As you may recall, Dan Rather is in litigation against CBS, Viacom and executives Les Moonves and Andrew Heyward over his treatment after the Bush Texas Air National Guard story on 60 Minutes II. The complaint stakes out a number of claims alleging that not only was Rather improperly treated over the TANG story but but also over the abu Ghraib story on the infamous torture pictures.

The holy grail of the Rather litigation, however, has always been Dan, and thus us the public, getting substantive discovery on his case – depositions, requests for production and requests for admissions. Over a year ago the New York State trial court ordered initial limited discovery. Since then, however, the case has been hamstrung by a series of motions to dismiss and, after the core of Rather’s complaint survived, appeals (initiated by the defendants).

A critical point was reached Monday afternoon with the filing of Rather’s appellate brief (pdf file) by his attorneys. The brief is long, but provides a superb background, factual description, statement of procedural posture and detail of legal arguments being made on Dan Rather’s behalf. It is well worth a read if you are interested and so inclined.

First the good news. The positioning and quality of Dan Rather’s response to the points appealed by the trial court defendants appear strong and, at first blush anyway, would appear sufficient to fend off the attack. Bottom line, it looks very likely that Rather’s case will continue to survive and head back to the trial court for that all important and fun filled discovery.

Now the better news. It would appear that Rather has some very decent arguments for reinstating counts and defendants that the trial court has preliminarily dismissed. You see, that is one of the things about filing an appeal – sometimes the other party cross-appeals, and that is exactly what Rather has done here. So, while CBS et. al have gotten greedy wanting to have the whole case dismissed, Dan Rather has answered back "No, and I want the gains you had obtained returned to me". Of the five questions Rather has cross-appealed on, these two appear to hold the most promise to be decided by the appellate court in Rather’s favor:

4. Are fraud damages adequately pleaded if an employee alleges the fraud led to lesser compensation than the market would have provided? Supreme Court held that fraud damages were insufficiently pleaded solely because the specific amount plaintiff actually received was not alleged.

5. May corporate officers and executives who, acting on behalf of their corporations, directed and participated in fraud be held personally liable? Supreme Court did not explicitly decide this issue, but in dismissing the fraud claim on other grounds, entered judgment in favor of the individuals.

Should he get just those two questions he has cross-appealed on decided in his favor, and hold serve on the issues the defendants have appealed on, he will have not only his case intact for discovery and trial, but will have multiple defendants to play off of each other. Bonus.

The defendants to Dan Rather’s claim must be terrified that any part of the case will get to active and full discovery, much less to open court–and they clearly will try to drag this out indefinitely hoping that Rather dies of old age before he can testify. That is literally the morbid defense these mopes appear to be playing here.

Here is to Dan Rather, his health, longevity and continued dogged persistence; may the force be with him.

We finally have a new Attorney General.

The no votes include (roll call here):

Barrasso
Brownback
Bunning
Burr
Coburn
Cochran
Cornyn
Crapo
DeMint
Ensign
Enzi
Kaybee Hutchison
Inhofe
Johanns
McConnell
Risch
Roberts
Shelby
Thune
Vitter
Wicker

Here’s a liveblog of what Kit Bond had to say about any "promises" Holder made him about prosecution. You’ll note several areas of difference from the Moonie Times article:

Most notably I’ve been concerned about some of the comments related to intelligence activities that Holder made in hearings. I wanted to make sure the intelligence community has the tools it needs to protect the country. I wanted to make sure we had an AG who would keep the country safe. Discussed TSP, FISA Amendments, interrogation program, Gitmo, interrogation legislative proposals, media leak investigations. A second meeting. 

Carrier liability provisions, and propriety of investigating intelligence officials.

Confusing press reports and statements from Senators who were not in attendance. 

Neither Holder nor I made promises with respect to prosecutions. Holder provided additional insight that assures me he will keep the country safe. Assurance given to Kyl concerning investigation of intelligence officials on interrogation. 

Holder expanded on these remarks and explained how he reached this conclusion. His public emphasis on those who followed DOJ guidance, I told him and I believe he understood that trying to prosecute political leaders would generate a political firestorm. 

Carrier liability. He believed he would unless circumstances changed. I asked if he could explain changed circumstances. It would be difficult for circumstances to change since all this happened in the past.  Didn’t give me specific idea of changed circumstances. Given that those certifications are based on simple legal facts, I’m confident he’ll reach the same conclusion as Mukasey. I can’t emphasize enough the importance of the carrier liability.

Mr. Holder is not read in, or given access, to the TSP or the other programs, it would not be advisable to make statements about either program without the facts. I enjoyed his willingness to withhold judgement until he had the fact. I believe he will take good ideas from whereever they come.[my emphasis]

Here’s the relevant passage from the Moonie Times:

President Obama’s choice to run the Justice Department has assured senior Republican senators that he won’t prosecute intelligence officers or political appointees who were involved in the Bush administration’s policy of "enhanced interrogations."

Sen. Christopher "Kit" Bond, a Republican from Missouri and the vice chairman of the Senate Select Committee on Intelligence, said in an interview with The Washington Times that he will support Eric H. Holder Jr.’s nomination for Attorney General because Mr. Holder assured him privately that Mr. Obama’s Justice Department will not prosecute former Bush officials involved in the interrogations program.

Mr. Holder’s promise apparently was key to moving his nomination forward. Today, the Senate Judiciary Committee voted 17-2 to favorably recommend Holder for the post. He is likely to be confirmed by the Senate soon.

Sen. Bond also said that Mr. Holder told him in a private meeting Tuesday that he will not strip the telecommunications companies that cooperated with the National Security Agency after the Sept. 11, 2001, attacks of retroactive legal immunity from civil lawsuits–removing another potential sticking point among GOP senators.

In the interview Wednesday, Mr. Bond said, "I made it clear that trying to prosecute political leaders would generate a political firestorm the Obama administration doesn’t need."[my empahsis]

The differences are this:

• By Bond’s telling, Holder didn’t make any "promises"–certainly not beyond the language he used in his answer to John Kyl regarding those who relied on OLC opinions.
• Bond’s statements on the floor make it much clearer that Holder was speaking only of intelligence officers. It is Bond who ascribed Holder’s statements more generally to political appointees or political officials.

Also note, that as Bond described it, Holder’s support for retroactive immunity–what Bond calls liability protection–is even weaker than it was when he was asked about it in his hearing. He maintains that he hasn’t been read in yet, so he doesn’t know what he’ll find. (FWIW, I do think he will support Mukasey’s certification that the program was legal–but hopefully he’ll surprise me.)

The Senate debate on Eric Holder’s nomination is on CSPAN2 right now. Tom Coburn is on the floor now pretending that Holder is going to bring back the Fairness Doctrine and take away your guns.

But Holder’s nomination is bound to pass, with large margins, when they vote this evening. So it’ll be interesting to see how Holder implements these highly parsed views, written in response to questions from Russ Feingold, courtesy of Secrecy News.

3. I’m concerned that the outgoing administration may have used the "state secrets privilege" to avoid accountability for potentially unlawful activities, including warrantless wiretapping and rendition. Courts tend to be very deferential to these privilege claims, so there’s certainly room for abuse. Will you commit to reviewing all pending cases in which DOJ has invoked the state secrets privilege to make sure the privilege was properly invoked, and withdraw any claims of privilege that are not necessary to preserve national security?

I will review significant pending cases in which DOJ has invoked the state secrets privilege, and will work with leaders in other agencies and professionals at the Department of Justice to ensure that the United States invokes the state secrets privilege only in legally appropriate situations.

4. One reason that the state secrets privilege is so vulnerable to abuse is that courts don’t always use the tools that are at their disposal to review privilege claims, such as in camera review of the privileged evidence. I cosponsored the State Secrets Protection Act (S. 2533 in the 110th Congress), with Sen. Kennedy and Sen. Specter, to require courts to engage in meaningful review of these claims. Would you support enactment of this bill?

I appreciate the Committee’s concern about potential abuses of the state secrets privilege and will work to ensure that assertions of the privilege are made only when legally and factually appropriate. I will consult with appropriate career personnel at the Department of Justice and perhaps in other agencies, before making a final judgment on whether to support this or other particular legislation.

"I will review significant pending cases." That would, presumably, include the al-Haramain case. Of course, that says only that he would review the cases.

Say, have you heard that Rahm wants to return to Congress in two years so he can eventually run for Speaker? Sure you have, because we’ve covered it here. But it’s sure interesting the way folks in Chicago treat it as a widely known fact, yet one you can’t speak about.

White House Chief of Staff Rahm Emanuel is interested in potentially returning to Chicago someday to reclaim the congressional seat he held until a month ago, a candidate running to replace him said Sunday.

When 11 Democrats at the first 5th Congressional District forum were asked whether they have had direct or indirect conversations with Emanuel about being a "place holder" for the seat, only state Rep. John Fritchey (D-Chicago) said he had.

"I spoke with Rahm maybe a week or two after he had accepted the job of chief of staff," Fritchey said. "At that time, he had commented to me that he may be interested in running one day again for the seat. I told him that should I be fortunate enough to run, and should I be fortunate enough to win the seat, I would look forward to campaigning against him."

The state lawmaker then appeared to sense he might have been a bit too open about the conversation he had with Emanuel, who represented the district from 2003 through 2009, before leaving to work for President Barack Obama.

"If I’m going to put words in anybody’s mouth, it’s not going to be Rahm’s," he said. "So, let me phrase it as exactly as I can for a conversation that took place three months ago. But that was a statement that he may be interested in running for the seat at some point down the road." [my emphasis]

Oops. I guess you’re not allowed to speak the truth about Rahm in Chicago, huh?

Add in the little difficulty that "a week or two after he had accepted" the COS job would put it in the November 13 to 20 timeframe–or precisely the time frame when Blago seemed to be preparing to send John Wyma out to talk to Rahm about just these plans and when Michael Sneed was reporting on it. But that was all before it was revealed that whatever conversations Rahm had with Blago were helpfully taped by the FBI, after which point it became important to cover up any of those conversations. 

No wonder Fritchey thought better of admitting that he had had such conversations with Rahm.

This is it baby, the big finale. All the marbles come down to these two: One Red. One Black. One will leave with the Lombardi Trophy in hand, the other with the regret of the world’s biggest runner-up percolating in their gut for the entire off season, maybe for the rest of their lives.

Parting is such sweet sorrow; nevertheless, with this game will come the end of another season of football trash talk here at Emptywheel. Yes, we occasionally whip out a trash talk without football (March Madness and the start of the F1 Circus are certainly possibilities), but it isn’t the same without the pigskin in the air.

What a season it has been, from the tantalizingly close to perfect season by the Pats that came just a few points short to Good Eli and the Gents in Super Bowl 42, the entire complexion of the 2009 season inexorably changed with the loss of Tom Brady in the first few minutes of this year. For eleven games Brett was Favre and all was magical; then it wasn’t. The San Diego team looked like the Clippers for the first twelve games, then they caught lightning and were Chargers on into the playoffs where they again went Norval. When it was all said and done, it was the Stillers and the Cardinals, yes the Arizona freaking Cardinals, left standing. And, thus, here we are.

Who are the Arizona Cardinals’ fans? I’m not quite sure, but I appear to live in the town that houses almost all of what few there are of them. Oh, and even here I have not noticed the whole town being painted red and buildings redecorated in team colors and insignias like it was purple for Barkley and the Suns in 1993 and the Diamondbacks in 2001. Da birdz de rojo get no respect I tell ya. And if all that were not bad enough, now That One is climbing on the dogpile,

Q. The Steelers or Cardinals, sir?

THE PRESIDENT: I have to say, you know, I wish the Cardinals the best. Kurt Warner is a great story and he’s closer to my age than anybody else on the field, but I am a long-time Steelers fan. Mr. Rooney, the owner, was just an extraordinary supporter during the course of the campaign. Franco Harris was campaigning for me in Pittsburgh. So —

THE VICE PRESIDENT: Coach signed up with you, too.

THE PRESIDENT: Right, Coach Tomlin was a supporter. So I — you know, I wish the best to the Cardinals. They’ve been long-suffering; it’s a great Cinderella story. But other than the Bears, the Steelers are probably the team that’s closest to my heart.

Jeebus. Oh, and Vice-That One (D-MBNA) too. How special. Freaking frontrunners. Well, on that lustrous note, lets get down to business:

THE RED – The Cardinals? The Arizona Cardinals?? Good golly Miss Molly how did the NFC end up with the Cards as its representative? I mean, seriously, wasn’t everyone sure the NFC East was the best conference in football? What happened to that? Romeo of Dallas still has the bimbo jinx, ever plumping, girlfriend, TO is whining again, and all of the Giants’ receivers are in the gunshot wound clinic. The Packers probably could have been in the hunt if Ted Thompson hadn’t have traded the entirety of the team’s balls to the Jets. Bears and Vikes still don’t know what a quarterback is. And, so, hailing from the lowly NFC West, here come the Red Birdz! Gotta love it.

Hey, why not? Kurt Warner has got to be the most unappreciated two time league MVP, Super Bowl winner and MVP on the planet. Well, he is back. He really needs a certain kind of offense, with wild ass receivers and a back that can catch the release out of the backfield, but, hey, give him that and he is deadly. Turns out that the Cards have this spidey man dude, Larry Fitzgerald. And Anquan Boldin (who will be fine for the game by what I hear) and Steve Breaston are pretty darn good too. Like Nixon and Elvis, the Edge is rested and ready for these playoffs and he is playing for his future as a featured back in the NFL, watch for him to prove his worth with a big performance. The real reason the Cards are still here though is their defense, which has come on late and strong. Antrelle Rolle, Adrian Wilson and the Rookie, Dominic Rogers-Cromartie have given the already underrated line and linebackers some deep protection, and it has made all the difference in the world. If the Cardz stand a chance, it will be because their defense rose to the occasion, not the supposedly vaunted offense.

THE BLACK – Contrary to the Cards, we know how the Stillers got here. They slugged it out in death cage battles with every team in their path, and possess one of the most impressive defenses I have ever seen. Certainly didn’t hurt the Steelers that the Titans beat and pummeled the Ravens before narrowly losing, leaving the Ravens with not enough left in the tank for the Stillers. Before we move on, how about a shout out to Chad Pennington and the Fish; awesome effort this year. Tuna + Fish – who knew they went together so well?

The Steelers look pretty scary if you ask me. They were still beating top notch competition when Fast Willie Parker was slow and out; now that he is back you have the full offense. Big Ben is a better passer than people give him credit for, he just isn’t asked to be Dan Marino in the traditional grind it out Pittsburgh offense. All Ben does is win, and he will put the team on his shoulders when he has to. But, of course, the heart and sould of the Stillers is the defense. You already know about the Polynesian Wrecking Ball Troy Polamalu, but don’t forget Ryan Clark, the guy who about decapitated Willis Magahee. James Farrior has been solid at linebacker for a long time, and his pal on the outside backer spot, James Harrison, well no less than Tony Dungy thought he ought to be the league MVP over Peyton Manning. That is pretty high praise, and deserved too, Harrison is very good. And all coordinated by Dick Lebeau, another former Detroit Lion who has gone on to win Super Bowls with the Steelers (there are a lot of those).

So, there is my rundown, with some input from Marcy, please add yours in comments. Well, now for the hard part. And for that, I am going to stay consistent. I have made and laid my bones throughout the playoffs on one simple contention: The Cardinals suck, no way can they win. No way I gonna quit while I am ahead and the devious plan is working. Stillers baby!

[I would like to thank NewtonUSR for the video mix above, it was a special request and he really came through. If you want a little hard hitting theme music, check out The Red and The Black, that is where the concept for the post came from]

59-0 to oust the now former Governor.

Sorry I’ve been a bit distracted (yes yes, I know I promised a post on those missing OLC opinions!!) But until I get undistracted, check out this video from Turdblossom.

Note how he describes the issue:

I’ve been directed again … not to respond to a subpoena, exerting privilege on behalf of a former President. 

[snip]

This issue of whether or not I should show up … 

He is still describing the issue as being whether or not he has to show up–and he’s avoiding the word "executive."

Fine. Good. That makes Roves’s position much more precarious than if he had a fresh new executive privilege claim. Dawn Johnsen, by herself, could cause Rove’s sorry Turdblossom to have to show up.

We shall see what the Obama Administration does.

I’m watching the debate over amendment adding federal whistleblower protection to the stimulus package, on CSPAN.

And thus far, I’ve seen the following explanations for why we can’t have our billions of dollars in stimulus and TARP funds protected by Federal whistleblower protections.

Crazy Pete Hoekstra says we can’t have federal whistleblower protection because it would expose sources and methods.

Think about that. We can’t allow federal employees to come forward to report waste and fraud (and subsequently have their jobs protected) because doing so would expose sources and methods. 

Apparently, we’re stimulating the economy by employing a bunch of new spooks.

Then, another Congressman (sorry, didn’t get who it was) who argued that federal whistleblower protection would make it hard for TSA to ramp up screeners quickly.

Don’t worry, though, because the amendment just passed. So apparently those spooks who are getting hired under stimulus (!) better be careful…

The IL Legislature has posted transcripts and tapes of the four conversations Fitz released to the Impeachment Committee. (Right now, the tape servers are overwhelmed, but the trasncripts give a glimpse of the sweet guys these are. Update: The Trib has working audio.)

Tape 1 Transcript 1

Tape 2 Transcript 2

Tape 3 Transcript 3

Tape 4 Transcript 4

They consist of four conversations: one on November 13, two from December 3 surrounding a visit Lon Monk paid to John Johnston at his track, and one from December 4. All conversations pertain to $100,000 that Monk, Blago, and his brother Rob seem to understand Johnston will pay, though they are concerned about the timing of the donation in relation to Blago’s signing a bill funneling a chunk of profits from casinos to track owners. 

The most damning part of this conversation actually comes from Monk, who relates telling Johnston,

And I said, "Look, there’s a concern that there’s gonna be some skittishness if your bill gets signed because of the timeliness of the commitment." He said, "Absolutely not. I mean do you want me to put some into the next quarter." I said. "No. That’s not my point. My point is this has all gotta be in now."

Suggesting that Lon was demanding Johnston’s contribution before Blago signed the bill (which he eventually did sign on December 15), because he otherwise might not get the money. 

This is all very thuggish. But particularly since Johnston replied, "I’ve always been there," it’s not at all clear that Blago wouldn’t have signed the bill without getting the money; indeed, it’s not clear whether he got his money or not. Even given the limited transcripts we saw in the complaint, this doesn’t appear to be the most damning of the conversations included in the complaint.

The other thing that’s interesting is the timing of this. The Monk visit to the track took place on December 3, just days before Fitzgerald arrested Blago (and just as Blago was apparently trying to orchestrate $1.5 million out of Jesse Jackson Jr.’s backers for the Senate seat). 

It’s not clear that Blago ever got any of his money that first weekend in December. But dang! He had a demand out for it from just about everyone in Illinois.