Josh Marshall

Josh Marshall is editor and publisher of TalkingPointsMemo.com.

Articles by Josh

A number of readers have written in taking umbrage or exception at my suggestion that there really are no constitutional issues raised by the FBI raid on the office of Rep. Bill Jefferson (D-LA).

A number of those emails, candidly, have been a lot of rhetoric and huffing and puffing without much solid argument.

Others make a different argument. We shouldn't see this incident in isolation but rather in the broader context of the White House's disregard for the role of law and repeated assertions of constitutionally dobious executive power. This strikes me as a stronger argument. But it's not clear to me that the decision to mount this raid or seek the court approval for it came out of the White House, let alone from the president. (Since I've been away for a week, I'm at a bit of a disadvantage. Did I miss some evidence or reporting that pointed in that direction.) At least from a distance, the impetus for this appears to come out of the much more aggressive tactics of the Public Integrity section of the Justice Department -- something that's caused the White House a lot of grief. And all that aside, this still leaves unaddressed what specific constitutional impediment there is to executing a search warrant.

Yet another argument is the novelty of the case. In almost 220 years of American history there's never been a law enforcement raid on a congressional office. That certainly raises some questions. But I think part of the answer may come from looking at how many bribery investigations and/or indictments there have been of sitting members of Congress. If anyone has an exact or even a rough number I'd be obliged if you could send it along. But I suspect it's quite small. And a good part of the reason may be the degree to which Jefferson has resisted cooperating with the investigation. On this last point I'd like to hear more. But I remain unconvinced.

So again, any good arguments on this one? And is anyone prepared to make a specific and serious argument that this raid may have been unconstitutional on separation of powers grounds?


Prime Minister Tony Blair caved in to White House pressure by sharpening language on Iran and softening it on global warming in a speech he delivered Friday at Georgetown University, according to a British press report Sunday that Blair's office immediately denied.

But we're past that, right?

Another question: over the course of the week I was away, quite a number of people appear to have accepted it as a given that at a minimum grave constitutional issues were raised by the Justice Department executing a search warrant to search a congressional office.

But why exactly?

It's really not clear to me that there's any constitutional issue raised at all.

Many parliamentary democracies have laws that grant legal immunity to lawmakers -- the generous rationale being that the government could abuse its law enforcement powers to intimidate or punish the parliament. But US lawmakers have never enjoyed such an immunity.

If the Feds can raid a congressman's house, it's not clear to me why they can't raid his office. Sure, there's some room for prudential restraint and a respect for comity. But if the DOJ can't search a congressman's office, then the power to investigate and prosecute close to falls apart since that creates a safe harbor for incriminating information. Any serious claim that the functioning of Congress falls outside the bounds of the DOJ would apply to acts as well as work product. And that means that any bribery prosecution is impossible since official acts are an element of the crime.

The constitutional peg for all this speculation comes in Article I, Section 6, which states that Senators and Reps ...

shall in all cases, except treason, felony and breach of the peace, be privileged from arrest during their attendance at the session of their respective Houses, and in going to and returning from the same; and for any speech or debate in either House, they shall not be questioned in any other place.

A textual and historical analysis points to a clear meaning and intent behind this passage. The executive is not permitted to arrest or imprison members of Congress to manipulate or prevent Congress from functioning. President Bush can't put Sen. Feingold in the slammer to shut him up. They also can't held to account for what things they saw on the floor. But the text clearly spells out the exception of serious crimes, i.e., "felonies."

All this analysis aside, the real issue is what's coming down the pike. There are probably a dozen or more members of Congress under federal criminal investigation of one sort of another. (Rep. Duncan Hunter (R-CA), who a lot of have long suspected was tied up in Duke's wrongdoing, is apparently the latest.) And most all of them are Republicans. Denny Hastert says that he wants "to develop reasonable protocols and procedures that will make it possible for the FBI to go into congressional offices to constitutionally execute a search warrant." I'm sure he does. But he shouldn't be able to use bogus constitutional arguments to keep covering for the corrupt practices which have blossomed on his watch.

Many thanks to Matt Yglesias for filling in for me while I was away. If you've become an addict, you can find Matt's regular blog at TPMCafe.

Now, when I was away, I kept a bit abreast of the news. And the story that really caught my attention was the quickly-debunked story claiming that Iran was about to institute a mandatory dress code for Jews, Christians and Zoroastrians. As you probably already know, the story was false. And the origin of it, from what I can tell, all stems from Amir Taheri, NY Post columnist and member of the Benador Associates stable.

Reading over the various dissections of what happened, I'm still unclear about the relationship between Taheri's column in the Post and the article in Canada's National Post which fronted the story. This article in Jewish Week explaining the hoax, calls that Benador Associates, the PR firm-cum-speakers bureau which reps Taheri and most of the rest of the name neocons, "the public relations agency that placed the story with The National Post." But I'm not clear whether that is supposed to mean that Benador attempted to place Taheri's column with the Post or that they pitched the story to them. The National Post's news story, since retracted, appeared on May 19th while Taheri's Post column appeared on the 20th.

Another question, which reporters floated the story in questions to the Canadian and Australian Prime Ministers?

In any case, murkiness about the origins of the canard is another tell-tale sign of what this very much appears to be: part of an orchestrated disinformation campaign, launched by persons or parties unknown but not too hard to guess.

You can see Taheri's game effort to sorta-kinda walk the story back here. It's really a study in mendacity. Taheri says news outlets that picked up his claim "jumped the gun." Presumably, jumped the gun in assuming there was any factual basis for what he alleged. Taheri then tries to suggest that his report of a Nazi-reminiscent dress code for Jews was just a secondary part of the story, not certain to come to pass, etc. And yet he "stands by" the story in as much as he has secret sources who say that people in Iran somewhere were thinking about it.

Then he adds this confection: "I raised the issue not as a news story, because news of the new law was already several days old, but as an opinion column to alert the outside world to this most disturbing development."

So he didn't really report it as news because it was already news even though he was the first to report it.

Let's face it. As we gear up for the mix of agitprop and disinformation aimed to lay the groundwork for war with Iran, few claims could be more incendiary than alleging that Iran was recapitulating one of Nazi Germany's steps as it built toward the Final Solution. For the war party, such a development would be so good that, as the phrase goes, if it hadn't existed it would have to have been invented. And since it didn't exist, it was.

There's a tale here that's yet to be told.

Well, that's it for me. It's been an exciting year for us here at TPM. In a couple weeks, we'll celebrate the first anniversary of TPMCafe. And TPMmuckraker has now been up and running for more than two months. We even work in a bona fide office. Next month we're going to get our new 2006 election tracking blog up and running at TPMCafe.

Thank you to all the readers of each of our sites for helping us make this possible. And I want to particularly thank those of you who chipped in for our two fundraisers to launch those two new sites. It means a great deal to me. And I hope you're enjoying the sites your contributions have made possible.

I'm going to step away for a week. Sit on a beach with my wife. Hopefully recharge my batteries and clear my head.

Matt Yglesias is going to take over for me here at TPM while I'm away.

Manchester Union-Leader tonight ...

The former Chairman of the Republican National Committee remembers telling someone at the White House that he had decided to have the RNC pay the legal defense bills for convicted phone-jamming conspirator James Tobin, but he can’t remember who.

Ed Gillespie told the New Hampshire Union Leader yesterday he informed the White House after he decided to authorize payment.

The Washington Post reported on Wednesday that Gillespie told its reporter that he had “informed the White House, without seeking formal approval, before authorizing the payments.”

Gillespie told the Union Leader the two accounts were “consistent” because he decided to authorize the payments before telling the White House and actually authorized the payments after telling the White House.

Chronology's a bitch.

Here's a topic I'd like to know more about.

As you may know, Vice President Cheney's daughter Elizabeth is the deputy assistant secretary of state for Near Eastern affairs. She also has the title of "Coordinator for Broader Middle East and North Africa Initiatives." Basically that means she's in charge of democratizing the Middle East.

She has a budget of, I believe $75 million, for bringing about 'regime change' in Iran.

I also noticed this recent aside in The Nelson Report in which Chris Nelson wrote that his sources "say [Undersecretary of State Nick] Burns has been fighting an apparently losing battle with Undersecretary for non-proliferation Bob Joseph on a variety of issues, and that Vice President Cheney’s office seems to be sponsoring the hiring of exceptionally large numbers of political appointees, not career FSO’s, to staff the to-be-created Iran democracy projects to be run out of State."

Bob Joseph, in case you don't remember, was the NSC staffer in charge of brow-beating the CIA's Alan Foley into letting the White House use the bogus Niger uranium claim in the president's speeches.

But back to the Cheneys.

Elizabeth Cheney recently went on an open-ended maternity leave. But I am still curious to know what happened or is happening with that money. Vice President Cheney is clearly deeply involved in packing that outfit with political appointees. So given all that's happened in recent years I think this operation needs some real scrutiny.

Supporting dissidents in countries with repressive regimes is a good thing. But if your goal is to get the regime to fall in the next twelve or eighteen months you're probably going to go in for more traditional agitprop and destabilization methods. And how much trust do you have that any operation in which Dick Cheney is calling the shots would have any idea who to support or what to do in a country like Iran anyway? I mean, after things worked out so well in Iraq and all.

My understanding is that the majority of this $75 million has gone to radio program type stuff like Voice of America's Persian language service. That's normally good stuff, though the Bush administration has so politicized and boondoglized VOA and related services that its effectiveness is probably questionable. We've spent a lot of money on Radio Sawa, for instance, a pop music and news station aimed at the young of the Arab World. But a recent State Dept IG report said it had little influence and parents didn't want their kids to listen to it because "because its broadcasts contained such poor Arabic grammar."

(We may not be pro-Palestinian; but we're pro-Philistine! A little Near Eastern archeology and history humor there for you.)

If all that weren't enough there's the issue of cronies and pay-offs. I'm sure there are plenty of whack-jobs who've gotten run out of Iraq but have equally grand ideas about how to slick things up in Iran. And those guys have mortgages to pay. So maybe they could be set up with some contracts to get to work on Iran. Don't forget that before his high-flying days came to an end our friend Mitchell Wade -- briber of Duke Cunningham -- was trying to angle for some of the democratize Iran money. Who knows. Truly anything is possible. But given the folks calling the shots, my confidence level is just not that high.

Given the mix of potential bad-acting, incompetence and cronyism, I'm not even sure what to call this. But for lack of a better word let's call it agitpork. Who's getting it? And what are they doing with it? I think there are folks out there who know. And we'd like to hear from you. Your anonymity will, of course, be protected.

ABC's Brian Ross: Air Force Chief of Staff, Gen. T. Michael Moseley, and his predecessor, Gen. John Jumper, are the subjects of a new FBI contracting probe.

It's everywhere.

TPM Reader BW snarks in (subject line: "Jumping the Shark") ...

With their new ad anti-global warming ads, I think we can safely call May 18, 2006 the day the oil companies lost it completely.

BIG OIL - Jumping the Shark while there are still sharks left to jump.

See some of the ridiculousness here.

Rudy ...

Rudolph Giuliani, the former New York mayor considered a potential 2008 candidate for president, headlined a fundraiser Thursday for former Christian Coalition leader Ralph Reed in his run for Georgia lieutenant governor.

The two politicians were effusive in their praise for one another as they entered the Atlanta fundraiser just before noon.

"I just want to say I believe Rudy Giuliani is one of the finest leaders in not only the Republican Party but in either party," Reed said.

Giuliani responded: "We're here to get you elected. It would be a great thing for Georgia."