Commentary Magazine


Topic: general counsel

Flotsam and Jetsam

It took Barack Obama to turn an ex-president into a sleazy “bag man.”

What will it take for the left to break with the anti-Semites, racists, and Israel-bashers? “Democracy for America, the progressive group that grew out of Howard Dean’s campaign for president, is standing by its support for a House candidate who backs a radical single-state solution in the Middle East and suggested in an interview that Jewish Reps. Jane Harman and Henry Waxman should ‘pledge allegiance to this country as the country they represent.”

Will Obama take this opportunity to dump the witch hunt against CIA interrogators? Stephen Hayes recommends that he should: “The repercussions have been severe. CIA operators, already risk averse, are today far less willing to take risks in the field out of fear that a wrong decision, even a legal one that produced crucial intelligence, could send them to jail. Obama should also insist that the Justice Department aggressively investigate the alleged exposure of CIA officials by lawyers representing Guantánamo detainees. Photographs of officials were discovered in the cell of Mustafa Ahmed al Hawsawi and were reportedly provided by investigators working for the ACLU and the National Association of Criminal Defense Lawyers. John Rizzo, former CIA general counsel and a 30-year intelligence veteran, said that the breach was far graver than the leak of Valerie Plame’s name.”

It took a few weeks of criticism to reveal Peter Beinart’s vile attitudes toward his fellow Jews: Nathan Diament on Beinart’s latest outburst in the Israel-hating the New York Review of Books: “Peter goes way beyond debating substance and drifts into stereotyping and calumny, saying: ‘the same sort of settler fanatics who burn Palestinian olive groves also assassinated an Israeli prime minister. The same ultra-Orthodox hooligans who burn Christian holy books also attack Jewish women trying to pray at the Western Wall.’ He also slams Rav Ovadia Yosef and, apparently, anyone else in Israel who, we suppose, doesn’t agree with his view — or that of the editorial board of Ha’aretz — as to precisely what ought to happen.”

It took a year and a half of Obama’s presidency to ruin Blanche Lincoln’s career: “[Arkansas's] larger bloc of conservative Democrats and independents upset over the perception that the incumbent is overly cozy with the unpopular President Obama, the Agriculture Committee chair and Delta farmer’s daughter finds her 18-year congressional career in grave jeopardy.”

It took a determined Jewish mom from Los Angeles to figure out it only took a $15 dollar solar cooker (made of cardboard and aluminum) to help protect “female [Darfur] refugees who were being ruthlessly subjected to physical and sexual brutality when they left the relative safety of their refugee camps.” She’s done more for human rights in Darfur — much more — than Obama and his embarrassingly ineffective special envoy have.

Have you noticed that Democrats aren’t so willing to take unpopular stands for this president on national security? “The Senate Armed Services Committee dealt a big setback to President Obama’s plans to close the detention facility at Guantanamo Bay when lawmakers stripped funding for a new prison in Illinois to hold the detainees. Committee Chairman Carl Levin on Friday told reporters the committee, in a voice vote, stripped $245 million that would have gone to buy and retrofit the Thomson prison in Illinois.”

Charles Hurt catches Obama taking responsibility for “zilch” at his BP oil-spill press conference: “It was yet another performance of the ‘full responsibility’ flimflam. … President Obama repeatedly took ‘full responsibility’ for the blundering efforts to clog up the geyser of crude oil spewing into the Gulf of Mexico coating everything in sight. At the same time, Obama repeatedly denied that his administration was complicit in allowing the catastrophe to happen in the first place, slow to realize the devastating nature of it, or ham-handed in the five-week effort to try to stem the toxic tide. In other words, Obama — as he often does — took ‘full responsibility’ for being awesome.”

It took Barack Obama to turn an ex-president into a sleazy “bag man.”

What will it take for the left to break with the anti-Semites, racists, and Israel-bashers? “Democracy for America, the progressive group that grew out of Howard Dean’s campaign for president, is standing by its support for a House candidate who backs a radical single-state solution in the Middle East and suggested in an interview that Jewish Reps. Jane Harman and Henry Waxman should ‘pledge allegiance to this country as the country they represent.”

Will Obama take this opportunity to dump the witch hunt against CIA interrogators? Stephen Hayes recommends that he should: “The repercussions have been severe. CIA operators, already risk averse, are today far less willing to take risks in the field out of fear that a wrong decision, even a legal one that produced crucial intelligence, could send them to jail. Obama should also insist that the Justice Department aggressively investigate the alleged exposure of CIA officials by lawyers representing Guantánamo detainees. Photographs of officials were discovered in the cell of Mustafa Ahmed al Hawsawi and were reportedly provided by investigators working for the ACLU and the National Association of Criminal Defense Lawyers. John Rizzo, former CIA general counsel and a 30-year intelligence veteran, said that the breach was far graver than the leak of Valerie Plame’s name.”

It took a few weeks of criticism to reveal Peter Beinart’s vile attitudes toward his fellow Jews: Nathan Diament on Beinart’s latest outburst in the Israel-hating the New York Review of Books: “Peter goes way beyond debating substance and drifts into stereotyping and calumny, saying: ‘the same sort of settler fanatics who burn Palestinian olive groves also assassinated an Israeli prime minister. The same ultra-Orthodox hooligans who burn Christian holy books also attack Jewish women trying to pray at the Western Wall.’ He also slams Rav Ovadia Yosef and, apparently, anyone else in Israel who, we suppose, doesn’t agree with his view — or that of the editorial board of Ha’aretz — as to precisely what ought to happen.”

It took a year and a half of Obama’s presidency to ruin Blanche Lincoln’s career: “[Arkansas's] larger bloc of conservative Democrats and independents upset over the perception that the incumbent is overly cozy with the unpopular President Obama, the Agriculture Committee chair and Delta farmer’s daughter finds her 18-year congressional career in grave jeopardy.”

It took a determined Jewish mom from Los Angeles to figure out it only took a $15 dollar solar cooker (made of cardboard and aluminum) to help protect “female [Darfur] refugees who were being ruthlessly subjected to physical and sexual brutality when they left the relative safety of their refugee camps.” She’s done more for human rights in Darfur — much more — than Obama and his embarrassingly ineffective special envoy have.

Have you noticed that Democrats aren’t so willing to take unpopular stands for this president on national security? “The Senate Armed Services Committee dealt a big setback to President Obama’s plans to close the detention facility at Guantanamo Bay when lawmakers stripped funding for a new prison in Illinois to hold the detainees. Committee Chairman Carl Levin on Friday told reporters the committee, in a voice vote, stripped $245 million that would have gone to buy and retrofit the Thomson prison in Illinois.”

Charles Hurt catches Obama taking responsibility for “zilch” at his BP oil-spill press conference: “It was yet another performance of the ‘full responsibility’ flimflam. … President Obama repeatedly took ‘full responsibility’ for the blundering efforts to clog up the geyser of crude oil spewing into the Gulf of Mexico coating everything in sight. At the same time, Obama repeatedly denied that his administration was complicit in allowing the catastrophe to happen in the first place, slow to realize the devastating nature of it, or ham-handed in the five-week effort to try to stem the toxic tide. In other words, Obama — as he often does — took ‘full responsibility’ for being awesome.”

Read Less

Did Terrorist Detainees’ Lawyers Endanger CIA Agents?

Eli Lake reports:

Covertly taken photos of CIA interrogators that were shown by defense attorneys to al Qaeda inmates at the Guantanamo Bay prison represent a more serious security breach than the 2003 outing of CIA officer Valerie Plame, the agency’s former general counsel said Wednesday.

John Rizzo, who was the agency’s top attorney until December, said in an interview that he initially requested the Justice Department and CIA investigation into the compromise of CIA interrogators’ identities after photographs of the officers were found in the cell of one al Qaeda terrorist in Cuba.

Recall that Guantanamo detainees — some of whom may now have been released back to their home countries (and returned to the battlefield, given the rate of recidivism) — were shown pictures of CIA agents by their attorneys. The danger to these public servants is acute:

“Well I think this is far more serious than Valerie Plame,” Mr. Rizzo said after a breakfast speech. “That was clearly illegal, outing a covert officer. I am not downplaying that. But this is far more serious.”

“This was not leaked to a columnist,” he added. “These were pictures of undercover people who were involved in the interrogations program given for identification purposes to the 9/11 [terrorists].”

U.S. Attorney Patrick Fitzgerald is now investigating the matter. At this stage, we know that “the photographs appeared to have been taken by private investigators for the John Adams Project, which is jointly backed by the American Civil Liberties Union and the National Association of Criminal Defense Lawyers.” As Lake notes, serious violations of law may have occurred:

One possible crime would be the “disclosure of classified information, being the faces of these people, to an enemy foreign power,” Mr. Rizzo said.

Mr. Rizzo said the other possible law the pro-bono attorneys may have violated would be the 1982 Intelligence Identities Protection Act (IIPA), the same law Mr. Fitzgerald initially investigated in Mrs. Plame’s case. No one in the Plame case was prosecuted under that statute. A former aide to Vice President Dick Cheney, I. Lewis “Scooter” Libby Jr., was convicted of lying to investigators and later partially pardoned.

We will see what Fitzgerald turns up. But the potential that lawyers illegally disclosed materials to terrorists and thereby endangered CIA agents should remind us of the mentality of those who claimed to be defending our “values” as they litigated against the U.S.

Eli Lake reports:

Covertly taken photos of CIA interrogators that were shown by defense attorneys to al Qaeda inmates at the Guantanamo Bay prison represent a more serious security breach than the 2003 outing of CIA officer Valerie Plame, the agency’s former general counsel said Wednesday.

John Rizzo, who was the agency’s top attorney until December, said in an interview that he initially requested the Justice Department and CIA investigation into the compromise of CIA interrogators’ identities after photographs of the officers were found in the cell of one al Qaeda terrorist in Cuba.

Recall that Guantanamo detainees — some of whom may now have been released back to their home countries (and returned to the battlefield, given the rate of recidivism) — were shown pictures of CIA agents by their attorneys. The danger to these public servants is acute:

“Well I think this is far more serious than Valerie Plame,” Mr. Rizzo said after a breakfast speech. “That was clearly illegal, outing a covert officer. I am not downplaying that. But this is far more serious.”

“This was not leaked to a columnist,” he added. “These were pictures of undercover people who were involved in the interrogations program given for identification purposes to the 9/11 [terrorists].”

U.S. Attorney Patrick Fitzgerald is now investigating the matter. At this stage, we know that “the photographs appeared to have been taken by private investigators for the John Adams Project, which is jointly backed by the American Civil Liberties Union and the National Association of Criminal Defense Lawyers.” As Lake notes, serious violations of law may have occurred:

One possible crime would be the “disclosure of classified information, being the faces of these people, to an enemy foreign power,” Mr. Rizzo said.

Mr. Rizzo said the other possible law the pro-bono attorneys may have violated would be the 1982 Intelligence Identities Protection Act (IIPA), the same law Mr. Fitzgerald initially investigated in Mrs. Plame’s case. No one in the Plame case was prosecuted under that statute. A former aide to Vice President Dick Cheney, I. Lewis “Scooter” Libby Jr., was convicted of lying to investigators and later partially pardoned.

We will see what Fitzgerald turns up. But the potential that lawyers illegally disclosed materials to terrorists and thereby endangered CIA agents should remind us of the mentality of those who claimed to be defending our “values” as they litigated against the U.S.

Read Less

What’s the Basis for Holder’s Stonewall?

In the flap over the New Black Panther Party case, the Justice Department appears to be making up rules as it goes along. Back on December 18, 2009, the U.S. Commission on Civil Rights, in a letter from its general counsel David Blackwood to the Justice Department’s Joseph H. Hunt, wrote to explain why the commission had resorted to sending subpoenas to obtain information on the controversial dismissal of the voter-intimidation case and to try to dislodge the reason for the Justice Department’s apparent refusal to cooperate with the commission. He wrote:

To allay your concerns, the Commission requested a meeting where we would negotiate revisions to our discovery plan so as to eliminate or minimize the likelihood the Commission’s work would interfere with OPR’s pending investigation. Your refusal to schedule a meeting even to discuss the Commission’s pending discovery requests and depositions suggests that DOJ is not interested in working to develop a path that will allow each agency to fulfill its statutory obligation. As you are aware, the Commission first began requesting related information from the Department on June 16, 2009, six months ago. After six months passed without a substantive response from DOJ, the Commission felt it necessary to issue subpoenas.

Hunt wrote back on December 23, denying that the department was refusing to cooperate and asserting that it wasn’t unwilling to meet with the commission. Hunt seemed to suggest that the department wanted the chance to “set forth its position in writing,” but alas, it never consented to a meeting and still has not presented a viable legal theory for refusing to cooperate. In its blizzard of excuses in its discovery response, Eric Holder’s Justice Department asserts the attorney-client privilege. But a 1982 opinion of the Office of Legal Counsel specifically found that “the interests implicated by the attorney-client privilege generally are subsumed under a claim of executive privilege … and the considerations of separation of powers and effective performance of constitutional duties determine the validity of the claim of privilege.” A 1986 opinion similarly makes clear that the attorney-client privilege “is not usually considered to constitute a separate basis [from executive privilege] for resisting congressional demands for information.” In short, there really isn’t an attorney-client privilege, just executive privilege, but the Obami seem unwilling to use that politically charged defense. Read More

In the flap over the New Black Panther Party case, the Justice Department appears to be making up rules as it goes along. Back on December 18, 2009, the U.S. Commission on Civil Rights, in a letter from its general counsel David Blackwood to the Justice Department’s Joseph H. Hunt, wrote to explain why the commission had resorted to sending subpoenas to obtain information on the controversial dismissal of the voter-intimidation case and to try to dislodge the reason for the Justice Department’s apparent refusal to cooperate with the commission. He wrote:

To allay your concerns, the Commission requested a meeting where we would negotiate revisions to our discovery plan so as to eliminate or minimize the likelihood the Commission’s work would interfere with OPR’s pending investigation. Your refusal to schedule a meeting even to discuss the Commission’s pending discovery requests and depositions suggests that DOJ is not interested in working to develop a path that will allow each agency to fulfill its statutory obligation. As you are aware, the Commission first began requesting related information from the Department on June 16, 2009, six months ago. After six months passed without a substantive response from DOJ, the Commission felt it necessary to issue subpoenas.

Hunt wrote back on December 23, denying that the department was refusing to cooperate and asserting that it wasn’t unwilling to meet with the commission. Hunt seemed to suggest that the department wanted the chance to “set forth its position in writing,” but alas, it never consented to a meeting and still has not presented a viable legal theory for refusing to cooperate. In its blizzard of excuses in its discovery response, Eric Holder’s Justice Department asserts the attorney-client privilege. But a 1982 opinion of the Office of Legal Counsel specifically found that “the interests implicated by the attorney-client privilege generally are subsumed under a claim of executive privilege … and the considerations of separation of powers and effective performance of constitutional duties determine the validity of the claim of privilege.” A 1986 opinion similarly makes clear that the attorney-client privilege “is not usually considered to constitute a separate basis [from executive privilege] for resisting congressional demands for information.” In short, there really isn’t an attorney-client privilege, just executive privilege, but the Obami seem unwilling to use that politically charged defense.

So has the president or his attorney general invoked executive privilege? Commissioner Todd Gaziano told me it’s not clear. He says, “Not only has the Department refused to give us the information — the documents and answers to which we are statutorily entitled — but it still has not given us a legal argument or justification for not doing so.” He noted that this occurs “in the face of binding department authority,” which shows there is no valid attorney-client privilege.

The White House thought it appropriate to invoke executive privilege to block testimony of its social secretary, so perhaps that’s where they’re going with this. But that privilege arguably can only be invoked by the president or his department heads, in this case Holder. Maybe if Obama ever gives a press conference he can tell us. Or maybe at the upcoming confirmation hearing of the not-yet-selected No. 2 man in the Justice Department, an enterprising senator can find out why the department thinks it can make up new rules, avoid explaining what exactly they are, and refuse to permit anyone to peer into a decision that apparently is so indefensible, it requires a Nixonian-like defensive strategy.

While Holder has prevented his employees from testifying before the commission, former voting-rights section chief Chris Coates has made his views known. His rationale (which should be read in full here) for bringing the case against the New Black Panther Party is a tribute to the notions of equal protection and fairness. The Holder team won’t tell us what was wrong with that analysis and why it countermanded the decision of Coates and his team, dismissing a case as egregious as the New Black Panther Party matter. As Coates said in his goodbye remarks to his colleagues:

A lot has been said about the politization [sic] of the Civil Rights Division. I believe that one of the most detrimental ways to politicize the enforcement process in the Voting Section is to enforce the provisions of the Voting Rights Act only for the protection of certain racial or ethnic minorities; or to take the position that the Voting Section is not going to enforce certain provision [sic] of any of the voting statutes the Voting Section has the responsibility to enforce. Such decisions carry with them obvious, enormous implications for partisan political struggles.

Well that seems to be what’s going on here — made-up rules and politics run rampant in the Justice Department. Not what the Obami promised, is it?

Read Less

Getting Answers, Perhaps

When last we left the standoff between the U.S. Commission on Civil Rights (USCCR) and the Obama Justice Department concerning dismissal of the New Black Panther Party (NBPP) voter-intimidation case, the DOJ had interceded to at least delay the deposition of two of its employees, both members of the NBPP trial team. As it indicated in its open meeting last Friday, the USCCR is now directing its inquiries to the DOJ itself, although the depositions of DOJ employees have only been postponed. Today the USCCR’s general counsel, David Blackwood, fired off a letter and voluminous document request to Joseph H. Hunt, the director of the DOJ’s Federal Programs Branch. The letter, a copy of which I have received, recaps the DOJ’s stonewalling:

In the present case, beginning in June 2009, the Commission has consistently requested the voluntary production of information from the Department, without any success. It was only after the Department, by letter dated September 9, 2009, formally indicated that no information would be forthcoming (pending completion of an investigation by the Office of Professional Responsibility), and subsequently ignored the Commission’s letter of September 30, 2009, that subpoenas were issued by the Commission. While your letter refers to an ongoing “dialogue” between the Department and the Commission, it is the dearth of cooperation on the part of the Department that has resulted in the Commission’s need to issue subpoenas.

The DOJ apparently was skeptical of the USCCR’s authority to issue subpoenas, but Blackwood reminds Hunt: “In this regard, your attention is directed to 42 U.S.C. § 1975a(e)(2). This provision grants the Commission the authority to issue subpoenas for the attendance of witnesses and the production of written documents or other materials. This provision in no way prohibits or excludes requests directed to federal agencies or their employees.” And he also recites previous incidents in which as late as 2004 then Chairman Mary Frances Berry directed document requests to the DOJ’s Civil Division, which did cooperate.

It doesn’t appear that the DOJ has formally raised executive-privilege issues, but in case they are mulling that option, Blackwood reminds Hunt that

“to the extent that some documents or other communications may involve internal pre-decisional deliberative discussions, it should be understood that: (1) as between the Commission and the Department the only legal privilege that exists is the President’s constitutionally-based executive privilege, (2) the executive privilege must be invoked by the President, or possibly by a Department Head on the President’s behalf, (3) the President should not routinely invoke executive privilege, and may not do so to shield potential wrongdoing, and (4) the President’s executive privilege is not absolute and should not be read broadly to frustrate the core functions of an investigative agency. “

And finally, Blackwood bats down any suggestion that the DOJ’s internal investigation should forestall a legally authorized subpoena, noting that if in fact actual misconduct occurred by political appointees, “any perceived misconduct within its purview relating to matters of civil rights enforcement strengthens the requisite nature of the Commission’s discovery requests and weakens any claim that matters must be protected from review.”

Along with the letter is a 26-page discovery request, including both interrogatories and requests for documents. These cover every imaginable line of inquiry, including this query:

Identify and describe in detail the decision-making process within DOJ relating to the New Black Panther Party litigation. This request includes, but is not limited to, the decision-making processes that: (i) led to the initial filing of said litigation; (ii) the decision to seek a default; (iii) the decision to delay seeking a default judgment; (iv) the decision to seek review by the appellate section; (v) the decision to review the relief sought in the original complaint; and (vi) the decision to dismiss certain defendants and to reduce the relief sought against the remaining defendant.

And this curious one, which suggests that outside groups may have played a role in the decision to dismiss the case:

Identify and describe in detail all communications, whether oral or written, by or between the Department and any outside third parties with regard to the New Black Panther Party litigation. This request includes, but is not limited to, all communications with Kristen Clarke of the NAACP Legal Defense Fund.

Others suggest that career attorneys were run over by the Obama political appointees: “Identify all career employees in the Civil Rights Division who objected to the ultimate relief sought in the New Black Panther Party litigation.” There are 49 interrogatories (with subparts on many) and 51 categories of requested documents. I am informed by someone with requisite knowledge that “this particular subpoena is a bi-partisan appeal for information, that includes specific requests from Democratic commissioners.”

Unless Obama is prepared to invoke executive privilege, it seems we are about to get to the bottom of this case.

When last we left the standoff between the U.S. Commission on Civil Rights (USCCR) and the Obama Justice Department concerning dismissal of the New Black Panther Party (NBPP) voter-intimidation case, the DOJ had interceded to at least delay the deposition of two of its employees, both members of the NBPP trial team. As it indicated in its open meeting last Friday, the USCCR is now directing its inquiries to the DOJ itself, although the depositions of DOJ employees have only been postponed. Today the USCCR’s general counsel, David Blackwood, fired off a letter and voluminous document request to Joseph H. Hunt, the director of the DOJ’s Federal Programs Branch. The letter, a copy of which I have received, recaps the DOJ’s stonewalling:

In the present case, beginning in June 2009, the Commission has consistently requested the voluntary production of information from the Department, without any success. It was only after the Department, by letter dated September 9, 2009, formally indicated that no information would be forthcoming (pending completion of an investigation by the Office of Professional Responsibility), and subsequently ignored the Commission’s letter of September 30, 2009, that subpoenas were issued by the Commission. While your letter refers to an ongoing “dialogue” between the Department and the Commission, it is the dearth of cooperation on the part of the Department that has resulted in the Commission’s need to issue subpoenas.

The DOJ apparently was skeptical of the USCCR’s authority to issue subpoenas, but Blackwood reminds Hunt: “In this regard, your attention is directed to 42 U.S.C. § 1975a(e)(2). This provision grants the Commission the authority to issue subpoenas for the attendance of witnesses and the production of written documents or other materials. This provision in no way prohibits or excludes requests directed to federal agencies or their employees.” And he also recites previous incidents in which as late as 2004 then Chairman Mary Frances Berry directed document requests to the DOJ’s Civil Division, which did cooperate.

It doesn’t appear that the DOJ has formally raised executive-privilege issues, but in case they are mulling that option, Blackwood reminds Hunt that

“to the extent that some documents or other communications may involve internal pre-decisional deliberative discussions, it should be understood that: (1) as between the Commission and the Department the only legal privilege that exists is the President’s constitutionally-based executive privilege, (2) the executive privilege must be invoked by the President, or possibly by a Department Head on the President’s behalf, (3) the President should not routinely invoke executive privilege, and may not do so to shield potential wrongdoing, and (4) the President’s executive privilege is not absolute and should not be read broadly to frustrate the core functions of an investigative agency. “

And finally, Blackwood bats down any suggestion that the DOJ’s internal investigation should forestall a legally authorized subpoena, noting that if in fact actual misconduct occurred by political appointees, “any perceived misconduct within its purview relating to matters of civil rights enforcement strengthens the requisite nature of the Commission’s discovery requests and weakens any claim that matters must be protected from review.”

Along with the letter is a 26-page discovery request, including both interrogatories and requests for documents. These cover every imaginable line of inquiry, including this query:

Identify and describe in detail the decision-making process within DOJ relating to the New Black Panther Party litigation. This request includes, but is not limited to, the decision-making processes that: (i) led to the initial filing of said litigation; (ii) the decision to seek a default; (iii) the decision to delay seeking a default judgment; (iv) the decision to seek review by the appellate section; (v) the decision to review the relief sought in the original complaint; and (vi) the decision to dismiss certain defendants and to reduce the relief sought against the remaining defendant.

And this curious one, which suggests that outside groups may have played a role in the decision to dismiss the case:

Identify and describe in detail all communications, whether oral or written, by or between the Department and any outside third parties with regard to the New Black Panther Party litigation. This request includes, but is not limited to, all communications with Kristen Clarke of the NAACP Legal Defense Fund.

Others suggest that career attorneys were run over by the Obama political appointees: “Identify all career employees in the Civil Rights Division who objected to the ultimate relief sought in the New Black Panther Party litigation.” There are 49 interrogatories (with subparts on many) and 51 categories of requested documents. I am informed by someone with requisite knowledge that “this particular subpoena is a bi-partisan appeal for information, that includes specific requests from Democratic commissioners.”

Unless Obama is prepared to invoke executive privilege, it seems we are about to get to the bottom of this case.

Read Less

McCain on the Offensive

The McCain campaign just completed a media call with campaign manager Rick Davis, communications director Jill Hazelbaker, and general counsel Trevor Potter. The admitted purpose and main focus of the call? “Don’t buy that smoke Howard Dean is blowing around on our withdrawal from the matching funds system.” They want the focus and the media to turn its attention back to what they consider a problem for Barack Obama: his attempt to wriggle out of his commitment to take public financing and accept the limitations that go along with it for the general election.

They repeatedly pointed out that Dean did exactly the same thing he now attacks McCain for doing, i.e. applying for and then withdrawing from the matching funds program in the primaries before he received the funds. Potter reiterated that they had a right to withdraw even without a vote from the quorum-less FEC, that they received no funds, and that they never used the matching fund certificates as collateral for loans. As for gaining ballot access in several states based on their application for matching funds, Potter contends that this consideration is not relevant for FEC purposes.

Davis put this in political terms, arguing that “the Democrats panicked” when McCain took Obama up on his offer to accept public financing for the general election and therefore cooked up this issue regarding primary matching funds. Davis declared twice that the McCain camp would “be happy to debate all day” who has broken their word on public financing and whose record of commitment to reform is stronger. (He reviewed some highlights of McCain’s career, including the Abramoff and Boeing investigations and the passage of campaign finance reform laws–which he accomplished over objections from his party and to his political detriment.)

The bottom line: the McCain people recognize they are essentially entering the general election battle and want to prevent Obama (as he did with Hillary Clinton) from stealing the mantle of reformer/change agent. I would expect to hear far more of the McCain camp line that “there is only one candidate” who broke his promise regarding campaign funding.

The McCain campaign just completed a media call with campaign manager Rick Davis, communications director Jill Hazelbaker, and general counsel Trevor Potter. The admitted purpose and main focus of the call? “Don’t buy that smoke Howard Dean is blowing around on our withdrawal from the matching funds system.” They want the focus and the media to turn its attention back to what they consider a problem for Barack Obama: his attempt to wriggle out of his commitment to take public financing and accept the limitations that go along with it for the general election.

They repeatedly pointed out that Dean did exactly the same thing he now attacks McCain for doing, i.e. applying for and then withdrawing from the matching funds program in the primaries before he received the funds. Potter reiterated that they had a right to withdraw even without a vote from the quorum-less FEC, that they received no funds, and that they never used the matching fund certificates as collateral for loans. As for gaining ballot access in several states based on their application for matching funds, Potter contends that this consideration is not relevant for FEC purposes.

Davis put this in political terms, arguing that “the Democrats panicked” when McCain took Obama up on his offer to accept public financing for the general election and therefore cooked up this issue regarding primary matching funds. Davis declared twice that the McCain camp would “be happy to debate all day” who has broken their word on public financing and whose record of commitment to reform is stronger. (He reviewed some highlights of McCain’s career, including the Abramoff and Boeing investigations and the passage of campaign finance reform laws–which he accomplished over objections from his party and to his political detriment.)

The bottom line: the McCain people recognize they are essentially entering the general election battle and want to prevent Obama (as he did with Hillary Clinton) from stealing the mantle of reformer/change agent. I would expect to hear far more of the McCain camp line that “there is only one candidate” who broke his promise regarding campaign funding.

Read Less

The New York Times vs. Floyd Abrams

The Supreme Court heard oral arguments yesterday in a case involving the McCain-Feingold campaign-finance law, and touching on basic issues of freedom of speech and of the press.

I read about it in the New York Times in an article by Linda Greenhouse, whose credibility as an objective reporter of the Supreme Court’s doings was forever shredded, at least for me, by a speech she gave at Harvard last summer lamenting, among other things, the Right’s “sustained assault on women’s reproductive freedom and the hijacking of public policy by religious fundamentalism.”

Still, even if Greenhouse came out of the ideological closet in a way that makes a mockery of the Times’s posture of political neutrality, as best I can tell she did a creditable job in the basic task of laying out the facts of who said what in the case that was before the Court yesterday. The provision of McCain-Feingold in question, which prohibits certain kinds of advertisements just before an election, had been upheld by the Supremes by a margin of 5 to 4 in a December 2003 decision, which is now being revisited.

Read More

The Supreme Court heard oral arguments yesterday in a case involving the McCain-Feingold campaign-finance law, and touching on basic issues of freedom of speech and of the press.

I read about it in the New York Times in an article by Linda Greenhouse, whose credibility as an objective reporter of the Supreme Court’s doings was forever shredded, at least for me, by a speech she gave at Harvard last summer lamenting, among other things, the Right’s “sustained assault on women’s reproductive freedom and the hijacking of public policy by religious fundamentalism.”

Still, even if Greenhouse came out of the ideological closet in a way that makes a mockery of the Times’s posture of political neutrality, as best I can tell she did a creditable job in the basic task of laying out the facts of who said what in the case that was before the Court yesterday. The provision of McCain-Feingold in question, which prohibits certain kinds of advertisements just before an election, had been upheld by the Supremes by a margin of 5 to 4 in a December 2003 decision, which is now being revisited.

The New York Times has a stake in this case. Although the newspaper positions itself as a champion of the First Amendment—and has even intrepidly broken federal laws that crimp its freedom to print whatever it pleases—its editorial page nevertheless avidly supports the restrictions on issue ads contained in McCain-Feingold, insouciantly declaring that the “Constitution permits reasonable limits designed to prevent what the Court has called ‘corruption and the appearance of corruption.’” The law, it says flatly, “does not prohibit any speech.”

But liberals are deeply riven over McCain-Feingold. And the Times is itself sharply at odds with the leading First Amendment lawyer of our era, Floyd Abrams—who also happens to be the attorney to whom the paper has turned for defense in cases ranging from the Judith Miller affair back to the Pentagon Papers in the early 1970’s.

In his exceptionally compelling memoir, Speaking Freely, Abrams recounts a 2003 conversation with Alex Gigante, general counsel of Penguin Group USA, which was poised to publish a new book about Senator John Kerry, then in the midst of a campaign for the presidency:

“Is there anything in the new campaign finance law that could be problematic?” Gigante asked me. “Yes,” I said. “There is one thing: you can’t advertise the book on radio or television at all for the entire month of July leading up to the Democratic convention, for almost all of September, and for every day of October.” That antidemocratic achievement, I said, was directly attributable to McCain-Feingold.

Gigante listened to me in disbelief and then asked the unavoidable question: “Is that law constitutional?”

“Not under my First Amendment,” I told him. “Not under mine.”

Abrams calls the provisions of McCain-Feingold governing political advertising “nothing less than outright suppression of speech of the most odious nature.” Could he have been any clearer?

Next time the Times cites the First Amendment when it publishes a vital national-security secret in violation of the law, let us not forget the hypocrisy of its position on McCain-Feingold. And a health warning: do not hold your breath waiting to read about this internecine dispute in the news columns of Linda Greenhouse. It could cause asphyxia.

Read Less




Welcome to Commentary Magazine.
We hope you enjoy your visit.
As a visitor to our site, you are allowed 8 free articles this month.
This is your first of 8 free articles.

If you are already a digital subscriber, log in here »

Print subscriber? For free access to the website and iPad, register here »

To subscribe, click here to see our subscription offers »

Please note this is an advertisement skip this ad
Clearly, you have a passion for ideas.
Subscribe today for unlimited digital access to the publication that shapes the minds of the people who shape our world.
Get for just
YOU HAVE READ OF 8 FREE ARTICLES THIS MONTH.
FOR JUST
YOU HAVE READ OF 8 FREE ARTICLES THIS MONTH.
FOR JUST
Welcome to Commentary Magazine.
We hope you enjoy your visit.
As a visitor, you are allowed 8 free articles.
This is your first article.
You have read of 8 free articles this month.
YOU HAVE READ 8 OF 8
FREE ARTICLES THIS MONTH.
for full access to
CommentaryMagazine.com
INCLUDES FULL ACCESS TO:
Digital subscriber?
Print subscriber? Get free access »
Call to subscribe: 1-800-829-6270
You can also subscribe
on your computer at
CommentaryMagazine.com.
LOG IN WITH YOUR
COMMENTARY MAGAZINE ID
Don't have a CommentaryMagazine.com log in?
CREATE A COMMENTARY
LOG IN ID
Enter you email address and password below. A confirmation email will be sent to the email address that you provide.