Dan’s Rather Exciting Brief

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As you may recall, Dan Rather is in litigation against CBS, Viacom and executives Les Moonves and Andrew Heyward over his treatment after the Bush Texas Air National Guard story on 60 Minutes II. The complaint stakes out a number of claims alleging that not only was Rather improperly treated over the TANG story but but also over the abu Ghraib story on the infamous torture pictures.

The holy grail of the Rather litigation, however, has always been Dan, and thus us the public, getting substantive discovery on his case – depositions, requests for production and requests for admissions. Over a year ago the New York State trial court ordered initial limited discovery. Since then, however, the case has been hamstrung by a series of motions to dismiss and, after the core of Rather’s complaint survived, appeals (initiated by the defendants).

A critical point was reached Monday afternoon with the filing of Rather’s appellate brief (pdf file) by his attorneys. The brief is long, but provides a superb background, factual description, statement of procedural posture and detail of legal arguments being made on Dan Rather’s behalf. It is well worth a read if you are interested and so inclined.

First the good news. The positioning and quality of Dan Rather’s response to the points appealed by the trial court defendants appear strong and, at first blush anyway, would appear sufficient to fend off the attack. Bottom line, it looks very likely that Rather’s case will continue to survive and head back to the trial court for that all important and fun filled discovery.

Now the better news. It would appear that Rather has some very decent arguments for reinstating counts and defendants that the trial court has preliminarily dismissed. You see, that is one of the things about filing an appeal – sometimes the other party cross-appeals, and that is exactly what Rather has done here. So, while CBS et. al have gotten greedy wanting to have the whole case dismissed, Dan Rather has answered back "No, and I want the gains you had obtained returned to me". Of the five questions Rather has cross-appealed on, these two appear to hold the most promise to be decided by the appellate court in Rather’s favor:

4. Are fraud damages adequately pleaded if an employee alleges the fraud led to lesser compensation than the market would have provided? Supreme Court held that fraud damages were insufficiently pleaded solely because the Read more →

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Eric Holder Confirmed, 75-21

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We finally have a new Attorney General.

The no votes include (roll call here):

Barrasso
Brownback
Bunning
Burr
Coburn
Cochran
Cornyn
Crapo
DeMint
Ensign
Enzi
Kaybee Hutchison
Inhofe
Johanns
McConnell
Risch
Roberts
Shelby
Thune
Vitter
Wicker

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Kit Bond Sings a Different Song on Holder

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Here’s a liveblog of what Kit Bond had to say about any "promises" Holder made him about prosecution. You’ll note several areas of difference from the Moonie Times article:

Most notably I’ve been concerned about some of the comments related to intelligence activities that Holder made in hearings. I wanted to make sure the intelligence community has the tools it needs to protect the country. I wanted to make sure we had an AG who would keep the country safe. Discussed TSP, FISA Amendments, interrogation program, Gitmo, interrogation legislative proposals, media leak investigations. A second meeting. 

Carrier liability provisions, and propriety of investigating intelligence officials.

Confusing press reports and statements from Senators who were not in attendance. 

Neither Holder nor I made promises with respect to prosecutions. Holder provided additional insight that assures me he will keep the country safe. Assurance given to Kyl concerning investigation of intelligence officials on interrogation. 

Holder expanded on these remarks and explained how he reached this conclusion. His public emphasis on those who followed DOJ guidance, I told him and I believe he understood that trying to prosecute political leaders would generate a political firestorm. 

Carrier liability. He believed he would unless circumstances changed. I asked if he could explain changed circumstances. It would be difficult for circumstances to change since all this happened in the past.  Didn’t give me specific idea of changed circumstances. Given that those certifications are based on simple legal facts, I’m confident he’ll reach the same conclusion as Mukasey. I can’t emphasize enough the importance of the carrier liability.

Mr. Holder is not read in, or given access, to the TSP or the other programs, it would not be advisable to make statements about either program without the facts. I enjoyed his willingness to withhold judgement until he had the fact. I believe he will take good ideas from whereever they come.[my emphasis]

Here’s the relevant passage from the Moonie Times:

President Obama’s choice to run the Justice Department has assured senior Republican senators that he won’t prosecute intelligence officers or political appointees who were involved in the Bush administration’s policy of "enhanced interrogations."

Read more →

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Holder on State Secrets

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The Senate debate on Eric Holder’s nomination is on CSPAN2 right now. Tom Coburn is on the floor now pretending that Holder is going to bring back the Fairness Doctrine and take away your guns.

But Holder’s nomination is bound to pass, with large margins, when they vote this evening. So it’ll be interesting to see how Holder implements these highly parsed views, written in response to questions from Russ Feingold, courtesy of Secrecy News.

3. I’m concerned that the outgoing administration may have used the "state secrets privilege" to avoid accountability for potentially unlawful activities, including warrantless wiretapping and rendition. Courts tend to be very deferential to these privilege claims, so there’s certainly room for abuse. Will you commit to reviewing all pending cases in which DOJ has invoked the state secrets privilege to make sure the privilege was properly invoked, and withdraw any claims of privilege that are not necessary to preserve national security?

I will review significant pending cases in which DOJ has invoked the state secrets privilege, and will work with leaders in other agencies and professionals at the Department of Justice to ensure that the United States invokes the state secrets privilege only in legally appropriate situations.

4. One reason that the state secrets privilege is so vulnerable to abuse is that courts don’t always use the tools that are at their disposal to review privilege claims, such as in camera review of the privileged evidence. I cosponsored the State Secrets Protection Act (S. 2533 in the 110th Congress), with Sen. Kennedy and Sen. Specter, to require courts to engage in meaningful review of these claims. Would you support enactment of this bill?

I appreciate the Committee’s concern about potential abuses of the state secrets privilege and will work to ensure that assertions of the privilege are made only when legally and factually appropriate. I will consult with appropriate career personnel at the Department of Justice and perhaps in other agencies, before making a final judgment on whether to support this or other particular legislation.

"I will review significant pending cases." That would, presumably, include the al-Haramain case. Of course, that says only that he would review the cases.

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Rahm’s Not So Secret Plans

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Say, have you heard that Rahm wants to return to Congress in two years so he can eventually run for Speaker? Sure you have, because we’ve covered it here. But it’s sure interesting the way folks in Chicago treat it as a widely known fact, yet one you can’t speak about.

White House Chief of Staff Rahm Emanuel is interested in potentially returning to Chicago someday to reclaim the congressional seat he held until a month ago, a candidate running to replace him said Sunday.

When 11 Democrats at the first 5th Congressional District forum were asked whether they have had direct or indirect conversations with Emanuel about being a "place holder" for the seat, only state Rep. John Fritchey (D-Chicago) said he had.

"I spoke with Rahm maybe a week or two after he had accepted the job of chief of staff," Fritchey said. "At that time, he had commented to me that he may be interested in running one day again for the seat. I told him that should I be fortunate enough to run, and should I be fortunate enough to win the seat, I would look forward to campaigning against him."

The state lawmaker then appeared to sense he might have been a bit too open about the conversation he had with Emanuel, who represented the district from 2003 through 2009, before leaving to work for President Barack Obama.

"If I’m going to put words in anybody’s mouth, it’s not going to be Rahm’s," he said. "So, let me phrase it as exactly as I can for a conversation that took place three months ago. But that was a statement that he may be interested in running for the seat at some point down the road." [my emphasis]

Oops. I guess you’re not allowed to speak the truth about Rahm in Chicago, huh?

Add in the little difficulty that "a week or two after he had accepted" the COS job would put it in the November 13 to 20 timeframe–or precisely the time frame when Blago seemed to be preparing to send John Wyma out to talk to Rahm about just these plans and when Michael Sneed was reporting on it. But that was all before it was revealed that whatever conversations Rahm had with Blago were helpfully taped by the FBI, after which point it became important to cover up any of those conversations. 

No wonder Fritchey thought better of admitting Read more →

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Super Bowl 43 Trash Talk: The Red & The Black

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This is it baby, the big finale. All the marbles come down to these two: One Red. One Black. One will leave with the Lombardi Trophy in hand, the other with the regret of the world’s biggest runner-up percolating in their gut for the entire off season, maybe for the rest of their lives.

Parting is such sweet sorrow; nevertheless, with this game will come the end of another season of football trash talk here at Emptywheel. Yes, we occasionally whip out a trash talk without football (March Madness and the start of the F1 Circus are certainly possibilities), but it isn’t the same without the pigskin in the air.

What a season it has been, from the tantalizingly close to perfect season by the Pats that came just a few points short to Good Eli and the Gents in Super Bowl 42, the entire complexion of the 2009 season inexorably changed with the loss of Tom Brady in the first few minutes of this year. For eleven games Brett was Favre and all was magical; then it wasn’t. The San Diego team looked like the Clippers for the first twelve games, then they caught lightning and were Chargers on into the playoffs where they again went Norval. When it was all said and done, it was the Stillers and the Cardinals, yes the Arizona freaking Cardinals, left standing. And, thus, here we are.

Who are the Arizona Cardinals’ fans? I’m not quite sure, but I appear to live in the town that houses almost all of what few there are of them. Oh, and even here I have not noticed the whole town being painted red and buildings redecorated in team colors and insignias like it was purple for Barkley and the Suns in 1993 and the Diamondbacks in 2001. Da birdz de rojo get no respect I tell ya. And if all that were not bad enough, now That One is climbing on the dogpile,

Q. The Steelers or Cardinals, sir?

THE PRESIDENT: I have to say, you know, I wish the Cardinals the best. Kurt Warner is a great story and he’s closer to my age than anybody else on the field, but I am a long-time Steelers fan. Mr. Rooney, the owner, was just an extraordinary supporter during the course of the campaign. Franco Harris was campaigning for me in Pittsburgh. So Read more →

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Buh Bye Blago

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59-0 to oust the now former Governor.

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Rove: It's Still the Absolute Immunity Issue

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Sorry I’ve been a bit distracted (yes yes, I know I promised a post on those missing OLC opinions!!) But until I get undistracted, check out this video from Turdblossom.

Note how he describes the issue:

I’ve been directed again … not to respond to a subpoena, exerting privilege on behalf of a former President. 

[snip]

This issue of whether or not I should show up … 

He is still describing the issue as being whether or not he has to show up–and he’s avoiding the word "executive."

Fine. Good. That makes Roves’s position much more precarious than if he had a fresh new executive privilege claim. Dawn Johnsen, by herself, could cause Rove’s sorry Turdblossom to have to show up.

We shall see what the Obama Administration does.

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Why We Can't Have Federal Whistleblowers, Per Congress

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I’m watching the debate over amendment adding federal whistleblower protection to the stimulus package, on CSPAN.

And thus far, I’ve seen the following explanations for why we can’t have our billions of dollars in stimulus and TARP funds protected by Federal whistleblower protections.

Crazy Pete Hoekstra says we can’t have federal whistleblower protection because it would expose sources and methods.

Think about that. We can’t allow federal employees to come forward to report waste and fraud (and subsequently have their jobs protected) because doing so would expose sources and methods. 

Apparently, we’re stimulating the economy by employing a bunch of new spooks.

Then, another Congressman (sorry, didn’t get who it was) who argued that federal whistleblower protection would make it hard for TSA to ramp up screeners quickly.

Don’t worry, though, because the amendment just passed. So apparently those spooks who are getting hired under stimulus (!) better be careful…

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The Blagojevich Shakedown

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The IL Legislature has posted transcripts and tapes of the four conversations Fitz released to the Impeachment Committee. (Right now, the tape servers are overwhelmed, but the trasncripts give a glimpse of the sweet guys these are. Update: The Trib has working audio.)

Tape 1 Transcript 1

Tape 2 Transcript 2

Tape 3 Transcript 3

Tape 4 Transcript 4

They consist of four conversations: one on November 13, two from December 3 surrounding a visit Lon Monk paid to John Johnston at his track, and one from December 4. All conversations pertain to $100,000 that Monk, Blago, and his brother Rob seem to understand Johnston will pay, though they are concerned about the timing of the donation in relation to Blago’s signing a bill funneling a chunk of profits from casinos to track owners. 

The most damning part of this conversation actually comes from Monk, who relates telling Johnston,

And I said, "Look, there’s a concern that there’s gonna be some skittishness if your bill gets signed because of the timeliness of the commitment." He said, "Absolutely not. I mean do you want me to put some into the next quarter." I said. "No. That’s not my point. My point is this has all gotta be in now."

Suggesting that Lon was demanding Johnston’s contribution before Blago signed the bill (which he eventually did sign on December 15), because he otherwise might not get the money. 

This is all very thuggish. But particularly since Johnston replied, "I’ve always been there," it’s not at all clear that Blago wouldn’t have signed the bill without getting the money; indeed, it’s not clear whether he got his money or not. Even given the limited transcripts we saw in the complaint, this doesn’t appear to be the most damning of the conversations included in the complaint.

The other thing that’s interesting is the timing of this. The Monk visit to the track took place on December 3, just days before Fitzgerald arrested Blago (and just as Blago was apparently trying to orchestrate $1.5 million out of Jesse Jackson Jr.’s backers for the Senate seat). 

It’s not clear that Blago ever got any of his money that first weekend in December. But dang! He had a demand out for it from just about everyone in Illinois.

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