Running On Empty

murrayw — Fri, 15 Aug 2008 06:28:43 +0000

Singer, songwriter, liberal activist and now John McCain scourge Jackson Browne filed a lawsuit today against the presumptive GOP nominee and the Republican Party for failing to obtain a license to use one of his songs in a television commercial.

The song, “Running on Empty,” has been used by the Ohio Republican Party (not the McCain campaign) apparently against Browne’s approval. The music icon also claims that in doing so, the false perception is created that he is endorsing McCain’s candidacy.

If the whole episode strikes a nostalgic tone, it’s because famous musical artists and Republican presidential candidates have butted heads in the past. Bruce Springsteen publicly complained when Ronald Reagan used “Born in the U.S.A” during his campaign in 1984.

The commercial Browne is upset by is a recent spot on energy policy that rips Barack Obama for suggesting that the country conserve gas through proper tire inflation.

“We are confident that Jackson Browne will prevail in this lawsuit. Not only have Senator McCain and his agents plainly infringed Mr. Browne’s copyright in Running On Empty, but the Federal Courts have long held that the unauthorized use of a famous singer’s voice in a commercial constitutes a false endorsement and a violation of the singer’s right of publicity,” Lawrence Iser of the Santa Monica, California law firm Kinsella Weitzman Iser Kump & Aldisert said in a press release. “In light of Jackson Browne’s lifelong commitment to Democratic ideals and political candidates, the misappropriation of Jackson Browne’s endorsement is entirely reprehensible, and I have no doubt that a jury will agree.”

This is the second time in a week a celebrity has chastised the McCain camp for allegedly illegally using his or her material. Mike Myers, earlier this week, insisted that the Arizona Republican take down a web ad that — mocking Obama’s celebrity — used a “we’re not worthy” clip from his movie Wayne’s World.

To read the rest of the post, click here.

Update: The Los Angeles Times has since published this story.

The Dog Days of Summer and Executive Privilege

murrayw — Fri, 08 Aug 2008 06:38:29 +0000

Late last week, a Federal District Court Judge had scathing words for the Bush administration for claiming executive privilege for refusing to allow former senior White House aides to testify before Congress about the firings of nine U.S. attorneys.

Judge John Bates rebuked the Bush administration for what he said was their “unprecedented” claim of executive privilege.

The scathing opinion said: “The executive cannot identify a single judicial opinion that recognizes immunity for senior presidential advisors in this or any other context. That simple yet critical fact bears repeating: The asserted absolute immunity claim here is entirely unsupported by existing case law.”

Bates went on to say that he doubted very much that if the White House appealed his decision, they had even a remote possibility of prevailing:

“The aspect of this lawsuit that is unprecedented is the notion that [former White House Counsel Harriett Miers [one of those subpoenaed] is absolutely immune from compelled testimony.”

In the past, the Supreme Court had reserved claims by Presidents of absolute immunity only for “very narrow circumstances” such as for issues of national security or foreign affairs. Testimony about the firings of U.S. attorneys was not in that class. And therefore there was little likelihood that a higher court would reverse his decision, Bates said.

Bates suggested that Congress and the White House settle their dispute and allow testimony about the U.S. Attorney firings, even scheduling a settlement conference for Aug. 27, as if his the parties to the case were not the President of the United States and the U.S. Congress– but parties to a small claims court.

Inasmuch as Bates was appointed to the bench by President Bush in 2001 and once worked for Whitewater Special Prosecutor Kenneth W. Starr, he has impeccable conservative credentials.

So did the White House take the judge’s suggestion and agree to negotiate with the House of Representative, agreeing to use him as a mediator of sorts?

Rep. John Conyers, (D-Mich.), the chairman of the House Judiciary Committee hoped that some agreement could be reached with the White House and his committee could hear testimony when Congress returns from its summer recess in September, saying he hopes the White House will “accept this decision” and finally allow Miers and others to testify.

But as Johanna Neuman of the Los Angeles Times first reported, the White House has decided there is no room for compromise.

The White House had told Judge Bates that they wish to appeal his ruling. Here is what they said in a court filing:

Whatever the proper resolution of the extraordinarily important questions presented, the public interest clearly favors further consideration of issues before defendants are required to take actions that may forever alter the constitutional balance of separation of powers.

The end result, as Neuman reports, is that the White House will appeal means that it is unlikely that that Karl Rove, Harriett Miers, or any other senior Bush administration will testify about the firings of U.S. attorneys– or much anything else– until sometime next year.

By then, of course, either Barack Obama or John McCain will be president of the United States.

The motto of this blog: We blog, you decide. (Uh oh, I hope I am not served with legal papers by Fox News in the morning!)

And so for that high minded editorial reason, I am not going to offer an opinion as to whether the White House has delayed testimony on the U.S. attorney firings until after the election because of high minded principles (what the White House says) or to conceal their own wrongdoing (what Democrats say) and to help the McCain campaign by assuring that there are politically embarrassing hearing only a couple of months or so before the Presidential election. Besides McCain’s candidacy, hearing would surely even do more harm to Republican congressional candidates who do not have network newscasts and advertising budgets to distance themselves from President Bush as many would like to do as their re-election prospects stand in the blance.

But if there was a political calculation in withholding testimony by Rove, Miers, and White House officials, is that going to actually lhelp the Republicans in the fall elections?

The answer is almost certainly not:

At some point long before the election, the Justice Department will release its long-awaited investigative report on the firings of the U.S. attorneys. And as I reported tonight at Huffington Post, a good portion of that report is going to be about the role of senior White House officials in shaping misleading testimony and correspondence about the firings to Congress.

Besides the report on the U.S. attorney firings, the Justice Department’s Inspector General is also readying a release for public release sometime probably long before election day about the politicization of the Justice Department’s Civil Rights Division under the Bush administration.

Not only is that report virtually certain to be scathing, but relations between investigators and former Bush appointees in the Civil Rights Division have become so contentious that prosecutors have had to resort to using a grand jury to compel testimony, because many of the former Justice Department attorneys have refused to voluntarily be interviewed by the Inspector General.

Also what might not be a good omen for what might be in that report is that a federal grand jury is reportedly considering criminal charges against one former senior Bush administration appointee in the Civil Rights Division, Bradley Schlozman.

If the reporting of Evan Perez of the Wall Street Journal is correct (and I have great faith in his reporting) the Justice Department will likely make public report its scathing reports on the U.S. attorney firings and the politicization of the Civil Rights Division sometime in September or even earlier. (I don’t have any personal knowledge of when the reports will be released.)

So at a minimum, the Justice Department is likely to release two devastating reports on the Bush administration this fall or even earlier. Worse, we might also learn that Justice’s Inspector General has sought either a criminal probe of some officials or even a special prosecutor. (The Inspector General does not have prosecutorial powers.)

Add to that that a potential prosecution of Bradley Schlozman, or more disclosures about what the federal grand jury probing Schlozman has been uncovering, and the political damage could reach a crescendo.

At that point, even if the motives of the Bush administration in being unyielding in its executive privilege claims are indeed only because of what they view to be a high minded defense of constitutional principles (Judge Bates’ opinion aside), the politics of continuing to do so might prove not only to be harmful to John McCain’s presidency, but devastating to the Republican House and Senate candidates in the fall.

The continuous claims of executive privilege– whatever the motive for them being invoked– are going to appear more and more to the pubic part and parcel of a cover up. That is inevitable as the U.S. attorney report becomes public, and the report on the politicization of the Civil Rights Division is made public, as well as whatever else the public learns about these issues through leaks from the federal grand jury, the House Judiciary Committee’s ongoing probe, and sleuthing by folks like Josh Marshall.

When Dan Bartlett was White House counselor, he was an influential advocate– too often overruled because of advice proferred the President from Dick Cheney and other hardliners– of pre-emption and full pubic disclosure. Playing that role today is Deputy White House press secretary Tony Fratto. But Fratto and similar minded White House advisers lack the clout too often to have their sensible advice listened to.

Even though the President might think otherwise, and he is being advised to stay his course, his best hope in assisting Republican congressional candidates in the fall would be to have Karl Rove and Harriett Miers testify before Congress– and the sooner the better. As for the public welfare, the testimony would help resolve many unknowns about the firings of the U.S. attorneys and other allegations of White House misuse of the Justice Department.

For now, the executive privilege debate has been relegated to the back pages of newspapers and it might appear to be smart politics to stand tough in the face of congressional subpoenas. The dog days of summer, a Summer Olympics, a presidential election– and even other administration scandals have largely drowned out the issue of the firing of the nine U.S. attorneys.

But either this fall, or even before, all of that is almost certain to dramatically change.

And claims of executive privilege by the President of the United States to disallow his top aides to testify on Capitol Hill could prove devastating to his own political party. Republican House and Senate candidates are no doubt going to be damaged by the executive privilege claims becoming a front and center issue just prior to the election.

In the end, the President’s continuing claim of executive privilege– whether made for high minded reasons of constitutional law, obstinacy, or for political calculation– could prove to be a last unwanted legacy that George Bush leaves behind for his own political party.

Update: My friend Marcy Wheeler disagrees. (She is probably right!!)

Murray Waas » Los Angeles Times

Running On Empty

The Dog Days of Summer and Executive Privilege