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Josh Marshall

Josh Marshall is editor and publisher of TalkingPointsMemo.com.

Articles by Josh

That's a new one.

As we first reported, James Tobin, Bill Frist's Northeast political director at the NRSC in 2002, was the guy behind the New Hampshire phone-jamming scandal from that year.

Tobin now says, in motions filed with the court, that his indictment in the case should be thrown out because the grand jury that indicted him included Democrats.

And in line with Tobin's apparent contention that Republicans now constitute a protected class (will they mind if we call them a 'discrete and insular minority'?) there's this ...

And if the case does go to trial, Tobin's lawyers want to question prospective jurors extensively about their politics and their exposure to media reports of the case to root out potential bias.

A proposed questionnaire would ask prospective jurors to disclose their political party, union membership, whether they've ever had a bumper sticker on their car and what it said, what Web logs they read and whether they ever watch TV shows such as "West Wing," CNN's "Crossfire," MSNBC's "Hardball with Chris Matthews," and "The McLaughlin Group," which mostly runs on public television stations.

Tobin's lawyers also want jurors to describe themselves by checking off all that apply: "aggressive, articulate, emotional, entrepreneurial, intelligent, laid back, loyal, naive, perceptive, stubborn, (or) other."

Federal prosecutors countered that Tobin is required to prove actual bias by the grand jury: He cannot ask judges to assume that Democrats would indict based on their political convictions, anymore than judges can assume Republicans would indict Democrats in violation of their oath to look only at the evidence.


Ye olde right to a trial by your party members.

We've gotten numerous emails telling us that this afternoon on NPR's Talk of the Nation, the host repeatedly, throughout the show, referred to the 'nuclear option' as the word the Democrats came up with to describe abolishing the filibuster. I guess maybe the White House bullying is starting to sink in?

There is a rush of commentary in the wake of the Newsweek flap about the use of anonymous sources in reporting.

If I remember right (from when he edited some of my articles), my friend Jack Shafer is very big on pushing much harder than we sometimes do to get people to go on the record with what they tell us as reporters. And that's certainly a good idea, at least in the abstract and as a general matter. It makes people be more accountable. It gives readers a more precise sense of the reputability and credibility of the sources of information they're relying on. And it's certainly good practice when it comes to using the veil of anonymity to shield sources who are providing little more than snide comment or petty digs.

But make no mistake about it: were it not for the use of unnamed sources, we would know virtually none of what we currently know about the inner workings of our government. The same goes for almost any powerful institution in our society. And, as you might imagine, that's a result some find quite attractive.

I doubt very much that any working journalist with experience covering politics, government or national security issues -- particularly one doing anything remotely like investigative journalism -- would dispute that assertion.

What you would have would be news produced by press secretaries and the powerful, with the occasional addition of snippets from folks happy to lose their jobs to make a given story see the light of day.

Can anonymous sources spread lies or misinformation without having to answer for it to the public they deceive? Of course they can. But that's what makes a good journalist such a good thing and a bad one such a disaster. Society needs journalists as a conduit of information. That makes the use of anonymous sources essential -- often, in fact particularly, on those stories which have the greatest public consequences. And it is the work of journalists to evaluate the credibility of those sources and what they say before bringing them to public light.

That almost always means independently verifying what you've been told. But sometimes that's simply not possible. On a particularly sensitive issue, you'll try to get multiple sources confirming the same point. But any experienced journalist knows that it's often easy to get half a dozen people to confirm something they probably have no way of knowing is true. That's one of many reasons why the so-called 'two source' rule isn't nearly as clear a guide to action as its sometimes portrayed as being.

The simple fact is that a lot of it simply comes down to the experience and good judgment of the journalist, knowing a certain source is knowledgable, evaluating the agendas of their sources, thinking through alternative scenarios that could explain the facts they're seeing. Like I said, that's what makes a rock-solid journalist a great thing and a great asset to society.

The simple fact is that there'd be no 'news' without anonymous sources. Those who want to make the use of such sources illegitimate are, almost without exception, the leaders or officers of powerful institutions (particularly those in government like Scott McClellan and Larry Di Rita) who want to control information and keep it out of the hands of the public.

Late Update: It probably goes without saying. But in each case above when I refer to the 'journalist' this almost always means the journalist working in some degree of collaboration with an editor.

The headline to this NBC article out this morning reads: "White House says move [i.e., Newsweek's retraction] 'a good first step,' but demands more action."

A question. What "more action" should a White House ever be in a position to demand after a story has been retracted, especially in a case where the White House is not even directly involved in the facts of the case.

Think about.

Good catch in Kit Seelye's piece in Tuesday's Times ...

Mr. McClellan and other administration officials blamed the Newsweek article for setting off the anti-American violence that swept Afghanistan and Pakistan. "The report had real consequences," Mr. McClellan said. "People have lost their lives. Our image abroad has been damaged."

But only a few days earlier, in a briefing on Thursday, Gen. Richard B. Myers, chairman of the Joint Chiefs of Staff, had said that the senior commander in Afghanistan believed the protests had stemmed from that country's reconciliation process.

"He thought it was not at all tied to the article in the magazine," General Myers said.


Compare with this follow-up piece by Evan Thomas in Newsweek (emphasis added) ...

On Saturday, Isikoff spoke to his original source, the senior government official, who said that he clearly recalled reading investigative reports about mishandling the Qur'an, including a toilet incident. But the official, still speaking anonymously, could no longer be sure that these concerns had surfaced in the SouthCom report. Told of what the NEWSWEEK source said, DiRita exploded, "People are dead because of what this son of a bitch said. How could he be credible now?"


As I said earlier this evening, <$NoAd$> let Newsweek's reporting stand or fall on its own (though bear in mind that even at this point the Pentagon's denials seem rather technical). But do not miss the fact that the White House and the political appointees at the Pentagon are exploiting this in every way they can -- even going so far, it would seem, as to declare as a moral certainty claims that only a few days ago they professed to believe were false.

Slow down.

Part of me can't help but appreciate the irony of a White House which took the country to war on shaky (and later discredited) evidence going to war against a news organization that published a short article on shaky evidence.

But set that aside.

I haven't followed every particular about the case of this blow-up over the article in Newsweek. But I do see a clear pattern -- a White House trying to decapitate another news organization.

The parallels with CBS are obvious. And yet, the production of the Rather/National Guard piece ended up containing egregious errors. On top of that, CBS dug in its heels for days even after manifest errors in the reporting had become obvious. CBS brought the Rather-gate avalanche down upon itself with some very sloppy journalism. But the White House quickly saw the opportunity and grabbed it, effectively taming an entire news organization.

What already seems to be happening here is that the White House is trying to replicate the pattern, even in a case with a quite different set of facts.

Here we have a case where two reporters authored a story which seems not to have been as solidly-sourced as the reporters and editors apparently thought. The story quickly provoked a strong denial from the Pentagon. The news organization went back to its sources and found a key source second-guessing his original assertion. Newsweek first cast doubt on the story and then, this afternoon, retracted it entirely.

Newsweek thought the central claim had been confirmed. The Pentagon said these claims have been investigated and not found credible. And Newsweek now says it can't stand behind the story.

Here's a newsflash: reporters make mistakes. It happens every day in newspapers around the country. When a country has an aggressive, free press, it is inevitable that reporters will sometimes get stories wrong. Indeed, I think I could rattle off dozens in the last year alone in which the poor practices on the part of the journalists seem to have been more blameworthy than is the case here.

When news organizations make errors, they have to correct the story as quickly as possible. Believe me, every honest journalist lives in fear of getting a story wrong. And when a mistake gets made, even in good faith, it puts a dent in the journalist's reputation.

If it turns out that the reporter was dishonest or acted recklessly or simply didn't perform as a professional journalist should, then there are more immediate consequences. That can include demotion, firing or even being drummed out of the profession entirely.

Perhaps something like that will prove to be the case here; so far, though, I haven't seen it.

What I do see is a pattern of a White House focusing in on particular instances of vulnerable reporting and exploiting them to set new de facto rules for the national political press.

Here we have today Scott McClellan, the president's press secretary, specifically demanding further disavowals of the story from Newsweek. That should trouble anyone. The White House is not a party at interest here. Perhaps the people who have been falsely accused are. Perhaps the Pentagon could demand an apology if the story turns out to be false. Or the Army. Not the White House. They are only involved here in as much as the story is bad for them politically.

We are already seeing a wave of violence, at least some of which preceded the publication of this article, being blamed on the reporters in question here. That is a vivid reminder of the responsibility all journalists have to get stories right. At the end of the day, though, the responsibility for the deaths of those who were killed rests with those who killed them, nowhere else.

(As Andrew Sullivan rightly notes, in terms of severity it is actually not that easy to distinguish between this alleged conduct and lots of stuff we know for a fact did happen at Abu Ghraib, Gitmo and other places.)

At the risk of stating the obvious, I'm not justifying the work behind this story. I have no particular brief for Mike Isikoff or Newsweek. Indeed, it's not clear to me precisely what happened at all. What I am saying is that occasional errors are inevitable with a truly free press. The price paid by the news organization and the individual journalist should be based on whether and how well they followed established journalistic practices -- not on how much the White House went after them. If the new standard is that every material fact reported must be attested to on the record then in the future we'll know only a tiny fraction of what we do now about the internal workings of our government.

What I see here is an effort by the White House to set an entirely different standard when it comes to reportage that in any way reflects critically on the White House.

That's dangerous and it should be recognized as such.

It seems that "nuclear option" has become such an effective Democratic slur that congressional Republicans just can't help saying it themselves. In fact, the GOP leadership on the Hill has to send out specific instructions to their members to stop using the phrase.

In this talking points memo, circulated today by the Republican leadership in the House, #1 of the "Top Five Message Points" is "1. Do not refer to the "nuclear option" -- it should be called the constitutional option."

You can see the document here.

Like many of you, for months I've heard President Bush and Vice President Cheney talk up 'Asbestos Reform' as one of the main planks of their legislative agenda. I didn't know just what they meant by that or what the issue even was (that is, beyond the fact that exposure to asbestos obviously causes all sorts of deadly and chronic ailments). But given who was pushing it, I figured it couldn't be anything good.

Over the last week, I've taken an initial look at the question. I haven't had as much time as I've wanted to dig into it. But the pretty clear initial impression I've gotten is that, while the overall concept may be a good one (setting up a trust fund to compensate victims of absestos exposure), the actual piece of legislation (S.852) moving down the pike amounts to a huge giveaway to a couple dozen big companies who will see their annual payouts to sufferers from asbestos exposure fall to just a fraction of what they are now.

Let me be crystal clear about one thing: trial lawyers would totally take it on the chin with this bill. (In fact, I think that's one reason the White House and the Republicans are pushing it -- as a way to defund Democrats.) But just because trial lawyers have self-interested reasons to oppose it doesn't mean it's not also a bad bill. And a pretty persuasive case has been made to me that the bigger effect of this legislation is to radically reduce the financial liability of a few big companies -- who in the past were the worst bad-actors with asbestos -- and make it a lot harder for people sick or dying of various asbestos-related ailments to be compensated or get cash settlements to pay for medical treatment.

I know there's been a lot of equivocation in this post. And that's because I don't like to talk about a topic or piece of legislation until I feel like I really have a handle on it. So in this case, I'll just say that my first impression is that this is a bad bill. And I'd suggest people look more into it. Here's a report from Public Citizen that's a good place to start.

I'd be very curious to hear your views, for or against.

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