Wednesday, May 02, 2007

McDermott loses again

Rep. James McDermott lost another round in the legal battle over his leaking an illegally obtained tape of GOP leaders 10 years ago.

In a 5-4 opinion, the U.S. Circuit Court of Appeals for the District of Columbia ruled that McDermott, D-Seattle, should not have given reporters access to the taped call....

The ruling upholds a previous decision ordering McDermott to pay House Minority Leader John Boehner, R-Ohio, more than $700,000 for leaking the taped conversation. The figure includes $60,000 in damages and more than $600,000 in legal costs.

McDermott claims there are serious whistleblower and First Amendment issues at stake here, and I'm sympathetic to that -- as are 18 news organizations that filed briefs supporting him. We do not want to overly restrict the ability of people to expose government wrongdoing -- as the revelations of NSA eavesdropping, CIA prisons and FBI abuse of National Security Letters attest.

But whistleblower exceptions generally involve matters of great public interest. This leak, besides being based on an illegally obtained tape, involved little more than partisan advantage -- an effort to embarass Congressional Republicans and Newt Gingrich in particular. While they deserved to be embarassed -- talking about ethics in public while conniving in private is never pretty -- such petty score-settling isn't worthy of the same protection as a government worker exposing crimes and corruption.

In this case, it's hard to see how the public interest could trump the legalities of the matter.

So good for the court, and let's hope the Supreme Court declines to hear the case and brings this saga to an end. A $700,000 payout appears to be a fitting punishment for what in the end was a relatively minor offense -- as evidenced by the awarding of just $60,000 in actual damages. Political embarassment is only worth so much.

Hall of Shame has been updated.

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7 Comments:

Anonymous Anonymous said...

A real whistleblower case was that of Memogate in 2004----where Republican staffers Jason Lundell and Manuel Miranda came across the Democrat Senate Judiciary Commmittees e-mails (and not illegally) to and from their lobbyists who were instructing them about "stalling" the process of confirmation for certain Bush nominees until cases were decided. This proved that the Democrats on that Committee were not only politicizng the process in an unethical manner, but were probably breaking the laws by deliberatly blocking nominations to try and effect the outcome of a case. And what happened to THOSE two whistleblowers? They lost their jobs. And what happened to the Democrat leaders involved? Because they managed to make it about the leak and not about the content of the e-mails....they STILL sit on the Senate Judiciary Committe to this day.

That one goes in the Hall of Shame.

JP5

5/02/2007 6:37 PM  
Blogger Sean Aqui said...

Okay, let's break this down.

First, the two staffers in the Memogate affair were hardly innocents. One basically watched a system admin access the server, then duplicated the process. You can blame the sysadmin for being careless, but the staffers illegitimately accessed an area on the server they knew they had no right to access.

They then maintained that access for more than a year, monitoring Democratic internal documents and leaking the ones they really liked.

They didn't simply "come across" the files.

You wish the scandal had focused on the content of the memos. But what the Dems did was pure, ugly politics, not a crime. There is no legal criteria for confirming or rejecting nominees. Congress can do so for any reason or no reason at all. It would only be illegal if they were taking payments or something for doing so. Except even that is legal if you call it a "campaign contribution."

This may explain why the Republican leadership fired the staffers involved and didn't press an investigation of the memo content -- because they knew their own laundry would be at least as dirty.

I'm not saying what the Dems did was just fine -- I find it sleazy. But it's the kind of hardnosed politicking that goes on all the time on both sides of the aisle. Which is why the investigation rightly focused on the actions of the GOP staffers. That was unquestionably wrong, breaking all sorts of Senate rules even if no laws were actually violated.

5/02/2007 7:06 PM  
Anonymous Anonymous said...

"....what the Dems did was pure, ugly politics, not a crime. There is no legal criteria for confirming or rejecting nominees. Congress can do so for any reason or no reason at all."

Wow. IF ONLY you would apply that SAME standard to the firing of the U.S. Attorneys. AND YET----you want Gonzales to resign over it. See what I mean by the "double standards" of Democrats? Now, please: don't tell me how that is any different.

JP5

5/02/2007 8:46 PM  
Blogger Sean Aqui said...

You need to read what I write and memorize it or something. I've said all of the following, in response to you, before.

1. I don't think Gonzales should resign because prosecutors were fired. I think he should resign for the totality of his resume.

2. That said, there is a fundamental difference between the two cases.

Judges are nominated by the president, and nobody says he doesn't have the right to use blatantly political criteria for doing so. They are confirmed by the Senate, which also has the right to use blatantly political criteria for doing so.

I think both should have loftier motives, but there is no crime here. The process is supposed to be political.

However political the appointment process, though, once appointed judges are expected to interpret the law fairly and impartially, and cannot be fired except through impeachment.

In the case of the prosecutors, they, too, are appointed and confirmed politically. And they, too, are expected to act fairly and impartially once appointed. And, mirroring the judge situation, they are supposed to be largely independent and insulated from political pressure.

It was Alberto Gonzales' job to shield them from that pressure. He failed to do so. He, in fact, failed to do much of anything as far as managing or leading the Justice Department. That failing -- and the lies he told in the aftermath -- are why the prosecutor case should contribute to his resignation.

5/02/2007 8:57 PM  
Anonymous Anonymous said...

1. I don't think Gonzales should resign because prosecutors were fired. I think he should resign for the totality of his resume.

But you would be willing to let them use the attorney firings as a ruse to "get him?" Remember---lots of people hated Janet Reno too and didn't think she was a good AG. And yet, Clinton and Dems defended her and supported her anyway. I very much disliked her----but just had to live with her.




2. That said, there is a fundamental difference between the two cases.

Judges are nominated by the president, and nobody says he doesn't have the right to use blatantly political criteria for doing so. They are confirmed by the Senate, which also has the right to use blatantly political criteria for doing so.

I think both should have loftier motives, but there is no crime here. The process is supposed to be political.

However political the appointment process, though, once appointed judges are expected to interpret the law fairly and impartially, and cannot be fired except through impeachment.

In the case of the prosecutors, they, too, are appointed and confirmed politically. And they, too, are expected to act fairly and impartially once appointed. And, mirroring the judge situation, they are supposed to be largely independent and insulated from political pressure.

It was Alberto Gonzales' job to shield them from that pressure. He failed to do so. He, in fact, failed to do much of anything as far as managing or leading the Justice Department. That failing -- and the lies he told in the aftermath -- are why the prosecutor case should contribute to his resignation.

So---which is it? He did too much and was too involved or he wasn't involved at all? You can't have it both ways.

Frankly, I like him so much better than say, Janet Reno, that it isn't even funny.

JP5

5/02/2007 9:32 PM  
Blogger Sean Aqui said...

But you would be willing to let them use the attorney firings as a ruse to "get him?"

I think his handling of the prosecutor revelations only highlights his incompetence, lack of independence and either extreme detachment or difficulty telling the truth. I think he deserves to go for even more substantive reasons, not simple policy disagreements. But if it takes the prosecutor flap to get other people outraged enough to agree, so be it.

So---which is it? He did too much and was too involved or he wasn't involved at all? You can't have it both ways.

I'm not quite sure what you're referring to here. The problem is that Gonzales' own words have left him in a Catch-22: He either lied about his involvement, or he essentially abdicated responsibility for running Justice. He's either a liar or incompetent.

Interestingly, he's probably both. Because it seems pretty clear that he did abdicate responsibility, and yet he managed to lie about what little involvement he did have.

And all that is without even getting into the question of whether the prosecutors were fired for improper reasons.

5/02/2007 10:10 PM  
Anonymous Anonymous said...

It doesn't matter what reasons they were fired for. Their terms had ended and it was the President's choice to replace them. It was perfectly legal and there is nothing wrong with it. They KNOW going in they have a 4-year term and may be replaced at the end of that term. And for them to whine about it now, is kind of pathetic.

JP5

5/03/2007 8:05 AM  

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