Nobody’s Perfect, But Don’t Tell Obama Bashers

National Journal

After many months of adoring media coverage and Democratic triumphalism, President Obama is now getting pasted by carnivorous columnists, angry activists, and House hotheads for every bow to bipartisanship, every deviation from liberal orthodoxy, and every tax-deficient nominee.

The problem is not that Obama is doing a bad job. For a new president beset with the most daunting combination of economic and national security nightmares in many decades, and with a recent run of bad luck, he’s doing his job quite well. Shepherding the $789 billion economic stimulus bill through the ideologically polarized Congress was no small feat. And for a man seeking to overcome determined Republican opposition without demonizing his adversaries, he hit the right notes (if too long-windedly) in his first prime-time presidential press conference on Monday.

The president’s political problem is that while he tries desperately to steer the storm-tossed ship of state off the rocks, partisans in both parties are reflexively acting out "a lot of bad habits built up here in Washington," as Obama told the press.

He stuck, despite a slip or two into tough rhetoric, to his conviction that fighting for his policy agenda and rejecting "the failed theories of the last eight years" does not require ascribing base motives to the opposition, disavowing any effort at compromise, or giving up on what some call his promise of "post-partisanship."

Obama also understands that a few party-line votes driven by clashing economic philosophies do not spell the doom of post-partisanship, which boils down to seeking common ground when possible and treating political adversaries with respect. Obama’s extraordinary overtures to Republicans, he explained, "were not designed simply to get some short-term votes. They were designed to try to build up some trust over time."

Judgment and Character Are Paramount

National Journal

"Your representative owes you, not his industry only, but his judgment; and he betrays, instead of serving you, if he sacrifices it to your opinion."

So said British statesman Edmund Burke in his famous 1774 speech to the electors of Bristol. Similarly, James Madison wrote in Federalist 57 that voters should choose the candidates "who possess most wisdom to discern, and most virtue to pursue, the common good of the society."

Wise counsel, albeit forlorn in today’s campaign world in which most people-especially primary voters-back the candidates who are most shameless in sacrificing their judgment to the voters’ opinions.

Burke and Madison might well have approved the judgment-focused questions that pro-Obama journalists have so furiously excoriated moderators Charles Gibson and George Stephanopoulos, of ABC News, for asking at the April 16 debate between Barack Obama and Hillary Rodham Clinton. The Washington Post‘s Tom Shales accused the two of "shoddy, despicable performances." The New Yorker‘s Hendrik Hertzberg said that they had committed "something akin to a federal crime." The New York Times‘s David Carr called it a "disgusting spectacle."

Such commentators were especially livid that for much of the first half of the two-hour debate the moderators bored in on Obama’s gaffe about "bitter" laid-off small-towners who "cling to guns or religion or antipathy to people who aren’t like them"; questioned his closeness to the Rev. Jeremiah Wright through many years of Wright’s anti-American, white-bashing rants; and brought up his more glancing connection to William Ayers, a University of Illinois professor who was a Weather Underground leader and (by his own admission) bomber almost 40 years ago.

Opening Argument – Where’s the Outrage?

National Journal

Back in 1998, when I was excoriating President Clinton for perjury and obstruction of justice, I had plenty of Republican company. This, my Republican friends and I agreed, was serious business.

But some Clinton-bashing conservatives have reacted rather differently to the alleged grand jury perjuries, lies to the FBI, and obstruction of justice for which I. Lewis (Scooter) Libby, Vice President Cheney’s former chief of staff, stands indicted.

These conservatives go beyond claiming that the evidence that Libby lied is weak — which is fair game, albeit unpersuasive (in my view) — to trivializing any cover-up as not very serious anyway. They remind me of the many Democrats who trivialized Clinton’s multiple perjuries and suborning of perjury as mere "lying about sex."

These days, the leader of the who-cares-about-perjury pack is The Wall Street Journal’s editorial page — the "Daily Diatribe of the American Right," as it was called in the headline of a 1989 American Lawyer piece (by me).

In 1998, The Journal saw criminal cover-ups — even of matters that were not themselves crimes — as a big deal. "The latest Clinton scandal involving Monica Lewinsky is titillating because of sex," The Journal editorialized then, "but it derives its legal and political importance from the issues of perjury and obstruction of justice."

Back then, other respected conservatives — Mary Matalin and William Kristol, for example — were even more emphatic about what Matalin called Clinton’s "perjury, suborning perjury, obstruction of justice, conspiracy." They have a far more dismissive view of the evidence of high-level lies underpinning the indictment of Libby and the near-indictment of Karl Rove.

Opening Argument – Dumb and Dumber

National Journal

Comes now Attorney General Alberto Gonzales, a man not known for legal acuity, with a threat to prosecute The New York Times and other news media for publishing leaks of classified information.

Gonzales, who launched a major investigation late last year into such leaks, claimed in a May 21 ABC News interview that Congress has made a "policy judgment" that in some circumstances journalists should be prosecuted for publishing classified information.

This assertion is misleading at best. The 89-year-old espionage law to which Gonzales was mainly referring was not intended to prosecute anybody for publishing anything and has never been so used. This is an administration that has not hesitated to leak classified information that makes it look good — but calls it criminal for others to publish leaks that make it look bad.

Its most bitter complaints have been aimed at the Pulitzer-Prize-winning disclosure by The New York Times on December 16 of President Bush’s previously secret, warrantless eavesdropping program. Some serious scholars see that program as violating criminal provisions of the Foreign Intelligence Surveillance Act. I don’t, because the murkiness of the legal issues may absolve Bush of criminal intent.

But exposing arguably illegal presidential activities is what the First Amendment freedoms of speech and press are all about. Bush is a shameless demagogue for denouncing as a "shameful act" the exposure of his own circumvention (if not violation) of FISA.

Someone should tell Gonzales and Bush that the relevant congressional "policy judgment" here — one shared by the Constitution’s Framers — is that the president is not a law unto himself.

Opening Argument – An Outrageous Rush to Judgment

National Journal

The trashing of Duke’s lacrosse team by many in the media may be shifting gears as the Durham, N.C., district attorney’s case against two players indicted for gang rape falls apart and evidence of gross prosecutorial misconduct mounts. I can’t rule out the possibility that there may be some horrible truth in the shifting claims by an African-American "exotic dancer" that the two indicted defendants and another team member gang-raped her in a bathroom. But accumulating evidence strongly suggests that the charge may well be a lie.

The innocence of at least one defendant seems clearly established by rock-solid evidence that he could not possibly have been raping anyone during the half hour after the accuser and another woman had done their four-minute dance at a team party at midnight on March 13. The case against the other defendant also seems weak.

And the evidence that perhaps no Duke lacrosse player committed rape should make a lot of people ashamed of themselves: District Attorney Mike Nifong, the Durham police, many in the media, politically correct Duke professors, spineless Duke administrators, and others.

(Disclosure: A parent of one team member is a friend of mine, and I might not be writing about the case if my analysis of the evidence supported the rape charge.)

Instead of backing off, many in the rush-to-judgment crowd have simply hedged their presumption of guilt and shifted to smearing the lacrosse players — including sons of three retired New York City firefighters, and others from modest backgrounds — as a bunch of privileged, thuggish, racist, and (horrors) white jocks, suggestive of Southern slaveholders.

As to the rape charge, consider some evidence.

Opening Argument – Leak Prosecutions: The Gathering Storm

National Journal

The news media’s ability to use leaks to keep the White House honest is threatened as never before by the unanticipated consequences of the investigation into the White House’s own leaks of classified information to discredit a critic.

Some government officials are itching to exploit that investigation as a precedent for using the threat of long jail terms and massive fines to force reporters to finger their confidential sources. The precedent was set, ironically, by the special counsel investigating leaks by White House officials, including (we now know) Karl Rove and I. Lewis (Scooter) Libby.

Few leakers and no reporters in American history have been prosecuted for disclosing classified information. But that may change.

Under the Justice Department’s interpretation of a 1917 espionage law, both those who leak government secrets and those who publish them are felons. It may be no defense to argue that the leaks did little damage to national security, or that they exposed official misconduct or deception.

Subpoenas of journalists have not been so common in more than 30 years. Former Pentagon official Lawrence Franklin was sentenced to 12 years in prison last month for orally sharing classified information to help two then-staffers of a pro-Israel group lobby for a harder line on Iran. Those two men face trial in April for receiving classified information and sharing it with reporters and Israeli officials. They are the first private citizens ever prosecuted for such activities. Reporters could be next. Meanwhile, Senate Intelligence Committee Chairman Pat Roberts said on February 17 that he may push for new legislation making it easier to prosecute leakers.

Unless wise heads in the Justice Department, the judiciary, Congress, and the media themselves steer a steady course through this gathering storm, the executive branch will acquire more power than ever to hide its actions from public and congressional scrutiny.

Opening Argument – Alito: A Sampling of Misleading Media Coverage

National Journal

A sometimes subtle but unmistakable pattern has emerged in major news organizations’ coverage of Judge Samuel Alito’s Supreme Court nomination.

Through various mixes of factual distortions, tendentious wording, and uncritical parroting of misleading attacks by liberal critics, some (but not all) reporters insinuate that Alito is a slippery character who will say whatever senators want to hear, especially by "distancing himself" from past statements that (these reporters imply) show him to be a conservative ideologue.

I focus here not on the consistently mindless liberal hysteria of the New York Times’ editorial page. Nor on such egregious factual errors as the assertion on C-SPAN, by Stephen Henderson of Knight Ridder Newspapers, that in a study of Alito’s more than 300 judicial opinions, "we didn’t find a single case in which Judge Alito sided with African-Americans … [who were] alleging racial bias." This, Henderson added, is "rather remarkable."

What is remarkable is that any reporter could have overlooked the at least seven cases in which Alito has sided with African-Americans alleging racial bias. Also remarkable is the illiterate statistical analysis and loaded language used by Henderson and Howard Mintz in a 2,652-word article published (in whole or in part) by some 18 newspapers. It makes the highly misleading claim that in 15 years as a judge, Alito has sought "to weave a conservative legal agenda into the fabric of the nation’s laws," including "a standard higher than the Supreme Court requires" for proving job discrimination.

Opening Argument – How the High Court and the Media Aggravate Polarization

National Journal

My last column explored some reasons for the bitter liberal-conservative polarization of our political class, which has helped spawn the anger, mendacity, and emotionalism that make our politics so ugly. Here I explain how the Supreme Court and the media have made this polarization worse, and sketch possible remedies.

Opening Argument – Should Reporters Go to Jail for Doing Their Jobs?

National Journal

This headline might seem to load the dice, in favor of creating a special privilege for us journalists to defy grand jury subpoenas demanding the names of our sources. But it really is that simple: Judith Miller, of The New York Times, and Matthew Cooper, of Time, will go to jail for contempt of court for as long as 18 months for refusing to betray their sources unless they win what look like uphill battles on appeal. Neither has done anything wrong or done anyone harm. Indeed, Miller wrote nothing at all about the matter in contention. Yet both face incarceration for honoring what any decent journalist would consider a cardinal professional and moral obligation. So do other reporters around the country who face a rising tide of prosecutorial demands for sources’ names. 

Opening Argument – Reporters and Sources: Look to Politics, Not Law, for Protection

National Journal

"The reporter’s constitutional right to a confidential relationship with his source stems from the broad societal interest in a full and free flow of information to the public. It is this basic concern that underlies the Constitution’s protection of a free press, … because the guarantee is not for the benefit of the press so much as for the benefit of all of us."