In those Office of Legal Counsel memos released yesterday is a telling footnote that appears to try to exonerate the DOJ crew that gave the now-discredited legal advice on things like torture, domestic surveillance, and the scope of executive power.
Funny thing is, the author of the footnote is Steven Bradbury, the acting OLC chief under Bush whose own conduct was reportedly criticized in an internal Justice Department investigation into whether OLC lawyers failed to meet professional standards when they concocted their legal theories.
The internal report from the Office of Professional Responsibility was mostly completed last fall, but apparently ran into such resistance from then-Attorney General Michael Mukasey that he declined to authorize its public release, Newsweek reported last month.
So then along comes Bradbury, writing his January memo (.pdf) explaining why all those post-9/11 OLC opinions were withdrawn, and punctuating it with this odd footnote, in a pre-emptive strike of sorts against the OPR’s findings.
But it was only pre-emptive in the sense that the OPR’s findings were not yet public. Those findings were already known at the top levels of the Justice Department — and in fact, according to Newsweek, Mukasey’s second in command was demanding that the report include responses from Bradbury and the others. So it’s possible, though not certain, that Bradbury had already seen the preliminary report from OPR when he wrote the self-exonerating footnote.
Let’s go back for a second to this issue of who the AIG bailout money is really going to. Nocera said AIG considered the information ‘trade secrets’. TPM Reader SR says what he probably means is that the contracts are subject to mutual confidentiality agreements between both parties, which sounds to me like something that would be routine in cases like this. And a number of other readers have made the same point; and noted that this is not a bad thing.
Says SR …
I would be stunned if AIG’s credit default swaps weren’t subject to mutual confidentiality provisions as a matter of contract. (“Trade secret” is a different area of law, though it interacts with contract law to some degree.) AIG/Uncle Sam may have their own reasons for wanting to keep the identity of the beneficiaries of AIG’s ill-advised credit default swaps secret, but what they don’t want is to get sued by the other parties for breaching those provisions.
And, if you were a party to a credit default swap with AIG that’s getting paid off by the government, would you want that fact revealed?
AIG is still bound by its contracts. Nationalization doesn’t change that. At least, not in this country.
When I wrote back to SR, what I said was yes, but … it really depends on what construct you’re working within on the payouts of this money. If you think that AIG is a public company in which the US government has purchased a majority interest, then, sure, the contracts still apply. But as best I understand this, by any reasonable measure, AIG went bankrupt. And the parties that were unfortunate or foolish enough to buy these credit default swaps that AIG had no ability to pay out on are out of luck. The other party went bust. That’s capitalism — the fate of companies poorly judge risk.
Now, maybe these counter-parties decide to petition the US government for relief. And perhaps at the level of systemic risk, it’s in our interest to make good on these contracts. But that’s a different kind of arrangement. That’s something outside the strictures of the original contract. I know there’s a separate issue of whether too much transparency could trigger runs on banks or other similar panics. I’ll set that aside for the moment; because I don’t have the understanding to really evaluate that properly. But with regards to the counter-parties themselves, mustn’t some ‘beggars can’t be choosers’ logic apply?
The new logo for projects funded by the Obama stimulus package:
As we’ve noted, a Republican can’t go much longer than a day criticizing Rush Limbaugh before having to recant his offending remarks. Now, over the weekend, House Minority Whip Eric Cantor criticized Rush’s ‘fail’ rhetoric about Barack Obama without going so far as to criticize the Great Leader directly. And then today Rush is saying that Cantor really didn’t criticize him. So we called up Eric Cantor’s office. And we asked, were you criticizing Rush or not? He ducked the question.
From Rush’s show today. We’re sort of dragged in as a way of knocking Greg Sargent, who’d caught Rush out on his Obama mumbojumbo. So he was a little touchy …
“Until a couple months ago, just so you know who Greg Sargent is. He was a blogger at a far left blog post, calls itself Talking Points Memo. This is the website that is now trying to distort Bobby Jindal’s story about Hurricane Katrina, in order to make it look like Bobby Jindal lied in his response to Obama a week ago. So that’s the place Greg Sargent comes from.”
Late Update: TPM Reader LP raises an interesting and ominous question: how long before TPM is forced to recite an abject apology to Rush?
According to US News, Republican insiders are getting concerned that Michael Steele may be too big a moron to remain RNC Chairman.
Gov. Pawlenty (R-MN) reportedly said this morning that US government Treasury bonds will soon be as worthless as all those toxic mortgage assets.
From the Saint Paul Legal Ledger’s Capitol Report, quoting Pawlenty (emphasis added) …
Secretary of State Clinton, in China about a week ago, [was] publicly pleading with the Chinese to buy our debt, because the federal government is now so reliant on debt financing that the point at which China or sovereign wealth funds or others discontinue buying the federal debt, the house of cards they have constructed in Washington DC comes tumbling down. They’re going to have the government debt equivalent, some years from now, of today’s mortgage crisis, in my opinion.