Mark Schmitt

More Fun with the Lattice of Coincidence

Two days ago I suggested that the Abramoff case might be the uber-scandal, rather like the BCCI case in the mid-1990s, tying together all the other threads of corruption and dishonesty of the last few years.

But here's another: Last night I saw that the former publisher of the Chicago Sun-times, F. David Radler, had been indicted on many counts of fraud in the Hollinger/Conrad Black case. Hollinger has owned the Sun-Times since 1994.

Who is the most prominent employee of the Chicago Sun-Times?

That would be Robert Novak.

Who were some people on the board of Hollinger Corp., suspected of abetting the fraud?

The best description of the board: "the roster of independent directors reads like the politically plugged-in guest list at an American Enterprise Institute dinner" There was Henry Kissinger, former Illinois governor James Thompson, and most notably Richard Perle. Perle was a member of the executive committee, profited handsomely himself through a Hollinger investment fund he was put in charge of, and by his own admission exercised very little oversight.

What's the relationship between Robert Novak and Richard Perle?

It's not just that both have proudly worn the nickname, "Prince of Darkness." They are bound by their stock in trade: leaking and receiving leaks of classified information. In 1975, Perle leaked classified information to Novak with the purpose of scuttling the SALT II treaty.

Who is the prosecutor who indicted the former publisher of Novak's paper?

Patrick Fitzgerald.

Abramoff and the "Benedict Arnolds"

Here's where the Abramoff story starts to get really interesting. Newsweek reports:

Another possible reason for the Feds' stance: to pressure Abramoff to cooperate in a broader, D.C.-based probe that could touch members of Congress and Bush administration officials. ...A lawyer for another client, Tyco International, tells NEWSWEEK that it's turned over to Justice evidence alleging Abramoff defrauded it with a lobbying campaign against legislation to bar federal contracts to U.S. companies, like Tyco, headquartered in overseas tax havens. Tyco, based in Bermuda, paid $1.7 million to Abramoff's firm in 2003 and 2004?plus $1.5 million for a "grass roots" campaign to gin up opposition to the effort among Tyco's domestic suppliers. The Tyco official who hired Abramoff is the firm's general counsel, Tim Flanigan, a former White House lawyer nominated by President Bush for deputy attorney general. Tyco lawyer George Terwilliger says the firm "was a victim of a rip-off." Abramoff, he says, recommended the $1.5 million be paid to Grassroots Interactive, a group that allegedly did little work and later diverted funds for other purposes. Grassroots is "controlled" by Abramoff, says Nathan Lewin, a lawyer for Tyco's registered agent.

Now this is beginning to seem like the uber-scandal, the thing that brings many of the grotesque threads of the last five years together. You've got Tyco International, just after the downfall of Dennis Kozlowski and when the Bermuda-based conglomerate was trying to lobby its way back into the appearance of corporate good citizenship, without going so far as to pay taxes. You've got another right-wing hack, Flanigan, who if confirmed as Deputy AG would have some oversight over the Plame investigation, and who was paid $800,000 by the Federalist Society to write a biography of Chief Justice Warren Burger that he never produced. (Leaving the millions, um, dozens of would-be readers of such a book to grasp desperately for intellectual sustenance by rereading one of the several biographies of the even duller Justice Blackmun.) You've got Abramoff, of course, and then you have a real bread-and-butter issue, one that doesn't have to do with tribes or obscure Pacific vassals: "corporate inversions," or the practice of reconstituting a corporation as a subsidiary of an offshore entity for tax purposes. These are what John Kerry called "Benedict Arnold" companies.

It's intriguing that Tyco and Flanigan seem so eager to portray themselves as victims of a "rip-off" by Abramoff. I guess it's better to portray yourself as dumb and gullible than as a partner with Abramoff in a successful enterprise. But are we really sure that they got ripped off? After all, although the provision denying federal contracts to corporate inverters passed both houses of Congress, it was changed in House-Senate conference (where DeLay exercises his power) so that companies like Tyco were grandfathered in and would remain eligible for federal contracts. Likewise, when the offshore loophole was finally closed altogether as part of a giant corporate tax bill in 2004, Tyco and a few others were again grandfathered in.

On the other hand, this may be one of those things that is, as they say, "overdetermined." Just take a look here for a nicely alphabetized list of all the DC lobbyists that were on hire to just a handful of companies -- Tyco, Accenture, Ingersoll-Rand, and a couple of oil drilling companies. Any of them can take credit for blocking the legislation that would have affected these offshore companies. On the other hand, most of the amounts reported by the other lobbyists in the chart are in the thousands -- $10,000 here, $20,000 there, Bob Dole got $80,000, former White House Chief of Staff Ken Duberstein $280,000. Then there's the Abramoff line: "$1.3 million in 2003; $840,000 in 2004."

But since Flanigan approved this contract, I guess it should come as no surprise that a man who could get himself paid $800,000 to not write a book that no one would want to read would think this was a good deal.

Finally, a small item in the Michael Isikoff article quoted above: "Abramoff...allegedly told Flanigan he'd lobby White House aide Karl Rove on behalf of Tyco, says the source close to the company. Rove, whose secretary formerly worked for Abramoff, has "never spoken to [Abramoff] about any of his clients," says a White House spokeswoman." Was it known that Rove's secretary -- presumably the one who testified about Rove's phone logs -- had worked for Abramoff?

Factcheck.org strikes out

I'm not ready to take sides in the controversy about NARAL's ad attacking Judge Roberts for an amicus brief he filed arguing that federal law could not be used against abortion protesters. Is the ad somewhat misleading or not at all? Is it a politically appropriate message or unduly inflammatory?

I have no idea. But one thing is certain from this controversy:

Factcheck.org operates at a level of amateurishness that is totally inappropriate for the position of final arbiter of truth that it has claimed for itself.

Factcheck.org's unqualified assertion that "the ad is false" seems to be the main thing that gave this story legs yesterday. Yet NARAL's rebuttal is solid, at least as to the literal question of the truth or falsehood of the ad. And why factcheck.org would include in its report such dubious statements of opinion as that Operation Rescue's harassment "in some ways mirrored the non-violent tactics used earlier by civil-rights activists" is beyond comprehension. If you want to be the absolute last word on the factual accuracy of ads, you have to extract the actual statements of fact that you are checking and leave the rest aside.

(Mark Kleiman's post on this is very good.)

This is hardly an isolated incident. Factcheck.org was particularly weak during the Social Security debate, as Josh Marshall noted on several occasions. In one instance, they deemed false a claim that privatization would yield big fee income for Wall Street, asserting that Bush's proposal was just like the federal employees' Thrift Savings Plan, which doesn't cost much to administer. That was wrong, of course, because the administration had said that it's plan would be different from the TSP and was never specific about it anyway. Yet in another case, they deemed as false specific statements about the cuts in benefits that would ensue from the Bush plan by arguing that Bush had not yet proposed a specific plan. Either he had proposed a plan or he hadn't. (In fact the one thing that Bush had been fairly specific about was the cuts in guaranteed benefits that would flow from his shift to partial price indexing.)

Factcheck.org also attacked a People for the American Way ad during the nuclear option debate. Factcheck opined that it was "ironic" that the NAACP and other groups were opposing the nuclear option, given that it was the filibuster that had long postponed civil rights legislation. It may have been ironic, but that has nothing to do with the truth of the ad's assertion that the filbuster was an important check on the consequences of lifetime appointments of extremist judges. (What was more ironic was that this charge was an exact replay of a Republican talking point.)

Is factcheck.org politically biased? I don't know, but my guess would be that it's not. The problem is that they get played, and I think the GOP has been more aggressive about playing them. If you set yourself up as the last word on the truth or falsehood of ads, you will immediately be the addresse of a lot of spin. Factcheck obviously wants to respond quickly, and they want to respond with clear assertions of truth or falsehood, unlike many of the newspaper "ad watch" projects which are so mealy-mouthed that a reader winds up more confused after reading it than before. But trying to fulfill those two goals, its far too easy to read the first spin that comes in on the fax, conclude that it sounds persuasive, and run with it.

Newspapers make errors, blogs make errors, political ads stretch the truth and make errors. But to have the credibility to be the ultimate arbiter of truth in political discourse, factcheck.org has to be impeccable. They have to limit their assertions to things that can be said with certainty and they need to at the very least correct their errors immediately. Factcheck.org has forfeited the opportunity to play that role.

And that, I should admit, is nothing more than my opinion.

What's wrong with the Old New Deal?

It's really hard to overstate just how bad "The New New Deal," the cover story in the New Republic by Laurence Kotlikoff and Niall Ferguson is. It's extremely bad. As Kevin Drum noted, the writing is at the level of a high school essay -- although Ferguson is a fine historian and writer (The Cash Nexus and Empire are both worthy books) -- and the reasoning and economics are even worse -- although Kotlikoff is certainly a capable demographic economist, even if his long-term, generational approach to fiscal policy is controversial.

But the question of what the next stage of the U.S. social compact should look like is so important that it's worth trying to figure out what went wrong here.

After a long preface setting up an intergenerational doomsday scenario that would require doubling taxes or cutting Social Security and Medicare by two-thirds, the authors put forward three basic ideas, which seem only loosely related to the problem as they've described it:

1. Replace all taxes -- personal income tax, payroll tax, estate and gift taxes -- with a 33% retail sales tax. To make it more progressive -- or less blatantly regressive -- all households would get a rebate "based on the household's demographic composition, and equal to the sales taxes paid on average by households at the federal poverty line with the same demographics."

(To do a little of the simple math that the authors don't, what this means is that if the average family of three at the poverty line spends 100% of its income, the rebate for all families of three would be about $4,000. So a family of three earning $50,000 and consuming $40,000 would pay sales tax totaling $9200. ((40,000*.33)-4000) That same $50,000 family of three, with one earner and taking the standard deduction, would currently pay about $2400 in federal income tax and about $3500 in payroll tax, so they would be worse off, unless you count the employers' share of payroll tax, in which case they would break even.)

More importantly, the tax would not be 33%. As Bill Gale of the Brookings Institution has shown, such a tax would have to be somewhere between 40% and 45%, calculated in the same way as Kotlikoff and Ferguson ("tax-inclusive") in order to finance projected spending for the next ten years, never mind the long term.

And even that's assuming that all spending would be included. State sales taxes exclude housing costs, health care, and food, which together total half of personal consumption. If a federal sales tax actually became law, there would surely be pressure to exclude home mortgage interest. Having excluded interest, why not also exclude payments of principal, since that is not really consumption but savings. And what about education? After all, you're investing in your future. As soon as anything is excluded, the plan starts to become less "transparent and efficient," and the more that is excluded, the higher the rate goes. And anyway, what makes this system so much better for the future than, say, a balanced combination of income tax and smaller consumption tax? The authors don't say.

2. On Social Security, Ferguson and Kotlikoff propose to pay only currently accrued benefits, then close out the system and replace it with what they call personal retirement accounts into which workers would contribute 7.15% of their wages. (Oh, and that thing about eliminating the payroll tax? Never mind.) The accounts would be administered by the Social Security Administration, invested in an index fund, and everyone would receive the same rate of return, with a guarantee against negative returns. Near retirement, the accounts would be replaced with annuities.

So you have the worst of all worlds: none of the sense of ownership and flexibility that the Bush plan promised, but the forced annuitization that was one of the least appealing features. Again, how is this different in effect from simply investing a portion of the Trust Fund in equities, as Clinton proposed in 1998? It's different in only one sense: since apparently only half as much money is going into the system (the employers' share of payroll tax having been eliminated) a retiree would get only half as much retirement income as under Social Security, and probably less than that.

(I may be reading this wrong, since at the beginning the authors declare that one of their first principles is that "when they stop working, all Americans should be guaranteed a basic income of at least 40% of their pre-retirement earnings," something which could not be achieved with a 7.15% contribution alone. Perhaps some form of the employers' share of the payroll tax remains.)

3. The health care reform, on the surface, is a universal system of vouchers to purchase insurance, replacing Medicare and Medicaid and covering everyone else as well. But unlike other voucher-based plans, in this one, the size of the voucher would be individualized based on your own expected health expenditures over the coming year. "Thus, a 75-year-old with colon cancer would receive a very large voucher, say $150,000, while a healthy 30-year-old might receive a $3,500 voucher." The insurer would bear the risk of the difference between your personalized year-to-year voucher estimate and your actual expenses.

Can you even imagine the bureaucracy that would be required to determine what each individual's voucher should be, with the insurers and individuals all lobbying for them to be higher, and government trying to keep them lower? The question with any system of universal vouchers to purchase insurance will always be, why do we need insurance companies? In this case, that question is especially relevant. If the government is going to make a payment for an individual based on his or her expected health care costs in the coming year, why not just pay the actual costs?

The plan promises to "promote healthy competition in the insurance market," but that competition would take the form of a market for government error. That is, insurers would make money only when government overestimated an individual's cost. Companies would compete to insure individuals whose estimated cost was likely to be higher than their actual costs, and avoid those whose vouchers were lower. Imagine the bizarre incentives this would create, and the regulatory structures that would be necessary to manage it. At this point, the logic of a single-payer plan is unavoidable.

I'm tempted to exercise my policy wonkiness and go into more detail about how this health plan wouldn't work, but it gets tiresome. The more important question is why? Why did these two intelligent authors wind up with such a lousy package?

The common theme to these proposals, especially on retirement security and health, is that they insist on embracing the language and ideas of a laissez-faire, individualistic model, but adapting it to create a secure platform to protect against risk. Thus you have private retirement accounts that aren't really private accounts (since there's no ownership, no choice, and no risk). Or vouchers to purchase insurance that aren't really vouchers to purchase insurance (since to the extent that the government gets the estimates right, there's none of the risk-sharing involved in insurance).

And the price of these faux-individualistic policies is an enormous level of complexity that belies their original promise of "simplicity and efficiency."

The "New New Deal," then, isn't actually a thought-out policy response to the failings of the current safety net, it's a pose. The authors -- and they are not alone in this, I've done it myself -- like the sound of the idea that we need something new, individualistic, market-oriented, but they don't like it enough, so they proceed to build around it protections against all the individualism and market-orientation that they have created.

There may be other ways to construct such a hybrid that work much better. But at the end of the article, when Kotlikoff and Ferguson repeat something they said at the very beginning of the article -- "The old New Deal is all but dead. It and the Great Society programs of the 1960s are being inexorably killed by demographic changes...keeping them on life support is not an option" -- I'm suddenly unconvinced. At the beginning of the article I nodded along; at the end I was ready to defend the old programs. Because if this is the alternative, they look damn good.

What was McCain Promised?

Over at redstate.org, they are quite agitated over the possibility that Larry Noble, head of the Center for Responsive Politics, will be appointed to the Federal Election Commission, where he served as director of enforcement for many years, as Senator McCain's choice. The Redstaters would like to see Bush reject the recommendation.

This brings up one of the big lingering questions about the 2004 election: What was Senator McCain promised that converted him from a fire-breathing Bush-hater who visibly toyed with the idea of joining Kerry's ticket, to the partisan good soldier which he remains to this day?

I wrote after the election that that shift was one of the two key moments in the campaign.

Presumably part of the promise was for Bush to not stand in the way of McCain's 2008 presidential ambitions. The news that Bush advisor Mark McKinnon has joined McCain's team is a good indication that he has tacit permission to do so. The healing of the legendary rift between Karl Rove and McCain strategist John Weaver is also part of the story.

Maybe that's the only thing. But I've been told by several McCain allies that a big part of the promise was that Bush would support campaign finance reform. And I've always wondered what that meant. It couldn't mean supporting the legislation to regulate the 527 committees. That is very small beer, and Bush would probably have supported anyway since it's a dig at what were perceived to be Democratic organizations. (The 527 bill now seems to be dying a slow death in the corrupt chambers of the House.)

On the other hand, the promise wouldn't have meant supporting a real, comprehensive piece of reform legislation, which would include public financing for congressional elections, a real fix to the presidential campaign system, reform of the Federal Election Commission, and probably free airtime for candidates. Bush couldn't support that, and even if he did, even if he demanded that Congress pass such a bill, DeLay wouldn't do it.

That doesn't leave much, besides FEC appointments. So presumably the deal was that McCain was promised his choice for the next FEC opening.

This is pretty trivial stuff, but I just thought it was interesting to remind the Redstaters that the McCain deal was probably the single most important factor in Bush's reelection. They got their president; now I think they have to live with McCain's FEC commissioner.

The Meaning of "Accountability"

David Sirota has responded to one of the issues I raised in my post about the left cult of Norquist, and significantly clarified matters. I said that I didn't know exactly what he meant by "accountability" for Democrats who voted for CAFTA, although the Norquist analogy, plus words like "serious consequences" and "punishment" for "traitors" and "turncoats" certainly implies a rather dramatic loyalty-enforcement action from the national Democratic party.

In fact, Sirota says, what he had in mind is what happened in New York this weekend: A number of unions held a rally at City Hall to criticize Reps. Ed Towns and Gregory Meeks for voting for CAFTA as well as estate tax repeal (Towns) and the Bankruptcy Bill (Meeks). New York's Working Families Party (which as readers here know I promote at every opportunity) issued a press release criticizing Meeks and Towns, and some of the same groups sent a letter to Nancy Pelosi asking her to remove Meeks and Towns from their committees for using them "to access corporate America?s ATM at the expense of working families." (More info and photos of the rally here.

Now if that's all Sirota had in mind -- in-district pressure from interest groups -- I've got no problem with that, and if I'd known that's what he meant, I would not have written what I did. I might have even gone to that rally if I still lived in NY. After all, I wrote in my original comment that only a member's constituents could hold him or her accountable.

But after all that bluster about "serious consequences" etc. etc., this is really the equivalent of giving your child a long talk about how disappointed we are in you. Maybe Montana is different from New York City, I don't know, but if you're a New York pol, there's usually a City Hall rally protesting something you've done at least once every few years. The letter to Pelosi is symbolic, and the real test will be whether NY Dems and WFP mount any sort of significant challenge to these two, either in the primary or using the WFP line in the general election.

Not that there would be anything new about that, either: Towns has been a liberal target for years, at least since he endorsed Giuliani for mayor, and he beat back two well-funded and New York Times-backed primary challenges in recent years.

Everything in Sirota's earlier argument suggested that he was talking about something much more dramatic, if not a purge, then certainly some sort of systematic national action by the Democratic Party itself to "punish" the "traitors." Evidently not. Needless to say, it would have been nice if he'd clarified this in response to my question, instead of comparing Matt Yglesias and me to neutered barnyard animals responsible for every Democratic loss since Adlai Stevenson.

It's also noteworthy and not totally accidental that the action that Sirota cites focuses only on two African-American members among the 15 who voted for CAFTA. There are a couple of reasons for that. One is that they are in safe Democratic seats, which makes them easy targets for in-fighting. It would be much tougher to go after Illinois first-term Rep. Melissa Bean, who narrowly unseated a Republican incumbent last time and faces a very tough reelection race. At the end of the day, the unions are going to be with her because they need her.

The other reason is that there seems to be a growing relationship between corporate America and some members of the Congressional Black Caucus, as highlighted in this article from the Hill. While Rep. Harold Ford and Artur Davis are the most outspoken black representatives who take an explicitly centrist/DLC line, there are several others and only 15 of the 42 CBC members are also members of the Progressive Caucus. There have been a number of instances recently of CBC members taking positions that set them apart from the majority of Democrats, on campaign finance reform, estate tax, bankruptcy and other issues. It's too glib to denounce these pols as "turncoats" or "corporate sellouts." I wish I knew more about what's going on there, what those members are thinking and I hope that there's some discussion going on as well as "accountability."

We're Scum -- at least Matt is

Responding to "Grover Lust" below, and to Matt Yglesias's agreeing with me, David Sirota has added both of us to the list of "a Democratic circle in Washington, D.C. that has become all-too-comfortable losing elections" and makes various other suggestions about how we resemble neutered like farm animals.

It could be an interesting discussion but I'm afraid so far it hasn't been. It is kind of funny, though, to think of Matt and me as sharing responsibility for decades of Democratic losses. Due to his not being alive at the time, I think I have to take full responsibility for Humphrey, McGovern and maybe even 1980! So he has to take full responsibility for Mondale and Dukakis, and we'll share blame for 1994. I'll take full responsibility for 2000, though, (for my failure to help a candidate other than Gore win the nomination).

The comments on Matt's post are quite funny and interesting, and I appreciate a few people who said kind words about me.

Grover Lust

One of the most disturbing phenomena among liberals is the mindless worship of Grover Norquist as the model of the sort of single-minded organizer and ideological enforcer that a party needs. Some on the left seem to venerate Norquist in just the way that he he claims to treat Lenin, whose picture supposedly hangs in his living room. If I had a dime for every time I've heard someone say, "We need a Grover for our side," I'd be able to fund the whole progressive infrastructure myself. (If I had a dime for every time someone has said to me, "you should become the Grover for our side," I'd have about seventy cents. And after what I'll write below, at least five people who'll want their dime back.)

The latest expression of this view is from David Sirota, who argues that Democratic members of Congress who voted for CAFTA should be held "accountable" by the same vicious mechanism by which Norquist holds moderate Republicans accountable. "Accountability" has become a bit of an overused and nasty word lately, and what Sirota means by it, other than that people should do what he thinks they should do, is not clear. But let's stick with the Norquist point for now.

There are a lot of things to admire and try to emulate in what Grover Norquist does, or what we think he does. While the degree of coordination that ensues from his overcrowded Wednesday morning meetings is unclear, there's no doubt that that an enormous collaboration on information and strategy passes through him and is tremendously helpful to rightwing activists and lobbyists. Even more, his understanding of how to use states, via ballot initiatives and grassroots organizing, to set the agenda is something we are only beginning to understand on the left, and our politicians generally don't get it yet. (Florida Senate candidate Betty Castor has, I'm told, said that she might have won in 2004 if she had embraced the Living Wage ballot initiative that passed overwhelmingly, and which John Kerry wouldn't even endorse!)

But Norquist's merciless treatment of moderate Republicans is not going to be a legacy that he or his allies will be proud of. By forcing the moderates to toe the Club for Growth line, he and his allies may have won some battles, but they will surely regret it in the long run. By placing these moderates in incredibly awkward positions, he has made them even more vulnerable than Bush alone has already made them. And when Democrats make gains in 2006 and later, it will be the moderates who are first to go, with Chris Shays of Connecticut among others joining Maryland's Connie Morella in early retirement. Or, Norquist will succeed in replacing these moderates with more pliant conservatives who will be even more vulnerable in their districts, such as Mike Ferguson of New Jersey.

(One of the less well-recognized facts about Newt Gingrich and his revolution was the fact that he was extremely solicitous of Republican moderates like Nancy Johnson who became his strongest supporters because they wanted a vigorous party even as the party respected their differences of opinion. Gingrich's "Contract" was fairly anodyne, not a sharply ideological document, to protect that diversity. It was later rebellions by Armey and DeLay among others that brought the real Bolsheviks to power.)

As for the specific case of CAFTA, I agree with Sirota that the right vote was No, for reasons that Rep. Ben Cardin, the ranking Democrat on the trade subcommittee, explained in the Financial Times.. There are also particular objections to the process by which this treaty was brought up, and it would have been tactically advantageous to deny the Republicans 14 votes so that they would have to twist 14 more arms of their own to fulfill the White House's categorical demand that it pass the legislation.

But trade has never been a party-line issue for Democrats and is unlikely to be any time soon. The dispute is not nearly as bitter as it was in the NAFTA era, but even then, no one argued that pro-NAFTA legislators (notably my old boss, Senator Bradley) should be drummed out of the party or "held accountable." Even in the case of CAFTA, some Democratic representatives may conclude that for their constituents the treaty as written is preferable to no treaty at all. They may represent major employers that would benefit from CAFTA, or a key port, or a significant ethnic constituency, e.g. Dominicans.

They may be wrong, you may disagree with them or believe that in the same position, you would have made a different choice. But in a pluralist democracy, which is not a parliamentary system, it is only their constituents who are entitled to hold them "accountable" for their choices.

There are issues that call for absolute party unity. Social Security was certainly one of them, the cornerstone of FDR's legacy. It was absolutely right to discourage Democrats from even opening the door to negotiations on phase-out, knowing what the consequences would be. But this has not been without cost. The public perception that Democrats were not allowed to think for themselves or collaborate on a bipartisan objective is part of the reason we have a damaged brand. Inisisting on party unity was the right thing to do on Social Security, but that cannot apply to every issue. People like Paul Hackett, as strongly as they oppose Bush, also send a clear message that they think for themselves, and are no one's tool, in sharp and appealing contrast to their automaton opponents.

There are moments when absolute party unity should be enforced by those who are in a position to enforce it. But for each of us to demand absolute party unity around the issue positions that we ourselves happen to hold, as Sirota does in insisting that Dems who don't hold his views on trade be "held accountable" seems to me a recipe for a much deeper form of divisiveness. There are ways to gain and exercise power in this democracy other than the Norquist way, which is unprecedented and ultimately self-destructive.

 

The Judy Miller Theory Does Not Exonerate Rove

There's been some speculation here, at the Washington Note, and in Mickey Kaus that the idea that "Judy Miller did it" might actually help exonerate Karl Rove, Lewis Libby and others in the Plame scandal.

I need to get my head out of the weeds of this thing, but I want to clarify a bit of my own thinking. My theory isn't "Judy Miller did it," but simply that she had a role in this that was not exactly the same as that of journalist interviewing sources for a story she happened not to write. Based on her past conduct, elaborated in much more detail by Arianna Huffington, who has the advantage of moving in overlapping social circles with Ms. Miller, I'm speculating that she played some role in the effort to discredit Wilson. Whether she was the key point of transmission from one part of the executive branch to another, I don't know, and it hardly matters.

I don't think the Rove/Libby defense -- at least the defense that will matter if they are indicted -- is simply that they learned it from a reporter. Whether they learned it from "the intelligence community" via Miller or more directly, or through other executive branch officials, matters not at all. It was classified information and they had every reason to believe it was classified.

I think their defense will hinge on the argument that they heard it from multiple reporters. This will allow them to argue that whether Plame's status was covert or not, the CIA obviously hadn't done a good job of protecting it. Once you've heard something from several reporters, it's pretty much in the public domain. That's a reasonable defense, if it's true. It also matches what we're told Rove told the grand jury -- that Cooper told him about Plame, and that he heard it from at least one other journalist as well -- and the defense that the administration's proxy warriors, from Cliff May to the Toensings, have been promoting for two years.

But if it's not true, and if Rove really did testify to the grand jury that he heard about Plame from multiple reporters, and that can be disproven, then there's the perjury charge that's the icing on the cake.

Again, in short: We know nothing for sure about Judy Miller's role here, but there's ample reason to think that she's in jail for something more than just withholding a journalistic source, and also reason to suspect that the Times doesn't know for sure what they're paying Floyd Abrams to protect. Rove's defense, however, does not depend on the argument that he heard the info from Judy Miller, but rather that he heard it from so many reporters that it was, in effect, de facto declassified.