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Josh Marshall

Josh Marshall is editor and publisher of TalkingPointsMemo.com.

Articles by Josh

More policy cynicism and legislative authoritarianism from the Republican majority. Mark Schmitt has the details.

If the number of articles getting punched up is any measure, the folks close to the Abramoff case are talking, and Jack himself is about to deal. The immediate trigger is the SunCruz case down in Florida, which is set to get started on January 9th. But that is only the first of a nest of overlapping criminal investigations in which Abramoff figures as a or the central player.

All of this raises the question of just what cards Abramoff has left to play.

From one perspective, he's handled this whole saga pretty poorly, in the sense of how long he's let this thing drag out. A number of the other key players have already pled out -- most notably, Scanlon and Kidan. And more than a year of news coverage has made Abramoff enough of a household name that it's not like a prosecutor would really cut him much of a break for giving up other bit players. It's hard to see how Abramoff avoids spending a lot of time in prison without giving up actual politicians, not staffers or other lobbyists, but people who run for office. That is, after all, what this is all about.

Any of our DA or US Atty readers care to chime in?

People have been asking what it's like at the center of the 2005 New York City transit strike. But actually, for me, it's something like being in a bubble. With the new people we're hiring we're about to open our first TPM offices. But for the moment, I work mainly at home, which is downtown, actually in the teens.

When I was out in the neighborhood yesterday -- i.e., not during rush-hour -- there was nothing to see that would make you think things were anything but normal, other than the little 'closed' signs hanging from the subway entrances. If anything the streets seemed more empty than usual. As I said, though, in a bubble, or rather, in the center of the storm.

The craziness is getting in and out of the city or between the different boroughs or rather anywhere that's more than ten or twenty blocks and thus not an easy walk in sub-freezing temperatures (26 degrees right now). My wife, whose commute is only about thirty or forty blocks, asked me to wish her luck when she left this morning.

It was a surreal feeling since I knew I was in the center of a city whose civic metabolism had been turned upside down. Just not for me; I was lucky.

NYT: "Jack Abramoff, the Republican lobbyist under criminal investigation, has been discussing with prosecutors a deal that would grant him a reduced sentence in exchange for testimony against former political and business associates, people with detailed knowledge of the case say."

Here's a really good post by Kevin Drum that I highly recommend. Kevin points to a key issue at the heart of the NSA debate that few are engaging. In genuine 'wartime' presidents have immense powers. But the president is operating on a theory of war that makes our 'wartime' status more or less permanent. Just how 'wartime' are we?

I hear that Sens. Rockefeller and Roberts are now in an escalating press release over the NSA intercept story.

Roberts says that contrary to what Rockefeller says in his letter released yesterday, there were many things he could have done if he didn't think the NSA program was appropriate or legal. But he didn't do any of them. Roberts even says that Rockefeller expressed support for the program in subsequent classified briefings.

As readers of this site know, Roberts has a pretty good history of fibbing when the White House requires it. But we also have no brief for Sen. Rockefeller. For years he was far too passive on the Iraq WMD front, though he's been getting action of late on the Niger business -- about which we'll say more later.

So let me toss out of a few questions. Exactly who else got the briefing that Rockefeller did? I assume it was limited to the leaders of each body and the chair and ranking members of the intel committees. How much ability did Rockefeller have to get the rest of the senate intel committee to take the matter up? Who else was he legally permitted to communicate with about this?

Let's get the specifics on the table. Let the chips fall where they may. Whatever you think of this program, oversight is essential in such a case. Let's get the details.

William Kristol and Gary Schmitt have a column in today's Washington Post that advances a simple premise: the president "uniquely swears an oath -- prescribed in the Constitution -- to preserve, protect and defend the Constitution." While Congress legislates for the 'in general', the president is the one who must face particular crises, ones whose dimensions, dangers and particularities legislators could not have foreseen. This mix of responsibility and authority gives the president the unique and awesome power to set aside Congress's laws in the over-riding interest of securing the nation.

This is a doctrine fraught with danger in a constitutional republic. But it is not a new theory and it is not without some merit.

A little more than a year ago, I discussed this in a post about an earlier Pentagon report which argued that the power to set aside laws is "inherent in the president." That principle is simply not reconcilable with the principles of our republic. But no less a man than Thomas Jefferson considered a possible exception ...

If memory serves, Thomas Jefferson -- when he was later thinking over the implications of his arguably unconstitutional Louisiana Purchase (and again this is from memory -- so perhaps someone can check for me) -- argued that the president might find himself in a position in which he might have the right or even the duty to disregard the law or some stricture of the constitution in the higher interests of the Republic.

Jefferson's argument, however, wasn't that the president had the prerogative to set aside the law. It was that the president might find himself in a position of extremity in which there was simply no time to canvass the people or a situation in which there was no practicable way to bring the relevant information before them. In such a case the president might have an extra-constitutional right (if there can be such a thing) or even an obligation to act in what he understands to be the best interests of the Republic.

The clearest instance of this would be a case where the president faced a choice between letting the Republic be destroyed or violating one of its laws.

But that wasn't the end of his point. Having taken such a step, it would then be the obligation of the president to throw himself on the mercy of the public, letting them know the full scope of the facts and circumstances he had faced and leave it to them -- or rather their representatives or the courts -- to impeach him or indict those who had taken it upon themselves to act outside the law.

As I recall Jefferson's argument there was never any thought that the president had the power to prevent future prosecutions of himself or those acting at his behest. Indeed, such a follow-on claim would explode whatever sense there is in Jefferson's argument.

If you see the logic of Jefferson's argument it is not that the president is above the law or that he can set aside laws, it is that the president may have a moral authority or obligation to break the law in the interests of the Republic itself -- subject to submitting himself for punishment for breaking its laws, even in its own defense. Jefferson's argument was very much one of executive self-sacrifice rather than prerogative.


This is where Kristol and Schmitt's hypothesizing fails republican muster. The president may well find himself or herself in situations that the Congress could not have anticipated or ones where the well-being of the country requires the president to ignore the letter of the law. (Only in the most extreme cases is this even conceivable -- but at least for the sake of conversation let's posit the possibility.) But the factor here is not the president's unique ability to judge these matters; the issue is time and urgency. Certainly, at the first practicable moment the president has to take the matter before the appropriate members of Congress, explain himself, request that the relevant laws be revised and open himself up to the possibility of real accountability for his actions.

And yet it seems pretty clear that this is not what the president did. The White House gave briefings to four or six members of Congress and then prevented them from discussing the matter either with colleagues or with staff. That makes the consultation pretty close to meaningless.

Kristol and Schmitt conclude by writing ...

This is not an argument for an unfettered executive prerogative. Under our system of separated powers, Congress has the right and the ability to judge whether President Bush has in fact used his executive discretion soundly, and to hold him responsible if he hasn't. But to engage in demagogic rhetoric about "imperial" presidents and "monarchic" pretensions, with no evidence that the president has abused his discretion, is foolish and irresponsible.


But this makes no sense. The Congress can't hold the president accountable or legislate on these matters for the future if they're never informed of what the president is doing. That's obvious. There may be some situations Congress can't have foreseen in advance; but Kristol and Schmitt are talking about a situation the president has prevented the Congress from considering even after the fact.

That's the end of constitutional government. No individual is absolute in a democratic republic. But this principle allows the president to make himself just that.

I've been suggesting that what's in play here in this NSA matter is a new technology of some sort -- one which conducts searches in ways that you just can't get warrants for. And here Kevin Drum pulls together several threads of information that point in what figure is likely the correct direction.

He concludes by writing: "It seems clear that there's something involved here that goes far beyond ordinary wiretaps, regardless of the technology used. Perhaps some kind of massive data mining, which makes it impossible to get individual warrants? Stay tuned."

Like I said, a bunch of information I've heard over the last 48 hours tells me he's on the mark here. Not precisely, perhaps. I'm not sure it's data-mining precisely. Perhaps they're doing searches for certain patterns of words or numbers, perhaps something as simple as a phone number. But unlike 'traditional' wiretapping, in which you're catching the conversations of a relatively small and defined group of people, this may involve listening in on a big slice of the email or phone communications in the country looking for a particular phone number or code or perhaps a reference to a particular name.

From a technological point of view there's not really much outlandish about this at all. This is just the sort of thing the NSA is in the business of doing overseas. But you can see how this would just be a non-starter for getting a warrant. It is the definition of a fishing expedition.

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