While channel-surfing this morning I caught a segment on Faux News in which two extremely blow-dried anchors complained about Matthews’s comments, suggesting that they disqualified Matthews’s from moderating the Republican debate next week. (Pot, meet kettle.) In particular, they took umbrage at the word â€criminality†— even though, at a minimum, Matthews’s remark included a reference to Scooter’s perjury. I suppose the â€journalists†at Faux no longer consider Scooter a criminal in light of Bush’s clemency order, even though it did nothing to erase Scooter’s conviction — he remains a convicted felon.

I think that Matthews’s remarks also encompass the Bush Administrations’ tortured attempts to justify torture. After all, his dinner remarks followed on the heels of the New York Times’s revelation of two secret 2005 OLC opinions which sanctioned the very sort of â€aggressive†interrogation techniques that Jack Goldsmith’s opinion had deemed â€abhorrent†in 2004. But that’s just a guess on my part.

I’m sure Tweety still loves the cut of Dubya’s jib in a flightsuit, though. Not clear whether he’s still hung up on Fred Thompson’s manly aroma of English Leather and Acqua-Velva — his performance on the campaign trail suggests that he smells more of mothballs.

You say that Matthews talked about the Bush administration finally being caught in their criminality might be about Libby being convicted of lying about his conversations with Russert. The article also mentioned that at the 10th anniversary party for Matthews’s show Hardball, Alan Greenspan and his wife Andrea Mitchell were there . I don’t know how many people know that Libby and his wife are good friends of Greenspan and Mitchell and actually celebrate Thanksgiving together every year. I read it a while ago. I waited and never heard Andrea Mitchell mention her relationship with the Libbys while she was reporting on the case.

Walter – I don’t know what you are apologizing about, I think that is a fascinating situation and question. I may be about to engage in some hypocritical threading of the needle; maybe not, that is for others to decide. But… I have issues with this situation here. First off, I agree and am very uneasy, from a due process standpoint, with using acquitted conduct as a substantive basis for cross reference enhancement. I do, however, distinguish this situation from Libby where the cross referenced conduct was not only not the subject of a not guilty verdict, the reason the conduct could not be viably put to the jury was, in fact, substantially Libby’s obstructive and disingenuous conduct. I suppose the Fitz crew on Ashqar are also arguing that the lack of a conviction is still due to the defendant’s guilty conduct; but I draw the line, rightly or wrongly, where it is charged and acquitted.

Secondly, just because there is no designated upper guideline does not mean that an absurd sentencing result should occur. However bad of a guy Ashqar may be, I am offended by a discussion of a life sentence on this. Without doing some type of rudimentary guideline calculation (hey, its Saturday night, football and baseball on, and I don’t care THAT much right now), I can’t see how you get more than 10, maybe 15 years, at the most.

Lastly, and I did not get enough procedural and historical facts to really express an opinion on this, but I see a puzzling 5th Amendment issue here; not just on the use of Ashqar’s recalcitrance for sentencing purposes, but maybe even to the actual charges of contempt and obstruction themselves. Did they give him immunity or something (I don’t see how since they tried him on the conspiracy)? Use immunity? How the hell did they get these charges and still honor Ashqar’s 5th rights?

I draw the line, rightly or wrongly, where it is charged and acquitted.

See, this is why I’m not certain whether it’s more or less appropriate in these circumstances. If we draw the line at charge and acquittal, and we can sentence for the crime (-6) only if the prosecutor convicts on obstruction but doesn’t charge the substantive offense, don’t we create a perverse incentive for prosecutors to pursue obstruction charges and prove the substantive charges (or investigation thereof) to a judge by a lesser standard?

We can hope that Gall resolves this conundrum, but I can’t see the guidelines completely disappearing under any plausible line-up in that case.

Heh heh. I don’t see much hope for US v. Gall resolving this situation; more likely it will muck it up more. And yes, I understand your thought on my knee jerk acquittal bright line. Neither I, nor my line, may be particularly bright there; I dunno, but I will stick there for the time being at least. Thing is, as with so many things in the law, especially criminal due process law, there are no perfect rules. It still at some point boils down to sound prosecutorial discretion and a fair tribunal. Heh; told you I might engage in some hypocritical threading of the needle…. Marginally uninformed threading too, at least so far, I might add.

Commissioner Gordon calling Freepatriot…….

Pretty decent odds. About 100% that the info was at least related to the PO PSR writer. Although, and maybe I do wear rose colored bi-focals on Fitzgerald, I don’t think he would have submitted poisonous fruit, even for sentencing; DOJ Main would do it in a heartbeat however.

I think Tweety, and the rest of the Cocktail Weenie set, have heard that Bush has gotten Caught – red-handed and iron clad – Deceiving US over Torture.

I wonder if there’s an internal, documented, Case of a Detainee dying after Feb 05 due to an ’Enhanced Interrogation Technique’ – such as the â€Simulated Drowning†(otherwise known as Waterboarding) – referred-to in the Feb 05 OLC Memo – that Bush authorized ’secretly’ while telling the world publicly ’Torture is abhorent?’

Done in Secret, it might be both Murder and a War Crime.

Does Bush have the Blood of Torture on his hands, and are The Beltway Pundits, like Tweety, about to come out and claim Battered Press Syndrome in defense of themselves?