Run For Cover: Erwin's On The Case

Every one of our readers know that we listen to Hugh Hewitt. They also know that once a week (at least they try for a once-a-week-spot) Hugh hosts John Eastman of Chapman Law and Erwin Chemerinsky of Duke Law on his show. They cover the variety of legal topics confronting the nation during these spots. They are, of course, the essence of "balanced." And Marcie an I delight in listening to the verbal banter of the trio. (And, of course, we love skewering Erwin.)

Yesterday was a rare day. For the first time in a long time (And we're talking months here) the trio agreed on one particular topic. It was a red-letter day, and one certainly worth noting on the calender. Also, it proved that Erwin's not unhinged, he's just simply wrong on a great many things. HT to Generalissimo Duane for the transcript:

HH: All right. Now I've got to switch, gentlemen. I've got to switch to the just war doctrine. Professor Bainbridge has been writing that Israel's response to the Hezbollah terrorist attack upon their soldiers, kidnapping two, killing eight in the rocket attacks, indiscriminate against civilians, is disproportionate, and I want to summarize here and be fair to Stephen, unjust. Erwin, do you agree with Stephen Bainbridge?

EC: From everything I know, I strongly disagree. We know that Hezbollah went into Israeli territory and kidnapped Israeli soldiers, and killed Israeli soldiers. We know that they're launching hundreds of missiles a day. Israel gets to respond to defend itself. It needs to get a...take out the Hezbollah bases in Lebanon. It can do so by bombing their support lines. They can go in by sending in troops. But so far as I know, Israel's just here protecting itself from a very militant organization bent on destroying Israel.

HH: I think we're coming close to one of those strange occurrances when the three of us agree. John Eastman?

JE: Put this day down on the calendar.

HH: You betcha.

JE: We do agree. In fact...and I've been a little bit out of pocket this week, so the technical details, I'm not quite up to speed on. But my understanding is the technological nature of the missiles that Hezbollah has used implicate much more than Hezbollah, that implicate the Iranian government, and perhaps the Chinese government as well. This is very serious. And Hezbollah is on record as saying they will not stop until Israel is obliterated from that region. I think it is quite far from disproportionate for Israel to be doing what it's doing. In fact, I think they have legal authority to go much further in order to stop this enemy bent on their destruction.

Now that we're done congratulating Erwin on his intelligence in understanding that Israel, in fact, defending itself. In deed, they are doing quite well, and Hezbollah is suffering greatly from their counter-attack. And, of course, we know that Hezbollah is in charge of it's own fate at this point: Return the soldiers, end the attacks, allow the Lebanese military to come to the border as a "buffer" for both sides, and all the Israeli attacks will end.

Good for Erwin. Every dog has his day, and Erwin had his two minutes. The day was ruined unfortunately at the beginning of the interview with this exchange: (And yes, I'll be jumping in from time to time)

HH: I'm joined now by Erwin Chemerinsky, professor of law at Duke University Law School, John Eastman, my colleague, professor of law at Chapman University Law School. John from the right, Erwin from the left. We've got to cover the just war theory as applied to Israel's response to the Lebanon terror attacks mounted by Hezbollah. But first, Erwin, you're of counsel to Joe Wilson and Valerie Plame.

EC: I am. I'm co-counsel in their lawsuit against Dick Cheney, Lewis Libby and Karl Rove. It was filed last Thursday in the United States District Court for the District of Columbia.

HH: Please tell me you're getting paid, Erwin.

EC: I'm not. I'm doing this pro bono.

HH: Unbelievable. Now Erwin, of course it's all nonsense, and Joe Wilson...what are you going to do when he gets on the stand and people try and reconcile his eight different versions of what he said and did?

EC: Oh, I don't think there's eight different versions. I think we have an extremely strong case. Here's what we all know at this point. Joseph Wilson wrote an op-ed in the New York Times, in which he showed that there were falsehoods in President Bush's State of the Union address. As a result of that, the Vice President, his top aide, Lewis Libby, and the President's key political advisor, Karl Rove, decided to reveal that Valerie Plame was a secret CIA operative. They did so by telling journalists like Robert Novak this, and was reported by Robert Novak in a column published three weeks ago Friday. You know, I've heard you and John say so many times that those who release classified information commit treason. The first President Bush said there's nothing more despicable than revealing the identity of a secret CIA agent. I think you should share my outrage here, and I think both of you should volunteer, along with me, to represent Valerie Plame Wilson and Joseph Wilson.

Stop. LMAO ... Did he seriously just ask two of the nation's finest legal minds to go in with him on a case that has more holes than a block of Swiss cheese? This case is so bad, in terms of arguable merits, that the only thing that compares is southern Lebanon right now. And John and Hugh are about to kill this case with simple, direct facts and logic.

HH: I'll let John respond in just one second. But has Joe Wilson contradicted himself as to his public accounts of what happened?

JE: He has, and it's pretty well documented, both before the 9/11 Commission and in House representatives' investigation into this, that his official report was distinctly different from what he published in the New York Times.

HH: Erwin, do you agree with that?

EC: I do not agree with that at all. I think his official report was he found no evidence that Iraq was trying to purchase uranium from Africa.

OK, which "official" report is he referring to. His intial report to the Congress stated that there was evidence to show that Saddam Hussein had tried to open up the doors to buying enriched uranium from Niger. Niger produces only one, serious tradeable commodity and that's enriched uranium. Since then, his story has changed time and again. And he keeps playing the victim card every time its changed to remind people of how "damaged" his wife's reputation is, and the lie that they were in any serious danger, and the supposed, non-existent leak of her was used to "discredi" him because he didn't tow the party line.

HH: Did the 9/11 Commission find differently?

JE: It did.

HH: Erwin?

EC: I don't...I would have to go back, to be honest, and look at what the 9/11 Commission found.

HH: You haven't looked at that yet???

EC: I read it, but I sure didn't look at this aspect of it, since...

HH: And you took the case???

EC: Oh, this has nothing to do with the case. You know, even if everything Joseph Wilson said was wrong, and as far as I know it was quite true, it still was completely inappropriate to reveal that his wife was a secret CIA agent, solely for retaliation, because they didn't like what he was saying.

THEY--those named in the case--didn't reveal her at all. Her husband did so a full-year-plus before Robert Novak even mentioned her. Her friends knew of her, and so did acquaintances. THIS FAMILY made NO SECRET about what Valerie did for a living. And "secret?" Is Erwin serious? She was no more secret than any other analyst at the CIA is. She was a low-level one, at that, and a low-security clearance analyst to boot. She was not a covert operative. Her NOC status was utilized abroad, and had expired shortly before Robert Novak's column.

HH: John Eastman...

EC: If you disagree with him, reveal what he's saying is wrong. Attack him. But don't reveal that his wife's a secret agent for the CIA.

She wasn't secret. And attacking Joe Wilson is easy as pie. He was such an ineffectual diplomat and foreign service agent to begin with, and the toughest thing he probably ever had to do was sign for packages. In all seriousness, this sounds more like a schoolyard fight between two sets of kids. The first ones--the Wilsons--are throwing a temper-tantrum because the big kids--the Bush administration--aren't buying their garbage. Careful, their next tactics might be to hold their breath until we cave in to them.

HH: John Eastman, Joe Wilson's a liar.

JE: Well, he is, and two, it wasn't just for mere retaliation purposes. Valerie Plame, at the time, was understood to be the person who was responsible, or at least involved, in the decision to send Joe Wilson over to Niger to look at this. The administration was trying to figure out how this guy, and how a cabal in the CIA who were so obviously anti-administration position, could have played such a pivotal role in trying to undercut the administration's policies. I think it was perfectly fair game for the administration to say we've got somebody over in CIA who's partly responsible for this, and to disclose to the press that connection, so we have the full story.

EC: I want to respond.

JE: Now the complaint that Erwin...

HH: Of course, Erwin. I'll let you. Go ahead.

JE: Yeah, the complaint that Erwin has filed makes no allegation that any of the disclosures were done knowing that Valerie Plame was a classified CIA operative, other than just an employee over there. And I think that's pretty important.

HH: Go ahead, Erwin.

EC: I apologize for interrupting. I thought that John was done. John, if you're going to use strong languages like liar, you should be sure what you're saying is accurate. And in this instance, the CIA verified that Joseph Wilson was not sent because of any suggestion, or even with the knowledge of Valerie Plame Wilson. She had absolutely nothing to do with why Joseph Wilson was sent to Africa and to Iraq to see whether or not there was the purchasing of uranium. And the allegation of the complaint is that her status as a secret CIA operative was private, that here what you had was public disclosure of private facts. You had it as retaliation for free speech, and I think that states many claims under the Constitution under tort law.

HH: All right. Now I want to switch...

JE: Hang on. Let me go back, because that's not what I said, Erwin. I said at the time, there was some indication that Valerie Plame may have been involved in the decision to send Joe Wilson over. She was his wife, and she was working at the CIA. It was that that made it fair game to discuss, so we get the full story of how this thing came to be, and what his bias in the reporting might be, so that we can understand the veracity of it, and whether he is trying to skew what he learned because of an animosity toward the administration. That's perfectly fair game, and it is routine politics in Washington. And to make a federal case out of it is, I think, bordering on frivolous. And beyond that, it's...I think it's fairly clearly going to get dismissed on various immunity grounds.

It should be dismissed on a lack of merit alone. If not fir that, possibly for, as John points out, the various immunity grouds when it comes to someone in Washington, DC, and one that has access to information that is deemed "classified." This case, quite simply, is Valerie and Joe Wilson all shades of ticked off because through the full grand jury investigation, the best they managed to get was a guy named "Scooter." They made the allegation that someone in the administration leaked the name of his wife to the press. (Nevermind the fact that John Kerry outed an undercover agent while he spoke on the floor of the Senate.) And do they have someone indicted on that charge? That they revealed the name of a clssified operative?

No, they think they caught "Scooter" in a lie. That case is going to be fun, but it'll be even more fun watching Erwin suffer through this case. IF this case makes it to a judge that will hear it, and IF it goes forward, I do hope Erwin doesn't break out the bubbly too soon. This case is a dead-dog, and he has no strengths--true strengths--within the Wilson's lies to compensate for the facts that are going to be laid out.

Publius II