased. Let’s make sure that the facts get a little play, too.

Crossing Over

I was watching the local NBC affiliate on Monday and you know it’s not good news for the Democrats challenging Mike Bloomberg that a new poll showed Bloomberg leading the field . . . among Democratic primary voters. By a 2-to-1 margin: 43% for Bloomberg to 21% for Fernando Ferrer. And the accompanying report had no trouble finding Bloomberg supporters at the West Indian Day Parade, not normally a hotbed of Republicanism.
Like him or not, Bloomberg is a competent manager and as close to a genuinely bipartisan mayor (by New York City standards) as you can get. He’ll be re-elected.

Funded and Unfunded Mandates

Via Econopundit, I see that Connecticut is suing the federal government over “unfunded mandates” in the No Child Left Behind Act, arguing that it is impermissible for the federal government to require testing without paying for the tests.
As a matter of constitutional law, this may be a bit of an uphill battle, although there is Supreme Court caselaw supporting the arguement that the federal government can attach conditions to funds it gives the states but can’t outright compel the states to do things, whether it pays for them or not. As Steve Antler notes, though, it is liberals and Democrats who would be the real disappointed parties if unfunded mandates of this sort were declared unconstitutional.
Personally, I’d like to go farther and ban, all but entirely, the practice of the federal government giving money to the states to carry out policy. There may be a narrow class of cases where (1) the national interest is sufficiently imperiled to justify the federal government requiring states to follow a uniform national standard and thus justify out-of-state taxpayers footing the bill, and yet (2) the job is best carried out through the infrastructure of state/local government. Counter-terrorism, border security, and vaccination/response for epidemic infectious diseases are all potential examples of this. But the great bulk of areas in which the feds give money to states and localities are simply for services to benefit the people of that state or locality. And that means one of two things:
A. The federal government is taking taxes from the people of the state and routing it, redundantly, back to the people. In this case, why not have the taxes raised locally? That would improve the transparency and accountability of government by making clear who was responsible for deciding how much to tax and how and where to spend.
One of the worst examples is Medicaid. The Medicaid program, by providing matching funds to the states, effectively takes a big chunk of the federal budget and hands over control of it to elected officials in the states; at the same time, the incentive to use Medicaid funds drives states to spend more, ultimately costing their own budgets as well. If states simply had to choose between spending their own money or not spending it, both state and federal government would be more accountable for their own choices.
B. The federal government is taking taxes from the people of a different state or locality and diverting it. Of course, there are endless controversies over who benefits more from this, but I think most observers of Washington would have to admit that what the federal government does not do is work out a plan based on reasonable policy criteria for deciding which states and localities get a net benefit and which are net losers. Instead, the real division of funds winds up being (1) a patchwork of contradictory programs and (2) heavily influenced by which states and localities have powerful Senators and House Committee Chairs.
Now, a lot of conservatives have championed “block grants” and the like – no-strings-attached funds given to states – as a way of reducing federal influence. Cutting these off, though, would in the long run hand more real authority back to state authorities that are closer to, and thus more directly accountable to, the people. Unfortunately, it would almost certainly require an amendment to the Constitution to do this, and one that would require a sufficient number of exceptions that it would be difficult to police.


Dean Barnett notes a dynamic among left-wing bloggers, especially younger ones, that I addressed recently: “writing like they’re politically obsessed Quentin Tarantino characters.” Link via Instapundit. It may be morally satisfying to spew profanity-laced insults at anyone and everyone who disagrees with you (and not just Republicans; go search lefty blogs like Atrios and Kos for “DLC” and see what you come up with), but it’s no way to expand the tent.

Just One Question

OK, maybe Mark Kleiman has never worked in an office with a busy professional or executive. But for those of you who have: what are the odds that the person who keeps Karl Rove’s phone log is Karl Rove?
(Of course, if Rove instructed someone not to log the call, we’re in Betty Currie territory, and Rove could be in a heap of trouble. But my point here is, it’s much more likely that Rove’s secretary, not Rove, was the person deciding what calls to log, and how).


Drezner, as you would expect, has some thoughts on the House’s passage of CAFTA. Among other things, he quotes the Washington Post on Bush’s personal appeal to House Republicans:

Underscoring the importance that Bush attaches to the pact, he put his prestige on the line by making a rare appearance with Vice President Cheney at the weekly closed-door meeting of the House Republican Conference. Bush spoke for an hour, lawmakers said, stressing the national security implications of CAFTA, which are rooted in the concern that growing anti-American sentiment in Latin America would flourish if the United States refused to open its markets wider to the nations that negotiated the pact.
“Mothers and fathers in El Salvador love their children as much as we love our children here,” Bush said, stressing the need to look out for the young democracies in “our neighborhood,” according to lawmakers. He also noted that four of the six countries — the Dominican Republic, El Salvador, Honduras and Nicaragua — have assisted the U.S. military effort in Iraq.

Tea Leaves and the Court

First up, Alberto Gonzales declares that the Supreme Court “is not obliged to follow” Roe v. Wade. On one level, this is a truism: the Court has reversed prior precedents many times before, more often than not at the instance of the more liberal members of the Court, and if a majority of the Court decided to overturn Roe, there’s nothing anyone could do to stop them. I admit that the Court has never really enunciated a consistent or principled standard for when to overturn a constitutional precedent – in fact, it’s hard to identify even a single Justice who’s been thoroughly consistent on the question, and such decisions are usually bitterly divided – but clearly there are few situations more appropriate for overruling a precedent than when a prior decision (1) was wrongly decided, (2) is not at all tied to the text of the Constitution, (3) was clearly not intended at the time the relevant constitutional provision was enacted, (4) resulted in taking an issue out of the hands of elected branches of government, and (5) has resulted in endless controversy and repeated litigation.
That said, Gonzales’ statement is interesting as much for why he said it. There would seem to be at least three motives at work for saying this now:
1. The White House wants to reassure nervous conservatives that John Roberts will take a similar tack;
2. The White House wants to push back on this point itself to take the heat off Roberts, who can’t be expected to make commitments about particular precedents at his hearings; and
3. Gonzales now realizes he has to audition with social conservatives to get on the Court himself someday.
Next up, a fascinating WaPo article looking behind the scenes (as far as they were permitted) at how Bush tabbed Roberts. Read the whole thing; I’ll just add here my impressions of what the article means:
*Andrew Card was the guy in Roberts’ corner (as every successful nominee needs a patron in the process). Which shows that Card has real power. Which, in turn, suggests that Card was a source for the article.
*Then again, David Vitter also comes off as a player, a freshman Senator who got his candidate (Edith Brown Clement) into the final round. This will play well at home. Could also be a deliberate White House effort to do a favor for Vitter, painting him in this fashion.
*Dick Cheney interviewed everyone, if you were wondering if he was engaged in this process.
*Harvie Wilkinson talked to the WaPo, Clement didn’t. This suggests to me that Clement thinks she’s still on the list for the next opening, but Wilkinson doesn’t and is glad it’s known he was considered.
*Card thought Justice Thomas would love the Roberts pick. O’Connor and Rehnquist obviously do. Bush is being savvy picking a guy the other Justices already like. (Which suggests that Bush might well have taken Roberts’ old boss Ken Starr, who shares many of the same traits and has more experience, had Starr not become politically radioactive as a result of being Independent Counsel). Again, the White House may be trying to signal that Roberts is a conservative by noting that Card thought Thomas would like Roberts.
*Justice Thomas attends black-tie dinners for visiting heads of state? I did not know this.
*Bush didn’t even need to interview Larry Thompson. This suggests that the president’s comfort level with Thompson is such that he’ll get tapped for something else big again, especially if Gonzales leaves the Justice Department at some point.
*We get confirmation that outside conservative pressure really mattered in stopping Gonzales. Something for conservatives to remember.
*The detainee issue is one that Bush is focused on. Thus, he appears to have seen Roberts’ joining a ruling upholding the Administration’s policy as a key sign that he was a guy who would stick to his conservative guns. I suspect war-on-terror issues matter more to Bush in the long run than social issues, given Bush’s intense focus on the war.

Leaky Vessel

Jon Henke, on the Plame leak:

If a White House official 1) consciously knew that Valerie Plame was a covert agent 2) whose identity ought to have been protected, and 3) that White House official initiated a leak of her name to the press 4) in order to disclose her identity, then he ought to be removed from his position and prosecuted.

Even leaving aside the issue of prosecution – which I’ve about beaten to death at the moment – I’d pretty much agree with this, and I’d add that the White House should fire anybody who meets (1) and (2) and initiated or participated in a leak, and that (4) is only marginally relevant if people in the White House gave out her name, knowing her status. It’s actually amazing – at least if you’re not familiar with how politics works – how much heat has been expended on the issues of who can be prosecuted and what regulations require and what the president said he should or should not do, as opposed to the central question of what is bad enough conduct to justify firing someone in the first place. And to me, if somebody was just negligent with the identity of a non-covert agent and accidentally revealed that she’d been covert in the past, that’s a blunder, but it’s not something you organize a lynch mob over. Listen to former Director of the National Security Administration and former Deputy Director of Central Intelligence Admiral Bobby Inman, who at one time was nominated by Bill Clinton to be Secretary of Defense:

[The leaking of Plame’s identity] is still one I would rather not see, but she was working in an analytical organization, and there’s nothing that precludes anyone from identifying analytical officers. I watch all the hand-wringing over the ruining of careers… there are a lot of operatives whose covers are blown. It doesn’t mean the end of their careers. Many move to the analytical world, which is where she already was. It meant she couldn’t deploy back off to Africa, but nothing I’ve seen indicated that was possible in the first place.

Inman also notes the pervasive leaking from the CIA directed at the Bush Administration during the 2004 election, about which the cheerleaders of the Plame investigation can muster no outrage.

A Name Is Not A Document

I’m overdue to get back to some of the legal loose ends on the Valerie Plame case, including the last bit of my response to Mark Kleiman on the Espionage Act. I see Kleiman half-heartedly pitches a John Dean column discussing the application of 18 USC 641:

I am referring to the prosecution and conviction of Jonathan Randel. Randel was a Drug Enforcement Agency analyst . . . working in the Atlanta office of the DEA. Randel was convinced that British Lord Michael Ashcroft . . . was being ignored by DEA, and its investigation of money laundering. . .
Randel leaked the fact that Lord Ashcroft’s name was in the DEA files, and this fact soon surfaced in the London news media. Ashcroft sued, and learned the source of the information was Randel. Using his clout, soon Ashcroft had the U.S. Attorney in pursuit of Randel for his leak.
By late February 2002, the Department of Justice indicted Randel for his leaking of Lord Ashcroft’s name. It was an eighteen count “kitchen sink” indictment; they threw everything they could think of at Randel. Most relevant for Karl Rove’s situation, Court One of Randel’s indictment alleged a violation of Title 18, United States Code, Section 641. This is a law that prohibits theft (or conversion for one’s own use) of government records and information for non-governmental purposes. But its broad language covers leaks, and it has now been used to cover just such actions.
Randel, faced with a life sentence (actually, 500 years) if convicted on all counts, on the advice of his attorney, pleaded guilty to violating Section 641.

A prior Dean column details the charges against Randel:

[T]he London Times said that . . . it had DEA documents showing that [Lord] Ashcroft was index-numbered on the DEA files, a measure that, it said, is taken only when serious suspicions exist.
Lord Ashcroft filed a libel lawsuit against the Times, and soon traced the DEA documents back to Jonathan Randal. It turned out that Randal had leaked them to a freelance British journalist who was investigating Lord Ashcroft; the journalist, in turn, had sold them to the London Times. According to Randal’s attorney . . . Randal himself received no payment for the information itself, no quid pro quo.

Dean doesn’t address whether the government contended otherwise, but leave that issue aside for now. Here’s how Dean describes that indictment:

Count One is based on the general theft statute – with information, once again, alleged to be the “thing of value” stolen. Count Two relies on a statue adopted in 1994 designed to protect information in government computers, where most government information now resides. The government charged that Randal “knowingly and with an intent to defraud” the government, exceeded his authorized use of the DEA computer by pulling information about Lord Ashcroft.
Counts Three through Eighteen are based on the mail/wire fraud statutes; there are sixteen counts because Randal allegedly accessed DEA computers to obtain information about Lord Ashcroft sixteen times.
This pair of statutes is especially prone to misuse. As Chief Justice Warren Burger noted, “When a ‘new’ fraud develops – as constantly happens – the mail fraud statute becomes a stopgap device to deal on a temporary basis with the new phenomenon, until particularized legislation can be developed and passed to deal directly with the evil.” The same is true of the wire fraud statute, as he also noted.
Counts Nineteen and Twenty are further fraud charges. They appear to address the reimbursement that Randal received from the London Times when he agreed to meet with them after they were sued by Lord Ashcroft.

Now, let’s look at Section 641, which punishes:

Whoever embezzles, steals, purloins, or knowingly converts to his use or the use of another, or without authority, sells, conveys or disposes of any record, voucher, money, or thing of value of the United States or of any department or agency thereof, or any property made or being made under contract for the United States or any department or agency thereof; or
Whoever receives, conceals, or retains the same with intent to convert it to his use or gain, knowing it to have been embezzled, stolen, purloined or converted . . .

The obvious problem with this is that Randel apparently made off with documents. Nobody in the Plame case is alleged to have handed over to the press any classified documents. That doesn’t end the inquiry under other statutes, but under Section 641 I can’t see how you could prosecute anybody for stealing just by passing along a name. This is particularly the case because language like “embezzles, steals, purloins, or knowingly converts to his use or the use of another” is generally read to require taking unauthorized title to property. (This is even before we get into the all-important intent question. I remain convinced that it will not be possible to successfully criminally prosecute anyone who did not know they were passing along the name of a current or former covert agent).

Year of the African-American?

Remember how 1992 was the Year of the (liberal/Democratic) Woman? Think the media will buy 2006 being the Year of the (conservative/Republican) African-American? Let’s list the races:
*Michael Steele is all-but-openly running for an open Senate seat in Maryland, and the Lt. Gov. is likely to get the GOP nomination.
*Detroit City Councilman Rev. Keith Butler looks like he could be the GOP frontrunner to challenge Debbie Stabenow, a potentially vulnerable Democratic Senator in Michigan.
*Former Steeler Lynn Swann is gearing up to challenge Pennsylvania Governor Ed Rendell, and Swann’s high name recognition could make him the GOP frontrunner.
*Ohio Secretary of State Ken Blackwell is expected to be a serious contender for the governor’s mansion in 2006, and is a favorite of conservatives looking to shake up the scandal-ridden establishment in the faltering GOP stronghold.
*NY Secretary of State Randy Daniels appears to be considering entering the wide-open race (assuming George Pataki doesn’t run again) to challenge Eliot Spitzer for Governor of NY.
*To top it off, a conservative African-American Democrat, Harold Ford, will be running for an open Senate seat in Tennessee.
Now, there are few hardier perennials in political commentary than the vain hope that the GOP can break through with black voters. And all six of these guys are varying degrees of long shots, although none of them besides Daniels seems like a certain dead loser. These will mostly be hotly contested races, and black Republicans will be in the thick of several of them. How many of the five Republicans will get the nomination and win more than 10-12% of the African-American vote? It could be a trend to watch, even if the media winds up having to be dragged kicking and screaming to acknowledge it.

Novak to Rove, Who To Novak?

Well, today’s big story will obviously be the report (see here and here) that Karl Rove testified to the Plame grand jury that he learned Plame’s identity from Bob Novak and not from official channels. Of course, if that’s true it would make it nearly impossible to prosecute Rove, since access to Bob Novak is not classified. It also makes it more likely that Rove neither knew nor had reason to know that Plame was or had been a covert operative; if there’s one thing that’s clear in all this, it’s that you would never successfully prosecute anybody who only knew that Plame worked for the CIA if they didn’t know that she had been a covert operative. The NY Times report says Rove said that he didn’t know:

The person who has been briefed on the matter said Mr. Rove neither knew Ms. Wilson’s name nor that she was a covert officer.

(More challenging is the question of what consequences would ensue if Novak told Rove she was covert; I’m still mulling that one over).
Of course, Rove may not be out of the woods just yet. The news report could be mistaken as to what he told the grand jury; there may be evidence contradicting his testimony; or, like anyone involved in a grand jury investigation, he could still be prosecuted if he committed perjury or obstruction of justice or lied to investigators or destroyed documents, regardless of any underlying crimes (ask Bill Clinton, Martha Stewart or Arthur Andersen).
And it still leads back to the question: who told Bob?
UPDATE: As usual, Tom Maguire has comprehensive thougts on the matter.
SECOND UPDATE: Cliff May points out that if you actually read what Bob Novak wrote, and what followed, Plame’s status as a covert or clandestine agent was never revealed, only her CIA employment; the fact that she’d been undercover was first revealed by David Corn of The Nation, most likely based on information provided by Joe Wilson himself. Needless to say, regardless of whether you think this should be a scandal, this is a point that would be of enormous significance in any criminal prosecution. May also reprints an email exchange with Corn over the subject, in which Corn defends himself by saying that he was speaking of Plame’s undercover status hypothetically.

Crybaby Chuck?

Is it just me, or has Chuck Schumer given the GOP a golden opportunity? You’ve doubtless seen Schumer’s latest demand, from the floor of the Senate, on the White House:

“For consultation to work, and we all want it to work, the president should suggest some names and get the opinion of those of us in the Senate,” he said. The senator also suggested the president convene a summit at Camp David or “a dinner at the White House” to privately discuss the nomination.

Now, during the Clinton years, Newt Gingrich was ruthlessly lampooned by the NY Daily News as a “Cry Baby” over the charge that the 1995 government shutdown was partly motivated by Newt’s pique over not getting a good seat on Air Force One. That was doubtless an oversimplification, but isn’t Schumer opening himself up to similar charges here when he inevitably leads the charge to filibuster Bush’s nominee for the Supreme Court: Schumer wanted Bush to wine and dine him before announcing the nominee, and now he’s pitching a fit and shutting down the Senate because he didn’t get his ego-stroking dinner invitation. Is it really such a good idea to hand your opponents such an obvious talking point?

The Two-Nominee Strategy

Erick at Red State asked the question whether Republicans have a better chance of confirming conservative Justices if two are nominated at once, rather than one at a time. Let me explain in a little detail here why I think we do.
Let’s start with a trenchant analysis (as always) by Patrick Ruffini, which I’m quoting here at some length to make a point. Ruffini argues that Republicans need to come out swinging, as Ted Kennedy did with Robert Bork in 1987, on precisely how the two parties’ different views of judging will lead to different outcomes:

*Complaining about ideological opposition to a nominee is about as effective as whining about your opponent running a negative campaign.
*Lauding a judge’s qualifications is a soporific exercise. On paper, John Kerry was “qualified” to be President. But he was dead wrong on everything that mattered, and he was hammered relentlessly for it.
*The Supreme Court fight is best framed as any campaign would be, as a clash of two different philosophies, where both sides are equally accountable for defending their platforms and ideas.
*And most importantly, in judicial philosophy, as in legislating, outcomes matter inordinately more than process.

Ruffini then offers an example of what a bare-knuckled, Kennedy-style argument would look like:

What kind of America do Democrats want by opposing President Bush’s judicial nominee? The kind that the judges they prefer are trying to make for us:
*An America where your children can’t pledge allegiance to the United States of America, Under God (Elk Grove Unified School District v. Newdow)
*An America where gay marriage is imposed by judicial fiat (Goodridge v. Department of Public Health), and if the people of your state say no, they are silenced (Citizens for Equal Protection v. Bruning)
*An America where wealthy developers can take away your home (Kelo v. City of New London)
*A Banana Republic where elections can be manipulated after the fact to produce the desired outcome (Bush v. Gore; the Dino Rossi litigation)
*An America where the prisoners in Guantanamo Bay are more likely to be set free, possibly to conduct further attacks.

In contrast to this, Ruffini offers the positive vision of conservative judging:

How do we “strict constructionists” frame our “agenda?” As an anti-agenda. As one that opposes the imposition of any particular worldview through the Courts. As a simple sentiment, animated by faith in the body politic, and borne of 229 years of democracy in America:
Let the people decide.
Conservatives would never aspire to use the courts to ban abortion, or to end gay marriage. To state otherwise is patently false. Only through a Constitutional Amendment requiring overwhelming popular approval could these objectives be achieved nationally. We are committed to a healthy and vigorous debate at the state level in which the people decide, not judges.
. . . It is often noted that the decisions of the Supreme Court reach into the daily lives of average Americans. We don’t believe it should be that way — the Supreme Court is empowered deal only with matters contained in the Constitution, and last we checked, the words “abortion” and “homosexuality” weren’t mentioned in the text. These are matters for the people and their elected representatives, not for the courts.

I agree with most of this, particularly the juxtaposition of bad results flowing from liberal judging with a more general discussion of the positive philosophy of conservatism of ensuring that all judicial decisions are rooted in the legitimacy of popular sovereignty, whether through the current democratic process or the prior approval of express provisions in the Constitution.+ Conservatives generally do well when arguing about ideas and badly when we argue inside-baseball “fair play” type issues, on which it’s too easy for the media to play referee and side with the Democrats. On the other hand, I do think that some of the procedural points will at least be worth making: an ideological long-term filibuster of a Supreme Court nominee would be wholly unprecedented, and Republicans will need to make the case that the nominee, whoever it may be, is well-qualified to the job.
But here’s the thing Ruffini overlooks in his view of an effective communications strategy: while the GOP is making general arguments about judicial philosophy, the Democrats will be busy trying to pin down the nominee to commit to specific answers on specific issues, e.g., “do you believe in the right to privacy found in Roe v. Wade?” The nominee, for many good reasons, will want to avoid answering these questions and avoid pre-judging specific issues that will come before the Court. Unfortunately, there’s no way to avoid doing so – whether by having the nominee be evasive, refuse to answer, or by having the committee chair rule such questions out of order – without creating some bad visuals implying that the nominee is hiding something.
The challenge, then, is finding a way to simultaneously have the White House arguing about judicial philosophy and the specific bad results of a liberal judicial philosophy, without getting the nominee tangled up in having to implicitly adopt all of the arguments made on his/her behalf and defend them in hearings.
This is where it becomes highly advantageous to have more than one nominee at once. With two nominees, after all, the White House can talk effectively about its own judicial philosophy, and argue that President Bush has chosen these two judges out of a belief that they will generally uphold this philosophy, but at the same time acknowledge that there is no guarantee that either nominee will always rule in a predictable fashion (you need only look at the numerous recent examples of cases on which Justices Scalia and Thomas wound up on opposite sides of various decisions to see that this is inevitable even among judges who have fairly clear and rigid judicial disciplines). And with two nominees, it becomes harder for the Democrats to focus on specific objections to each judge, since some things that appear objectionable about one will not be true of the other.
This is all an extrapolation from the basic rule of politics that it is often easier to beat a candidate in the polls with “opponent” than with a single, flesh-and-blood opponent with specific flaws that can be the subject of a negative campaign. Opening a second front, if Chief Justice Rehnquist announces his retirement before a nominee to replace Justice O’Connor is confirmed or perhaps even nominated, would thus work to the benefit of conservatives in crafting a strategy to win public support for two conservative nominees rather than one at a time.

Continue reading The Two-Nominee Strategy

Jockeying For Position

I’ll have lots more on the coming Supreme Court battle as we go along. For now, the process is a dream for political junkies and game theorists, as multiple actors try to plan their strategies: Bush, Gonzales, conservative groups, liberal groups, swing-state Senators, presidential candidates (including those outside the Senate, especially on the front-runner-less GOP side, who have to weigh the benefits and risks of staking out a divisive position against letting someone else make their bones with the base).
One thing Bush has made clear lately is that he doesn’t much like conservative groups criticizing Alberto Gonzales. Seeing as Bush can be pretty stubborn, that raises the concern that loud public attacks on Gonzales could just reinforce his determination to nominate his friend.
If Bush does tap Gonzales, liberals will be in a fascinating bind. On the one hand, there are several reasons to want a fight: liberal interest groups have been itching for one for a decade; presidential candidates need to preen; there’s a partisan interest in doing political damage to Bush, which is greatly heightened by the fact that Bush would be going into battle under heavy fire from his own best troops, and thus would find it nearly impossible to overcome strenuous and united Democratic opposition; Gonzales is young and could be on the Court for decades; and Gonzales is mistrusted on the Left due to his closeness to Bush and some of his positions over the years on issues like the death penalty and war-on-terror legal issues. On the other hand, Gonzales is almost certainly the least conservative candidate who’s likely to be nominates; there’s a political risk in opposing the first Latino Supreme Court nominee; there’s a political risk for swing-state/red-state Democratic Senators in opposing Bush; and there’s political risk for the party in general in knee-jerk obstructionism of a guy widely painted as a moderate, especially since defeating him – with a Rehnquist retirement still possible within the year – would exhaust much political capital needed for two more fights.
The GOP presidential candidates will have a variety of conflicting interests. If a conservative is nominated, Bill Frist will need to get him/her through to a vote. Rudy Giuliani will likely need to get involved – and Mitt Romney as well – to show nervous social conservatives that they can fight for conservative judges. John McCain, on the other hand, obviously continues to see his path to the White House in looking moderate and bipartisan, so his main interest will be – regardless of who the nominee is – in appearing to build a bipartisan compromise.
By contrast, if there’s a nominee detested by the conservative base, the non-Senators will keep their heads down, Frist will be completely doomed no matter what he does, and George Allen will be under strong pressure to vote against the nominee, especially since Sam Brownback might well do so. Of course, Bush can keep some of the GOP Senators in line with personal appeals and arm-twisting, but if the grassroots of the party goes into open revolt (something we haven’t seen since the first Bush broke his tax pledge), everyone with a future in the party will want to do what Newt Gingrich did in 1990 and side with the voters.
(On the Democratic side, Hillary Clinton, of course, need do nothing; her position is utterly secure, or at least is no longer subject to events).

Fatina Abdrabboh – Fit to Print?

In case you missed it, the NY Times ran the most ridiculous op-ed piece I think I have ever seen last week; a woman named Fatina Abdrabboh (apparently a student at Harvard’s Kennedy School of Government, naturally) wrote, from Cambridge, Mass., about how

[T]he Muslim headscarf, or hijab, that I wear makes me feel as if I am under a microscope. I try to go to the gym just about every morning. Because I work out with my scarf on, people stare – just as they do on the streets of Cambridge.

Then she described how upset she got watching the news in the gym:

Every television in the gym highlighted some aspect of America’s conflict with the Muslim world: the war in Iraq, allegations that American soldiers had desecrated the Koran, prisoner abuse at Guantánamo Bay, President Bush urging support of the Patriot Act. The stares just intensified my alienation as an Arab Muslim in what is supposed to be my country. I was not sure if the blood rushing to my head was caused by the elliptical trainer or by the news coverage.
Frustrated and angry, I moved to another part of the gym. I got on a treadmill and started running as hard as I could. As sweat dripped down my face, I reached for my towel, accidentally dropping my keys in the process. It was a small thing, I know, but as they slid down the rolling belt and fell to the carpet, my faith in the United States seemed to fall with them. I did not care to pick them up. I wanted to keep running.

But wait! Her faith in the nation was restored by an act of staggering heroism:

Suddenly a man, out of breath, but still smiling and friendly, tapped me on my shoulder and said, “Ma’am, here are your keys.” It was Al Gore, former vice president of the United States. Mr. Gore had gotten off his machine behind me, picked up my keys, handed them to me and then resumed his workout.
It was nothing more than a kind gesture, but at that moment Mr. Gore’s act represented all that I yearned for – acceptance and acknowledgment.
There in front of me, he stood for a part of America that has not made itself well known to 10 million Arab and Muslim-Americans, many of whom are becoming increasingly withdrawn and reclusive because of the everyday hostility they feel.
It is up to us as Americans to change how the rest of the world views us by changing how we view some of our own citizens. Mr. Gore’s act reminded me that rather than running away on my treadmill, I needed to keep my feet on the soil in this country. I left the gym with a renewed sense of spirit, reassured that I belong to America and that America belongs to me.

You should read the whole thing, although I’ve excerpted almost all of it as is; there’s so little there it’s amazing that a reputable college newspaper would find room for this piffle, let alone the New York Times (one staggers to think of all the worthwhile things written in the blogosphere last week that NYT readers would never learn about while they publish the likes of this). Chris Lynch and Jonah Goldberg make appropriate mockery of various aspects of the column (links via Lyford). Ankle Biting Pundits had some more serious background on the numerous times that Fatina Abdrabboh – presumably the same one – had been quoted in the media complaining about perceived ill-treatment in the U.S., particularly on account of her headscarf; it’s a must-read.
I had a few thoughts of my own:
1. Isn’t it, um, kind of dangerous to bend down on a treadmill while wearing a headscarf? Am I the only one who thought this was a tort case waiting to happen? (A scene at the end of “The Incredibles” comes to mind, if you’ve seen it).
2. In most Muslim countries, wouldn’t a woman working out on a treadmill in gym full of men (well, one man, at least) attract quite a lot more than some unusual stares? Like, say, rocks?
3. On the other hand, back in Al Gore’s home state of Tennessee, most women would not consider a man performing a simple act of courtesy like picking up a set of keys to be sufficiently newsworthy to justify writing to the New York Times about it. Whether that’s a comment on men in Cambridge or the men Ms. Abdrabboh grew up around, I leave to you.
4. As my wife pointed out, if people in Cambridge stare at her, it’s probably just because she doesn’t have green hair and a pin through her nose.

Krugman on Ohio

I had meant to link to Don Luskin’s brutal takedown of Paul Krugman’s article on scandals with the pension funds in Ohio; Krugman’s mendacity in spinning the news to create falsely negative impressions about Republicans is pretty boundless. (Via Maguire). Of course, the real scandal here isn’t the perfidy of Republican politicians and businessmen or the perfidy of Democratic politicians and businessmen or even (as Luskin suggests) the distorting effects of racial preferences; the real issue is that big giant honey pots of other people’s money are being invested by politicians and people appointed by politicians. That’s a dangerous trend and one that GOP reformers should crusade against at the state and federal levels. I hope Arnold succeeds in changing that in California.