Bad faith

At the March 31, 2006, Senate Judiciary Committee hearings, examining Sen. Russ Feingold's motion to censure the president for his illegal wiretapping program, Chairman Arlen Specter made the question of "bad faith" on the part of the president the central issue in his opposition to censure.

Chairman Specter. I was looking for the comments on bad faith or good faith, and finally we heard it from you, Mr. Schmidt, that there is no evidence of bad faith. It seems to me that before a censure resolution can get anywhere, can rise to the level above being frivolous, there has to be an issue of bad faith. Senator Feingold's resolution doesn't say a word about bad faith.

Don't you think, Mr. Dean, that that is an indispensable prerequisite, a sine qua non, to censure the President? I note that your 2004 book, Worse than Watergate, called for the impeachment of President Bush. So you were pretty tough on him long before this surveillance program was noted.

But to come back to good faith and bad faith, don't you think there has to be some issue of bad faith?

Mr. Dean. In Worse than Watergate, I didn't call for impeachment. I laid out a case that could be made for impeachment. I do make a distinction.

As far as Senator Feingold's resolution, when I read those ``whereas'' clauses, it seems to me that there is evidence of bad faith. First of all, there is certainly a prime facie case that--

Chairman Specter. Mr. Dean, do you think that Senator Feingold would shy away from those two magic words, ``bad faith,'' when they are so much easier to define than the ``whereas'' clause? I recollect his 25-minute speech on the floor. I wanted to ask him about bad faith and didn't get a chance to.

Mr. Dean. I don't recall bad faith as being a prerequisite to censure.

Chairman Specter. Well, it is not a matter of recollection.

Mr. Dean. It is conduct.

Chairman Specter. Don't you think that it takes bad faith to censure a President?

Mr. Dean. I think in gathering my thoughts to come back here, I thought, you know, had a censure resolution been issued about some of Nixon's conduct long before it erupted to the degree and the problem that came, it would have been a godsend.

Chairman Specter. Well, then the Congress was at fault in not giving him a warning signal.

Mr. Dean. It would have helped.

In light of James Comey's testimony yesterday, is there any way on earth that Specter can still claim the president acted in "good faith?"

Consider this response from Bruce Fein (emphasis mine):

Mr. Fein. Let me make a couple of observations about bad faith or secrecy. One, we don't have the information, if it exists, indicating what advice President Bush received just before he commenced the warrantless surveillance program. You don't know, I don't know, and he is resisting giving that information to you that could dispel any uncertainty on such a critical matter. That still is secret.

We sure know now. The entire leadership of the DOJ was prepared to resign over it. Can there be any doubt at this point that the president acted in bad faith?

Finally, Sen. Feingold responded to the "bad faith" argument:

Sen. Feingold: Now, Mr. Chairman, before I ask my first question, I want to get to this question of--you didn't help me draft this thing, but if you want the words ``bad faith'' in there, let's put them right in, because that is exactly what we have here.

The whole record here makes me believe, with regret, that the President has acted in bad faith both with regard to not revealing this program to the appropriate Members of Congress, the full committees that were entitled to it, but more importantly by making misleading statements throughout America suggesting that this program did not exist--I understand if he didn't talk about--and then after the fact dismissing the possibility that he may have done something wrong here, that he may have broken the law. So call it bad faith, call it aggravating factors.

Well, Sen. Specter?

Why even ask Congress to take an oath?

Dahlia Lithwick writes with Richard Schragger today and simply hits one out of the park.

Specter's justification for then voting for a bill he deemed unconstitutional? "Congress could have done it right and didn't, but the next line of defense is the court, and I think the court will clean it up."

There is some irony in this congressional willingness to see the courts as some kind of constitutional chambermaid—as an entity that exists to clean up after Congress smashes up the room. It is especially ironic when it's articulated by members of Congress who like to invoke judicial restraint as a constitutional value. But it is beyond ironic, and approaching parody, when Congress asks the court to clean up a bill it knows to be unconstitutional, when the bill itself includes a court-stripping provision.

Criticizing the court for overturning the laws passed by Congress—as Specter did repeatedly during the John Roberts and Samuel Alito hearings—is fair, so long as one is willing to defend one's own interpretation of the Constitution when one gets a chance to assert it. But simultaneously crying "judicial activism" as you rely on the courts for political cover when you're too timid to defy the electorate—or your president—is hypocritical.

Lithwick and Fred Kaplan are pretty much the only reason to ever visit Slate anymore.

Being a senator is difficult

Josh Marshall at Talking Points Memo has been all over the Net Neutrality issue and finds this gem:

Others on the committee questioned the need for "preemptive" action against a problem they're not convinced exists. If the discrimination that Net neutrality advocates fear does occur, such a public outcry will develop that "the chairman will be required to hold this meeting in this largest room in the Capitol, and there will be lines wandering all the way down to the White House," said Delaware Democrat Joseph Biden.

First of all, if the discrimination DB fears will occur does in fact come to fruition, the public outcry will be stifled. That's the entire point. And this blogger, for one, doesn't look forward to standing in a line to demand that Congress get off it's ass to restore the public's ability to communicate freely over the Internet. When they take away our rights, they don't give them back.

Then there's this:

[Arlen] Specter, for one, indicated that he would prefer looking at the issue on a "case-by-case" basis rather than issuing a "general rule" about what network operators can and cannot do--an approach favored by Internet companies. He said it may be more productive to negotiate less formal "standards" for network access with the players involved because writing new laws is "extraordinarily difficult, candidly, when you have the giants on both sides of these issues."

Are you kidding? Case-by-case? Where will they find the time with all the flags that have to be flame-retarded and gays that have to be kept single? Or will they leave it up to the "trial lawyers" and "judicial activists" to decide?

But by all means, don't write a new law, especially if it's going to be "extraordinarily difficult." Even if Senators Snowe and Dorgan have already written one for you.

And the worst part of Specter's nonsense is "when you have the giants on both sides of these issues." Maybe for just once in his miserable term, Specter ought to think about the people who aren't giants. Like the small business owner who won't stand a chance if Wal-Mart has paid for the Internet traffic to come their way.

In fact, the giants on one side of the issue wouldn't even exist today were it not for the level playing field that created the opportunities for them. If Specter wants to punt on the issue, then he should vote for the Snowe-Dorgan bill and leave the Internet the way it's been since the Web was born.