There is a legal maxim that says “hard cases make bad law”. This has taken on a new urgency with respect to the Jim Taricani case. As a result of Judge Torres’ Thursday ruling, Senator Christopher Dodd from Connecticut has proposed a federal shield law for journalists.
Let me make an important point I haven’t yet stated directly. My call for a Presidential pardon of Jim Taricani is in no way based on any concept of special rights for journalists. Journalism, like any profession, makes unique demands on the people who practice it. Those demands in no way release its practitioners from their duties as citizens.
The advent of blogging and electronic publishing blurs the line between who is and who is not a journalist. Perhaps no meaningful line exists. Passing a shield law will invite the abuse of the concept of journalism, encouraging people whose primary goal is to avoid giving testimony to claim they are journalists.
Of course, the President could make this issue go away by pardoning Taricani. And when else will President Bush have an opportunity to do something popular in a blue state, something civil liberties oriented AND something that upstages Christopher Dodd at the same time?
Reason 1: Why Pardoning Taricani is the Right Thing.
Reason 2: Why Pardoning Taricani fits the President’s Agenda.
Reason 3: Why Pardoning Taricani is a Teaching Moment.
Andrew, yes that notion that the judge can usurp executive powers when some among the executive branch might have a conflict of interest is the lynchpin. After I read, last night, Torres’s decision demanding that Taricani name his source (PDF), questions about the procedures and powers involved with forming grand juries and appointing special prosecutors still loomed over the issue. (And it isn’t an area of the law that I’m able to research right now.) Taricani’s lawyers’ not making a big deal of that aspect seemed to indicate that Torres hadn’t stretched the law on that count, but I guess they have raised the issue.
Particularly of note, from the Providence Journal piece, is this paragraph:
Taricani, [Torres] said, had no right to refuse to reveal his source to DeSisto, based on the U.S. Supreme Court decision in the 1972 case of Branzburg v. Hayes. In that case, the nation’s highest court rejected the argument that reporters have a First Amendment right to refuse to answer “relevant questions put to them in the course of a grand jury investigation or criminal trial.”
I haven’t read Branzburg, but in Torres’s summary of and quotations from that case in his ruling, the repetition of the phrase “grand jury” is conspicuous. Consider (emphasis added):
Only where news sources themselves are implicated in crime or possess information relevant to the grand jury’s task need they or the reporter be concerned about grand jury subpoenas. Nothing before us indicates that a large number or percentage of all confidential news sources falls into either category and would in any way be deterred by our holding that the Constitution does not, as it never has, exempt the newsman from performing the citizen’s normal duty of appearing and furnishing information relevant to the grand jury’s task.
Again, I’m not versed in the laws and practices surrounding court-appointed special prosecutors, but the difference between them and grand juries strikes me as significant. The sentence that the Projo quotes from Branzburg seems to leave open further possibilities, but it only adds “criminal trial,” which (if I’m not mistaken) suggests a court proceeding in which an indictment has already been made.
Two other cases that Torres cites raise interesting considerations. First, in Bruno & Stillman, the court ruled that, “as a threshold matter, the court should be satisfied that a claim is not frivolous, a pretense for using discovery powers in a fishing expedition.” When Torres turns to another case, Cusumano v. Microsoft Corp., for an example, he highlights the central concern in the Taricani ordeal: in Cusumano, the court was weighing the claims of Cusumano against those of Microsoft; here, the court is weighing Taricani’s claims against… its own.
To be sure, Torres’s strongest point is that the public has a significant interest in maintaining the authority of courts during legal proceedings as well as during investigations undertaken in the course of “law enforcement.” The problem that this neatly sidesteps, however, is that the court is not immune to conflicts or excesses. The party most directly wronged by Taricani’s refusal to answer questions (as quite distinct from the party wronged by the breaking of the protective order in the first place) is the court itself. Even somebody who disagrees with my highly suspicious view of judicial power ought to be able to understand, in this context, why the following sentence from Torres’s original ruling raises my eyebrows:
… the investigation was initiated at the behest of the Court, itself, and cannot be described as the arbitrary action of a possibly overzealous prosecutor or runaway grand jury having ulterior motives.
Now, I’m not saying that Judge Torres has ulterior motives, but the mindset seems to be that courts are above such things. They aren’t; one can easily imagine situations in which the precedent that Torres is setting could lead not only to individual instances of judicial wrongdoing, but also to further usurpations of power. In researching this issue, one can nearly hear the pieces falling into place.
The court generated the protective order and was the most directly wronged party when it was broken. The court appointed the person to investigate the crime. And it is the court that has just deemed its own special prosecutor to have the power to coerce testimony. Unless I’m missing some important piece of the legal background — and discussion of such background is a notable absence in Torres’s reasoning — the step that this case has taken is the equation of a court-appointed special prosecutor with grand juries and investigators involved in cases in which the court is more clearly a disinterested third party.
ADDENDUM:
Incidentally, although this is a federal case, I noticed while researching that Rhode Island’s laws appear to offer a bit more license to judges when it comes to their orders and decrees. That might be something that we should look at as we push and pull the state toward governmental sanity.
I’ve always wanted to blog extensively on the various reasons as to why Europeans, and a lot of the rest of the world, seem to “hate” the United States. However, since so much has already been written, and much of it better than anything I could offer, I decided that it would be most beneficial to link to a few essential articles rather than re-hash them. After all, that’s one of the benefits of a blog, isn’t it?
But before providing those links (go to the bottom if you just can’t wait!), I’d like to point out that the ongoing investigation into the UN Oil for Food Program has provided evidence of some of the pragmatic reasons as to why the world was against our going into Iraq. The roadblocks set up to block anyone from taking final action were not put up out of any sense of fairness or due process (though the UN and Europe certainly do love “process”), but instead were placed for more selfish reasons.
According to the historian Paul Johnson, George Washington stated that “no nation can be trusted further than it is bound by interest.” (A History of the American People, p. 89) With this in mind, the information coming out of the aforementioned investigation has made it perfectly clear that it was those who most benefited from the corrupt UN Oil-for-Food program – particularly France, Russia and China who are all permanent members on the UN Security Council – who were also the strongest opponents against taking action against Saddam Hussein. While we have heard much about America going to war for oil, the Senate investigation is showing that, in fact, these nations were interested in preventing war for oil. Why? Because it was in their own best interest to do so. Over the years, Hussein earned $21 billion in Oil-for-Food money, but he didn’t keep it all.
According to U.S. officials, the former Iraqi leader spread billions of dollars around the globe, particularly targeting France, Russia and China, all permanent members of the U.N. Security Council.
While diplomats from those three nations deny they were bought off, and U.N. Secretary-General Kofi Annan says he doesn’t believe they were, Saddam’s oil voucher scheme was aimed at ending sanctions, and a CIA report [The Duelfer Report, this link is to the Key Findings (pdf format)] revealed that Saddam was very generous to his friends and supporters.
What Saddam instituted was, essentially, an oil voucher program whereby he gave vouchers to “sympathizers and supporters” who could then sell them and earn “hundreds of thousands, or even millions of dollars.”
The Bush Administration is constantly criticized for failed diplomacy because it did not effectively “make the case” to our “traditional” allies for war with Iraq. The cleverness of this argument is that it implies that the onus for diplomacy is always on the United States and gives the rest of the world a pass. The natural result is that any diplomatic failure is the fault of America. The possibility of the intransigence of our prospective “allies” is never acknowledged. Thus, the importance of the UN Oil-for-Food investigation is that it is finally exposing the truth. It is not that the Bush Administration wasn’t putting forth a convincing case, it was that these nations simply didn’t want to listen. They had no interest in changing their behavior because they were profiting from the situation as it was and probably believed that, once the sanctions agains Hussein were eventually lifted, they would be in a prime postion to profit even more.
However, Europe is comprised of more than its governments. What explanation can be given for why the general population seems to loathe us so? To answer this question, I recommend the following articles. (Note: some of the linked articles are quite long).
Perhaps the best article, and the only one that needs to be read, is by Bruce Bawer, called Hating America. Two shorter pieces, here and here, (each written by the co-authors of the book Hating America: A History) show that Europe’s loathing of America really is nothing new, while Joshua Levesto’s piece puts forth the theory that Europe is led by the wrong kind of anachronistic politicians who set the example for the general population. In “The Psychology of Appeasement,” Russell A. Berman shows it may go deeper than that. Finally, Victor Davis Hanson has written much that touches on this subject (an index of his columns are here). I’d recommend “Our Weird Way of War,” which shows that our enemies in the Middle East know which Western buttons to push; “Civilizaton vs. Trivia“; which illustrates the idiocy of relativistic outrage; and finally, “Let Europe be Europe“, which is almost self-explanatory.
There are many more, but these few articles are probably enough to illustrate the alternative viewpoint that the diplomatic rift between the U.S. and Europe are not all the fault of America.
[Open full post]From today’s Projo story on the Taricani case:
Yesterday, as Taricani’s legal team has argued in the past, Murphy challenged DeSisto’s authority to prosecute the contempt case against Taricani. He asserted that only the U.S. Attorney’s office has jurisdiction to prosecute such cases.Here’s part of Judge Torres’ response, where he explains why it is necessary for the courts to assume the function of enforcing the law in this case.
The judge also said he felt the U.S. Attorney’s office had a conflict of interest because someone in that department could have been Taricani’s source.
That lays it out pretty clearly. Taricani’s lawyers are concerned with judicial usurpation of the enforcement function of government. Torres agrees there is usurpation, but says it’s necessary for the greater good. [Open full post]
Not being adequately informed about the case and the relevant laws, I’ve been waiting to hear Andrew’s argument in full with respect to Jim Taricani and Judge Torres before taking a position. However, Dan Yorke believes Judge Torres is in the right, and he just said something on his radio show that gives reason, at the very least, to be concerned about an underlying mindset.
With interspersed commentary, Yorke played the public statement that Taricani made upon being declared guilty of criminal contempt of court. When he got to this sentence, Yorke stopped the tape:
The government has used its resources and power and the threat of jail to try to coerce me to identify a confidential source.
Among his comments, Yorke suggested that, while technically true, it was somehow shifty to characterize the judiciary as “the government.” Paraphrasing: “It’s one branch of government, and in this case, it’s investigating another branch of government, the executive” (meaning the FBI). This brings to mind something from one of Andrew’s posts on this topic:
Institutionally, American democracy has forgotten something — all three branches of government are charged with defending the rights of the individual. Somewhere that idea was lost, replaced by the idea that the court system alone was charged with protecting individual liberty, and the other branches of government, and the general population, were expected to obey judges’ orders without question (unless another judge overturned an order.)
I’ve done some preliminary investigation of the relevant law — enough to realize that I don’t have the time right now to do more than a preliminary investigation — and it appears that the question comes down to whether Torres’s order that Taricani reveal his source was a “lawful writ, process, order, rule, decree, or command.” I’ll leave that question open (Taricani does have lawyers working on his behalf, after all), but I will agree with Andrew that this case may present a worth-taking opportunity for the executive branch to remind people that the actions of the judiciary are, indeed, actions of the government — not some supragovernment with incorruptible judgment as to the law and its own powers.
[Open full post]National Review Online’s Cathy Sieppe has noted that
One of the election lessons for Democrats is that while the Left doesn’t understand the Right, the Right can’t help but understand the Left, because the Left is in charge of pop culture. Urban blue staters can go their entire lives happily innocent of the world of church socials and duck hunting and Boy Scout meetings, but small-town red staters are exposed to big-city blue-state values every time they turn on the TV.
Sieppe has given four examples of relatively conservative (or at least, definitely not liberal) television shows: Blue Collar TV, American Dreams, King of the Hill, and The Simpsons. The only one of the four that I have not seen is American Dreams, though I watch none of them regularly. As with most shows, the episodes are sometimes uneven, but the very fact that none seem to tow the Conventional Wisdom/Politically Correct line add to their appeal. I suspect as Hollywood realizes that there is money to be made by producing fare that would be appealing to the “Red-Staters” (Passion of the Christ comes immediately to mind) we will see more entertainment about and for “regular” America. I just wonder if the main characters created for such entertainment will be portrayed as genuine people (Red-State Everyman, if you will) or if the entertainment industry will simply rehash the same old “redneck” stereotypes.
[Open full post]The Providence Journal provides a link to Judge Torres’ order (pdf format) compelling Jim Taricani’s testimony about his source. Two things leap out at me.
1. It is clear from the memo that the leaking of the tape is not a violation of the law. It is a violation of a “protective order” issued by the judge. In explaining the validity of the order, Judge Torres cites its consistency with “the Local Rules of this Court” and the “Rules of Professional Responsibility” for lawyers. Do we now live in a society where rules that judges and lawyers make to police themselves, without consulting any other branch of government, can be used to take a citizen’s freedom away?
2. Judge Torres cites precedents stating “Certainly the public has no right to demand access to discovery materials which are solely in the hands of private party litigants” and “no public right of access submitted to court in camera as part of discovery dispute”. He uses these precedents to support the “rules” barring the release of evidence. The logical connection Judge Torres sees is troubling. Do we live in a society where everything that there is no right to is forbidden? Is the government’s enumeration of our rights the limit of our rights? More concretely, because I don’t have a right to a $1,000,000-a-year job, does that mean a $1,000,000-a-year job is forbidden to me?
I mean no personal disrespect to Judge Torres, but this memo contains the kind of sloppy reasoning that is only possible when courts feel that mere laws written by legislators are too harsh a limit on their powers.
I also was intrigued by Cox’s article on urban-versus-rural-versus-Democrat-versus-Republican. For Marc’s thoughts, click here. For Justin’s thoughts, click here. Here’s my plausible-but-not-proven stab at explaining the trend: Urban areas are the most dependent on other areas to survive.
Imagine the following: One Sunday night, impenetrable force-fields appear along the borders of every town in Rhode Island. Places like Foster and Hopkington would be able to set up some sort of subsistence-level society pretty quickly. Providence, on the other hand, would be in big trouble once the supplies at the grocery stores ran out.
I think, at some level, though maybe not a conscious one, urban dwellers are aware of this vulnerablity. That’s why they are more likely to vote for the party whose central message is “don’t worry, we’ll keep taking stuff from other people and giving it to you” than they are a party with a more principled message.
I’ve admitted before that I find healthcare to be an eye-glazing issue — especially in Rhode Island. Sometimes it seems reasonable to wonder whether that’s an effect that the industry actively encourages. As William Gamble’s analysis suggests (to my mind, anyway), Blue Cross of Rhode Island could hardly have been better designed for corruption if that had been the intention all along:
Both the law and the market provide six methods to stop agents from taking anything that is not nailed down. They are: 1) business failure, 2) the market for corporate control, 3) managerial duties required by law, 4) direct managerial financial incentives, 5) corporate-governance oversight, and 6) shareholder empowerment. None of these applies to Blue Cross.
His solution?
Try selling it. It must be worth something. Why does Rhode Island, a small state with a small insurance pool, need a separate Blue Cross? Why not merge it with Massachusetts Blue Cross? Why not a New England Blue Cross — a company large enough to negotiate with all providers?
I’ve noticed, here and there around my life, that smaller groups — a school system, a town government, a small office in a limited market — are often infested with backstabbing and advantage-taking out of proportion to their actual significance. The temptation of becoming a small pond big fish seems apt to drive people mad. (Perhaps because a certain sort of person can become such a creature although he wouldn’t survive in a broader pool.) But as anybody who becomes addicted to the Flash game Fishy! will learn, ambition quickly becomes its own undoing in an enclosed ecosystem, and unfortunately, the individual isn’t likely to be the only one undone.
[Open full post]Over at National Review Online, John J. Miller previews the 2006 Senate races. With all due respect to the conservative mothership, he gets Rhode Island completely wrong.
Lincoln Chafee, the sort-of Republican, isn’t well liked by many of his GOP colleagues because they worry he’ll bolt the party if it means he can stay in the majority. He may face a primary, but he’ll probably win. Democrats will have a hard time coming up with a candidate who can beat him. Congressman Patrick Kennedy would be an interesting choice, but he appears content in the House.
First, obviously the name “Steve Laffey” has not trickled up to the national level yet. He would certainly be a strong challenger against Chafee in a Republican primary. Second, I think that Miller underestimates the potential of a Kennedy run. Kennedy can present himself as more responsible than Chafee on national security issues (he voted in favor of the Iraq war). Enough Republicans may have grown tired enough of Chafee to leave that part of the ballot blank on election day, especially if the Republicans already have a solid 54-or-more member majority in the Senate. [Open full post]
