Josh Marshall

Josh Marshall is editor and publisher of TalkingPointsMemo.com.

Articles by Josh

Oh when the frogs!

Come marchin' in!

Oh when the frogs come ...

Okay, enough of this silliness. Let's get down to business.

Friday's New York Times runs an article that implies a lot but says frustratingly little about the current state of the Valerie Plame investigation.

The key revelation, which comes in the first graf, is that investigators have "expanded their inquiry to examine whether White House officials lied to investigators or mishandled classified information related to the case."

The point here would be that prosecutors are now considering indictments not directly related to the underlying crime but of members of the White House staff who lied to investigators during the course of the investigation.

It's classic 'not the crime but the coverup.'

Unfortunately, the piece doesn't make clear whether these might be indictments in addition to ones tied to underlying crime or whether the prosecutors are going for this because they can't make a case on that underlying bad act.

What's more, prosecutors are apparently preparing to take further grand jury testimony. But the authors say it's not clear whether this signals that indictments are coming or that they're getting some final testimony before closing the investigation without indictments -- what you might call a rather substantial difference.

None of this is meant as a criticism of the piece. These are devilishly difficult articles to write. And it seems like the authors got some key leads but not enough to quite present the full picture.

But lets shift gears a bit and discuss another subject.

Earlier this month Murray Waas reported in the American Prospect that Karl Rove had admitted "that he circulated and discussed damaging information regarding CIA operative Valerie Plame with others in the White House, outside political consultants, and journalists [but] also adamantly insisted to the FBI that he was not the administration official who leaked the information that Plame was a covert CIA operative to conservative columnist Robert Novak."

In itself, this is not surprising. It's been pretty clear from the start that Rove pushed the Plame story with reporters after the Novak column appeared. The question is whether he was also the original source of the story.

If he only did only the former, I've always assumed that he was legally in the clear, notwithstanding the ethical sliminess of the behavior.

But perhaps that's not so.

A couple weeks back a legal memo fell into my hands from the sky. And it suggests that even the facts Rove has apparently admitted to put him in clear legal jeopardy.

First, a brief note about the memo: this is not a memo that is in any way a product of the investigation itself. The facts it discusses are exclusively ones which have appeared in media reports. I'm not a lawyer so I cannot myself vouch for the strength of the arguments advanced in the memo. (They certainly seem, to my non-legal mind, to press for an interpretation which yields legal jeopardy.) But it was prepared by lawyers with the proper professional expertise to compose such a memo and interpret the statutes and precedents in question. Finally, this memo is not the product of any political campaign or organization. Not that it would matter particularly, but it's not.

Now to the memo.

The essential argument is that the law, the Intelligence Identities Protection Act, does more than simply prohibit a governmental official with access to classified information from divulging the identities of covert operatives. The interpretation of the law contained in the memo holds that a government insider, with access to classified information, such as Rove is also prohibited from confirming or further disseminating the identity of a covert agent even after someone else has leaked it.

I won't try to explain it anymore than that. The memo is only a few pages long and I've marked the key passages.

There is one point the author of the memo doesn't raise. My layman's reading of the memo suggests to me that it would be critical to ascertain whether Rove learned of Plame's identity before the Novak article appeared or whether he learned of it for the first time when he read Novak's column.

If the latter, then I'm not sure the argument contained in the memo holds up.

Again, that's what occurred to me reading this memo. But bear in mind that my legal education is limited to a summer studying for the LSAT and a mortifying few hours about a decade ago taking the damn thing itself.

Here's the memo. I'm curious to hear your opinions.

Sometimes you just can't trust a Republican senator with a <$NoAd$>microphone ...

Republican U.S. Sen. Jim Bunning, at a recent GOP event, told diners that state Sen. Daniel Mongiardo, his likely opponent in the November election, looks like one of Saddam Hussein's sons.

Yesterday, his campaign said it was a joke and apologized.

"We're sorry if this joke, which got a lot of laughs, offended anyone," Bunning campaign manager David Young said.

Read more here ...

We’ve been eager to hit the half-a-million monthly TPM readers benchmark. And in March we finally did.

Stats for March: Unique visitors: 560,957; Total visits 2,577,021; Total pageviews 3,540,296. As always, a sincere thanks to everyone who made those numbers possible.

A few other points to discuss.

According to The Hill, Democrats on the House Ways and Means Committee may try to subpoena Doug Badger, President Bush’s White House healthcare adviser, if he doesn't show up to testify on Capitol Hill. They want to ask him about possible White House involvement in fudging the numbers of the recent Medicare prescription drug bill.

(The story is also covered here by Knight Ridder.)

Normally, Committee Republicans can shut something like this down on a party-line vote. But a mix of political pressure and genuine Republican disgruntlement over being lied to may prevent that.

The White House is refusing to make Badger available. Why? One guess ... Separation of powers.

One would imagine that Badger's testimony would be allowable under the White House's recently-discovered 'scandal exception' to the normally high bar on testimony from White House aides. But apparently that theory is no longer operative. Or perhaps it's one of those precedent-less arguments which only apply to Condi Rice. One way or another it's apparently down the memory-hole -- which is starting to get rather full, in case you haven't noticed.

(A Note to White House gaggleers: This is a spoon feed, folks. Just last week the White House argued that the separation-of-powers bar on testimony applied to questions of policy not appearances tied to scandal or congressional investigations into wrongdoing. This clearly falls right into that category. It's wrapped in a bow. Why not ask?)

And speaking of White House shenanigans ...

Yesterday, Rep. Henry Waxman wrote a letter to White House Counsel Al Gonzales asking whether he had placed calls to "selected" members of the 9/11 Commission during Richard Clarke's testimony last week, as reported today by the Washington Post. Presumably this was to feed them White House talking points to be used when they got to question Clarke. We've just posted the letter to the TPM Document Collection.

Longtime readers know we used to keep the TPM Document Collection section of the website very up-to-date -- confidential documents, video of nasty attacks ads, public records that should be more public, etc. But with all the rush of events over the last several months, we haven't been able to update it often enough. And the existing design isn't up to snuff.

In any case, with some expanded resources we're going to redebut the Document Collection with a new design and other added features. One of the things we're going to do is more marking up of the various electronic documents we post -- highlighting key passages, interlinear notes, stuff like that.

And here's where I'd like to enlist your assistance. To do this I'm probably going to need to get one of these Tablet PCs to allow me to handwrite on electronic documents, mark them up, and so forth. Now, about seventy or eighty thousand people visit this website each day. So I figure there must be more than a few people out there who have a sense of which are well-designed and which aren't. So any input would be greatly appreciated.

And one other thing.

In case you missed it, make sure you read Steve Clemons' oped in the New York Times yesterday on part of the collateral damage from the war on terror -- namely, the steep decline in educational, scientific and cultural exchange visas issued since 9/11. Steve is going to be opening up his own blog in the near future. And if he ever gets the lead out and puts the thing online we'll be linking forthwith since it's sure to be a must-read.

Sometimes a poetic truth captures only ... well, only the poetic truth. And then sometimes a poetic truth turns out to be the real thing.

We've been describing for some days now the backdrop -- well-known then but somehow forgotten -- to Richard Clarke's accusations against the Bush administration. Namely, the fact that the Bush administration came to office with a fundamentally flawed conception of the threats facing the United States.

Transnational terrorist groups were almost off the radar. The real near-term threats were rogue states which could hit the US with WMD-bearing ICBMs -- longer-term the threat was China. And thus the centerpiece of our new national security strategy -- and the target of the biggest funding -- would be national missile defense.

Now in a front page piece in Thursday's Washington Post we learn that on September 11th, 2001 Condi Rice was scheduled to deliver a major foreign policy address on missile defense as the centerpiece of a new strategy to combat "the threats and problems of today and the day after, not the world of yesterday."

Then reality intruded.

As the Post explains, the speech contained little real discussion of terrorism. The only mentions were swipes at the Clinton administration's supposed over-emphasis on transnational terrorism at the expense of more important priorities like missile defense.

Perhaps it goes without saying, but let's say it: It was as obvious four years ago as it is today that the most potent threats to America are asymmetric threats, particularly forms of attack that cannot easily be tied back to particular states which we can punish with our conventional military superiority.

In plainer speech, the biggest threats we face today are ones that don't come with a return address.

An ICBM, which has a launch point that can be determined down to the yard and requires a vast apparatus to get off the ground, really doesn't fit into that category.

In any case, this is just another example that they simply failed to understand where the real threat was coming from.

That in itself is forgivable. The problem is that they tried to shoehorn 9/11 into their existing paradigm rather than rethink that flawed analysis.

Reading the lede of this piece from Reuters, I had to wonder whether I might actually be reading a spoof from The Onion ...

An emotional former President George H.W. Bush on Tuesday defended his son's Iraq war and lashed out at White House critics.

It is "deeply offensive and contemptible" to hear "elites and intellectuals on the campaign trail" dismiss progress in Iraq since last year's overthrow of Iraqi leader Saddam Hussein, the elder Bush said in a speech to the National Petrochemical and Refiners Association annual convention.

Defies parody ...

I am a little surprised that the White House's new insistence on a joint private meeting with President Bush and Vice President Cheney hasn't elicited more notice.

In its Wednesday editorial the Times writes ...

Yesterday, Mr. Bush's lawyer told the commission that Ms. Rice would testify. And after months of unacceptable delay, the lawyer said Mr. Bush and Vice President Dick Cheney would also talk to the entire commission in private, not under oath. But the panel had to pay a price: it agreed, at the administration's insistence, that after Ms. Rice testifies, it will not call her back or ask any other White House official to testify in public.

So the Times doesn't even mention the jointness issue or any problems it could raise.

Now, amidst all the stonewalling and foot-dragging and character assassination I guess this matter won't <$Ad$>get top-billing. But just what is behind this demand -- to which the Commission has apparently agreed?

All the other arguments adduced for ducking the Commission investigators have had at least some conceivable constitutional basis, however weak: testimony in private, testimony not under oath, privilege for White House aides, etc.

(One might note that there will be no recording kept of this meeting -- just one sore-wristed Commission staffer allowed to take written notes of what is said by the ten Commission members, the president and vice president.)

In any case, clearly there cannot be any matter of constitutional precedent or principle involved in needing the president and vice president speak to the Commission together.

So, again, what's the deal?

Only three scenarios or explanations make sense to me.

The first -- and most generous -- explanation is that this is simply another way to further dilute the Commission's ability to ask questions.

If, say, the meeting lasts three hours, that's three hours to ask questions of both of them rather than three hours to ask questions of each -- as might be the case in separate meetings.

That wouldn't be any great coup for the White House. But it would be one more impediment to throw in front of the Commission's work, which would probably be a source of some joy for the White House.

From here the possible explanations go down hill -- in every respect -- pretty quickly.

Explanation number two would be that this is a fairly elementary -- and, one imagines, pretty effective -- way to keep the two of them from giving contradictory answers to the Commission's questions. It helps them keep their stories straight.

(It's a basic part of any criminal investigation -- which, of course, this isn't -- to interview everyone separately, precisely so that people can't jigger their stories into consistency on the fly.)

The third explanation is that the White House does not trust the president to be alone with the Commission members for any great length of time without getting himself into trouble, either by contradicting what his staff says, or getting some key point wrong, or letting some key fact slip. And Cheney's there to make sure nothing goes wrong.

These last two possibilities do, I grant you, paint the president and his White House in a rather dark light. But I would be curious if anyone can come up with another explanation for this odd demand.

I've long thought that political observers were greatly overstating the challenge Tom Daschle faced this November from Republican John Thune.

My reasoning: Thune couldn't beat a substantially weaker candidate, incumbent Sen. Tim Johnson, in the Republican annus mirabilis of 2002. So how exactly is he going to beat the far stronger Tom Daschle in what is shaping up to be a much better Democratic year?

This might change that, though.

Tim Giago, a Native American journalist who publishes something called the Lakota Journal has announced that he plans to enter the senate race as an Independent. South Dakota Democrats rely on and generally get overwhelming support from the state's Native American community. So this could certainly mix things up.

I still think Daschle takes this race pretty comfortably. But this bears watching.

What if Condi Rice, when she testifies, makes statements in flat contradiction of earlier statements by Richard Clarke? Nothing, it would seem, since the Commission appears to have agreed not to "request additional public testimony from any White House official, including Dr. Rice." That would seem to rule out testimony (at least public testimony) from various aides who might be in a position to say which of the two is being truthful, should such a contradiction arise.

And then there's this, also from Al Gonzales' letter to the Commission ...

I would also like to take this occasion to offer an accommodation on another issue on which we have not yet reached an agreement - commission access to the president and vice president. I am authorized to advise you that the president and vice president have agreed to one joint private session with all 10 commissioners, with one commission staff member present to take notes of the session.

Is that an 'accommodation'?

Why is this is <$Ad$>a joint session? Why can't the president and the vice-president meet with the Commission members separately? Is there some, as yet unexplored, constitutional issue of the president and vice-president needing to appear jointly?

I hesitate to assay some jesting constitutional theory (the two jointly elected constitutional office-holders must appear jointly because they were elected jointly?) for fear that it might end up in Gonzales' next letter.

One can speculate about several reasons -- one in particular -- for making this stipulation. And, in addition to having no conceivable constitutional basis, none of them are flattering.

This from Reuters<$NoAd$> ...

The White House said on Tuesday that the 9-11 commission agreed to terms that would allow national security adviser Condoleezza Rice to give sworn public testimony on the Sept. 11 attacks, and President Bush and Vice President Cheney to meet in private with the full panel.

White House spokesman Scott McClellan told reporters the commission had agreed to state in writing that neither appearance would set a precedent under the constitutional separation of executive and legislative powers.

Isn't this more face-saving than precedent-blocking? To the extent that this precedent issue is even a real issue, what consequence does something in writing from the commission possibly have? Setting aside the logical problems with viewing this as a separation of powers issue (namely the fact that the commission is not an arm of congress) jurists decide what's a precedent, not some slip of paper a cornered White House extracts from people it appointed.