Monthly Archives: April 2006

Libby Fingers Bush, Cheney as Ordering Plame Leak

Posted on April 6, 2006 by Michael Froomkin

Why do I have to read news like this in my brother’s blog rather than major media? Read today’s column — scroll down to “Fitzgerald lets loose”.

[The NY Sun’s Josh] Gerstein writes that according to [special prosecutor Patrick J. Fitzgerald’s latest] filing, Libby “testified to a grand jury that he gave information from a closely-guarded ‘National Intelligence Estimate’ on Iraq to a New York Times reporter in 2003 with the specific permission of President Bush.”

…

That reporter, of course, was Judith Miller.

Here’s an excerpt from Fitzgerald’s filing: “Defendant testified that he was specifically authorized in advance of the meeting to disclose the key judgments of the classified NIE to Miller on that occasion because it was thought that the NIE was ‘pretty definitive’ against what Ambassador Wilson had said and that the vice president thought that it was ‘very important’ for the key judgments of the NIE to come out.”

Gerstein writes: “Mr. Libby is said to have testified that ‘at first’ he rebuffed Mr. Cheney’s suggestion to release the information because the estimate was classified. However, according to the vice presidential aide, Mr. Cheney subsequently said he got permission for the release directly from Mr. Bush. ‘Defendant testified that the vice president later advised him that the president had authorized defendant to disclose the relevant portions of the NIE,’ the prosecution filing said.”

That is, as my brother says “a shocker”.

Yet, he writes, “In fact, as of this writing, none of the major news outlets has published a word on the subject.”

(Although, I see that since he wrote that, at 12:35 the Associate Press has moved the story.)

Posted in Dan Froomkin, Politics: The Party of Sleaze, Politics: US: GW Bush Scandals, The Media | 5 Comments

Grant McCracken Is Interesting

Posted on April 6, 2006 by Michael Froomkin

I suspect that Grant McCracken’s deconstruction of marketing blog, This Blog Sits at the (Intersection of Anthropology and Economics) is filled with rare insight interspersed with some small bits of utter nonsense.

But I do not have great confidence in my ability to tell which is which.

Let’s look at some recent items:

I think he’s got Sony dead to rights.

There’s music advice I can’t evaluate, although it sounds plausible.

Somehow, I have the feeing that the piece on vicarious adventure is missing something — rather than there being a new market here waiting to be born, it seems to me that the better “me blogs” already fill the niche. I understand the idea that some rich people might want more tailored experiences, but I suspect they’re rich enough to go have them directly themselves. I think what McCracken wants (although he doesn’t know it) is better search, or the blog version of what he wants for music.

McCracken’s deconstruction of Pink’s Stupid Girls video puzzled me. He seemed to be beating up on it, then said he liked it, just didn’t like Pink’s explanation for it. Personally, I’m fine with the video. It’s a little obvious and heavy handed for my taste, but it has two arresting images that I like: one of the little girl flouncing her hair, and one (overused but still good) of Pink in glasses doing a political speech that evokes a cross between Eva Peron and Hillary Clinton.

I fear he’s right about clutter, want him to be right about Donald Trump.

The item on the virtues of the small is beautiful marketing strategy of Birkenstock persuaded me, and the one on Australia’s national marketing plan charmed (I have a particular interest in branding nations). The piece on the dressing gowns at The Topaz hotel seemed very well observed; a little creepy, yes, but credible. (On the other hand, the item on the “Yalies of Harvard Yard” may or may not describe something real about Harvard, I wouldn’t know, but it gets most of Yale horribly wrong.)

But surely the item on M. Night Shyamalan’s AmEx commercial is the current tour de force. Not having seen the actual commercial before reading the essay, I can’t help but wonder, though, whether anyone less attuned than McCracken (or Roland Barthes) would get all this from the ad.

Whatever it all is, there is a real mind at work here, tackling things I don’t often think about and am happy to have explained to me. Plus it’s a joy to read.

Note to self: look out for his book.

(Previous posting about McCracken.)

Posted in Kultcha, Readings | 1 Comment

Some Old Jokes Never Quite Die

Posted on April 6, 2006 by Michael Froomkin

Unqualified Offerings documents the transmogrification of an old joke.

Posted in Politics: International | Comments Off on Some Old Jokes Never Quite Die

Profile in Caution: Senator Bill Nelson

Posted on April 4, 2006 by Michael Froomkin

Back on March 13, I contacted Senator Bill Nelson to urge him to support the Feingold censure proposal.

Looks like it took his office a while to decide its position, but today — more than three weeks later — I got an emailed reply (so he can’t blame the postal service for the delay). And here is Senator Nelson’s very considered reply:

Thank you for contacting me regarding Senator Russ Feingold’s proposal to censure President Bush. A number of members of Congress and other groups, including the American Bar Association, have raised serious concerns about the legality of the President’s domestic wiretapping program. I share these concerns, but I want to hear the outcome of congressional investigations into this program before judging the appropriateness of any action such as censuring the president.

Please do not hesitate to contact me in the future with your thoughts on this or any other topic.

Three weeks to get around to saying that? In an election year?

Posted in Politics: The Party of Sleaze | 2 Comments

Secret Trials in Washington DC

Posted on April 4, 2006 by Michael Froomkin

18% of DC criminal trials are conducted in total secrecy.

“During the past five years, 469 cases in U.S. District Court in Washington, D.C., have been prosecuted and tried in complete secrecy, with no public knowledge even of the cases’ existence and no way for the public to challenge the secrecy,” write Kirsten B. Mitchell and Susan Burgess, reporters with the Reporters Committee for Freedom of the Press.

Burgess and Mitchell found the cases by “searching the court’s entire civil and criminal docket for the past five years. During the five-year period ending Dec. 30, an average of 18 percent of nearly 3,000 criminal cases were not docketed in Washington’s U.S. District Court — one of 94 federal courts nationwide. Undocketed civil cases were so few — 65 of more than 12,000 — as to be statistically insignificant.”

The Burgess/Mitchell article said that “most off-the-docket criminal cases were kept off the public docket after prosecutors asked judges to seal the cases, according to those who handle such cases.

“While Justice Department guidelines recognize a strong presumption against closing criminal proceedings and outline limited reasons allowing for closure, they don’t specifically address nonpublic docketing.

“Both the department’s arguments for and the judge’s approval of sealing an undocketed case are shielded from public view, making it impossible to know whether the guidelines are followed. What’s more, the U.S. Attorney’s Office in Washington does not monitor how many requests it makes to seal cases or how many requests are approved.

(Alex Kingsbury at Nieman Watchdog)

One more step down the road.

Posted in Law: Criminal Law | 5 Comments

A Word on the Rep. McKinney Matter

Posted on April 4, 2006 by Michael Froomkin

Orrin Kerr speculates plausibly that if Rep. McKinney is charged with an offense relating to her much-disputed altercation with the Capitol Police, it will be a simple misdemeanor, but that it won’t happen

Will the U.S. Attorney’s Office charge McKinney with a federal crime? If she is charged, I gather the offense would be a misdemeanor simple assault under 18 U.S.C. 111(a) or 18 U.S.C. 113(a)(5). I don’t know who makes these sorts of calls within the U.S. Attorney’s Office, or what kinds of cases the U.S. Attorney’s Office in D.C. tends to pursue. As a result, I can only offer amateurish speculation. My amateurish speculation, for what it’s worth, is that the U.S. Attorney’s Office will decline prosecution. Three major reasons: First, McKinney was apparently on official business as a member of Congress at the time, and was well within her rights to enter the building without passing through the metal detectors. Second, the officer apparently wasn’t hurt. Third, the story is already a media circus, and will only become much more of a circus if McKinney is charged.

All that makes sense, but I see it differently: I think it’s a felony or nothing. Why? Art. I, sec. 6 of the Constitution privileges Representatives’ and Senators’ access to the chamber:

They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

For reasons sounding in British history, it was thought important that the executive branch lack the power to block members’ access to the floor. Thus, unless the US Attorney is willing to charge McKinney with felony assault — not an obvious charge under the circumstances — I predict she will win any trial on Constitutional grounds.

It’s true that grabbing hold of McKinney was not an “arrest” in the most common modern sense of “you are going to jail” but it was an “arrest” in the sense of “halting your progress”. (For what little it’s worth, the first OED entry for the noun form of arrest is “The act of standing still, halting, or stopping; stoppage, stop, halt, delay.”) And it’s clear to me that the goal of this Constitutional provision is unimpeded access for our lawmakers — allowing the police to block entry to the Capitol without actually dragging Congresspersons off to the hoosegow would gut this important guarantee that the the executive may not prevent the legislature from meeting.

PS. Might you call it “breach of the peace”? I don’t think so – it’s undisputed that she didn’t start it, and if the cops can stop a Representative who in protesting becomes a “breach of the peace”….

Posted in Law: Constitutional Law | 16 Comments