I tried to say nothing when news of Novak’s announcement came. I had nothing good to say, though my own father died of brain cancer and I empathize with Novak and his family for that–it is a horrible way to die, particularly for someone whose identity was tied with his intellect.

But I couldn’t resist a snark on twitter: 

Cue Woodward claiming he got deathbed confession about what really happened during the 7/9/03 conversation Novak & Libby hid.

Perhaps Woodward will–as he did with Reagan’s CIA Director and Iran-Contra co-conspirator, Bill Casey, who also died of brain cancer–make dubious claims about deathbed conversations with Novak.

But the fact is that Novak died with most of his role in the Plame outing still shrouded in secrecy. That’s partly true because of the significant changes in Novak’s story over time. All of the following Novak claims changed as the stage of the investigation suited:

• Whether he understood the leak was intended to seed a story or it was an offhand remark
• From whom he learned the name "Plame," changing from "they" (his sources, then in the plural, not "two"), to possibly Who’s Who, to definitely Who’s Who
• From whom he learned that Valerie Wilson worked in counterproliferation and whether that person made it clear this meant she was covert
• His use of the word "operative" and whether he really confused Valerie Wilson with someone running a congressional campaign in Wyoming (really! he claimed to have–and other journalists bought it!) 
• From whom he learned that Joe Wilson had learned that an "Iraqi delegation had tried to establish commercial contacts"–a detail that was in the CIA report on Wilson’s trip (which remained classified until after Novak spoke to his claimed sources for the story), though Novak used the wrong date for it
• When he spoke to Rove–which changed from July 9 to maybe July 8 or 9

On all those details, Novak’s story changed repeatedly. And then there’s one I’ve never heard anyone ask: from whom Novak got the talking point, "The White House, the State Department and the Pentagon, and not just Vice President Cheney, asked the CIA to look into it," a talking point that shows up in Libby’s note from Cheney on Plame’s identity and may appear in Judy Miller’s notes.

Yet today, most journalists assume Novak’s final answers–the ones that eventually shielded Rove and Libby and Cheney from most consequences–were truthful, and believe they know what happened.

Me, I don’t claim to know what happened. But I see no reason to trust Novak’s most recent answers when there was so much volatility in his story over time.

And I’m just as interested in unanswered questions about Novak’s timeline. For example:

July 7: As more details of Novak’s story came out, it became clear that he said he was working on a planted story impugning Frances Fragos Townsend on July 7 (one which was published on July 10). Murray Waas once suggested that that story had been planted by Scooter Libby and David Addington. And we now know that shortly after Novak sat for a deposition with Fitzgerald in fall 2004, the White House did a search (presumably pursuant to a Fitzgerald request) on "Plame Wilson Novak" on select dates including July 7.  So did Novak talk with Scooter Libby on July 7, one day before Novak asked Richard Armitage a rather stupid question that nevertheless elicited Valerie Plame’s role at the CIA? Did Novak talk with Scooter Libby on July 7, the same day Libby told Ari Fleischer Plame’s name and status and just hours before Novak called Fleischer asking for information on Wilson (Fleischer did not return the call)? Novak testified to disliking Wilson from their appearance on Meet the Press on July 6; if Novak spoke with Libby on July 7, is it even plausible that Wilson wouldn’t come up? Scooter Libby might one day be able to answer those questions, but Novak will bring his side of the story to the grave.

July 8: As I mentioned, Novak ultimately could never decide whether his conversation with Rove, in which Rove confirmed Valerie Plame’s identity, occurred on July 8 or July 9. I suspect the date is significant because if it was on July 8, then some of what Novak said to a friend of Joe Wilson’s on July 8–"Wilson’s an asshole. The CIA sent him. His wife, Valerie, works for the CIA. She’s a weapons of mass destruction specialist. She sent him."–could be attributed to Rove, not Armitage. Indeed, at least as of August 2004, Armitage and Novak disagreed about whether or not Armitage revealed either Valerie’s first name or her role in counterproliferation, and the latter is one part of Novak’s public story that kept changing. I suspect this story remained fluid for some very good reasons–because if it were solved, then Novak’s Armitage story might break down. But we’re not going to find out from Novak now.

July 9: Ah, the secret conversation with Scooter Libby! I’m most interested in this conversation because Novak and Libby appear to have very deliberately hid it. Fitzgerald appears to have been unaware of the conversation as late as September 2004. And Libby and Novak both used a strategy on journalist waivers–refusing global while accepting specific ones–that would have and did shield this conversation for years. Furthermore, there are hints that Judy Miller knew of a Libby-Novak conversation and suggestions that Libby’s unconscious was revealing it even when he was denying it to Fitzgerald. In short, this conversation stinks. And given that the aspects of Novak’s story that remain most dubious–where he got the name "Plame" and whether his use of "operative" meant he knew Plame was covert–are two things Libby was spilling to Ari Fleischer on July 7, that stinky conversation really stinks. Maybe Libby’s unconscious–or the burgeoning war between Cheney and Bush–will reveal these things. But Novak won’t.  

In other words, short of Woodward making up some wildarsed story about a conversation with Novak on his deathbed, much of this story will likely remain unrevealed.

May Novak’s family have the solace that comes now that he is at peace. And may some of the others keeping these secrets eventually tell them.

The reporter that broke the story of Chris Christie’s unusual loan to his subordinate, Michele Brown, raises some interesting questions in a blog post, mostly about why the US Attorney’s office is at the same time refusing to comment, but also claiming that "everyone" knew of this unusual loan. (h/t mb)

There is also this lingering question about who in the office knew what and when. Christie says Ralph Marra, the Acting US Attorney knew about it, as did the “whole front office.” Well didn’t someone question the wisdom of this? I mean aren’t these people supposed to be the cleanest and most ethical people in NJ???? We have now determined that Christie was thinking about a run for Governor as early as 2006 when he spoke to Karl Rove on the phone. Christie also says the question came up so many times during his tenure that he once needed to issue a press release denying that he was planning to run.

A spokesman for the US Attorney’s Office said they won’t have any further comment since they like to keep the office separate from the “political season.” Well, that seems like a wise idea…but then why does everyone in the front office know about this financial arrangement between the now Republican Gubernatorial Candidate and Michele Brown? If this loan was made purely as an act of friendship ( as Christie claims ) it shouldn’t be anyone else’s business. And if all these people in the office knew about it, why wasn’t it properly disclosed?

Finally, Christie promoted Brown twice…once before the loan and once afterwards. We have heard some grumbling complaints about favorable treatment toward Brown in the office, but I wouldn’t hold my breath waiting for anyone to go public.

Someone very close to Christie told me that last night that Christie was a “nervous wreck.” I wonder why. [my emphasis]

I will repeat a comment I’ve made in threads: Christie’s financial relationship with Michele Brown closely resembles the alleged relationship between Margaret Chiara (the US Attorney from Western Michigan) and her subordinate, Leslie Hagen. (The two were also accused of a lesbian relationship.) Chiara and Hagen both got fired (though Hagen has been rehired); Christie and Brown did not, and Brown has been promoted since and remains at the US Attorney’s office in spite of taking an inappropriate loan.

So what explains the disparate treatment?

This will just be a hodgepodge of details to follow up on this story, the news that former NJ US Attorney and current GOP candidate for Governor, Chris Christie gave one of his top AUSAs a mortgage loan for $46,000.

Christie Has Made Other Loans

Check out the original NJN report (click on Christie Mortgage Loan) on this–around the 5:48 mark. When asked whether he has ever given a loan like this in the past, he admits (after making a crazy-stupid face) he has given out such loans, though never as a mortgage.

I’d be really curious who and what those loans were about. But looking through his disclosure forms, I don’t see any hint of them, unless they involved the Christie Family Charitable Foundation, which he had until he became US Attorney (but in which he said he had no management control).

• 2008 State Disclosure Form
• 2008 Federal Disclosure Form
• 2007 Federal Disclosure Form
• 2006 Federal Disclosure Form
• 2002 to 2005 Federal Disclosure Form

Now he did say he and his wife had give money, so maybe that’s where this money came from. But don’t you think Mr. Transparency ought to tell us about all the funky loans he has given in the last little while?

Michele Brown Was in the Middle of the Zimmer DPA

Meanwhile, remember the ginormous sweetheart deal that Chris Christie got his former boss, John Ashcroft, into? Where Ashcroft and his buddies made up to $52 million monitoring a deferred prosecution agreement of a medical device firm? And remember how, contrary to Christie’s claim that no one ever complained about those exorbitant fees, Zimmer’s lawyers were going crazy when they discovered that not only was Ashcroft basically charging them unlimited amounts, but was also pressuring them on further legal issues that seemed rather overblown?

Well, the first person they addressed their "going crazy" emails to was Michele Brown (and all the subsequent emails were cc’ed to her).

Michele,

I believe you and Chris are in Warsaw already. I wanted to alert you to a potential issue with the Zimmer Monitor. On Friday evening, Zimmer received a proposed fee agreement from the Ashcroft Group. Zimmer was told the agreement needed to be in place by Tuesday morning.

I have to tell you I was shocked by the proposed fee agreement.

Brown responds on Tuesday morning (that is, when Ashcroft’s company was demanding a response) and says:

Rick–Thanks for bringing this to my attention. I’ll discuss it with Chris so we’re prepared to address it at the appropriate time.

The email thread goes on as Ashcroft’s people get crankier and cranker about not getting paid and as Christie starts dangling other purported violations to add to the pressure to sign the fee agreement.

In what is surely just one of those remarkable coincidences, the last email in the chain submitted to HJC was written on October 22, 2007–the day Brown finalized her loan from Christie.

I’m not suggesting it is surprising that Brown was in the midst of those negotiations. As Christie’s Executive Assistant and Counselor at the time, it seems normal for her to be involved in the things that he is directly involved with–as he was with all the DPAs. Nor am I suggesting anything untoward about the coincidence of the Zimmer negotiations and Brown’s own loan. But it is pretty smarmy that at the same time Christie was insisting he was too busy to deal with Zimmer’s $52 million problem, he was negotiating the loan with Brown. (And their apparent trip to Zimmer’s Warsaw, IN HQ together a week earlier may have given them the opportunity to negotiate the loan discreetly.) 

Michele Brown’s Husband Used to Work in Medical Device Consulting

Here I’m just going to lift Citizen92’s work on Michele Brown’s husband, Michael Allen. 

Michael E. Allen’s name appears on several of the online mortgage documents along with Michele Brown on the Morris County documents system.

As for the tie for the consulting business:

An (apparently outdated) online Dunn and Bradstreet provides the business listing, showing the residential Tal[****] address (which is Mr. Allen’s and Ms. Brown’s home:

http://dnb.powerprofiles.com/p…..MENDHAM-NJ

Further Googling (the phone # in that profie, (973) 616-1400, for example) shows us that Allen Evans Group apparently changed its name and place of business to just Evans Group(and also reveals the www.evans-grp.com website):

http://goliath.ecnext.com/coms…..-page.html

The archived website for Evans Group was first published in April 2001. It makes no reference of an Allen.

The IRS lien image recorded in Morris County records seems to hint that the finding dates back to 2000. It lists the Tal[****] St address as the place of business.

This is what I have so far. Looks to me like Allen was formally part of the business up until 2000-ish financial difficulties with the IRS. The company then moved to a nearby town, and eliminated Allen’s name from the marquee. As I pointed out earlier, curiously, even in the post-April 2001 reconstituted business, there is no named entity “Evans” among the staff either.

That’s what I’ve got so far. Right now I can associate Allen with the business as a founder, but don’t have anything that shows him as being formally involved post-2000. But he does seem to have a lot of debts from whatever he was doing…

The reason this is interesting is because Allen’s company (from which he may have already severed ties) was involved in the Pharma and Medical Device industries. Again, that’s not surprising. This is NJ, and NJ is Pharma. The only reason that’s interesting is because so many of Christie’s DPAs involve Medical Device companies and his one big pharma DPA–with Bristol-Myers Squibb–was a client.

Again, all of that is not all that surprising, given NJ’s industrial base. But it does make for some interesting data points.

Hal Turner’s lawyer revealed his strategy today for getting Turner off on charges that he incited violence. Basically, he’s going to argue that he was paid to do just that by the FBI from 2002 to 2007, that he learned where "the line" was between legal and illegal incitement, and his recent comments have not crossed over that line.

In asking Gold to allow Orozco to represent Turner, Turner’s Connecticut lawyer, Matthew R. Potter, said Orozco has a long-term legal relationship with Turner, plans to bring a complicated First Amendment defense and is familiar with Turner’s background as an FBI informant.

That role as an informant for the FBI is a key part of the defense, Orozco said outside court.

Orozco said Turner was trained by the FBI as "an agent provocateur."

[snip]

Orozco said Turner worked for the FBI from roughly 2002 to 2007.

"His job was basically to publish information which would cause other parties to act in a manner that would cause their arrest," Orozco said.

His lawyer claims he left the FBI on his own. 

Wow. This could go one of many places. We might see a graymail defense, in which the FBI prevents Turner from testifying about what the fuck he was doing, if he indeed was. But the thing is, we know that FBI really hasn’t targeted the kind of nutters that Turner incites.

And I do wonder–who Turner is being funded by right now.

Sorry for being so late on this, but I wanted to come back to this bizarre Barton Gellman article on Cheney. Amidst news including 1) Cheney took notes, exactly none of which were introduced at trial and, 2) Cheney apologists like John Hannah are out giving interviews, Gellman provides the following weird two paragraphs, which provide the great drama of the story.

The depths of Cheney’s distress about another close friend, his former chief of staff and alter ego I. Lewis "Scooter" Libby, have only recently become clear. Bush refused a pardon after Libby’s felony convictions in 2007 for perjury and obstruction of an investigation of the leak of a clandestine CIA officer’s identity. Cheney tried mightily to prevent Libby’s fall, scrawling in a note made public at trial that he would not let anyone "sacrifice the guy that was asked to stick his neck in the meat grinder." Cheney never explained the allusion, but grand jury transcripts — and independent counsel Patrick J. Fitzgerald — suggested that Libby’s false statements aimed above all to protect the vice president.

Last month, an account in Time magazine, based on close access to Bush’s personal lawyer and White House counsel, described Cheney’s desperate end-of-term efforts to change Bush’s mind about a pardon. Cheney, who has spent a professional lifetime ignoring unflattering stories, issued a quietly furious reply. In the most explicit terms, he accused Bush of abandoning "an innocent man" who had served the president with honor and then become the "victim of a severe miscarriage of justice." Cheney now says privately that his memoir, expected to be published in spring 2011, will describe their heated arguments in full.

 This bit–which is what stuck in my craw–deserves some really close unpacking.

Cheney tried mightily to prevent Libby’s fall, scrawling in a note made public at trial that he would not let anyone "sacrifice the guy that was asked to stick his neck in the meat grinder." Cheney never explained the allusion, but grand jury transcripts — and independent counsel Patrick J. Fitzgerald — suggested that Libby’s false statements aimed above all to protect the vice president. 

Now, Gellman is ostensibly talking about Cheney’s efforts to get Bush to pardon Libby, actions that started in 2007 (and which, at the earliest, he might have first contemplated in 2005, when Judy Miller testified to the grand jury). But as his proof that "Cheney tried mightily to prevent Libby’s fall," Gellman raises the meat-grinder note. And that note–written around October 4, 2003–had absolutely nothing to do with preventing Libby’s "fall" referred to here–his conviction for perjury and obstruction of justice. Hell, it was written before the perjury (and false statements) occurred!! Rather, the reference to "not going to protect one staffer and sacrifice the guy the Pres that was asked to stick his neck in the meat grinder," had to do with protecting Libby from speculation in the press about his involvement in leaking Plame’s identity. Now, that is a sort of attempt to prevent Libby’s fall, but it’s not the one Gellman describes in this context. 

Which makes the next sentence–"Cheney never explained the allusion, but grand jury transcripts — and independent counsel Patrick J. Fitzgerald — suggested that Libby’s false statements aimed above all to protect the vice president"–utterly logically problematic. I agree that Libby’s lies and obstruction aimed to protect (at least) Cheney. But as I already noted, it would be impossible for that allusion to refer to Libby’s lies, because the allusion was made before them. Cheney was pressuring Bush to protect Libby from a different fall, one based on his primary actions in the Plame outing, not on his cover-up of those actions. It would have been nice, too, if Gellman had noted that Fitzgerald suggested in his closing statements that, on the very day Cheney wrote that note, Libby told him his cover story about where he learned of Plame’s name, and as Libby described did not object (so the obstruction began simultaneous with the meat-grinder note, but not the lies, yet).

And then there’s another weird bit. Gellman doesn’t even mention the reference to Bush–"the Pres"–in that note! If Libby’s outing of Plame (as distinct from his lies about it) were to protect Cheney alone, then why the reference to Bush?

So here’s what’s happening. For some reason, a really good reporter is confusing the four related actions:

Libby’s pushback against Wilson’s charges (June to July, 2003): Likely done at Bush’s request and–after certain directions from Cheney–ended in the outing of Valerie Plame. This was done to protect Bush and Cheney from pressure about their case for war.

Cheney’s successful pressure on Bush to exonerate Libby (October 2003): Possibly accomplished by invoking Bush’s role. This was done to protect Libby from speculation in the press about the first action.

Libby’s lies to the FBI and Fitz (fall 2003 and March 2004): Allegedly done with Cheney’s foreknowledge. This was done to protect (at least) Cheney from his role in the first action.

Bush’s commutation, then refused pardon, of Libby’s sentence (July 2007 and January 2009): In both Gellman’s story and the earlier Time one, this is the sole source of Cheney’s ire, which is in turn the point of the story. This was definitely an attempt to protect Libby; while the Time story speculates it was also an attempt to protect Cheney, it’s not clear whether that’s the whole story.

That is, Cheney’s ire is, by some remarkably bad writing (for Gellman at least), divorced from its relationship to the earlier three events even as those events are invoked. Which is how Gellman gets to this passage.

In the most explicit terms, he accused Bush of abandoning "an innocent man" who had served the president with honor and then become the "victim of a severe miscarriage of justice." Cheney now says privately that his memoir, expected to be published in spring 2011, will describe their heated arguments in full.

The "innocent man" and "victim of a severe miscarriage of justice" blah blah blah repeats the argument of Cheney from Time, though it appears to have come fresh through people like Hannah and Liz BabyDick Cheney to Gellman.

All of which climaxes in the big takeaway of Gellman’s story: Cheney’s memoir, coming out just short of five years after the commutation, "will describe their heated arguments in full." With the suggestion that those "heated arguments" refer to to Cheney’s arguments about the commutation and pardon.

And then, in a separate section of the article, Gellman repeats a Cheney statement he made right after his failure to win Bush a pardon to the Politico.

Cheney himself has said, without explanation, that "the statute of limitations has expired" on many of his secrets.

It’s unclear whether Cheney’s minions offered that quote up anew to Gellman, or whether he simply asked about the reference in the earlier article. But in a related chat Gellman provides a confident answer as to what the reference means.

Shreveport, La.: What statue of limitations is he talking about?

Barton Gellman: Mostly a metaphorical one — the idea that it would do any harm to talk about old disputes. In a technical sense, there are secrets whose value has expired — future war plans, for instance, when the war has long been launched — and classified information that has since been declassified.

Now, I actually don’t think the statute of limitations comment would refer (solely) to the Plame outing; there are plenty of crimes Cheney might have committed over the years on which the statutes of limitations have expired. When Cheney first made it, after all, it was just a month short of the expiration for any role he had in the hospital confrontation.

But I do think those arguments may be far more interesting–and far more threatening to Bush–than Gellman admits. At the very least, the whole sequence begins when Libby writes in his diary about Bush’s concern about the Kristof article.

One more point. As I mentioned, John Hannah was one of the people who dumped this story in Gellman’s lap. And Hannah is, after all, the fourth person involved in the beginning of that sequence, after Bush expresses concern and then Libby and Cheney and Hannah go into overdrive doing oppo research on the Wilsons. So while Gellman may have conflated different parts of the sequence, Hannah is likely to be well aware of at least some of how they relate together–including, potentially, Bush’s apparent role in setting off the sequence.

Now, these details don’t change the big takeaway: Cheney’s going after Bush in his memoirs. But between treating Cheney’s minions all too credulously and confusing the key facts–at least on the issue of Plame–Gellman appears to misunderstand the complexity of Cheney’s anger at Bush.

Update: Here’s the document the IRS would use to weigh whether this would count as a below-market loan. I’m trying to figure out precisely where Brown’s loan will fall, but given the short term of the loan (10 years) it appears it would not count as a below-market loan. (h/t Duncan) 

NYT has a version of the Chris Christie loan story with some details that seem to confirm prostratedragon’s suggestion earlier: that the loan Christie gave to the Executive Assistant AUSA (and now First AUSA) in his office, Michele Brown, would probably count as a below-market loan (and therefore a gift) for someone in her financial position.

Mr. Christie said he received a second mortgage on Ms. Brown’s home, which was in her name only, and had been receiving regular payments ever since. County records show the loan was dated Oct. 22, 2007, and carried a 5.5 percent yearly interest rate, with monthly payments of $499.22 over 10 years. [my emphasis]

As prostratedragon pointed out, given the reported financial circumstances of Brown and her husband, there’s little possibility she could have gotten that rate from a bank.

I get a farthing under 5.5% p.a. using a standard 17B II. From the story, the loan sounds like a second mortgage which under the AUSA’s family circumstances especially, would be priced more like a subprime loan —higher.

By 2007 sometime, both seconds and subprimes dried up abruptly and haven’t really recovered since, making the effective interest rate on one a very large number.

Which would make this a gift. A gift that keeps on giving, you might say, particularly since both are now in a position where their potential mutual interest in influencing one another would make this a big ethics no-no. And keeps on giving because Christie hasn’t been declaring this source of income on his disclosure forms.

Mr. Christie did not list the loan on his June 21, 2008, personal financial disclosure form as a member of the federal executive branch, which requires the detailing of any assets (like loans or receivables) worth more than $1,000, and any sources of income of more than $100 a year. Ms. Comella confirmed that Mr. Christie’s final disclosure as a prosecutor also omitted the loan.

Nor did he include the loan on his candidate’s disclosure with the New Jersey Election Law Enforcement Commission in April 2009. One of its catchall categories of unearned income requires the detailing of “other income (including interest)” of more than $100 when the total in that category exceeds $1,000. Mr. Christie listed Pfizer and three government bonds as the sources of such income, but made no mention of the loan to Ms. Brown.

Golly. You’d think someone trying to sell himself to New Jersey as a big foe of ethically challenged politicians wouldn’t make this kind of mistake. 

Update: Peterr pointed out this, from Christie’s site:

Change ethics laws to require strict disclosure
Under our current legislative ethics policy, members of the Legislature are allowed to have private sector and outside income that create conflicts of interest – apparent or justified – when they vote on or sponsor legislation that directly affects the source(s) of their income. Lawmakers who have private land developer clients, for example, are allowed to sponsor and vote on land use legislation. Legislators who are paid by organized labor unions are allowed to sponsor and vote on legislation that directly affects organized labor.

It is important to maintain a citizen-legislature, legislative ethics policy should be strengthened to include a requirement that members either recuse themselves from actions that affect their private sector interests, or that they publicly disclose these conflicts when they occur.

The new policy will be tailored to affect those occasions when the legislator knowingly has a private sector interest affected by the legislative matter at hand.

With these disclosures, the public would be able to accurately monitor whether legislators’ private income is affected by their actions as members of the Legislature. The public should not have to rely solely on law enforcement agencies to uncover these ties in connection with the occasional criminal investigation. Christie will strengthen ethics laws by ensuring the transparency necessary to restore confidence in the legislative branch of government is in place.

Mind you, Christie is focused on legislative transparency, not executive branch transparency. But I do wonder whether Christie recused himself from discussions about Brown’s promotion?

A few days ago I wrote about how bad legislation in the form of the Antiterrorism and Effective Death Penalty Act of 1996 has turned federal juries and appellate courts into "death panels" by limiting and accelerating the appeal process, and thus the execution, of defendants in capital cases. The upshot of that post is Federal judges are starting to speak out vociferously in dissent to the law.

One of the matters with notoriety in the media that has been impacted by the evisceration of Habeas occasioned by the Antiterrorism and Effective Death Penalty Act of 1996 is the death penalty case of Troy Davis. Today, the Supreme Court took the somewhat unexpected and extremely rare step of ordering a new hearing in a District trial level court into new evidence and the guilt or innocence of Davis:

The substantial risk of putting an innocent man to death clearly provides an adequate justification for holding an evidentiary hearing. Simply put, the case is sufficiently “exceptional” to warrant utilization of this Court’s Rule 20.4(a), 28 U. S. C. §2241(b), and our original habeas jurisdiction. See Byrnes v. Walker, 371 U. S. 937 (1962); Chaapel v. Cochran, 369 U. S. 869 (1962).
…
The District Court may conclude that §2254(d)(1) does not apply, or does not apply with the same rigidity, to an original habeas petition such as this. See Felker v. Turpin, 518 U. S. 651, 663 (1996) (expressly leaving open the question whether and to what extent the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) applies to original petitions). The court may also find it relevant to the AEDPA analysis that Davis is bringing an “actual innocence” claim.
…
JUSTICE SCALIA would pretermit all of these unresolved legal questions on the theory that we must treat even the most robust showing of actual innocence identically on habeas review to an accusation of minor procedural error. Without briefing or argument, he concludes that Congress chose to foreclose relief and that the Constitution permits this. But imagine a petitioner in Davis’s situation who possesses new evidence conclusively and definitively proving, beyond any scintilla of doubt, that he is an innocent man. The dissent’s reasoning would allow such a petitioner to be put to death nonetheless. The Court correctly refuses to endorse such reasoning.

In a short, by SCOTUS standards ruling (3 pages), the majority not only granted Davis a rehearing of his Habeas claims on new evidence, they framed the concurrence to the majority decision as a slap at Justice Scalia. Ouch.

Scalia, shrinking violet he is, fired right back in a sharp dissent:

Today this Court takes the extraordinary step—one not taken in nearly 50 years—of instructing a district court to adjudicate a state prisoner’s petition for an original writ of habeas corpus. The Court proceeds down this path even though every judicial and executive body that has examined petitioner’s stale claim of innocence has been unpersuaded, and (to make matters worst) even though it would be impossible for the District Court to grant any relief. Far from demonstrating, as this Court’s Rule 20.4(a) requires, “exceptional circumstances” that “warrant the exercise of the Court’s discretionary powers,” petitioner’s claim is a sure loser. Transferring his petition to the District Court is a confusing exercise that can serve no purpose except to delay the State’s execution of its lawful criminal judgment. I respectfully dissent.

Scalia is right, this particular form of relief is exceedingly rare (that is the only thing he is right about here). What is even more shocking is that it got done in this case, with this court, at this time. While Davis’ family and attorneys maintained their optimism relief would be granted, scant few other folks experienced in these things did including, quite frankly, me. Sonia Sotomayor did not participate, so the majority had to find five votes somewhere, and this is a real head scratcher. The majority opinion was unsigned, but an attached concurring opinion was noted as "Justice Stevens, with whom Justice Ginsburg and Justice Breyer join, concurring". Thomas, predictably, tagged along with Nino on the dissent. That would appear to mean the majority found two more votes for Davis among Kennedy, Alito and Roberts. Now that is shocking.

In the prior post, I quoted a NYT article discussing Judge Rosemary Barkett of the 11th Circuit in Atlanta, who was one of the many judges coming out with dissenting opinions blistering the egregious Antiterrorism and Effective Death Penalty Act of 1996:

In April, Judge Rosemary Barkett of the United States Court of Appeals for the 11th Circuit, in Atlanta, complained of the law’s “thicket of procedural brambles.” Dissenting from a decision by her colleagues, Judge Barkett noted that seven of the nine witnesses in the murder trial of Troy Davis, a death row inmate in Georgia, had recanted their testimony. To execute Mr. Davis without fully considering that evidence would be “unconscionable and unconstitutional,” wrote Judge Barkett, who has voted in more than 200 other cases to uphold the death penalty.

The voices are now more than mere dissents. While not directly overruling or attacking the Antiterrorism and Effective Death Penalty Act of 1996, the majority in Davis sure indicated problems with it. Good. I have always felt Sonia Sotomayor was very pro law and order, and correspondingly weak on cases like this; that was my main objection to her nomination. It will be interesting to see how she votes when this issue next gets in front of The Supremes, and that is likely to be soon giving the contentiousness of Scalia’s dissent and the unusual majority in Davis.

New Jersey’s PBS station, NJN, has just reported that Chris Christie, the former US Attorney with ties to Karl Rove, gave a loan of $46,000 to the First AUSA in the NJ office, Michele Brown, for a mortgage. She will continue to pay him $499 a month until 2017. When asked by NJN, Christie just explained that they were close friends and he helped her out of a financial pinch.

That’s mighty interesting, for two reasons. First, there have been a slew of questions over the way a huge bust of 44 politicians–and some rabbis selling kidneys–last month shortly preceded a bunch of Christie campaign events touting his anti-corruption plan. That remarkable coincidence would be a whole lot easier to pull off if you had a very close relationship with the number two person in the US Attorney’s office. 

In addition, there have already been questions asked about her attendance at events that included a bunch of top NJ Republicans. (h/t brendan)

First Assistant U.S. Attorney Michele Brown was among the guests at a small social gathering held last Sunday at the Mendham home of Republican gubernatorial candidate Christopher Christie, but her attendance at the event – which was not political event though many of the attendees were Republican County Chairmen, legislators and campaign staffers – did not violate any federal law or regulation. 

Brown was the Executive Assistant U.S. Attorney and Christie’s counsel before Acting U.S. Attorney Ralph Marra, Jr. elevated her to his old job as the number two in command of the federal prosecutor’s office.  A career prosecutor, she is a close personal friend of Christie and his wife, Mary Pat, and has been the U.S. Attorney’s office for seventeen years.

Amid all the questions of whether or not Christie violated the Hatch Act with his discussions with Karl Rove about his race, it seems rather, um, curious that the woman he has given a significant loan to also has had questions about Hatch Act violations raised.

Update: A link with some more hard data.

As U.S. Attorney, Republican gubernatorial nominee Chris Christie gave high ranking staffer Michele Brown a $46,000 mortgage loan that she continues to pay off, NJN reported in its news cast tonight.

The report by correspondent Zachary Fink, which is not yet available online, said that Brown has been paying Christie and his wife, Mary Pat, back in monthly increments of $499.22 since taking the loan in October, 2007.  She is scheduled to finish payments in 2017.

Christie told NJN that Brown, who was the office’s fourth ranking staffer at the time of the loan and is now First Assistant U.S. Attorney – the number two spot under Acting U.S. Attorney Ralph Marra – asked for financial help after her husband lost his job while facing credit card debt.

There’s a keystone to understanding the story from David Johnston (who frequently regurgitates highly motivated leaks) and Mark Mazzetti (CIA’s guy at NYT) on Dusty Foggo’s role in setting up the black sites run by the CIA: Foggo’s testimony in the torture tape investigation. Early this year, remember, DOJ and CIA told the ACLU that they couldn’t FOIA information pertaining to the disappearing torture tapes because John Durham’s investigation of their destruction was ongoing and would be for perhaps two more months.

And then, just as Dusty Foggo was about to go to jail, John Durham said he needed to interview Foggo. And since then, as far as we know, Durham’s investigation continues, now four months beyond when he thought he’d finish up. As recently as a month or so ago, Durham was flying people back from remote locations to appear before the grand jury. While we can’t be sure, it does seem likely that Foggo’s testimony provided new information that has sustained it.

And, thanks to Johnston and Mazzetti, we now know why Foggo would have something pertinent to say about the torture tapes–because he was the guy who set up the black sites. 

In March 2003, two C.I.A. officials surprised Kyle D. Foggo, then the chief of the agency’s main European supply base, with an unusual request. They wanted his help building secret prisons to hold some of the world’s most threatening terrorists.

[snip]

“It was too sensitive to be handled by headquarters,” he said in an interview. “I was proud to help my nation.”

With that, Mr. Foggo went on to oversee construction of three detention centers, each built to house about a half-dozen detainees, according to former intelligence officials and others briefed on the matter.

[snip]

Early in the fight against Al Qaeda, agency officials relied heavily on American allies to help detain people suspected of terrorism in makeshift facilities in countries like Thailand. But by the time two C.I.A. officials met with Mr. Foggo in 2003, that arrangement was under threat, according to people briefed on the situation. In Thailand, for example, local officials were said to be growing uneasy about a black site outside Bangkok code-named Cat’s Eye. (The agency would eventually change the code name for the Thai prison, fearing it would appear racially insensitive.) The C.I.A. wanted its own, more permanent detention centers.

So sometime after Abu Zubaydah and Rahim al-Nashiri were taped being tortured, after the taping was stopped, and almost precisely when Khalid Sheikh Mohammed was being waterboarded, "two CIA officials" (the detail is repeated twice in the story) came to Foggo and asked him to set up black sites around the world.

And, Foggo’s helpfulness on this task appears to be one of the reasons why Foggo was promoted.

Mr. Foggo’s success in Frankfurt, including his work on the prisons, won him a promotion back in Washington. In November 2004, he was named the C.I.A.’s executive director, in effect its day-to-day administrative chief.

Of note, Foggo was promoted at a time when Porter Goss was DCI and Jose Rodriguez (who was head of counter-terrorism when Foggo took on the task of setting up the black sites and therefore a superb candidate to be one of the two people who asked him to do so) was Deputy Director of Operations.

And then, in 2005–the same year that Jose Rodriguez would have the torture tapes destroyed and Porter Goss would unexplicably fail to stop him from doing so–Foggo went to the black sites with John Rizzo and others.

In 2005, before he came under investigation, Mr. Foggo and other officials, including John Rizzo, the agency’s top lawyer, paid a rare visit to some of the prison sites, assuring C.I.A. employees that their activities were legal, according to former intelligence officials.

John Rizzo, btw, was pressuring others at CIA to make sure that Foggo’s mistress kept a job as a CIA lawyer she was not doing competently.

So let’s see:

2002: Torture tapes made

2003: Foggo recruited to set up black sites

2004: Foggo promoted unexplicably after some politicized firings

2005: Foggo and Rizzo and others visit the black sites to calm the host countries

2005: Dana Priest does a story exposing the black sites and, within days, the torture tapes are destroyed

It’s all beginning to make some sense now.

Oh, and one more thing. In an affidavit submitted in support of Foggo’s sentencing that would otherwise serve no purpose in the severity of Foggo’s sentencing, Porter Goss claimed he didn’t know that Foggo was an ethical and counterintelligence nightmare when he promoted him in 2004. But, Laura Rozen reported, that claim was an out and out lie. 

A former US intelligence source thought that Brent "nine fingers" Bassett was the Goss staffer who recommended the hire of Foggo as ExDir.

He said that Goss lied in his testimony, that he was not aware about the problems with Foggo when he hired him for executive director. He said that a major fight had broken out between Goss staffer Patrick Murray and then associate deputy director of operations Michael Sulick about the Foggo hiring. "Murray told ADDO/Counterintelligence Mary Margaret that if Dusty’s background got out to the press, they would know who to come looking for. Mary Margaret tried to warn them that Dusty Foggo had a problematic counterintelligence file. Sulick defended Mary Margaret. Goss told [deputy director of operations Steve] Kappes he had to fire Sulick." After that, Kappes and Sulick quit. "Goss bears major responsibility here," the former intelligence official says. It was finally the "White House that demanded that Goss fire Dusty and he refused." So they both got fired. [my emphasis]

Oh boy. Things are getting clearer and clearer.

So Goss–installed at CIA to be Cheney’s mole–fired the people who were trying to prevent him from promoting Foggo. The next year, Foggo was traveling with other high level CIA people to calm the torture site hosts. That same year, the torture tapes were destroyed. Then the following year, Foggo became a problem in the Cunningham aftermath. And Foggo and Goss got fired as a result. And, at the one time Goss had an opportunity to make a statement about his role in all this, he allegedly lied about knowing Foggo and all his problems (and, of course, all the skills that led people to ask him to set up the black sites in the first place). 

Interesting. Very very interesting.

Jane’s appearance on MSNBC today was pitch perfect punditry.

Not only was Jane beautiful, in control of the facts, and poised, but I especially love the way Jane smacked down Andrea Mitchell’s beltway Conventional Wisdom. When Mitchell started suggesting that the co-ops were the middle ground, Jane turned this onto supporters of the co-ops.

Mitchell: Kent Conrad and other more conservative Democrats who have been negotiating these compromises in Senate Finance say that there will be no bill if there’s a public option.

Hamsher: Well, with 76% of the country in favor of it, you’ve got Democrats like Joe Crowley, like Charlie Rangel, like Ed Markey who are going to have trouble going back to their districts that have 22% Democratic advantage and saying "I gave the farm away to the insurance companies."

Mitchell: So you’ve got the House that’s committed to this, that say they won’t do anything if it doesn’t have a public option, and you’ve got the Senate saying they won’t do it if there is a public option. Is there a compromise there that does involve those co-ops, or is it better to have nothing?

Hamsher: Well, the compromise is the public plan–that’s the compromise down from single payer. So that is the middle ground. And frankly I would like to see Democrats like Evan Bayh and like Max Baucus stand on the floor of the Senate and filibuster the Democratic program that 76% of the country …

Mitchell: But Jane that’s not gonna happen. It’s not where they are.

Hamsher: Uh, why not?

Mitchell: Because that’s not where they see their constituency. That’s not where Evan Bayh sees more conservative Democrats in his state of Indiana.

Hamsher: Evan Bayh’s wife is on the Board of Wellpoint. So I think that he’s going to have a problem doing something that tanks the Democratic plan that strongly favors something that he has a financial interest in. There’s a whole lot of insurance money going to these Senators and that’s going to be something that people are going to be looking into if that’s how this winds up.

Mitchell: Civil war?

Hamsher: I think that there’s going to be a problem. I think that the White House did not factor in that members of the House would have a very difficult time in their heavily leaning Democratic districts taking a bad vote and there are enough of them that could keep this thing from passing without Obama stepping in and committing to get the public plan that he campaigned on.

Look at what was happening here. Mitchell was trying to talk down to Jane, to suggest that she was being naive for suggesting that Bayh, and not progressives, should back down and accept the public option. In doing so, Mitchell was committing journalistic fraud–anyone presenting these issues and pretending this is about Bayh’s "conservative Democrats in his state" and not his wife and donors is simply committing journalistic fraud. So Jane turned it on Mitchell, suggesting Mitchell was the stupid one.

Mitchell’s correctly presenting DC Beltway wisdom here. But Jane’s demonstrating the degree to which the CW that Mitchell presents as news hides the underlying truths behind this issue.