How to Smear Friends, and Influence People

Did you ever wonder how to create a scandal, to smear someone for political gain?
Neither did I, until I moved to Washington.
It’s amazing. All these scandals just come out of nowhere, right? Intrepid journalists rake muck, sling mud until some sticks, or sit patiently by the phone until Deep Throat phones in. And then they bravely go to their editor, fight like hell to get the reluctant editor to publish the story. And for their trouble, they get shunned. But they’re brave journalists, paragons of integrity. And even though you may not be able to handle the truth… well, they live for it.
That’s how it is in the movies.

But in reality, the scandal machine isn’t that hard to operate. There’s a much easier way to do it. Let some partisan hack find some highly credentialled people willing to lend their diplomas to a partisan cause, find you, the slightly lazy and rather tame journalist to swallow spoon-feed talking points, and editors who get paid, hired or fired based on how many copies they can sell. Al Gore wasn’t wrong about the media echo chamber here; his only problem was that he assumed that it’s a one-way street, on which all traffic stays to the right.
The fact is that a lot of experts are a dime a dozen, and more than happy to cloak partisan vomitus in a mantle of detached, professional opinion-giving. Lazy reporters, and reporters who simply lack critical thinking abilities, are happy to report stories that fit into their world view of “Republicans Evil, Dems Good” (or occasionally vice-versa).
The end result is a “news story” based on “expert opinion” which is in fact just a thinly veiled partisan put-up job, a smear.
People on both sides of the aisle do this as often as possible because it’s a good way to capture the public debate on an issue, without doing the hard work of actually debating the issue. It is a way of framing a question, so that the question answers itself. “Have you stopped beating your wife yet?” is a simple example of how this works.
Outside of the Fairie Kingdome of the Beltway, Washington, politics and government generally start looking more and more like a cesspool to you. Why, it’s nothing more than a procession of scandals. This comes at a time when government is probably cleaner than it has ever been.
Let’s look at some examples.
There are two “scandals” afoot right now which have been manufactured this way, and by virtue of being the more prominent party, Republicans happen to be victims of both campaigns.
One scandal that illustrates the general principle of getting on top of the story, getting there “fustest with the mostest” is the case of Democratic memos leaked by Republican staffers to the Wall Street Journal in November. One half of that story is that a Dem staffer screwed up, and granted Republican staffers access to the Dem portion of the Senate Judiciary Committee’s network drive. The Republicans, being enterprising types, rooted around in places they shouldn’t have had access, and found some memos relating to Democrat political strategy on nominees.
The other story – the one that isn’t being reported at all outside of the conservative press, is that the Dems called President Bush’s judicial nominees Nazis, and made it clear that no minorities could make it through the nominations process. Otherwise the Dems would lose their election year bulwark, the charge that Republicans hate minorities.
It’s pretty clear why the Dems are doing this. As minorities become more enfranchised within the Republican Party, it seems a more hospitable place. Black and Hispanic and Asian Pacific Islander faces are starting to dot Republican events, and the party is turning into more of a meritocracy where anybody can rise, regardless of their race. This causes the Dems heartburn, because they lose a good tool for disciplining their minority voting bloc: “what are you going to do – vote for the racist Republicans? Bwah ha ha ha.” I oversimplify here, but that’s what it boils down to. The success of Justice Thomas, Colin Powell, Condoleeza Rice and Rod Paige, Elaine Chao, Mel Martinez, and even White-bread women like Christie Todd Whitman, Ann Veneman, Gail Norton and Karen Hughes deflates the Dem myth of a race and gender exclusive Republican Party.
The Republican Party is becoming more minority-friendly, therefore, its outreach efforts have to be stopped. One way of stopping it is to prevent the Republicans from appointing any Black or Hispanic judges — after all, it’s hard to say you are minority-friendly, or better yet race-neutral, if all the faces are of elderly white men. Justice Rogers Brown, Mr. Estrada, and maybe even Judge Gonzales will be sacrificed on the altar of racial politics if the Dems have their way — no offense folks, we’re just ruining your lives to prove a political point.
This should be the subject of a Watergate-style multi-part expose in the Wash Post. But thanks to sharp maneuvering by the Dems, we have is a scandal involving the Republican staffers. I’ll quote Bob Dole here. “Where’s the outrage?” The answer is quite simple – the Dems managed to frame the issue by very quickly comparing it to the Watergate break-in, and an atrocious practice that should cost the Dems 10 seats in the Senate is now defined as a Republican scandal. Of course the Watergate analogy fails, because the Cuban burglars didn’t find evidence of a knowing pattern and practice of discrimination committed by the Dems. Honestly, the Dems appear to have more in common with Dick Nixon here, as their plans are a concerted dirty tricks campaign perpetrated against their opposition – but you’d have to look at the story critically to realize that.
The second example illustrates the partisan / expert / media feedback loop. It involves Justice Scalia’s recent duck hunting trip with Vice President Dick Cheney. The two are old friends, and went hunting over a long weekend, with a half dozen other friends.
It just so happens that there is also a case involving the Office of the Vice President before the Supreme Court. As it true at any other time, there are perhaps 100 cases involving the Executive Branch before the Court, with the Executive haled into court either as a party or amicus curiae (“friend of the court” or advisor to the Court).
The question of Executive Privilege isn’t really unique either. It is commonly litigated in all sorts of cases. Environmental groups sue to get internal EPA records, criminals sue to get FBI investigators’ notes, corporations accused of securities violations file Freedom of Information Act claims (and then sue) to find out what caused the Commissioners of the Securities and Exchange Commission to come after them. Off the top of my head, I can even recall a handful of cases involving the President’s assertion of various privileges.
But this case is different because it involves the Dems’ efforts to embarrass Cheney and President Bush on their energy policy. It’s all about the OOOOOIIIIIIILLLLLL, don’t forget. And Halliburton of course.
The question presented by Cheney is whether the Office of the Vice President has to release detailed accounts of all consultations with persons not on the Vice Presidential staff. In other words, can the President and Vice President keep a confidential “kitchen cabinet” on which they rely for advice? Or are Executive consultations supposed to be a matter of public record?
The Boston Globe seemingly spontaneously picked up on this duck hunting trip, and consulted with some seemingly impartial experts to determine if Justice Scalia’s fraternization with Dick Cheney was kosher.
The headline: Scalia trip with Cheney raises eyebrows. According to the story:

Vice President Dick Cheney and Supreme Court Justice Antonin Scalia spent part of last week duck hunting at a private camp in southern Louisiana, three weeks after the Supreme Court had agreed to take up the vice president’s appeal in lawsuits over his handling of the administration’s energy task force. While Scalia and Cheney are avid hunters and longtime friends, several legal ethics specialists questioned the timing of their trip, and said it raised doubts about Scalia’s ability to judge the case impartially.
Scalia said Friday: “I do not think my impartiality could reasonably be questioned.”
Federal law says: “Any justice or judge shall disqualify himself in any proceeding in which his impartiality might be questioned.”

The article is correct to state that “contacts with high-level executive officials (including Cabinet officers) have never been thought improper for judges who may have before them cases in which those people are involved in their official capacity, as opposed to their personal capacity. For example, Supreme Court justices are regularly invited to dine at the White House, whether or not a suit seeking to compel or prevent certain presidential action is pending.” That’s correct. Ordinary conflict of interest rules don’t really come into play, since neither Scalia, nor his friend, have any personal interests, such as financial interests, at stake here.
But this is different from all the other lawsuits filed against cabinet officials, according to the article, because

“the suits are not routine disputes about the powers of Cheney’s office. The plaintiffs, the Sierra Club and Judicial Watch, say Cheney and his staff violated an open-government measure known as the Federal Advisory Committee Act by meeting behind closed doors with outside lobbyists for the oil, gas, coal, and nuclear industries.

What makes these cases different from all the other Executive Privilege cases which the Court hears is that we have some dispassionate, unbiased experts who say so.

A New York University law professor, Stephen Gillers, said Scalia should have skipped going hunting with Cheney this year. “A judge may have a friendship with a lawyer, and that’s fine. But if the lawyer has a case before the judge, they don’t socialize until it’s over. That shows a proper respect for maintaining the public’s confidence in the integrity of the process,” said Gillers.

Gillers, we are told, is a law professor who specializes in legal ethics.
Oh, that’s good. So it’s impartial advice we can trust, Straight Outta Cambridge. Word. (Mad props to mah homies wit NWA).
What made the difference, according to Gillers, is that hunting is “not like a dinner with 25 or 30 people. This is a hunting trip, where you are together for a few days.” I’ve read the judicial ethics statute in question, and I don’t recall seeing that element in there. I’ll take it under advisement, for now.
According to another dispassionate, impartial academic expert, “Northwestern University law professor Steven Lubet, who teaches judicial ethics,” “the trip had raised a number of questions.”
Nice. “Now, I’m not saying you molest little kids, steal from the church collection plate and smoke in bars in California or NYC. However, serious questions have been raised.” The “serious questions have been raised” smear is one of my favorite tactics; it’s libel lawsuit-proof because “hey, I’m just asking.” Professor Lubet continues:

It’s not clear this requires disqualification, but there are not separate rules for longtime friends. . . . This is not like a lawyer going on a fishing trip with a judge. A lawyer is one step removed. Cheney is the litigant in this case. The question is whether the justice’s hunting partner did something wrong. And the whole purpose of these rules is to ensure the appearance of impartiality in regard to the litigants before the court.

I guess I’ll buy that. Professor Lubet, like Professor Gillers is a servant of truth-finding, academic integrity, right? And as such they are both clearly outstanding scholars, lawyers, and People who are For the American Way.
No, really.
They are both People For the American Way.
So much so, in fact, that you can find more of their work on the website for People for the American Way. For the uninitiated, PFAW is a left liberal umbrella advocacy group, formed by Norman Lear, to serve as a coordinator for the political activities of literally tens of thousands of lefty special interests.
Lubet and Gillers, it turns out, are the house ethicists for Senate Democrat & presidential hopeful John Edwards, and regular contributors to PFAW slams on Bush judicial nominees. Edwards has solicited Lubet & Gillers’ opinions in the past in order to provide rationalization for Dem opposition to Bush judicial nominees. You can read their letters to Senator Edwards on the PFAW site, where they mysteriously just turned up.
Here’s another tip about Washington. This kind of letter doesn’t just generate itself. It has to be solicited, and if you don’t think so, write some letter to your Senator about some pressing issue in an area that you know something about, and see if he passes it on to the relevant public interest group.
Gillers and Lubet both have noteworthy personal political histories as well.
I believe that Gillers is best known as a CIA basher; he was instrumental in a movement trying to get the CIA (and for that matter the Defense Department) thrown off college campuses in the 1990s. I can’t find the report of the proceedings he was involved in at Rochester Institute of Technology, so I’m a little shaky on my ID of him, but I seem to recall his involvement in the matter pretty clearly. If you weren’t aware, DOD and the CIA fund a lot of defense research through universities, among other institutions. Their money keeps science labs open, and the research keeps the U.S. a step ahead of countries with lesser research infrastructure – so driving them off campus would seriously degrade our defense posture. It’s why our weapons systems are so damn good, and why the CIA can occasionally pull off a good operation.
Gillers chaired a commission examining CIA and DOD funded research, and found it basically incompatible with the, um, dispassionate nonpartisan role of academia. I’m thinking that Gillers hasn’t been pushing this issue too hard in the wake of 9/11… Sorry I don’t have links here, it’s not well “internetted” yet.
Lubet, on the other hand, is the author of a definitive basic handbook on trial advocacy for lawyers. I deeply respect his work in this area. But it’s a shame he can’t limit his legal commentary to lawyering technique. It’s not shocking that he dabbles in politics though, because he was also the head of the Northwestern University chapter of Students for a Democratic Society, the lefty group that evolved from a somewhat radical pacifist anti-war group into a truly radical, rigidly marxist group advocating revolution. Former SDS’ers try to make it sound harmless – but it wasn’t, as Roger Ebert (no conservative) points out. At best, it was a left wing and mildly nutty organization. Following the utopian (and ultimately highly destructive) blueprint for revolution, The Port Huron Statement, the group quickly morphed into the Weather Underground, a domestic terrorist group that committed a string of murders, robberies and bombings in the early 1970’s. Some honest left liberals dropped out; a lot of others hung in. With the except of a few who have recanted like David Horowitz, none are apologetic. That’s where Professor Lubet comes from.
So it turns out that the two dispassionate experts slamming Scalia actually have a pretty substantial partisan history. They aren’t just “law professors” – it is a fact that they are partisan activists who happen to be law professors. This isn’t their first put-up job on behalf of the Senate Dems, it’s the second one that I’ve discovered. There may be more. It’s not a coincidence that Senator Pat Leahy (D-VT), who sits with Senator Edwards on the Judiciary Committee, raised the issue.
And what about our faithful, objective, truth-telling journalist, Mr. Savage?
Well, he’s the guy who’s Jack Shafer dings for excessive partisanship in his coverage of the Dems’ lax computer security scandal. It seems to Mr. Shafer that the balanced story is “Republican Staffers Unethically Access Dem Staffers’ Computers; Uncover Dem Political Plot Aimed at Keeping Conservative Minorities off the Bench.” Yeah, that sounds about right to me… but what do I know? I’m not a dispassionate expert here, or a member of our second priestly caste, the journalists.
Sorry about the length of this, but there is one more question to be answered. I’m an egomaniacal blogger – so I must have an opinion on this: what is it?
The ABA Model Rules for Judges, which informs the interpretation of the federal statute in question, say that a Judge should avoid doing anything improper, or doing anything that would give a reasonable person the appearance of impropriety. We have two facts on hand – longstanding friendship, and hunting trip. Does something there give the appearance of impropriety?
Well, the objective reporter of the news, the newspaper of record, the Olde Grey Lady, is worried because Justice Scalia’s hunting trip… well, it raises serious questions about his impartiality and leads one to think he may be politically biased.
[Pause for hearty ironic guffaws.]
According to the Times, “in the future, he should choose his shooting companions from the legions of hunters with no cases pending before him.” In focusing solely on the hunting trip, and ignoring the 30 year friendship between Scalia and Cheney, the Times picks out a mote in Scalia’s eye, while ignoring the beams sticking out of the Court’s front door, and overhanging the steps.
If Scalia is a long-standing friend of Dick Cheney, then it’s unlikely the hunting trip with seven or eight other friends would have swayed his opinion. If Scalia is going to help out Cheney, it will be a result of the law, or the 30 year friendship – Do you think a two day hunting trip substantially altered the terms of a friendship that dates back to the Nixon Administration? If Cheney wanted to engage in improper ex parte contact, he could have done so at a dinner party, or over drinks at the Naval Observatory. He didn’t need a two day hunting trip to ask Scalia for a favor.
It seems to me that the longstanding friendship is the only basis for disqualification, as something which could give rise to the “appearance of impropriety.”
But nobody can bring themselves to say this.
Gillers and Lubet don’t becuase they are politically constrained from making a legally sound argument, that justices who are close friends of litigants should disqualify themselves to avoid the appearance of impropriety. Making this argument would force Lubet and Gillers to concede that their political allies on the court should recuse themselves quite frequently under similar circumstances.
For example, Justice Ginsburg was for many years, the chief litigator for the National Organization for Women’ causes. So theoretically, she shouldn’t be allowed to hear any cases involving Title IX, or sex discrimination under Title VII. She was also a Friend of the Clintons, so she ought to have recused herself from all the Whitewater cases, not to mention all the cases involving the Executive Branch between 1992 – 2000. Heck, the Thomases and Scalias are friends with Ted Olson – so should Thomas and Scalia recuse themselves in the 100 or so cases each year in which the Solicitor General’s Office participates? Applying that standard in Washington would result in three or four Justice panels deciding many cases. It would wreak havoc with the Court’s operations, in other words.
Reasonable people accept that the high mucky-mucks of the legal world are often friends of the high mucky-mucks of the elected official world, and just let it be. That’s why Justice Scalia said that a reasonable person probably wouldn’t think that the hunting trip raised the appearance of impropriety.
So the partisans hang their hat on thumbtack – the hunting trip. I think the only reason that this is an issue is that it’s a chance for the partisans to try to embarrass conservatives, and Justice Scalia in particular. They are also taking advantage of his own strong ethical code. He recently recused himself from a case involving religion in schools, where his public comments could conceivably have raised doubts about his ability to impartially hear the case. I’ll admit, it’s a nice bit of jujitsu, to use his good ethics against him, but when you look more closely at what’s going on, it stinks like a week-old fish.
Gillers and Lubet’s use of the code also flies in the face of the Code’s intent. The Preamble to the Code, Comment 4, states “the purpose of the Code would be subverted if the Code were invoked by lawyers for mere tactical advantage in a proceeding.” Gillers and Lubet are guilty of subverting the Code here, as is Judicial Watch gadfly litigator Larry Klayman.
You’d think this would be news, too. But then, you’d have to actually have read the Code to know it is being misused here, and asking Savage, or the NY Times to do some reading and critical thinking is probably asking far too much of them.



  1. Dave J

    Just remember:
    1) when you really want to smear someone, invoke authority, proclaim your objectivity and use the passive voice; and
    2) the ship of state is the only kind that leaks from the top.

  2. David Crawford

    3. To those that hate Cheney, this is a big deal. To those that like Cheney, this is a big nothing. The U.S. has been in a “scandal”-a-week mode for about 25 years now. None of them really resonate any more.

  3. Nick

    Great piece.
    When I read the intial reports I was skeptical of the claims of bias, but could not pin it down.
    With the additional info on the reporter and the lawyers it now all comes together.
    Were you able to get it run as a counter point to the intial article, or as an editorial anywhere?

  4. Al Maviva

    Thanks for the compliments. No, I haven’t attempted to do this. As an attorney, I have to consider the needs of my clients first. Some of them probably wouldn’t take kindly to any kind of political controversy being attached to my name, and by imputation their businesses.
    Moreover, I have to practice in front of the local Federal courts, and I don’t want to be on record, in my practicing persona, as having an opinion either way about when judges ought to recuse.
    I imagine this is part of why Howard Bashman’s excellent “How Appealing” doesn’t make strong statements about legal issues, outside of technical advocacy to improve the law and administration of the courts.
    I think also he’d like to be a judge someday…

  5. Nick

    A practical consideration for you. The Fed bench tends to be persnickety that way.
    Still, nothing prevents you from a nom de plume attempt at pointing out what really went on.
    I only practice at the State level, and even if I went Fed side, the 9th Circuit is so wacky these days I doubt that anyone would care what my opinions on recusement are.
    Except I might say that the whole panel ought to be recused because they have lost all touch with reality.