Josh Marshall

Josh Marshall is editor and publisher of

Articles by Josh

First, some rather devastating news which will hopefully help you, the Talking Points reader, avoid future heartbreak.

It turns out that if you fully submerge your Palm V handheld computer in water it will no longer work. (Was Talking Points foolish enough to intentionally conduct such an experiment? Well, no. Not exactly. But let's just say: now I know.)

Now to other news of the day.

A few days back, you may remember, we were talking about the case of Lewis Libby, Dick Cheney's Chief of Staff, and his level of involvement in the Marc Rich case. I even got in an argument about it with Mickey Kaus.

At the time I didn't take a definite stand on whether Clinton was correct when he said that "the case for the pardons was reviewed and advocated" by Libby. I only argued that Libby's involvement in Rich's pardon efforts seemed to have been common knowledge -- even if possibly incorrect common knowledge -- and thus one could hardly say that Clinton was guilty of an "astonishing lie" (Mickey's phrase) when he was was repeating what I took to be common knowledge. Follow all that?

Well, today's New York Times adds some new information that makes it look like Clinton was pretty close to the mark. It turns out that a couple days after Clinton pardoned Marc Rich, Libby called him up to congratulate him on his good fortune. More importantly ...

A lawyer familiar with Mr. Libby's efforts said he had tried to persuade federal prosecutors in New York to drop the 1983 indictment against Mr. Rich. This lawyer and others familiar with Mr. Libby's involvement said that shortly after Mr. Quinn was hired by Mr. Rich, he met with Mr. Libby to be briefed on the merits of Mr. Rich's case.
So let's unpack this. Libby left Rich's employ "last spring," according to the Times. After Quinn came on board he met with Libby and Libby brought him up to speed on the case. Now, if I'm not mistaken, we all assume that there was only one reason Marc Rich hired Jack Quinn -- to help him get a pardon from Quinn's bud Bill Clinton, right?

So when Quinn met with Libby "to be briefed on the merits of Mr. Rich's case," what did they talk about? About Quinn's efforts to get Rich pardoned, of course.

Now I'll admit I've made a number of inferences here. But I don't think you've got to go too far out on a limb to make them.

And let's go back to what our friend Ari Fleischer said about Lewis' involvement in the Rich case. "While Mr. Libby was involved in the original case concerning Mr. Rich," Fleischer told the Times on February 18th, "he was in no way, shape, manner or form involved in the pardon."

Now the above-mentioned "lawyer familiar with Mr. Libby's efforts" is pretty clearly someone in Libby's camp. So there may well be more we don't know. But even from what we have here from the Times I think we can pretty clearly say that Ari Fleischer LIED (or at a minimum unintentionally repeated someone else's lie).

In fact, you might even call it an astonishing lie.

P.S. Why would someone in Libby's camp spill the beans on him? Easy. Libby has to testify tomorrow before the Burton committee so he's trying to get the bad info out ahead of time.

P.P.S. Special thanks to special Talking Points correspondent Mr. Z for passing on the new Libby info.

P.P.P.S. Wouldn't it be kinda devastating for a slick, young political reporter like Talking Points to lose all the notes and phone numbers and extra-double-secret contact information he has on his palm-top? You could say that.

We'll say more momentarily about the rest of the president's speech.

But what was the deal with Justice Stephen Breyer being the only member of the Supreme Court to show up for the speech? They had conflicting engagements? They didn't hear about it in time? They didn't know they were invited?

Please. Something weird was going on there. I can't do any more than speculate. And I'm not saying there was anything sinister. But could it somehow be related to the on-going in-house rancor over Bush v. Gore?

And as long as we're discussing the Supreme Court and Bush v. Gore, here's something else worth noting.

You may have heard that Justice Scalia recently gave a speech at Princeton University in which he set forth his constitutional jurisprudence and charged that those who embrace the idea of a living constitution were "impoverishing democracy."

What got less attention were Scalia's near-comic attempts to bar almost any form of public scrutiny of his presentation. Scalia gave his speech at a conference about James Madison; and the conference was televised by C-SPAN. But when Scalia was presented with the standard release form given to all speakers who speak at the University, he refused to give permission for his remarks to be broadcast. So when it came time for Scalia to speak, the C-Span folks had to pack up and head out.

In fact, Scalia refused even to give permission for his speech to be broadcast on the University's internal video feed, apparently because there was some chance the speech could then be picked up by local cable companies for public access viewing.

And even this wasn't enough. Scalia also stipulated that during the question and answer session after his talk he would only entertain questions about his speech -- nothing else (i.e., nothing about that whole recent unpleasantness down in Florida.)

Now when I called the Supreme Court Public Affairs Office, spokeswoman Kathleen Arberg told me that these sorts of restrictions amounted to Scalia's standard policy. "It's not unusual for a justice to do," Arberg told me, "and it's something he’s done in the past."

Perhaps so. But 'democracy' and civil liberties should start at home, no?

And anyway, Clarence Thomas may be a self-pitying blowhard when he hits the speaking circuit. But at least he's not afraid of the cameras.

As we've discussed earlier, McCain may end up playing a very important role in the tax cut debate -- something that has as yet not gotten much attention. Tonight he's beginning to tip his hand.

On CNN this evening, using roundabout language, he signaled his problems with the Bush plan and added an important detail. He said that the issue for him was less the size of the Bush tax cut than whom it went to. That's striking, because if anything questioning the progressivity of the cut is the more leftish ground from which to oppose the cut.

And that has lotsa implications for the coming months.

Some sentences perfectly capture why their creators are masters of their craft. Here's an example …

Bill Clinton has had exactly one good day since he became a full-time New Yorker, and even that one good day required a fiasco to set it up.

That's the first line of Rick Hertzberg's quick take on the pardon story in the new issue of the New Yorker - a few parts of which are now actually on line. This isn't an exculpating run-down of the affair. But it's human and realistic and mordant and punishing - more or less in the right amounts.

I nominate it as one of the best three pieces written yet on the topic - along with this piece by Jacob Weisberg and this one by Jonathan Rauch (which I want to discuss more in a future post).

Weisberg's piece is the best on motive and foible. Rauch's touches on the boundless overstatement of the critics and, more importantly, explains what the pardon power actually is - something most people in this debate seem unable to grasp.

Hertzberg's piece covers a different question - the Clinton question - the question every real admirer of this guy (a group in which I very much count myself) has many times pondered. That is, why and how Clinton turns the Superman comic book metaphor on its head. How this empathetic, brilliant, supremely- politically-gifted, well-meaning man now and again ducks off into a telephone booth, wrestles off his tie, rips off his workaday suit, and pops back out again … a moron.

There's simply no other way to put it. This isn't a matter of trashing the former president. I'm as happy today as I ever have been to defend him against his critics who would puff up his screw-ups into criminality or treason.

But what makes this imperfection so interesting and trying and intractable is that Clinton's lapses are cut from the same cloth as his greatness -- looked at closely one is, unfortunately, hard to imagine without the other.

In the end, however, he often ends up looking better than his graceless accusers whose venality and malice and witlessness is planned, protracted and considered, whereas his offenses are more often merely impulsive, abrupt and foolish.

Not the way the cheap, one-trick-pony moralizers would put it. But, hey, this ain't their site.

That's my story -- and I'm stickin' with it.

Here's a very disappointing column by Bob Herbert on the Times OpEd page. Count on it being embraced by Clinton-haters and the more feeble-minded run of Democrats.

Bill Clinton may have damaged himself on the way out of office - I'll leave that question aside for the moment. But it's simply pitiful to see Herbert saying things like this:

He was president for eight years and the bottom line politically is this: For the first time in nearly half a century, the Republican Party controls the presidency and both houses of Congress. Bill Clinton has been a disaster for the Democratic Party. Send him packing.
Fulmination, purism and hypocrisy. The familiar talk of souls sold. All sound and fury.

If Democrats can't grasp the truly pitiful state they were in in the eighties and early nineties they really are up the creek without a paddle. Say what you will about Clinton's sometimes poor judgement. But he did no end of good for the Democratic party. If the people who don't grasp this get back at the helm, well ... then Democrats really are in trouble.

More on this topic later.

Okay, let's be honest. If your bit is defending Bill Clinton this ain't been the best week. Or two. Or three. Well maybe three weeks ago was good because then we were still talking about the prank story which turned out to be completely bogus. But let's not lose our train of thought. If your bit is defending Bill Clinton it's been rough going.

But this is also supposed to have been rotten for Democrats because it's kept them from making their case against the Bush agenda and given Bush a free reign on the tax cut front. They're on their heels. On their backs. Etc. Pick your metaphor.

But is this true? Hardly.

While Bill Clinton has been on the ropes, the outlook for the Bush tax plan has grown steadily worse. Recent opinion polls have shown not so much strong opposition to Bush's proposal as a persistent lack of enthusiasm for the touchstone of Bush's agenda. More Republicans are coming out against Bush's current plan. And - as yet - no Democrats have followed Zell Miller's impetuous and now obviously embarrassing move in supporting the Bush plan.

So the pardon stuff may be a big embarrassment for Bill Clinton but it's not clear to me that it's been so bad for the Dems.

And there's more. So far the tax cut has been on the table with only the goodies. Now Bush has to lay out his whole budget - with it's budget cuts, it's lack of funds for Medicare and Social Security or debt pay down. In other words, the road doesn't get easier from here, it gets harder.

P.S. Next up ... What's the Dems' endgame for the tax cut debate? Don't know? Don't worry. Neither do they.

Damn! Oh the frustration! Sometimes I just feel like our new president cares about tax cuts a hundred times more than he cares about the important priorities which matter to most Americans.

Hyperbole? Well, not exactly. On Wednesday the Washington Post reported that Bush is calling for an increase of "$1.6 billion, in spending on elementary and secondary education."

$1.6 billion per year more in education for the kids and $1.6 trillion over ten years in tax cuts. Hmmmm ... Guess Karl Rove must have taken the day off the day they came up with that line item.

P.S. Why do I have to spoon feed this stuff to the Dems? Come on, guys!

Alright. Let's be honest with ourselves about the real question in the evolving Hugh Rodham pardon flap, the real journalistic contest afoot.

Don't play dumb with me! You know what it is: the contest to see which news organization can come up with the most unsightly picture of Hugh Rodham. I was going with this beaut from MSNBC with Hugh on the golf course with a cigar. But they took it down so now we're on to this one. But it's not over yet. Entries are still pouring in!

Brouhahas like the Marc Rich pardon often become so lavish and baroque that they generate sub-brouhahas that innocent and well-meaning opinion journalists like Talking Points get sucked into.

I'm now in a tete-a-tete with Mickey Kaus over just such a sub-brouhaha about Bill Clinton's NYT Op-Ed piece in which the former President wrote "the case for the pardons was reviewed and advocated not only by my former White House counsel Jack Quinn but also by three distinguished Republican attorneys."

The lawyers in question jumped up to deny Clinton's statement and my friend Mickey, with an assist from the New York Times, accused Clinton of an "astonishing lie." Then I jumped into the fray and whacked Mickey and now Mickey has made his second jump into the fray and whacked me back, charging among other things, that what I said just doesn't hold up and that, in any case, I never got around to talking about two of the lawyers in question - something I'd promised to do.

I don't want to rehearse the whole episode again. So if you're interested you can see what I wrote here and what he wrote here.

So what's my defense? Honestly, I think Mickey is talking around what I said. If you read my original post I think it's rather clear that I left the door open to the possibility that the president's statement may have been in error. ("We'll talk later about the accuracy of the former president's statement. But can repeating an undisputed statement in the public record be an 'astonishing lie'?")

My point from the start was that Mickey and others had committed what the clinicians refer to as a CACOS (Classic Anti-Clinton Over-Statement).

Since the beginning of the Marc Rich pardon saga it's been widely believed and discussed that Dick Cheney's Chief of Staff Lewis Libby was an attorney for Rich in the pardon matter until he started working in the White House. With a simple Nexis search I found two clear references to this and another in a copy of the New Yorker which I found in a slightly mangled state under my nightstand.

In his post, Mickey picks apart the New Yorker reference and says it's not as clear as I said it was. But Mickey ignores the other reference I found which is far more clear and direct. That would be when Tom Brokaw said "Vice President Cheney's chief of staff, Lewis Libby, also once represented Rich and also tried to arrange a pardon for him during that time."

Now perhaps Brokaw got it wrong (though I think he got it exactly right.) But let's go back to what I said. The question here is what's an error and what's an "astonishing lie." Repeating what everyone else also thinks to be true may involve you in a misstatement; and it may be sloppy or unwise. But to call it an "astonishing lie" seems ridiculous to me.

Now Mickey also points out that Clinton said this was one of the reasons for giving the pardon. And he did that before Tom Brokaw said anything. So maybe this is another lie. He's saying that it was a reason for the pardon as opposed to an after-the-fact justification?

But let's look at the facts. Lewis Libby was an attorney of record for Marc Rich in his efforts to get a pardon and remained so until just recently when he entered government service. If Libby is a remotely competent lawyer I assume he reviewed the pardon application and if he's an ethical one I assume he advocated his client's position. Libby's defense seems to be that he did not personally put in a call to Bill Clinton to push for the pardon. But this sounds a bit like what the anti-Clinton folks call 'parsing', doesn't it?

(In short, with regards to Libby, I think there's far more truth in Clinton's statment than Libby's response. And I'm quite comfortable diagnosing Kaus's original post as a CACOS.)

Now, let's go to the stronger part of Mickey's argument: that I never got around to discussing the other two lawyers, Brad Reynolds and Len Garment - which I had promised to do way back when in what now apparently counts as the Pleistocene Age back on February 18th.

This isn't a bad point. I have let four days go by without following up. And from what I know Reynolds and Garment are in a different category from Libby. Though both were intimately involved in constructing the arguments contained in Rich's application for a pardon, neither, it seems, has recently been in Rich's employee. So the accurate statement would have been "these two prominent Republican attorneys devised the argument that convinced me to pardon this scofflaw Marc Rich." Did Jack Quinn tell Clinton they'd been involved more recently? I don't know. (And if I did, I couldn't say anyway.)

Again, some statements are wrong, some are misstatements, some are "astonishing lies." I feel pretty comfortable in how I originally categorized this one, though I'll let you be the judge.

But let's not move off this matter quite so quickly. Len Garment has at least been a pretty stand-up guy about this. He says he didn't have anything to do with the current lobbying for a pardon. But he thinks it was the right thing to do. But what about these other Republican lawyers running for the hills, saying they never heard of this guy Marc Rich? I think Lewis Libby obviously used Ari Fleischer to lie for him. And Brad Reynolds? Well, he's just getting an easy pass from his buds in the press. Big surprise.

P.S. Oh, sorry. I forget to recite the pro-Clinton anti-Marc Rich oath …. I, Josh Marshall, disagree with the Marc Rich pardon but …

P.P.S. So what's deal with Kaus? A good guy? A friend? Totally.

P.P.P.S. Is this just a case when you're being diplomatic on the web because you don't want to make an enemy? No, No way. He rocks and he's been very good to me. A veritable Yoda to my Skywalker.

Hey, look! Mickey Kaus is taking me on for my earlier whack at him over the Bill Clinton New York Times Op-Ed sub-brouhaha to the Marc Rich pardon brouhaha.

P.S. So are you going to respond? Definitely. But it's late so it'll have to wait till tomorrow.

P.P.S. Hey, this is important! Why can't you give us your response now? Dude! It's 2:30 in the morning! Gimme a break!