Josh Marshall

Josh Marshall is editor and publisher of TalkingPointsMemo.com.

Articles by Josh

Bad Counsel?

Let me share a thought with you.

As you know, there's a been a scandal bubbling in the Senate Judiciary Committee since late last year over whether Republican staffers stole Democratic staff memos covering judicial appointment strategy. Now, for some time, this whole matter has been a sort of side light to the bigger stuff going on in politics. In fact, Republicans in government and out came up with a whole series of theories to explain why this theft really wasn't a problem. Most came down to the argument that the Dems didn't have sufficient security on their computers to keep the GOP staffers out -- sorta like how if there's no lock on my pocket you're allowed to steal my wallet so long as I don't notice.

In any case, outside of most people's notice, this has all changed of late. Senate Sergeant-at-Arms William H. Pickle has been conducting an investigation into the matter. And a few weeks ago it emerged that the infiltration had been far more extensive than earlier believed. For at least a year, and probably more like eighteen months, GOP staffers accessed the Democrats confidential files. And they snatched approximately 5,000 of them, give or take.

But the big change came last Thursday at an open hearing of the Judiciary Committee. Faced with the new evidence, pretty much every Republican on the committee gave up on offering any justifications or excuses for what had happened. And even those who had been most aggressive in fighting off Democratic attacks conceded that what had happened was quite possibly criminal and should be pursued by law enforcement authorities.

This week a trio of Republican senators on the committee felt compelled to hold a closed door meeting with conservative activists to tell them to back off. To quote The Hill: "[S]enators, who received last week a closed-door briefing on the investigation from Senate Sergeant at Arms Bill Pickle, warned conservatives they might come to regret their position when the results of the probe are fully known. Pickle is expected to finish his investigation by March 5."

Now here's where this gets interesting. The report from the Sergeant at Arms is coming down the pike really soon. (Let's call it the Pickle pike.) And most of the Republicans on the committee seem to agree now that this is a criminal matter, at least in the sense that there were probable illegalities committed. It's hard to see how that won't lead to a criminal referral when the report comes in.

So say a referral is made to the Justice Department. If that happens, how can they not appoint a special counsel? Not only is the issue at hand inherently political, but the political appointees at the DOJ work with the White House Counsel's office and the Judiciary Committee Republicans to plan and coordinate strategy for judicial nominations. The whole issue here is whether their colleagues on the Senate staff side were purloining Democratic staff memos to aid that planning. It seems like a classic case where the folks at Justice would need to recuse themselves.

Now we come to the White House Counsel's office. Remember, what we're talking about here is planning and strategizing on how to get judicial appointments through the Senate confirmation process. On the Republican side that involves Senate staffers, people at Justice, and the White House Counsel's office. Indeed, the whole process is quarterbacked out of the Counsel's office.

We already know that at least two Senate staffers accessed and archived the Democratic staff memos for more than a year. We know that thousands of documents were involved. And we know that the contents of at least some of those memos were leaked to conservative journalists. Those memos provided invaluable assistance in planning strategy on the Republican side.

How likely is it the existence and/or contents of those memos were discussed in the regular meetings Senate staffers held with members of the White House Counsel's office to plot strategy for getting through their judicial nominees?

And if a special counsel is appointed ... well, you see where this is going.

More on this later.

Math is not my strong suit. So maybe someone can help me with this.

A new line item in the White House talking points is to say that the economy is on the right track because it has produced some 366,000 jobs in the last five months.

In his noon press briefing yesterday, Scott McClellan listed as one of the signs the economy was on the right track the fact that "there have been more than 366,000 new jobs created in the last five months." And just an hour earlier, in a brief chat with reporters before meeting with the President of Tunisia, the president said: "I'm pleased by the fact that since August there's been 366,000 new jobs, in one survey."

Now, the problem here is that everyone at the White House from the president on down is trumpeting this number like it's a good thing, when in fact, it's not.

If I'm not mistaken there's a general consensus among economists that in our current economic circumstances we need roughly 150,000 new jobs created each month just to break even -- basically, just to keep up with a growing working age population.

So just to break even on the employment front we needed about 750,000 new jobs to have been created over the last five months. In fact, the economy created just less than half that number. So basically, 366,000 new jobs in five months isn't very good at all.

The president is pleased that on his watch the economy can't even produce enough jobs to keep up with a growing population? Can't he set his sights a bit higher?

Let's call it the big bat.

We all know that first the Dean campaign, then the Clark campaign, and then to lesser extents the other Democratic presidential candidates and now even House candidates have used the web to haul in large sums of money from small donors.

But the big test won't get started until a month or more from now.

Let's say John Kerry wins the nomination. I think that's overwhelmingly likely. But in this case I'm just using the assumption to sketch out a hypothetical or rather plot a sensible course of action. I'm not trying to prejudge the outcome of what's going to happen over the next couple weeks.

One of the biggest factors in this upcoming race has always been what would happen in the spring and summer of this year. The game plan goes something like this ...

After the Democratic primaries are over, the eventual winner would have spent a lot of money winning the nomination. And that nominee-to-be would probably be pretty near the spending caps he or she had had to agree to to get matching funds.

That means that for all intents and purposes the Democratic nominee would be out of cash and probably out of luck till the general election phase began after the conventions. That's when a new round of public funds would come in and the spending caps would reset.

Right about that time, though -- in early spring -- President Bush will be able to go on the airwaves with the equivalent of campaign commerical carpet bombing and bludgeon the Democratic nominee while he has no funds to fight back.

A milder version of this happened in 1996 when an unchallenged Bill Clinton went on the airwaves early and took advantage of the period when Bob Dole had no money to respond. But the war chest President Bush has been able to amass is far, far larger. What's more, like Kerry, he's opted out of the public system for the primaries. So he can spend as much as he wants.

(As it happens, I think that going on the air early for Clinton in 1996 just put the icing on the cake. That was never going to be a close election. This, on the other hand, is definitely going to be close.)

Now, assuming Kerry's the nominee, one part of the equation has already changed: if memory serves, Kerry opted out of the public financing system for the primary phase of the campaign. So he can spend as much as he can raise.

But he still won't have anywhere near as much as President Bush will have in reserve.

That's where the big bat comes in.

How well will the Kerry campaign -- and the rest of the Democratic party, broadly construed -- do in the middle-months of this year raising small-donor cash online to keep President Bush from unleashing all his fire power while Kerry has no way to fire back?

We'll return to this question later with some thoughts on how they might go about it.

On the Today show this morning, the <$NoAd$>president's campaign chairman Marc Racicot, said that that forecast of 2.6 million new jobs this year wasn't a forecast but rather a "goal".

That prompted this exchange in this morning's gaggle ...

QUESTION: Scott, on taxes and jobs, your campaign chairman, Marc Racicot this morning said that the job prediction or the job forecast in the CEA report was a "goal." You indicated to us yesterday that it was simply a figure that was based on economic modeling. So what is it? Is it an objective analysis of the current state of the economy, or was that a political document?

Scott McClellan: John, I think it is what it is. The data is a snapshot that economists use at a point in time for economic modeling. That's what I said yesterday. So it is what it is --

QUESTION: Right, but Racicot --

Scott McClellan: -- and it's based on the data available at that point in time.

QUESTION: So was Racicot wrong in describing it as a goal?

Scott McClellan: I haven't seen those specific remarks. I'll be glad to look at them, but it is what it is, and it is how I described it yesterday.

[Here there's a short and snappy back-and-forth between John and Scott on the difference between predictions and goals, and what the definition of 'is' is.]

Scott McClellan: John, I'm giving you the facts. It is what it is.

QUESTION: And the meaning of the word "is" is?

Scott McClellan: Well, John, I think that where the discussion of policy should be -- or the discussion should be is on policy. And the President is a decision-maker. The President leads by making policy decisions. And the policies we are implementing are working to strengthen our economy and create an environment for robust job creation. New jobs are being created. The unemployment rate is declining. The policies this President has advocated and passed are working. And I think the American people think the discussion should be there on the policy decisions that are being made. Some don't want to discuss the policies. But it's important for a President to lead and make decisions, and then defend those decisions.

QUESTION: You understand the difference between a forecast based on economic modeling and a stated goal. Racicot just seems to indicate that this is a stated goal.

Scott McClellan: It is the economic forecast for our annual Economic Report. That's what it is.

QUESTION: So it's not a goal?

Drip, drip, drip ...

Now this is something special. Tompaine.com has <$Ad$>set Bob Dreyfuss up with a blog on Iraq and national security issues, The Dreyfuss Report.

Bob and I disagree about a lot on foreign policy. Generally speaking, he's just much more to the left than I am on the issue. But he's one hell of a reporter. And the whole complicated, ugly, tragic, farcical Iraq mess is the sort of story that's just made for him.

I'll be visiting this site again and again.

Bob links to this very important article by Knut Royce in Newsday which reports on how the US has "awarded more than $400 million in contracts to a start-up company" tied to Ahmed Chalabi.

If we didn't have so many billions to spare, one might almost think that was a problem.

To get a read on the current state of <$NoAd$>play between the White House press corps and Press Secretary Scott McClellan (and, by extension, the White House) see today's back and forth from the noon press briefing in which McClellan tried to explain why the president issued a prediction about estimated job creation last week but won't stand behind the numbers this week.

Q So why not -- why aren't you standing behind it?

MR. McCLELLAN: I think what the President stands behind is the policies that he is implementing, the policies that he is advocating. That's what's important.

Q That's not in dispute. The number is the question.

MR. McCLELLAN: I know, but the President's concern is on the number of jobs being created --

Q My question is, why was the prediction made --

MR. McCLELLAN: -- and the President's focus is on making sure that people who are hurting because they cannot find work have a job. That's where the President's focus is.

Q Then why predict a number? Why was the number predicted? Why was the number predicted? You can't get away with not -- just answer the question. Why was that number predicted?

That's near the point when it pretty much broke to nah-nah-nah. Read the whole section.

The president says he's "troubled" by <$Ad$>the rush of wedding licenses being issued to gay couples in San Francisco. But I don't think that's really what's troubling them. I think what's really got their guts in knots are these numbers from the new CNN/USAToday/Gallup poll which shows that both John Kerry (12%) and John Edwards (10%) hold double-digit leads over the president among likely voters.

The poll actually has the president's approval number holding pretty steady at 51%. But his reelect number -- which is the more significant one heading into an election has fallen to the low 40s.

You don't judge a race when one candidate is in a trough. But this is quite a trough.

I like John Kerry. And, last night's results notwithstanding, I think he's got this race pretty much wrapped up. But take a look at the Kerry website and the Edwards website, and tell me which one radiates more energy and excitement.

Some mumbo-jumbo just turns out to be ... well, too mumbo. This from CNN ...

The White House backed away Wednesday from its own prediction that the economy will add 2.6 million new jobs before the end of this year, saying the forecast was the work of number-crunchers and that President Bush was not a statistician.

I think we'd all agree to that last point. But can he hire one?

Embarrassing. The bloom is really coming off this rose.

The credibility account is close to overdrawn.

Drip, drip, drip.