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April 10, 2007

Comments

AG Gonzalez, according to insider reports, has been staying up all night practicing telling the truth with Ed Gillespie, among others.

Apparently, he's stumbling and flubbing the truth pretty badly in the sessions, which makes me wonder why Congress, as a short cut, just doesn't call Gillespie and the other handlers before them and ask: "So, which part of the truth did the AG flub?"

I think you are missing the key points here. First, you need to understand that Republican's project.

Second, you need to understand that if the Republicans smell controversy, and can get someone under oath, they are more than willing to get a completely corrupt person like Ken Starr to manufacture indictable crimes -- telling the truth will most certainly not keep you safe as it is very possible for a skilled and corrupt prosecutor to create seemingly contradictory testimony -- at least in a grand jury setting and with enough evidence for an indictment. That Democrats have not been and do not appear to be willing to sink that low probably does not occur to them - they really do seem to believe despite all evidence to the contrary that everyone else is just as low as they are.

why Congress, as a short cut, just doesn't call Gillespie and the other handlers before them and ask: "So, which part of the truth did the AG flub?"

Because it's more fun for Congress to play with their food before they eat it?

Gonzales really does make all past lawyer jokes obsolete, doesn't he... ("Did you hear about the lawyer who practiced how to tell the truth?" - "Neither did I.")

the op-ed pages on most major newspapers need to be wiped clean

Boy, you can say that again.

The notion that Goodling isn't worried about anything she's already done is a sure sign of someone who hasn't been following the story.

It might be easier if we just legalized perjury. That way everyone could testify without having to go to all the trouble of telling the truth.

Cohen's not quite as bad because his column was published after Goodling resigned, but I was amazed at how many pundits (Mort Kondracke was probably the most egregious) failed to distinguish between the rights of a potential criminal defendant, and the professional obligations of a DoJ prosecutor.

As a citizen, Goodling absolutely has the right to plead the 5th on any question that, answered truthfully, might incriminate her. Fine. But then you can't be a prosecutor, anymore than you can be a banker after you have filed for bankruptcy.

"Mort Kondracke was probably the most egregious"

Kondracke went off the rails back in the Eighties, and has been little more than a delusional hack since then, though he's not remotely as lunatic as his erstwhile colleague, Fred Barnes.

But Barne's following of the Führerprinzip is simply awesome.

"But then you can't be a prosecutor, anymore than you can be a banker after you have filed for bankruptcy."

Bankruptcy law and its issues aren't something I'm at all knowledgeable about, but it's hardly my understanding that everyone who files does so because of incompetence, rather than, in many cases, because of circumstances beyond their control; it's not my understanding that bankers are uniquely immune to financial disaster, and that if they suffer it, it's proof of incompetence. The assertion that "you can[n't] be a banker after you have filed for bankruptcy" seems questionable, though I grant that bankruptcy is probably usually an unhelpful experience in a banking career.

Maybe it was just confused with bankrobbery ;-)
Actually, I don't know whether a perjury conviction would legally bar somebody from a prosecutor position, while I am reasonably sure that there is no law banning bankrupts (not even bankrobbers) from opening a bank.

The assertion that "you can[n't] be a banker after you have filed for bankruptcy" seems questionable, though I grant that bankruptcy is probably usually an unhelpful experience in a banking career.

Don't ever change, Gary.

As a citizen, Goodling absolutely has the right to plead the 5th on any question that, answered truthfully, might incriminate her.

And even there (as I understand it) she has to plead the 5th to specific questions; the 5th Amendment doesn't give her the right to refuse to show up. Am I right about that?

"Actually, I don't know whether a perjury conviction would legally bar somebody from a prosecutor position"

I think the fact that disbarment fairly universally follows a perjury conviction would bar someone.

"And even there (as I understand it) she has to plead the 5th to specific questions; the 5th Amendment doesn't give her the right to refuse to show up. Am I right about that?"

So far as I know, yes; it's up to the committee to decide whether to not bother, or to subpoena her and make her respond "I decline to comment based upon my rights in the Fifth Amendment to the U.S. Constitution, blahblahblah" to a string of questions, if they like.

Like a lot of people, though, I'm one who is extremely uncomfortable with anything that encourages people to believe that invocation of Fifth Amendment rights indicates guilt or wrong-doing, even granting without any argument that the issue of working for the government as a political appointee is, of course, not at all a right, unlike one's rights as an individual.

But that general belief that use of the Fifth Amendment should be held as suspicious is utterly pernicious to the spirit of our Constitution and Bill of Rights, as well as of our actual rights. That silence not be taken as suggestive of guilt is the point of "nor shall be compelled in any criminal case to be a witness against himself."

"but IF she testifies, and IF she doesn’t tell the truth, and IF someone later contradicts her,"

If we're to be honest, you pulled that middle "IF" out of a spot where the sun don't shine. Intellectual honesty, Publius, demands that we address the arguments actually being made, not the ones we'd prefer had been made.

If she testifies, honestly, and is subsequently contradicted by somebody who's lying, she'd be equally at risk of perjury charges, provided there wasn't any independent evidence of which of them was telling the truth.

This is, of course, a standard risk of testifying in "he said, she said" matters, and is not, insofar as I know, a basis for claiming the 5th.

If she testifies, honestly, and is subsequently contradicted by somebody who's lying, she'd be equally at risk of perjury charges, provided there wasn't any independent evidence of which of them was telling the truth.

If there's no independent evidence, then there's no risk of perjury charges, since the mere fact that someone disagreed with you isn't sufficient to prove that you lied.

As many others have pointed out, if your argument is valid, it means no one can be compelled to testify under oath about anything, ever.

bb - why would she care if she told the truth? do you honestly think she's not testifying b/c of her strong policy concerns about the special prosecutor? or because she might get in trouble for telling the truth if someone else lies?

no way. she knows she screwed up and she's hiding behind the 5th. and cohen is trying to milk this to rehash his anti-special prosecutor position

Brett: If she testifies, honestly, and is subsequently contradicted by somebody who's lying, she'd be equally at risk of perjury charges, provided there wasn't any independent evidence of which of them was telling the truth.

IANAL, but even so I do believe this argument is utter bollocks, and it surprises me that someone as (apparently) smart as Brett is repeating it. You cannot be charged with perjury unless there is independent evidence (more than "A said X, B said Y") that you didn't tell the truth. If it were true that a conflict of evidence led inevitably to perjury charges, or even put you at risk of perjury charges, most rape trials would be followed by perjury trials as either the man accused of rape or the woman who testified she was raped was brought up on perjury charges. As this does not happen, plainly Brett is repeating some nonsensical argument he gathered from somewhere else and didn't bother to think through and see it was nonsense before he repeated it.

"You cannot be charged with perjury unless there is independent evidence (more than 'A said X, B said Y') that you didn't tell the truth."

Could you give a cite for that assertion, please?

"You are unlikely to be charged with (or convicted of) perjury" would be one thing: but "can't"? As a matter of law? In the U.S.? Cite?

Testimony is considered evidence, of course; it's up to a prosecutor to decide (according to guidelines) what is and isn't sufficient evidence to bring a charge, and up to a jury to decide if the prosecutor proved the case beyond a reasonable doubt.

"Could you give a cite for that assertion, please?"

She gave an argument based on common knowledge for its truth - in some ways a better method than a cite to authority.

US courts apply a "two-witness rule" for perjury; either you need two independent witnesses to the falsity of the fact in question, or you need one witness plus some amount of corroborating evidence.

The two-witness rule "is founded on the notion that a conviction for perjury ought not to rest entirely upon 'an oath against an oath' -- that witnesses who are compelled to testify will testify more freely if they know that they will not be subject to prosecution for perjury simply because an equally honest witness may well have a different recollection of the same events." U.S. v. Marchisio, 344 F.2d 653 (2d Cir. 1965)

"The purpose of the rule was to prevent ill-founded retaliatory attack by perjury prosecution upon a witness on no more than the contrary oath of another." U.S. v. Collins, 272 F.2d 650 (2d Cir. 1959).

Assuming, for the sake of argument, a grand jury could be persuaded to return an indictment, the indictment would be thrown out by the judge for lack of legal sufficiency.

None of this is to say that it's a mathematical impossibility that you could ever be wrongfully convicted - but, again, if you can escape the obligation to testify simply by saying "even if I tell the truth, someone might lie and contradict me, then a prosecutor might wrongly pursue charges, then a grand jury might wrongly issue an indictment, then a judge might wrongly refuse to overrule the indictment, then a jury might wrongly convict me, then an appellate court might wrongly refuse to overturn the conviction"... then it's pretty clear that nobody can ever be required to testify about anything, because you can always postulate a wild scenario along those lines.

"She gave an argument based on common knowledge for its truth - in some ways a better method than a cite to authority."

How's that? "Everyone knows it's true" is a better method for demonstrating the truth of a proposition than an actual source? How is it we don't use this in court, then? (And, hey, we've demonstrated that the world was once flat, the Sun revolves around the earth, and so on: definitely a better method than a proof or a cite or a source which can be debated on substance.)

"US courts apply a 'two-witness rule' for perjury; either you need two independent witnesses to the falsity of the fact in question, or you need one witness plus some amount of corroborating evidence."

Thanks, Steve: that's what I thought. (I'm old-fashioned, and prefer cites to law to be actual cites to law; of the more than a dozen or so law firms I once worked for, I never worked for one that let me use as a cite "everyone knows it's true!," rather than to an actual judicial decision or piece of legal code.)

Whether that's what Jes meant when she said "more than 'A said X, B said Y,'" and didn't include "more than 'A said X, B said Y, C also said X, while D also said Y,' is unclear. Since one would expect Goodling's hypothetical testimony to be along the lines of the latter, rather than exist in a vacuum such as the former, that's what's relevant.

I, of course, agree with your last paragraph.

Jesurgislac, Gary, & Steve, are you aware that in the belief that you disagree with Brett, you've just repeated what he himself said?

"This is, of course, a standard risk of testifying in "he said, she said" matters, and is not, insofar as I know, a basis for claiming the 5th."

Trilobite, I think we've all just established that, contrary to what Brett claimed, there is no "standard risk" of perjury in "A said, B said" matters.

"Jesurgislac, Gary, & Steve, are you aware that in the belief that you disagree with Brett,"

I'm unaware that I disagreed with Brett, or agreed with Brett, or said anything at all to Brett, or about Brett.

I suggest rereading; I also suggest less confidence in asserting what people "believe."

Yeah, I mean, I think we've all reached agreement with Brett regarding the legal issue of when you can take the 5th, but my impression was that he still sincerely believed that the fear of prosecution has some grounding in reality. Maybe I'm reading him wrong, in which case I apologize.

Sometimes I feel like I've stepped into some alternate universe where the Congressional Democrats have a history of routinely pushing for perjury charges against political enemies. If Republicans were a little more reality-based concerning Scooter Libby's guilt, not to mention the process by which he came to be indicted, I think there wouldn't be quite so many persecution fantasies flying around.

"but my impression was that he still sincerely believed that the fear of prosecution has some grounding in reality. "

Whereas my impression is that Publius misstated Cohen's argument, and I was pointing that out. That Goodling would be testifying falsely was, contrary to Publius, no part of Cohen's argument. And I really doubt that Publius was confused on this point.

I was really ignorant of this two against one rule, (Not that two can't conspire to commit perjury together, of course...) but I doubt it applies to Congressional demands for a special prosecutor, which is what Cohen was talking about, not Goodling getting convicted for perjury.

Congress can demand whatever they like, but a special prosecutor still isn't going to bring a perjury case if it's just a case of two people whose testimony disagrees. Anyway, it hardly seems to be a rationally-based fear, as Congress hardly goes around demanding a special prosecutor every time it thinks someone is lying. Alberto Gonzales has lied to Congress time and time again and if they won't go after him, they're not going after some 30ish junior lawyer.

The claim that "even if I tell the truth I might get wrongfully prosecuted" is just a pretext. In reality, the concerns behind Goodling's invocation of the 5th Amendment most likely include things she's already done that may give rise to criminal liability, such as demanding loyalty oaths from civil servants. Otherwise, every single Republican being called to testify would take the 5th for the exact same reason as Goodling.

I agree with your analysis, but for me the most glaring issue is that all Goodling has to do is not lie. Not breaking the law or doing anything unethical would be nice, too. Ain't it nice, though, that Cohen just magically knows Goodling isn't a criminal? Isn't it nice that Cohen just isn't interested in the truth here? I'm completely with you on the op-ed pages. There are a frightening number of bad columnists out there.

"If she testifies, honestly, and is subsequently contradicted by somebody who's lying, she'd be equally at risk of perjury charges, provided there wasn't any independent evidence of which of them was telling the truth."

I hate to be a broken record, but this is EXACTLY the excuse that Susan McDougal used, and not more than two weeks ago it was roundly defended. I don't mind saying that McDougal and Goodling are making ridiculous arguments, but it is a bit jarring to see the excuse being portrayed as patently ridiculous in the Goodling case and very defensible in the McDougal case.

Well, and if it turns out years down the line that Goodling had the same justification to fear being persecuted for attempting to tell the truth as she knew it, it may be that in 2017 people will be roundly defending Goodling's determination not to testify and her willingness to spend years in jail for contempt of court.

But right now, it doesn't look like Goodling is worried that she'll be persecuted if she tells the truth: it looks like she's worried she'll incriminate herself if she tells the truth.

Gary, Jes said 'if x, then y' - which seemed fairly reasonable, and we know or anyway believe not y from experience - so the remark didn't need a cite. One might have asked about the "then", of course.

I hate to be a broken record, but this is EXACTLY the excuse that Susan McDougal used, and not more than two weeks ago it was roundly defended.

The distinction, of course, is that there was good reason for McDougal to believe that Starr was on a politically motivated witch hunt. No such out-of-control prosecutor is in view in the current situation -- Gooding has to be afraid that Congress will somehow cause one to be appointed.

(I'm not trying to start a fight about whether Starr was, in fact, on a witch hunt -- if you think his conduct of the Whitewater investigation was reasonable and unexceptionable, more power to you, and I had all the arguments I needed to have over that ten years ago. But there's no point in accusing people of hypocrisy for treating factually similar situations differently, when the people you're accusing think the situations aren't similar.)

"as Congress hardly goes around demanding a special prosecutor every time it thinks someone is lying."

It might be helpful if people defined what they meant by "special prosecutor," in light of there being no independent counsel law extant any more. Talking about imaginary threats possibly isn't helpful; being specific might be a bit more so. (Granted, it's a bit complicated and confusing, but that's life, and why clarity is useful.)

"...Gooding has to be afraid that Congress will somehow cause one to be appointed."

For Congress to cause one to be appointed, rather than the Executive, would take a new law being passed by both houses, and signed by the President, wouldn't it? A legally independent prosecutor such as Ken Starr isn't currently legally possibly; only an appointed-by-the-Executive-and-firable-by-the-executive, an Archibald Cox or Patrick Fitzgerald, is currently legally possible, as I understand it.

Well, yeah, that was the intended connotation of 'somehow' (which I recognize was overly elliptical) -- that there's no obvious way that could happen. (Even a law like the one you describe would, I think, be unconstitutional -- prosecutors belong to the Executive; I don't think Congress could give itself the power to appoint one.)

(That is, in the sense that such a prosecutor would be under the control of Congress in the manner that US Attorneys are under the control of the Executive branch -- that would be unconstitutional, I'd believe. Something like the Independent Counsel law, where the Congress's role is limited to causing one to be appointed, would, and did, work fine.)

That's quite right, Gary. In effect, Goodling is claiming to be afraid that the Democrats will persuade her employer, the Department of Justice, to prosecute her for giving truthful testimony.

At the end of the day, I wonder if the Democrats won't have gained more from Goodling's insistence on acting guilty than they would have gained from her actual testimony.

At the end of the day, I wonder if the Democrats won't have gained more from Goodling's insistence on acting guilty than they would have gained from her actual testimony.

Wouldn't surprise me, given the essential stupidity of some of the Administration hires.

"Even a law like the one you describe would, I think, be unconstitutional -- prosecutors belong to the Executive; I don't think Congress could give itself the power to appoint one."

But judges can (back-up) appoint U.S. Attorneys? Ditto that the previous independent counsel laws provided for them to be appointed by a special panel of the United States Court of Appeals for the District of Columbia Circuit.

I'm not arguing anything here; I'm just a bit curious as to how it is legally that judges can constitutionally appoint executive officers ("special masters" seem to more clearly derive their powers directly from the judiciary power), according to Act of Congress, but Congress can't.

Congress does inherently, of course, have the right to conduct investigations, issue subpoenas, and the power of arrest, as well as the power to create laws to punish and sentence.

I guess the distinction was created in Morrison v. Olson in that the Independent Counsel was found to "not increase the power of the judiciary or legislative branches at the expense of the executive," whereas an appointment by Congress would?

I suppose I should read the whole thing.

(Subsequently.) Okay, the holding seems to have a number of plausible supporting points.

(Once again, it turns out that actually reading a decision immensely helps one understand it; funny how that works -- though not, of course, always, and certainly not necessarily in any sense that "understand it" means "agree with it.")

"At the end of the day, I wonder if the Democrats won't have gained more from Goodling's insistence on acting guilty than they would have gained from her actual testimony."

But this is (again) directly equating exercising one's Constitutional rights with "acting guilty." People who believe in the Fifth Amendment's rights shouldn't do that, should they?

"...nor shall [any person] be compelled in any criminal case to be a witness against himself" is a Constitutional right; asserting that exercising a Constitutional right is "acting guilty" seems to me to be a destructive act against our Constitution, Bill of Rights, the Fifth Amendment, and our right to not be compelled to be a witness against ourselves.

Do I have this wrong, and we should, in fact, consider people making use of their Fifth Amendment rights to be "acting guilty"?

It is not a criminal case: No charges have been filed, her rights have not been read. It is Congress, not a Court. I think you can read into someone's refusal to testify in civil cases and investigations where no charges have been filed.

"is that there was good reason for McDougal to believe that Starr was on a politically motivated witch hunt."

Just as there was good reason to believe that a lot of people around Clinton were engaged in a conspiracy to obstruct justice.

But, not to make this about Clinton, 'cause it isn't, I agree that Goodling doesn't have a legal leg to stand on in refusing to testify. But returning to my point, Publius should not have misrepresented Cohen's argument, just so that he could attack an argument Cohen didn't make.

And that's so regardless of whether or not you think Cohen's argument holds water.

Brett: Just as there was good reason to believe that a lot of people around Clinton were engaged in a conspiracy to obstruct justice.

Well, no, there wasn't.

But returning to my point, Publius should not have misrepresented Cohen's argument, just so that he could attack an argument Cohen didn't make.

I don't see that Publius misrepresented Cohen's argument. (And I read Cohen's op-ed, just to check if there was anything telling that Publius left out. There wasn't.)

But this is (again) directly equating exercising one's Constitutional rights with "acting guilty." People who believe in the Fifth Amendment's rights shouldn't do that, should they?

The Fifth Amendment is a restriction on the State's ability to punish. It's not a restriction on my right to form an opinion.

It's my belief that empirically, the most common reason for people to take the Fifth is that they've done something wrong. There are plenty of other good reasons to take the Fifth; and thus, I'm happy the criminal justice system refuses to view that act as evidence of guilt. But that doesn't change the empirical reality that clamming up probably means you have something to hide. It's just that "probably" is not good enough in a criminal proceeding where guilt has to be established beyond a reasonable doubt.

I'll illustrate my point with a proposition of black-letter law: there is absolutely nothing wrong with drawing a presumption against a party to a civil proceeding who takes the Fifth. As stated by the Supreme Court:

Our conclusion is consistent with the prevailing rule that the Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them: the Amendment "does not preclude the inference where the privilege is claimed by a party to a civil cause." 8 J. Wigmore, Evidence 439 (McNaughton rev. 1961). In criminal cases, where the stakes are higher and the State's sole interest is to convict, Griffin prohibits the judge and prosecutor from suggesting to the jury that it may treat the defendant's silence as substantive evidence of guilt.

Baxter v. Palmigiano, 425 U.S. 308 (1976).

I also think O.J. did it, by the way, and I don't believe I'm subverting the Constitution by holding that opinion.

"The Fifth Amendment is a restriction on the State's ability to punish. It's not a restriction on my right to form an opinion."

Yes, of course, and just as we're free to conclude, believe, and assert that someone is guilty before so being proved, or after someone is legally found innocent.

My point is that spreading the attitude that using one's Fifth Amendment right not to incriminate one's self is "acting guilty" leads people to generally conclude that the exercise of said right is indicative of probably being guilty of something, and that that's highly destructive to that right actually being preserved and continuing to be available.

People should be able to exercise their Constitutional right without it causing the public to generally conclude that it means they're guilty of something, in my view. YMMV, and I take it that it does.

Under most circumstances, it's a hard inference not to make. To be entitled to take the fifth, you have to believe that your testimony may tend to incriminate you in some regard -- for an onlooker to agree with that estimation, and take your decision to take the fifth as an admission that, at the least, your truthful testimony would make you appear guilty of something is difficult to avoid.

There are special circumstances, of course, like testimony before the HUAC where it was clear what the incrimination would consist of, and that in many cases it was nothing that should reasonably be construed as criminal, but generally it's pretty good evidence (explicitly inadmissible in a criminal prosecution, but good nonetheless) that the person taking the fifth has done something wrong.

While I can see the argument that it's not a good thing to take that as an unexamined assumption, I can't see ignoring the obvious inference.

"Well, no, there wasn't."

Sure there was. Forgotten already that Clinton didn't just lie under oath in the Lewinski case? He had his staff out collecting evidence being sought by the independent counsel, and suborning perjury from other people.

"just to check if there was anything telling that Publius left out. There wasn't.)"

No, there was something he added: "and IF she doesn’t tell the truth,". Won't find that bit even suggested in Cohen's piece.

Judge Richard Posner probably had the most lucid take on what Clinton did and didn't do.

Forgotten already that Clinton didn't just lie under oath in the Lewinski case?

Forgotten already that the whole investigation into Clinton's alleged illegal activities was complete BS, based primarily on Republicans wanting to get revenge for the voters preferring President Clinton to a second term of Bush?

No, there was something he added: "and IF she doesn’t tell the truth,". Won't find that bit even suggested in Cohen's piece.

You missed Cohen's suggestion: "she will produce a record -- a transcript -- that can be used against her."

The only way a transcript of Goodling's testimony could be used against her is if she has a choice between self-incrimination or perjury. So, yes, Cohen is suggesting that she will lie or perjure herself.

Correction: So, yes, Cohen is suggesting that she will lie or perjure herself.

should read: So, yes, Cohen is suggesting that she will lie or incriminate herself.

"Forgotten already that the whole investigation into Clinton's alleged illegal activities was complete BS, based primarily on Republicans wanting to get revenge for the voters preferring President Clinton to a second term of Bush?"

No, not a single right-winger has. When analyzing their behavior, I've found that Freudian projection is a useful theory. Otherwise known as 'they never accuse Democrats of doing anything that they aren't already doing, or would do if they had the chance'.

Please recall that Clinton's grand jury testimony came *after* one GOP prosecutor had cleared him of any wrongdoing, and another one took up the case and pursued it for another four years. And the Lewinski matter was not in the prosecutor's perview - he was in communication with the people representing Jones, and was setting up a perjury trap. Clinton was expecting to testify on criminal accusations; the prosecutors brought up something else entirely.

That's what many right-wingers seem to be expecting in Congressional hearings - not that perjury is something that the GOP officials should avoid, but that getting ensnared in a perjury charge is unavoidable, when testifying under oath in front of political opponents. See http://volokh.com/archives/archive_2007_04_01-2007_04_07.shtml#1175808121 for a long thread full of people who think that Republican officials should have immunity from testimony.

I notice that a theme of the right about the Libby conviction is feigned outrage that he was convicted of perjury when either (a) there was no underlying crime or (b) nobody was convicted of an underlying crime.

Funny how just nine short years ago has disappeared into the dustbin of history.

"You missed Cohen's suggestion: "she will produce a record -- a transcript -- that can be used against her."""

Nope, I didn't miss it. Cohen's thesis is that she says one thing, somebody else says something else, and Bingo! they've got an excuse to go after her. His thesis doesn't rest on her being the one whose statements are false.

As for the "Monicagate" investigation being motivated by partisan reasons, sure. Doesn't change the fact that Clinton DID get his staff to enter into a conspiracy to obstruct 'justice'. Suborning perjury, destroying evidence, intimidating witnesses. He asked, and they did it.

And you never wonder if he knew they'd do it, because they'd done it before...

Cohen's thesis is that she says one thing, somebody else says something else, and Bingo! they've got an excuse to go after her.

Which doesn't match up with the legal definitions of perjury above.

If this is Posner's "lucid account," I'm not impressed.

From Sullivan's review:
Take the excruciating definition of ''sexual relations'' in the Jones suit, in which Clinton argued that in a sexual encounter between two people, it was possible for only one person to have sex. ''Even if Clinton was completely passive,'' Posner presses home, referring to the Jones definition, ''he 'cause[d] . . . contact with the genitalia . . . of any person with an intent to arouse or gratify the sexual desire of any person.' The 'any person' was himself, and he caused Lewinsky to make contact with his genitalia, for purposes of arousal or gratification of his sexual desire, by inviting her to do so.'' Quod erat demonstrandum.

And Sullivan adds, apparently with no intention of irony:
This kind of precision punctuates Posner's account.

As a judge, Posner makes a brilliant advocate. That is not a compliment.

And Brett, just once I'd like to see you react with one tenth the outrage you bring to Clinton's bathetic evasion of a sex scandal, to Bush & his staff's systematic lies to Congress and the American people on matters of actual import. I don't know, maybe you actually care more about whether a President tries to wiggle away from lascivious charges brought by a special prosecutor run amok, than whether he drags the country into a ruinous war and wrecks federal institutions. If so, why?

[The goddamn site ate this post. Man, is it going to suck to reconstruct. Let's see what I can do. Of necessity, this will need to be split into two parts.]

Good God, Brett. I hate to do this, but you've been wrong about everything Clinton-related here and you've just extended your losing streak. In no particular order:


  • Contrary to your confident assertions that Clinton "DID get his staff to enter into a conspiracy to obstruct 'justice' " with regards to the Lewinsky affair -- and why the scare-quotes on justice? are you questioning the integrity of the Starr Report like, um, pretty much everyone else? -- if you actually read the Starr report, you'd know that it very specifically did not say Clinton got his staff to do any such thing. The closest you can manage is that he probably told Betty Currie -- his personal secretary and not some grandiose "staff" -- to hide some presents and tried to get her to be vague on her testimony in Jones v. Clinton. Oh, and Monica Lewinsky perjured herself and obstructed justice, but one might consider her an interested party.

    In fact, the major points in the indictment/impeachment* are precisely the opposite of what you said, and arguably what hurt Clinton's liberal support the most: that he lied to the members of his staff, trusting that they would repeat his lies to other parties.

    * I linked it previously, but in case you missed it -- I jest, of course -- here is the best archive I know for government documents on the impeachment process.

  • More pointedly, Betty Currie was never charged for obstruction or perjury, either by Congress or in Jones v. Clinton, for her conduct in the Lewinsky affair. In fact, no-one in the administration was.

  • To the best of my knowledge, there were four people more-or-less successfully prosecuted in the Clinton Administration: Hubbell for tax evasion; Cisneros for perjury, lying to the FBI and fraud; Cuomo, his successor, for a whole buncha stuff; and some dude named Blackley that I'd never heard of until earlier this evening. I might be missing someone, since I have a limited tolerance for wading through screens of vile right-wing crap. Regardless, compare that list against, say, the Reagan Administration.

  • Moving a little further afield, Vernon Jordan might well have lied through his teeth -- though he was also never charged for anything -- but he wasn't a member of the Clinton Administration despite having managed Clinton's transition team in 92-93.

Part II in a moment.

  • As for destruction of evidence, this is also crap. The first common allegation, that of destroyed email documents, appears to be false. The Ray Report's section on the emails flat-out confirms the White House's claim that emails were lost due to a pair of accidents: one, a misconfigured mail server ["mail2" became "MAIL2", a kind of mistake even I've been burned by] and the other due to a random glitch "as a result of an error made by a computer technician" [the so-called "User-D" error.] One could argue that the White House was derelict in their duties to report the emails upon recovery -- the Ray Report alleges this; I can't figure out the legalities on this one, nor can I find the concluding report on the matter -- but that's not at all the same thing.

  • There were also scurrilous rumors surrounding Vince Foster's death, all of which appear to be without foundation. In particular, the Ray Report dismissed all allegations about the destruction of evidence in the Foster case, concluding with the awesomest CYA line I've ever read:
    Both circumstantial evidence (principally phone records and entry and exit logs) and testimonial evidence exist to create the inference that some people might have endeavored to tamper with documents in Foster's office, or counseled others to do so.

    Way to go out on a limb there, Ray.

  • As a side note, Clinton was ultimately disbarred, but not for the reasons you cited. Here's the (terse) report on his disbarment by the Supreme Court; I managed to scrounge up a copy of the the petition to disbar Clinton [Warning: link to FreeRepublic since I can't find the damn thing anywhere else]. I can't find the text of the actual disbarment and I'm not sure the actual reason for the disbarment was ever disclosed. [Although how often do you find a legal document that alleges "contumacious conduct"? Gnarly.] Regardless, the reason for his contempt citation (and hence the pretition) was

    5. In the Order, Judge Wright held Mr. Clinton in contempt of her December 11, 1997 Discovery Orders (the "Discovery Orders"). The Order served as the basis of a judicial referral to the Committee, and serves as the basis for this Complaint for Disbarment.
    6. In the Order, Judge Wright found, inter alia, the following:
    (a) That Mr. Clinton gave false, misleading and evasive answers that were designed to obstruct the judicial process to Ms. Jones' attorneys during Mr. Clinton's January 17, 1998 deposition;
    (b) That Mr. Clinton gave intentionally false deposition testimony regarding whether he had ever been alone or ever engaged -in sexual relations with Ms. Lewinsky;
    (c) That Mr. Clinton, in a televised Address to the Nation on August 17, 1998, acknowledged that he "misled people" with regard to the questions posed to him by Ms. Jones' attorneys.
    (d) That Mr. Clinton's contumacious conduct in the Jones v. Clinton case, coming as it did from a member of the bar and chief law enforcement officer of this Nation, was without justification and undermined the integrity of the judicial system.

    Note the distinct absence of your claims of his "suborning perjury, destroying evidence, intimidating witnesses."

  • Finally, to end at the beginning: you darkly assert that "And you never wonder if he knew they'd do it, because they'd done it before..." I would love to see you pony up some evidence for that. Seriously. If you're talking the usual: Kathleen Willey's case was dismissed out of court, Juanita Broaddrick recanted her testimony, and the "Troopergate" witnesses were paid for their testimony. [One of whom was later convicted for lying to the FBI I see.] I have some sympathy for Juanita Broaddrick's plight, but you're gonna need a hell of a lot more than that if you're going to accuse a former President of the United States.

    And if you're talking about something else, e.g. Mena, please let me know in advance so I can get the popcorn.

Seriously, you should actually read some of these documents. There are enough reason to dislike Clinton without repeating -- or falling victim to -- these lies. As things stand, you've left zero credibility on the Clinton-era and are well into negative credibility; it really is just simpler to believe the opposite of what you say, since it's far likelier to be the truth.

As for everyone else, I've wasted far too much of my life on this and I need a shower after trawling through all that warmed-over right-wing bilge. Catch you on the flip side.

"To the best of my knowledge, there were four people more-or-less successfully prosecuted in the Clinton Administration: [...] Cuomo, his successor, for a whole buncha stuff;"

Say what? Andrew Cuomo, the current Attorney General of New York State was "prosecuted ... for a whole buncha stuff"? Let alone "sucessfully"?

How is it that no one else, including the voters of New York State when Cuomo ran for Governor, and then for A-G, is aware of this?

Thanks, Anarch. *sends you bag of LUSH supplies*

Brett: Cohen's thesis is that she says one thing, somebody else says something else, and Bingo! they've got an excuse to go after her. His thesis doesn't rest on her being the one whose statements are false.

Yes, it does (see detailed discussion of perjury, above).

Say what? Andrew Cuomo, the current Attorney General of New York State was "prosecuted ... for a whole buncha stuff"? Let alone "sucessfully"?

No, I said "successfully" ;)

And you're right, I overstated. There was a point in there but I'm too damn tired to make it or, more to the point, I'm not up to the task of trawling through the Internets to justify my points. Essentially, though, there were a number of allegations about his tenure at HUD that I find at least somewhat credible -- Cisneros' legacy, etc. -- and some of them, IIRC, were settled out of court, unlike the vast majority of cases directed against Clinton Administration. I'm not in any way wedded to his inclusion on the list, though, so anyone more knowledgeable than I should feel free to yank him off.

And I know I'm too tired to continue with this thread because I can't even spin that last line into a dirty joke. Ta for the LUSH supplies, Jes, and this time it's definitely the flip side for me.

"Yes, it does (see detailed discussion of perjury, above)."

No, it doesn't. (See what Cohen actually wrote.)

I'm not arguing that Cohen was right, I'm pointing out that Publius deliberately misstated what Cohen's argument was. If Cohen's actual argument was a load of crap, that just makes Publius's act all the more gratuitous.

Now, let me be clear about this: I am not claiming that evidence is publicly available which is sufficient to convict Clinton and a lot of his associates of obstruction of justice. I'm saying that, given how many scandals in the Clinton administration ended in witnesses fleeing the country, evidence coming up missing or mysteriously showing up a few days after the statute of limitations expired, and so on and so forth, and given that he got caught obstructing justice on one occasion, and was one drycleaning away from succeeding that time, that it's perfectly rational to believe that on some other occasions he was merely ever so slightly more successful at obstructing justice.

That won't put anybody in jail, but it's sound circumstantial reasoning.

In terms of sheer outrage, by the way, the Clinton act that outraged me most was the malicious prosecution of Billy Dale. It was so unnecessary, but so typical.

No, it doesn't. (See what Cohen actually wrote.)

I did. What Cohen actually wrote is that what Goodling said could be used against her. This is so if and only if Cohen assumes either that Goodling is going to lie, or that Goodling is going to incriminate herself. If Goodling hasn't done anything criminal and intends to tell the truth, her transcript can't be "used against her".

If Cohen's actual argument was a load of crap, that just makes Publius's act all the more gratuitous.

I do not think that word means what you think it means...

Publius pointed out that Cohen's actual argument was a load of crap, yes. Cohen's actual argument rested in part on the notion that Goodling will, if required to testify, be "forced" to choose between self-incrimination and perjury.

that it's perfectly rational to believe that on some other occasions he was merely ever so slightly more successful at obstructing justice.

Brett, you just got taken to the showers - very thoroughly - by Anarch. Given that you claim you don't actually want to debate President Clinton, I suggest that at this point you retire with whatever grace you have left in you and stop bringing it up.

Brett, you just got taken to the showers...by Anarch

I don't know about Brett, but I've never had any particular wish, one way or the other, to shower with Anarch.

Not that there's anything wrong with that.

Wrong metaphor? "Taken to the cleaners?"

Brett, by your "what we can prove is surely only the tip of the iceberg" reasoning, how many American citizens have been held without due process, denied a trial, and tortured, how many warrantless searches have been made of political enemies, and how much evidence was presented to Bush & his top staff that Saddam Hussein was not significantly linked to Al Qaeda and presented no threat to the U.S.? And why don't you care?

If you need to fulminate about Presidents who deceive the nation and commit crimes, may I point you towards a more fertile and much more relevant target?

Brett's arguing a political form of the Donatist heresy: political investigation of corruption and abuse of power may be undertaken only by those who are themselves blemish-free. In practice, of course, this means that no investigation ought ever to happen, and Brett either knows it or at least has had plenty of opportunity to know it, and there's no point in arguing it with him. He will never concede that there's validity and worth in investigating current problems even if some of the investigators have done bad things themselves in the past. Political Donatism, like I said.

"Brett, by your "what we can prove is surely only the tip of the iceberg" reasoning, how many American citizens have been held without due process, denied a trial, and tortured"

While Bush has tried to make it easier to hide a body, it remains much easier to hide documents.

Brett, you just got taken to the showers...by Anarch

O_o

I don't know about Brett, but I've never had any particular wish, one way or the other, to shower with Anarch.

O_e

Sebastian, I found myself tempted to argue that for a sufficiently good archive, the problems of body and document disposal shrink to comparable difficulty.

Bruce Baugh:

"Brett's arguing a political form of the Donatist heresy: political investigation of corruption and abuse of power may be undertaken only by those who are themselves blemish-free."

I disagree. Brett, and many Republicans, are against investigating a *Republican* president. They had no problem with investigations which never ended; with investigations which were restarted after clearing the target; with actual admitted perjury traps.

But not to worry - we'll see the old attitude come right back, in January, 2009.

What LizardBreath said.

If you take the Fifth, you're announcing that if you answered questions truthfully you would incriminate yourself.

It's rare you'd do that and not be guilty of something. But you aren't obligated to help the prosecution show which particular something you're guilty of.

Lawyers can say that the real meaning isn't "I'm guilty of something but I don't have to tell you what.". They can say that the real meaning can be "If I told you the truth you'd think I was guilty even though I'm not." However, these lawyers should perhaps try to explain the difference between these stands to an irate wife some morning at 3 AM, coming home drunk with lipstick on their collars.

"Truly I haven't done anything wrong but if I told you the truth it would sound so bad that I'm better off not telling you."

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