Commentary Magazine


Topic: District Judge

Flotsam and Jetsam

D.C. runs over black schoolkids. “Michelle Rhee—the tough broad who spent nearly four years as D.C. schools chancellor in a pitched battle against the corruption-plagued, incompetence-ridden Washington teachers union to reform a rotten public school system—was forced out today by mayor-elect Vincent Gray in what surely must be seen as a kind of triumph for the union and a potential tragedy for the city’s underprivileged, mostly-black schoolchildren.” Meanwhile, the Obamas are “tucking their own cute kids safely away in private schools.” Read the whole thing.

Officials from cities like New York should run, not walk, to grab her. “DC’s loss could be New York’s gain, and it behooves city Schools Chancellor Joel Klein to scoop her up before she departs for another system.”

Pat Toomey is running away with it in Pennsylvania. “Republican Pat Toomey now holds a 10-point lead over Democratic Congressman Joe Sestak, the widest gap between the candidates since early April in Pennsylvania’s U.S. Senate race. … The race now moves from Leans GOP to Solid GOP in the Rasmussen Reports Election 2010 Senate Balance of Power rankings.”

According to the Cook Political Report (subscription required), Nancy Pelosi isn’t going to be running the House come January. “At the moment, 22 Democratic seats, including 10 open seats and 12 incumbents, sit in the Lean or Likely Republican columns, while two Republican seats sit in the Lean or Likely Democratic columns, for a net of 20 Republican seats. That means Republicans only need to win 21 of the 40 seats in the Toss Up column to win a majority, not even counting many of the 30 Democratic seats in the Lean Democratic column that are rapidly becoming more competitive. At this point, all but four of the Democrats in our Toss Up column have trailed in at least one public or private poll, and Democrats’ fortunes in most of these seats are on the decline. … Overall, given the status of these Toss Up races and the length of the Lean Democratic column, Democrats’ chances of losing at least 50 seats are now greater than their chances of holding losses under 45 seats.”

By the time they start running for president in 2012, ObamaCare may be in the rear-view mirror. “A federal judge says some parts of a lawsuit by 20 states challenging the Obama administration’s health care overhaul as unconstitutional can go to trial. District Judge Roger Vinson ruled Thursday in Pensacola, Fla., that some parts of the lawsuit need to be heard. The administration had asked him to dismiss the entire lawsuit, which was spearheaded by Florida Attorney General Bill McCollum.”

He says he isn’t running in 2012, but there is — as I predicted — a “Draft Chris Christie” website. One benefit: in a Christie administration, I sincerely doubt the first lady would be nagging us to stop eating fast food.

Is Obama pitching to young voters merely to stage a practice run for the 2012 get-out-the-vote operation? The New York Times thinks so. After all, it’s always about him.

Democrats around the country are running against supposedly “extremist” Tea Partiers. But the voters have minds of their own, wouldn’t you know it? “Likely voters in battleground districts see extremists as having a more dominant influence over the Democratic Party than they do over the GOP. This result comes from The Hill 2010 Midterm Election Poll, which found that 44 percent of likely voters say the Democratic Party is more dominated by its extreme elements, whereas 37 percent say it’s the Republican Party that is more dominated by extremists.” By the end of this campaign, the public will be convinced that the Democrats are being funded by mystery foreign donors.

D.C. runs over black schoolkids. “Michelle Rhee—the tough broad who spent nearly four years as D.C. schools chancellor in a pitched battle against the corruption-plagued, incompetence-ridden Washington teachers union to reform a rotten public school system—was forced out today by mayor-elect Vincent Gray in what surely must be seen as a kind of triumph for the union and a potential tragedy for the city’s underprivileged, mostly-black schoolchildren.” Meanwhile, the Obamas are “tucking their own cute kids safely away in private schools.” Read the whole thing.

Officials from cities like New York should run, not walk, to grab her. “DC’s loss could be New York’s gain, and it behooves city Schools Chancellor Joel Klein to scoop her up before she departs for another system.”

Pat Toomey is running away with it in Pennsylvania. “Republican Pat Toomey now holds a 10-point lead over Democratic Congressman Joe Sestak, the widest gap between the candidates since early April in Pennsylvania’s U.S. Senate race. … The race now moves from Leans GOP to Solid GOP in the Rasmussen Reports Election 2010 Senate Balance of Power rankings.”

According to the Cook Political Report (subscription required), Nancy Pelosi isn’t going to be running the House come January. “At the moment, 22 Democratic seats, including 10 open seats and 12 incumbents, sit in the Lean or Likely Republican columns, while two Republican seats sit in the Lean or Likely Democratic columns, for a net of 20 Republican seats. That means Republicans only need to win 21 of the 40 seats in the Toss Up column to win a majority, not even counting many of the 30 Democratic seats in the Lean Democratic column that are rapidly becoming more competitive. At this point, all but four of the Democrats in our Toss Up column have trailed in at least one public or private poll, and Democrats’ fortunes in most of these seats are on the decline. … Overall, given the status of these Toss Up races and the length of the Lean Democratic column, Democrats’ chances of losing at least 50 seats are now greater than their chances of holding losses under 45 seats.”

By the time they start running for president in 2012, ObamaCare may be in the rear-view mirror. “A federal judge says some parts of a lawsuit by 20 states challenging the Obama administration’s health care overhaul as unconstitutional can go to trial. District Judge Roger Vinson ruled Thursday in Pensacola, Fla., that some parts of the lawsuit need to be heard. The administration had asked him to dismiss the entire lawsuit, which was spearheaded by Florida Attorney General Bill McCollum.”

He says he isn’t running in 2012, but there is — as I predicted — a “Draft Chris Christie” website. One benefit: in a Christie administration, I sincerely doubt the first lady would be nagging us to stop eating fast food.

Is Obama pitching to young voters merely to stage a practice run for the 2012 get-out-the-vote operation? The New York Times thinks so. After all, it’s always about him.

Democrats around the country are running against supposedly “extremist” Tea Partiers. But the voters have minds of their own, wouldn’t you know it? “Likely voters in battleground districts see extremists as having a more dominant influence over the Democratic Party than they do over the GOP. This result comes from The Hill 2010 Midterm Election Poll, which found that 44 percent of likely voters say the Democratic Party is more dominated by its extreme elements, whereas 37 percent say it’s the Republican Party that is more dominated by extremists.” By the end of this campaign, the public will be convinced that the Democrats are being funded by mystery foreign donors.

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Guess the Judge’s Background

As readers of conservative blogs and magazines know, the right punditocracy has a game of “guess the party.” When a Republican does something bad, the mainstream media begin the story “Republican Sam Smith …” When a Democrat does it, you will have to search long and hard for a hint of party affiliation. The problem is so endemic that if party affiliation is not mentioned in the first graph, it is safe to assume a Democrat is involved.

So we have this story of a corrupt district court judge who is facing impeachment. As the Washington Post observes, it is juicy:

The trial is an extraordinary spectacle, featuring allegations that lawyers and bail bondsmen plied the judge, a reformed drinker and gambler, with gifts to gain his courtroom favor. Cash in envelopes. Bottles of Absolut and coolers of shrimp. A Vegas bachelor party for Porteous’s son, complete with lap dance. It showcases both the often-sordid politics of Louisiana and a struggle over constitutional precedents.

So who appointed him? What’s the judge’s party background? In the 13th paragraph we get this clue: “Mutterings about the ethics of Porteous, a state judge for 10 years and former prosecutor, began almost as soon as he landed on it in 1994.” Landed by osmosis? Ah, that would make him a Clinton appointee! Good to know.

And yes, he’s a pretty liberal judge. In 2002:

U.S. District Judge G. Thomas Porteous Jr. ordered the state to stop giving money to individuals or organizations that “convey religious messages or otherwise advance religion” with tax dollars. He said there was ample evidence that many of the groups participating in the Governor’s Program on Abstinence were “furthering religious objectives.” …

The suit, filed in May by the American Civil Liberties Union, was the first legal challenge to abstinence-only programs created under the 1996 welfare reform legislation. Bush has asked Congress to extend the $50 million-a-year program and increase other federal abstinence grants from $40 million this year to $73 million next year.

Also in 2002:

Banning pacifiers and glow sticks in an effort to curb drug use at all-night raves violates free speech and does not further the government’s war on drugs, a federal judge has ruled in permanently blocking federal agents from enforcing the ban. … The American Civil Liberties Union, though, said the ban was unconstitutional and challenged it in federal court. After the suit was filed last year, U.S. District Judge G. Thomas Porteous issued a temporary restraining order preventing the ban from taking effect.

Porteous issued a 12-page ruling Monday that sided with the ACLU in its attack on the ban.

And in 1999, in Causeway Medical Suite v. Foster, Porteous struck down the state ban on partial birth abortion.

Now none of these cases is the basis for the impeachment. But you would think that the report would say something like “A Clinton appointee responsible for a number of controversial rulings in the ACLU’s favor …” Believe me, if a Reagan appointee had been involved in controversial rulings, we would have read “A Reagan appointee criticized by civil rights groups for a slew of controversial rulings against women, orphans, and children …”

Well, you get the picture.

As readers of conservative blogs and magazines know, the right punditocracy has a game of “guess the party.” When a Republican does something bad, the mainstream media begin the story “Republican Sam Smith …” When a Democrat does it, you will have to search long and hard for a hint of party affiliation. The problem is so endemic that if party affiliation is not mentioned in the first graph, it is safe to assume a Democrat is involved.

So we have this story of a corrupt district court judge who is facing impeachment. As the Washington Post observes, it is juicy:

The trial is an extraordinary spectacle, featuring allegations that lawyers and bail bondsmen plied the judge, a reformed drinker and gambler, with gifts to gain his courtroom favor. Cash in envelopes. Bottles of Absolut and coolers of shrimp. A Vegas bachelor party for Porteous’s son, complete with lap dance. It showcases both the often-sordid politics of Louisiana and a struggle over constitutional precedents.

So who appointed him? What’s the judge’s party background? In the 13th paragraph we get this clue: “Mutterings about the ethics of Porteous, a state judge for 10 years and former prosecutor, began almost as soon as he landed on it in 1994.” Landed by osmosis? Ah, that would make him a Clinton appointee! Good to know.

And yes, he’s a pretty liberal judge. In 2002:

U.S. District Judge G. Thomas Porteous Jr. ordered the state to stop giving money to individuals or organizations that “convey religious messages or otherwise advance religion” with tax dollars. He said there was ample evidence that many of the groups participating in the Governor’s Program on Abstinence were “furthering religious objectives.” …

The suit, filed in May by the American Civil Liberties Union, was the first legal challenge to abstinence-only programs created under the 1996 welfare reform legislation. Bush has asked Congress to extend the $50 million-a-year program and increase other federal abstinence grants from $40 million this year to $73 million next year.

Also in 2002:

Banning pacifiers and glow sticks in an effort to curb drug use at all-night raves violates free speech and does not further the government’s war on drugs, a federal judge has ruled in permanently blocking federal agents from enforcing the ban. … The American Civil Liberties Union, though, said the ban was unconstitutional and challenged it in federal court. After the suit was filed last year, U.S. District Judge G. Thomas Porteous issued a temporary restraining order preventing the ban from taking effect.

Porteous issued a 12-page ruling Monday that sided with the ACLU in its attack on the ban.

And in 1999, in Causeway Medical Suite v. Foster, Porteous struck down the state ban on partial birth abortion.

Now none of these cases is the basis for the impeachment. But you would think that the report would say something like “A Clinton appointee responsible for a number of controversial rulings in the ACLU’s favor …” Believe me, if a Reagan appointee had been involved in controversial rulings, we would have read “A Reagan appointee criticized by civil rights groups for a slew of controversial rulings against women, orphans, and children …”

Well, you get the picture.

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A Rauchian Take

I don’t always agree with Jonathan Rauch, but I always respect the quality and rigor of his arguments. His op-ed in the New York Daily News, on the topic of U.S. District Judge Vaughn Walker’s decision that California’s ban on same-sex marriage violates the U.S. Constitution, is no exception.

I find Rauch to be the most formidable and persuasive voice for same-sex marriage. But he makes a persuasive Madisonian and Burkean case against the decision. In Jon’s word:

Now, I agree with Walker that gay marriage is unlikely to cause any significant social harm and will do much good. But the judge insists that the testimony of a handful of expert witnesses in his courtroom rules out the possibility of harm so definitively as to make any attempt at caution or gradualism irrational. The evidence, he holds, is “beyond debate.” In an unpredictable world, that kind of sweeping certainty would leave any Burkean gulping.

So I think the decision is a radical one, but not, ironically, as it pertains to homosexuality or to marriage. No, Walker’s radicalism lies elsewhere: In his use of the Constitution to batter the principles of its two greatest exponents – Madison and Abraham Lincoln, a Burkean who was steadfast in his belief that ideals must be leavened with pragmatism.

History will, I believe, vindicate Walker’s view of marriage. Whether it will see him as having done gay rights a favor is less clear. For all its morally admirable qualities, his decision sets the cause of marriage equality crosswise with moderation, gradualism and popular sovereignty. Which, in America, is a dangerous place to be.

These are impressive arguments by an impressive, intellectually honest mind. It’s safe to say as well that our political discourse would be much better if it were more Rauchian.

I don’t always agree with Jonathan Rauch, but I always respect the quality and rigor of his arguments. His op-ed in the New York Daily News, on the topic of U.S. District Judge Vaughn Walker’s decision that California’s ban on same-sex marriage violates the U.S. Constitution, is no exception.

I find Rauch to be the most formidable and persuasive voice for same-sex marriage. But he makes a persuasive Madisonian and Burkean case against the decision. In Jon’s word:

Now, I agree with Walker that gay marriage is unlikely to cause any significant social harm and will do much good. But the judge insists that the testimony of a handful of expert witnesses in his courtroom rules out the possibility of harm so definitively as to make any attempt at caution or gradualism irrational. The evidence, he holds, is “beyond debate.” In an unpredictable world, that kind of sweeping certainty would leave any Burkean gulping.

So I think the decision is a radical one, but not, ironically, as it pertains to homosexuality or to marriage. No, Walker’s radicalism lies elsewhere: In his use of the Constitution to batter the principles of its two greatest exponents – Madison and Abraham Lincoln, a Burkean who was steadfast in his belief that ideals must be leavened with pragmatism.

History will, I believe, vindicate Walker’s view of marriage. Whether it will see him as having done gay rights a favor is less clear. For all its morally admirable qualities, his decision sets the cause of marriage equality crosswise with moderation, gradualism and popular sovereignty. Which, in America, is a dangerous place to be.

These are impressive arguments by an impressive, intellectually honest mind. It’s safe to say as well that our political discourse would be much better if it were more Rauchian.

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Making Iran Pay

An important event, which passed with hardly any media attention, transpired last week. A federal judge ordered that Iran pay $2.6 billion to the family members and survivors of the 1983 Hizballah bombing of a Marine barracks in Lebanon that killed 241 soldiers. In 2003, U.S. District Judge Royce C. Lamberth held Iran “legally responsible” for supporting Hizballah, which carried out the attacks. Last week’s ruling determined the damages. Interestingly, according to the Washington Post, “Iran did not contest the charges.”

Why would Iran refrain from challenging such a serious ruling against it? There are two ostensible reasons. The first is that the Iranian regime considers any United States court illegitimate, and would see engaging in an appeal as an infidel ritual. The second, and more interesting, is that this is a tacit acknowledgment on Iran’s part that it was responsible for this crime (which could be considered an act of war). By not contesting the charge, Iran admits, in a not-very-subtle fashion, that it arms and equips Hizballah.

This was not the first time that Judge Lamberth has found Iran guilty of acts of international terror, specifically terror aimed at killing American servicemen. In 2003, he found Iran guilty of training men who carried out the 1996 Khobar Towers bombing in Saudi Arabia, which killed 23 American soldiers.

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An important event, which passed with hardly any media attention, transpired last week. A federal judge ordered that Iran pay $2.6 billion to the family members and survivors of the 1983 Hizballah bombing of a Marine barracks in Lebanon that killed 241 soldiers. In 2003, U.S. District Judge Royce C. Lamberth held Iran “legally responsible” for supporting Hizballah, which carried out the attacks. Last week’s ruling determined the damages. Interestingly, according to the Washington Post, “Iran did not contest the charges.”

Why would Iran refrain from challenging such a serious ruling against it? There are two ostensible reasons. The first is that the Iranian regime considers any United States court illegitimate, and would see engaging in an appeal as an infidel ritual. The second, and more interesting, is that this is a tacit acknowledgment on Iran’s part that it was responsible for this crime (which could be considered an act of war). By not contesting the charge, Iran admits, in a not-very-subtle fashion, that it arms and equips Hizballah.

This was not the first time that Judge Lamberth has found Iran guilty of acts of international terror, specifically terror aimed at killing American servicemen. In 2003, he found Iran guilty of training men who carried out the 1996 Khobar Towers bombing in Saudi Arabia, which killed 23 American soldiers.

Of course, there is no way for the 1983 victims of the Marine barracks bombing to collect the money they have been awarded. Iran’s assets in the United States amount to no more than $20 million, almost all of it diplomatic property that the American government cannot touch. So this ruling, and the subsequent judgment, are both symbolic.

Typical of this symbolism was a portion of Judge Lamberth’s written decision, in which he stated that “this extremely sizeable judgment will serve to aid in the healing process and simultaneously sound the alarm to the defendants that their unlawful attacks on our citizens will not be tolerated.” His first contention—that the awarding of many millions of dollars (which they will never see) will “aid in the healing process”—is one that only the victims of this tragedy can judge. The second—that a force-less American court ruling (not the first of its kind) will somehow dissuade Iran from continuing its support for global terror—is even more dubious.

Iran’s involvement in attacks against American soldiers persists, at least according to General David Petraeus. At a news conference Wednesday after his congressional testimony, the General said, “The evidence is very, very clear. We captured it when we captured Qais Khazali, the Lebanese Hizballah deputy commander and others. And it’s in black and white.”

But according to many on the Left, Petraues is somehow a traitor for reporting such evidence. Others who make mere mention of the Iranian proxy war (most prominently, Senator Lieberman) are called “warmongers,” in the words of net-left favorite Matthew Yglesias. Through such effusions, these critics betray a belief that the Islamic Republic will stop killing our soldiers if we just abandon Iraq. But as last week’s court ruling reminds us, Iran has been killing Americans for decades—long before the 2003 invasion. There’s no reason to think the attacks on Americans suddenly will stop, and all kinds of reasons to think they will increase, should we capitulate.

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The Media vs. the American People

Are reporters above the law? Should they be?

We have lately been running laps around this block in connection with the 2005 leak of the NSA terrorist surveillance program and the 2003 exposure of Valerie Plame’s CIA status. The first of these two episodes did not land any reporters into trouble, but a federal grand jury is still hearing evidence in the case and there was movement in it last month. The second led to Judith Miller of the New York Times being put in the slammer by a court. There she remained for 85 days, until she disgorged the identity of her confidential source: Scooter Libby.

Another issue is now compelling us to running around the block yet again: the anthrax attacks of 2001 that killed five people. Steven J. Hatfill, the bioterrorism expert who was named in the media as a suspect, has brought a civil suit against the government for violating his rights under the Privacy Act. In order to demonstrate how the government trampled on his privacy, Hatfill wants to obtain the notes of journalists who received disparaging information about him from confidential sources in the FBI and Justice Department.

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Are reporters above the law? Should they be?

We have lately been running laps around this block in connection with the 2005 leak of the NSA terrorist surveillance program and the 2003 exposure of Valerie Plame’s CIA status. The first of these two episodes did not land any reporters into trouble, but a federal grand jury is still hearing evidence in the case and there was movement in it last month. The second led to Judith Miller of the New York Times being put in the slammer by a court. There she remained for 85 days, until she disgorged the identity of her confidential source: Scooter Libby.

Another issue is now compelling us to running around the block yet again: the anthrax attacks of 2001 that killed five people. Steven J. Hatfill, the bioterrorism expert who was named in the media as a suspect, has brought a civil suit against the government for violating his rights under the Privacy Act. In order to demonstrate how the government trampled on his privacy, Hatfill wants to obtain the notes of journalists who received disparaging information about him from confidential sources in the FBI and Justice Department.

U.S. District Judge Reggie B. Walton, the same judge who presided over the trial of Libby, is hearing the matter. Yesterday, he dealt a blow to the five reporters whose notes are being sought. “The names of the sources are central to Dr. Hatfill’s case,” he wrote in a 31-page opinion.

Is this good news or bad? Attorneys and lobbyists for the news media argue that forcing a breach of confidentiality in this way will impair the ability of reporters to gather the news. Government officials are unlikely to tell reporters what they know, goes the argument, if their identities might one day be disclosed.

True enough, but the law is the law. Journalists cannot merely declare themselves above it, whether they are disclosing U.S. counterterrorism programs or besmirching the reputation of an innocent individual. (Hatfill was never charged with any crime but in 2002 was named by Attorney General John Ashcroft as a “person of interest” to the investigation.) The press, of course, does enjoy First Amendment protection, but this is hardly unlimited and does not constitute a license to do or say as one pleases regardless of the consequences, as so many journalists seem to believe.

If members of press think we are ill-served by the laws as they stand, they can lobby to change them. A bill to do just that and establish a “shield” for journalists is currently before the U.S. House of Representatives. But successive congresses have considered such a bill only to reject it. I have argued, on a number of grounds, that such a bill is a bad idea whose time has not arrived. Thus far the American people, acting through their elected representatives, would seem to concur. Until such a law is passed, journalists are obliged to follow the rules as they stand or, as Judith Miller chose to do, defy the courts, which means defying the duly passed laws of the United States and taking the consequences.

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Beam Me Up, Scooter

Former presidential press secretary Ari Fleischer was on the witness stand in the Scooter Libby trial today and gave testimony that the New York Times says “could prove very damaging” to the former vice-presidential aide. Testifying under a grant of immunity, Fleischer told the court that Libby was the first person to tell him that Ambassador Joseph Wilson had been sent on a mission to Niger by the CIA at the suggestion of Wilson’s wife, Valerie Plame Wilson, who was herself, Libby disclosed to him, an employee of the CIA’s counterproliferation division.

Libby is contending that the false statements he gave to the FBI and to a grand jury–about how he learned the identity of Wilson’s wife, and to whom he passed on this knowledge–were the product of a faulty memory and do not amount to the perjury or obstruction of justice with which he has been charged. But according to Stacy Schiff, a guest op-ed columnist at the Times, Libby is reputed to have a prodigious memory and “remembers all 79 Star Trek episodes. And their titles, too.” His memory lapses, she says, amount to what is technically known as the “‘Honey, I was too busy preparing the family tax return to think clearly when you asked about the lap-dancers’ defense.”

For their part, Libby’s attorneys had hoped U.S. District Judge Reggie B. Walton would allow them to call an expert on human memory, who would help them make their case that “memory does not function like a tape recorder” and “a person is less likely to remember information if he is paying attention to several things at once.” For this purpose, the defense team had hired Daniel L. Schacter, professor of psychology at Harvard and the author of The Seven Sins of Memory and  Searching for Memory: The Brain, the Mind and the Past.  But Walton has ruled against them. No memory expert will appear in court.

Still, will a jury vote to convict? Even if a convincing case is made that Libby lied to investigators, it will be exceptionally difficult for prosecutors to prove “beyond a reasonable doubt” that he was prevaricating rather than merely confused. One does not need an expert in memory to persuade a jury that as events recede into the past they become more difficult to remember, or that what appears salient in retrospect might have been quite unremarkable at the time it originally occurred. 

As far as Star Trek is concerned, even if Libby does know all 79 episodes by heart–and this has not yet been demonstrated–it would not logically follow that he would remember every word of every conversation he held in a busy White House in the middle of a war. Like many Trekkies, he more likely viewed each of the episodes multiple times and talked about them at length with others who shared his particular passion, generating a much more firmly imprinted memory than one left by what was said in an offhand way over lunch with a colleague. 

Still, if Libby takes the witness stand in his own defense, as he is expected to do, he is going to have to walk a very fine line between remembering too little, thus sounding evasive, and remembering too much, thus undermining the core of his own defense.
 
For a full listing of the special counsel’s exhibits in the case, click here.

For a full listing of all 79 Star Trek episodes, click here.

Former presidential press secretary Ari Fleischer was on the witness stand in the Scooter Libby trial today and gave testimony that the New York Times says “could prove very damaging” to the former vice-presidential aide. Testifying under a grant of immunity, Fleischer told the court that Libby was the first person to tell him that Ambassador Joseph Wilson had been sent on a mission to Niger by the CIA at the suggestion of Wilson’s wife, Valerie Plame Wilson, who was herself, Libby disclosed to him, an employee of the CIA’s counterproliferation division.

Libby is contending that the false statements he gave to the FBI and to a grand jury–about how he learned the identity of Wilson’s wife, and to whom he passed on this knowledge–were the product of a faulty memory and do not amount to the perjury or obstruction of justice with which he has been charged. But according to Stacy Schiff, a guest op-ed columnist at the Times, Libby is reputed to have a prodigious memory and “remembers all 79 Star Trek episodes. And their titles, too.” His memory lapses, she says, amount to what is technically known as the “‘Honey, I was too busy preparing the family tax return to think clearly when you asked about the lap-dancers’ defense.”

For their part, Libby’s attorneys had hoped U.S. District Judge Reggie B. Walton would allow them to call an expert on human memory, who would help them make their case that “memory does not function like a tape recorder” and “a person is less likely to remember information if he is paying attention to several things at once.” For this purpose, the defense team had hired Daniel L. Schacter, professor of psychology at Harvard and the author of The Seven Sins of Memory and  Searching for Memory: The Brain, the Mind and the Past.  But Walton has ruled against them. No memory expert will appear in court.

Still, will a jury vote to convict? Even if a convincing case is made that Libby lied to investigators, it will be exceptionally difficult for prosecutors to prove “beyond a reasonable doubt” that he was prevaricating rather than merely confused. One does not need an expert in memory to persuade a jury that as events recede into the past they become more difficult to remember, or that what appears salient in retrospect might have been quite unremarkable at the time it originally occurred. 

As far as Star Trek is concerned, even if Libby does know all 79 episodes by heart–and this has not yet been demonstrated–it would not logically follow that he would remember every word of every conversation he held in a busy White House in the middle of a war. Like many Trekkies, he more likely viewed each of the episodes multiple times and talked about them at length with others who shared his particular passion, generating a much more firmly imprinted memory than one left by what was said in an offhand way over lunch with a colleague. 

Still, if Libby takes the witness stand in his own defense, as he is expected to do, he is going to have to walk a very fine line between remembering too little, thus sounding evasive, and remembering too much, thus undermining the core of his own defense.
 
For a full listing of the special counsel’s exhibits in the case, click here.

For a full listing of all 79 Star Trek episodes, click here.

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