Another Non-Scandal Making Headlines

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Douglas W. Kmiec writes a great editorial today in Washington Post about the latest show trials the Democrats are putting on. The left is so desperate for a Watergate type scandal they are now making one out of whole cloth:

James Comey’s Senate testimony on Tuesday was staggeringly histrionic. It has, as Sen. Arlen Specter suggested, the dramatic flair of the Saturday Night Massacre. Presidential emissaries seeking the signature of a critically ill man only to be headed off at the hospital room door by a Jimmy Stewart-like hero defending the law over the pursuit of power. Frank Capra, call your office.

There are several problems with this scene. First, the comparison to Watergate is wholly inapt. Watergate involved a real crime — breaking and entering, with a phenomenally stupid coverup that also fit the definition of criminal obstruction. And the underlying motivation for Richard Nixon’s demise was raw politics. Comey’s tale lacks crime and this venal political intrigue.

Officially, Comey — an obviously admirable fellow — did his best not to disclose that his testimony related to an interpretive disagreement over the highly classified but nevertheless well-known terrorist surveillance program. Sparring between the Office of Legal Counsel (OLC) and the White House, and apparently even within the OLC, over the legal basis for this program in wartime is leagues different from burglary for purposes of political dirty tricks.

That war thing also jettisons any serious motivational comparisons between the two. An honest, if intense, disagreement over how best the president can fulfill his constitutional and statutory functions to prevent another Sept. 11-style attack, which, as it happened, was repeating itself within the territory of our ally Spain at the moment of the hospital intrigue, says more than enough to make the point of difference.

Even if OLC attorneys had been unanimous that the president lacked the legal authority to conduct the kind of military intelligence-gathering that every other wartime president has pursued, that would hardly warrant the conclusion that the president had "broken the law." To his credit, Comey resisted this characterization four times when pressed by Specter. Comey conceded that he had no idea whether the certification of the continuation of the surveillance program he was being asked to make had a basis in statute or regulation. In fact, it has neither. It was a "form and legality" determination that the president had self-imposed to internally discipline an exercise of power that necessarily must delicately balance national security and civil liberties.

Tom Maguire wrote up two examples of this "scandal" that is well worth the time to read:

Both editorials would be more accurate (if less forceful) if they noted that the Office of Legal Counsel of the DoJ had, for the previous two and a half years, endorsed the NSA program – it was a change in the lawyers (from Yoo to Goldsmith at OLC) that precipitated this mini-drama, not a change in the program.

I will propose two thought experiments:

1.  A Wall Street firm has a reasonably complicated financing structure requiring legal opinions; a typical deal takes about two months to come together, and the firm has done twenty such deals with the blessing of their outside counsel.

Now comes the twenty-first deal, and the law firm informs the Wall Street financiers, forty-eight hours before the scheduled close, that they can’t sign the legal opinion.  Has the relevant law changed?  Nooo.  Has the financing structure changed?  Nooo.  But a new partner at the law firm has looked at the structure and wants the deal tweaked slightly before he can sign off on it.

Take my word for it – there would be Hades to pay for this, and serious questions would be raised about the professionalism and timing of the law firm.  Bring the problem sooner, or bring it for the twenty-second deal, but being obstructive at the last minute is not acceptable.

Or let’s try an example closer to home for the Times and WaPo editors here – suppose their law firms came to them and informed them that, although no laws had changed, a new partner was worried about some privacy issues, so the Times would have to suspend its website in 48 hours or face dire legal risks.

I promise you – blood would flow at the Times, or wherever it was they finally found tracked down the new lawyer with the new problem.

For my money, Comey’s behavior was a joke – he was warned on a Thursday a week ahead of time of a problem with DoJ recertifying the NSA program, sat on the bad news for five days, then sprang it on Gonzalez on Tuesday for a recertification expected on Thursday.

In the end I doubt that Schumer honestly believes there is some conspiracy here.  I know, I’m giving him way too much credit but come on…..this whole thing is just silly.  All these show trials have done is show how inept the Democrats are at "proving" a scandal.  Not one iota of proof has been provided that Gonzales lied during his testimony.  What we have are people with NO credibility trying to tell us that Gonzales doesn’t have any credibility.  Schumer, Durbin, Murtha, Feinstein…..yeah, there is some credibility there.

Oh, the room is full of smoke and mirrors, but they are all sitting in the Democrats corner of the room.

Btw, this story is getting reported everywhere but nary a word is being spoken about Feinsteins REAL corruption.

Funny how that works huh?

UPDATE

You should get a big kick out of this TIME piece:

When then-White House counsel Alberto Gonzales went to John Ashcroft’s hospital room on the evening of March 10, 2004 to ask the ailing Attorney General to override Justice Department officials and reauthorize a secret domestic wiretapping program, he was acting inappropriately, Ashcroft’s deputy at the time, James Comey, testified before Congress earlier this week. But the question some lawyers, national security experts and congressional investigators are now asking is: Was Gonzales in fact acting illegally?

In dramatic testimony Tuesday, Comey told the Senate Judiciary Committee that he raced to the intensive care unit of George Washington University Hospital that evening to intercept Gonzales and White House chief of staff Andrew Card and prevent them from convincing Ashcroft to reauthorize the program after Justice department lawyers had concluded that it was illegal. Comey, who during Ashcroft’s stay in the hospital was acting Attorney General, has told Congressional investigators that when he arrived at the room and began explaining to Ashcroft why he was there, he was intentionally “very circumspect” so as not to disclose classified information in an unsecure setting and in front of Ashcroft’s wife, Janet, who was at his bedside and was apparently not authorized to know about the program.

Comey described what happened next: “The door opened and in walked Mr. Gonzales, carrying an envelope, and Mr. Card. They came over and stood by the bed. They greeted the attorney general very briefly. And then Mr. Gonzales began to discuss why they were there — to seek his approval for a matter, and explained what the matter was — which I will not do.” Ashcroft bluntly rebuffed Gonzales, but Comey’s unwillingness publicly to say what Gonzales said in the hospital room has raised questions about whether Gonzales may have violated executive branch rules regarding the handling of highly classified information, and possibly the law preventing intentional disclosure of national secrets.

“Executive branch rules require sensitive classified information to be discussed in specialized facilities that are designed to guard against the possibility that officials are being targeted for surveillance outside of the workplace,” says Georgetown Law Professor Neal Katyal, who was National Security Advisor to the Deputy Attorney General under Bill Clinton. “The hospital room of a cabinet official is exactly the type of target ripe for surveillance by a foreign power,” Katyal says. This particular information could have been highly sensitive. Says one government official familiar with the Terrorist Surveillance Program: “Since it’s that program, it may involve cryptographic information,” some of the most highly protected information in the intelligence community.”

Yes, our MSM is now upset about a leak of a classified information.

Get the irony here?  The discussion was about the very same classified program whose existence was revealed by the very same MSM.  In other words it’s ok to print the classified information on the front page of a large newspaper but NOT ok to discuss it in a hospital room.

Wow.

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Hey Curt,

Since the Dems took over Congress they have pushed one non-scandal after another. The public will get fed up with them after awhile.

The MSM is all too eager to run with this garbage…

The public is fed up with it already as the low poll ratings show but that won’t stop the MSM from pushing every show trial to the front page just for kicks.

Curt – The goal is not to prove anything. They just have to put on the show trials to put out the misinformation and propaganda to fool the ignorant masses enough to have the perception of wrongdoing. Then the spineless GOP and spineless conservatives will say “ooooh we don’t want to look badly, so let’s just give in and apologize and get back to making the American people like us again, otherwise we will lose elections” instead of standing up and defending what is right and just and standing on principle.

I have read plenty of Conservative sites which say, “yeah its a non-scandal, but we should have Gonzales resign anyway to stop all this scrutiny, etc…” It is MADDENING! Conservatives who want to throw one of their own over the cliff over nothing, and are not willing to fight based on facts and principles and simply willing to cave to the opposition because… oh boo hoo cry whine… it’s making us look bad!

But just like Osama rightly knows he does not have to defeat the American military, but simply defeat the paper tiger American public and American government, the Democrats know they don’t have to prove a thing, they know the GOP and Conservatives are spineless holier than thou twits who cannot stand to be looked upon badly, and are willing to throw their own under the bus to protect their “image”… and thus the Democrats know they just need to fight a propaganda war and they will win. Works every time.

Especially since the majority of the American public are a bunch of ignorant idiot drones who believe all the lies and propaganda of the MSM, the propaganda arm of the Democrat Party.

And just like the polls about Iraq are misleading, because half the people want us to be more lethal while the other half want us to cut-and-run, the polls about Congress are probably misleading too, since probably half the negative results are due to the liberals wanting more left-wing lunacy from Congress while the other half negative are Conservatives being tired of the left-wing lunacy already taking place.

But why would the Democrats act any differently? The American public is ignorant and dumb and believes lies and propaganda. And the GOP and Conservatives will not stand up for their own, even in the face of lies and propaganda. Besides we already gave them Rumsfeld… and like terrorists, if you give them an inch, they will want and take a mile.