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Did Harman Break The Law?

We've been wondering about something on this whole Jane-Harman/AIPAC story. (For the background, go here.)

When the Justice Department heard Harman on the wiretap, and as a result started to investigate her (a probe later reportedly shut down by Alberto Gonzales), what was the underlying crime she was suspected of, and how strong does the case against her appear to have been?

On the first question, it looks like CQ's Jeff Stein, who broke the original story earlier this week, has cleared things up. He told an interviewer yesterday that, according to sources, Harman's potential crime was "to do a favor in exchange for something of value, which is to say, to get appointed to be the chair of the House intelligence committee."

In other words, a violation of the federal bribery statute, Title 18, Section 201. By the terms of this law, it doesn't matter whether Harman followed through on her pledge to take action on the AIPAC case -- only that she said she would, in exchange for something of value.

But would the statute apply to what we know about the Harman case?

Experts on bribery laws say there are two major sticking points. The first is whether the action that Harman reportedly pledged to take -- urging the White House to ease up on prosecuting the AIPAC lobbyists Steve Rosen and Ken Weissman -- was done as part of Harman's official duties, as the law requires.

A narrow reading of the law would suggest that weighing in with the Republican White House on a criminal case involving classified material is not traditionally part of the duties of a Democratic congresswoman, even one on the Intelligence committee. But Peter Henning, an expert on white collar crime at Wayne State University Law School, says courts have construed "official duties" more broadly. For instance, in 1988, the New York congressman Mario Biaggi was charged with bribery in connection to writing letters to New York City officials, urging them to favor a local business. Biaggi argued in his defense that the letters hadn't been written in his official capacity as a member of Congress. But the court rejected that argument, with the judge essentially declaring, as Henning put it, "that's what members of Congress do!"

The second potential sticking point could be more significant. According to Tara Malloy of the Campaign Legal Center, a good government group, the public official merely needs to believe that the thing he or she hopes to receive is of value. That thing need not be financial, or even tangible. But Henning said it's still unclear whether help in getting the Intelligence committee chairmanship would qualify, since there's no well-known precedent in which the thing of value has been a congressional committee leadership post, as in this case. "It's certainly a gray area," he said.

Both Malloy and Henning said it wasn't unreasonable for DOJ lawyers -- hearing the wiretapped conversation between Harman and the suspected Israeli agent, in which a quid pro quo appeared to have been agreed to -- to conclude that the issue deserved further investigation. But whether the department would have been able to build a solid case against Harman -- even had Gonzales not reportedly stepped in to shut it down -- remains a very open question based on the available evidence.


33 Comments

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Oh Zachary, you're so naive.

Committing crimes for the benefit of Israel is legal in the United States.

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... and considered to make one closer to God in doing so, regardless of party.

Taxes won't be the death of anyone.

U.S. water quality and our toxic/dysfunctional relationship with Israel will be though.

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It seems all but impossible to prove the intent based on the information so far presented.

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Not supporting this activity in any way, but a real issue here is that neither Harmon nor the Israeli have authority of action, so how is it quid pro quo? They can only offer a supporting argument, which isn't even offer of actual influence.

As said above, it's what congresspeople do. "I'll ask for you if you ask for me." I'd say that the entirety of Congress is built on that factor alone. That's even weaker than the express horsetrades of "Vote for mine and I'll vote for yours." Or better, "Vote for mine and I'll earmark $100 million for your consituency." How's that for defined value?

Near as I can read, no tacit agreement was stated to *end* an investigation or *give* a chairmanship, since neither party actually had that power (real difference with Blago case), just express an argument.

So does anyone else wonder why, if it was an FBI-warrant wiretap, did an Intelligence official (not a law enforcement official)tell the Speaker? Just seems strange.

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There's nothing to your post. Both of your experts affirm that the DOJ staff was reasonable in investigating which is as far as it went. If anything, the more you pursue this, the more it gets Gonzo off the hook for dropping it. You're stuck between a rock (Harman looks bad, may have broken the law) and a hard place (Gonzo might have been justified in dropping it). The further you go from the one the closer you get to the other.

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Assuming the allegations are true, it's pretty clear that law was not broken. Let's say I call up Harry Reid and ask him to get Obama to pardon OJ Simpson. He promises to look into it. And then I say "Thanks, and I'll push Pelosi to side with you in any intraparty disputes." Was that bribery?

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Connect the dots: Harman supported the Warrantless Wiretapping legislation in exchange for dropping the investigation against her. So of course laws were broken...why else do you think the DOJ staffers are so livid about this?

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The article doesn't allege a deal between Gonzales and Harman. It just claims that Gonzales decided to drop the investigation because he thought it would help him politically. But again, I looked at the law and I don't see any violation of it.

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I'm willing to bet that there isn't a single Congressman who has not done something very similar to this - asked for a favor in return for a favor, with both favors being in the nature of passing on a good word or bad word about someone or some issue. These are politicians, and this is how politics works.

The question that needs to be asked is why was a sitting congressman sujected to a wiretap, and if it was coincidental, why wasn't any information learned about that congressman immediately trashed? The Justice department never has the authority to interfere with the operation of Congress. And, the CIA is forbidden to spy in this country.

Leaking this information was a purely political act aimed at putting pressure on the congressman (yes, I know Jane is not a man, but I'm lazy) to force her to do or not do something in response.

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Well-said Hoppy, and coming from you (as opposed to some zionist lackey like me :)), gives your position extra credibility and points to the way in which folks with a genuine concern for civil liberties and the separation of powers--as opposed to having political axes to grind--should be coming out on this issue. The response of much of the so-called left on this matter has been disappointing, but candidly not surprsing to me because it involves Israel and some of its more right-wing lobbying advocates. The only thing I might add is that, if this information that was leaked was an excerpt from a classified wiretap transcript, then whoever leaked that information has without question violated federal law and probably in a criminal sense.

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Bruce,

here's something I find puzzling.

This is not to attack Israel, but, relative to other countries, why are these controversies surrounding Israel's dealings inside the United States, whether in campaign contributions, espionage or anything else you can throw in there
seemingly unique to Israel?

Why are there no similar controversies connected to France, Great Britain, Germany, etc? There must be at least some industrial espionage going on.

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Hoppy:
What makes you think that Harman was wiretapped? She was called from a phone that was wiretapped. Therefore, the wiretap was NOT directed at Harman.

A better question would be: "Did the Israelis know the phone was wiretapped when they made the call to Harman?"

They probably did, and that, in itself, opens another can of worms concerning both Israeli sympathizers and the security of NSA wiretaps.
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It doesn't matter if the wiretap was directed at Harman or not. What she was doing was getting lobbying assistance for obtaining a committee chairmanship, and if that isn't Congressional business I don't know what is. Information gained by the wiretap, as far as it affected her, should have been destroyed. Failure to do so was an illegal attempt by the executive branch to interfere with the operations of Congress.

What Harman was trading for the good word for her with Pelosi was a good word for the Israeli, or Aipac agent who was being investigated by the FBI. That is not an illegal activity on her part. The illegality was the wiretap and releasing of the results of the wiretap in which she was recorded.

I am far from being a fan of Harman, and seeing her get into trouble is somewhat enjoyable to me, but I am very troubled by the Justice Department interfering with a member of Congress doing her job, and intentionally releasing information aimed at smearing her.

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trading for the good word for her with Pelosi was a good word for the Israeli

Isn't that influence peddling? *Assume, arguendo that Harman intended not to follow through--does that excuse her attempt to bring influence to bear upon Pelosi, which influence she hopes will result in Pelosi making the decision which is at hazard (to Harman's thinking--correctly) and which Harman thinks may be successfully tilted by the fear of contribution retribution.

At best, not a pretty picture, eh?\

As yet unexamined in this drama is the ancillary question: "Did Gonzales attempt to enhance Harman's zeal vis-a-vis the Times story by threatening her with the audio, rather than, as he rather incredibly protests, trying to lull her into lying to the FBI.

*ie., her best case is, "I was planning to cheat them so it's 'no harm, no foul'"

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What Harman was trading for the good word* for her with Pelosi was . . . .

Her "influence" with government officials to prevent prosecutors in the Franklin case from putting the screws to Rosen and Weissman which could result in one or both of them giving up other members and other activities of an Israeli spy ring.

Sounds like she was agreeing to undermine/shortcircuit an espionage investigation. Am I wrong?

* "Good word" were campaign funds from an Israeli supporter that she was going to bring Pelosi, right?

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Am I wrong

You are correct.

The term of art, however, is conspiracy to obstruct justice (mere conspiracy, in her case, because she was selling "bunk".)

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""Good word" were campaign funds from an Israeli supporter that she was going to bring Pelosi, right?"

Wrong. The way that article about the campaign funds was that those campaign funds would no longer be forthcoming if Pelosi didn't appoint Harman to the Chairmanship of the Intelligence Committee.

Since when is not making a campaign contribution, or even not continuing to make campaign contributions a crime?

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Since when is not making a campaign contribution, or even not continuing to make campaign contributions a crime?

The crime at issue is extortion and an (unsuccessful) conspiracy. As follows:

Jane to Nancy: If I don't get the intell chairmanship, Saban and his peeps will pull their donations. This is the threat of collateral damage as an incentive to the performance of a public act that (presumably), if left uninfluenced by the extortative threat, would bring a result adverse to the interest of the extortionist (Harman).

If you cavil at the framing of campaign contributions and their witholding as susceptible of use for extortion, consider that Harman had, as her specific stated intent, the exchange of an illicit intervention (the obstructing of justice), her access to which intervention she had previously used with the AIPAC folks so as to empower her extortion threat in the first place.

NB: She did not make up the contribution story out of whole cloth--ie, Nancy, if you don't appoint me I'm gonna go out there and burn you wherever I can, including my friends at AIPAC; per contra we may infer from the stated facts (albeit we don't have the Jane/Nancy tapes) that Harman made clear to Pelosi that she already had the Saban bullets loaded into her gun, so to speak (to mix metaphors unforgivably...)

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"...What she was doing was getting lobbying assistance for obtaining a committee chairmanship, and if that isn't Congressional business I don't know what is..."

Hmmm... so you think this suspect spy was a lobbyist then? And, if so, is this suspected Israeli agent a known registered lobbyist -- if not, why was Harman speaking to him?

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I'd actually prefer it if she didn't break any laws, because that's exactly the problem with warrantless wiretapping. Innocent people have their lives destroyed. That's why we put the burden of proof on law enforcement.

Harman is looking at having her career ruined after being illegally spied on by a program she spent years supporting. From where I'm sitting, this is justice. It is a perfect script.

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This is much more than mere bribery. What we have here is a US Rep (allegedly) engaging in a criminal conspiracy with a foreign agent which involves at the very least bribery, extortion, and wire fraud.

See the Blago indictment if you need a reminder of how politics as usual can get you busted.

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When a member of congress does it, it is not illegal!

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We would have to hear the tapes but it does look like a prima facie case of bribery which she realized too late. That is why she said, "This conservation doesn't exist."

Not so different from Blago. After all, he only wanted a job too.

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Maybe we should all be talking about the fact that Israeli agents are trying to manipulate our domestic politics. That's something to talk about.

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It can't be stated enough that this was a legal, FISA approved wiretap. Harman was caught talking to somebody the FBI and possibly the NSA were surveilling. The meat of the allegation is that this somebody was, at the very least, an Israeli national, and quite possibly a Mossad agent. Doesn't that change the picture?

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Sure does.

Since it allows for the idea that the Israelis knew about the wiretap and were setting Harman up for supporting warrantless wiretaps. Especially if you think the Israeli's have infiltrated the FISA court and the US Government and would know when a wiretap was authorized.

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If I were the Israelis I'd want to listen in on us.

Each country's fate is inextricable at this point.

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"Each country's fate is inextricable at this point."

I disagree. If Israel ceased to exist, the USA would still be here.

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Doesn't feel that way to me.

I think far too many people take talk of the "End Times" too seriously for it to be an impossible scenario.

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witty1:

So, you accept the Conventional Wisdom that "the end of the world" is a group experience rather than an individual experience where each individual has their own "Armageddon" at the time of their death?

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There is one assumption which, if accepted, can explain this whole mess.

"The MOSSAD has a mole with access to the FISA court authorized wiretaps."

It follows then that:

AIPAC knew that the phone used to contact Harman was wiretapped and deliberately used it to set her up.

Harman was supportive of warrantless wiretaps, information about which MOSSAD did not have access. Compromising Harman would hurt this program.

AIPAC is a front for MOSSAD.

Gonzo's actions were an attempt to put a lid on this and salvage an investigation into a spy ring operating out of AIPAC.

The statement that it is unknown who in AIPAC contacted Harman is designed solely to mislead people. It is difficult to imagine a FISA court, or any court, authorizing a phone tap without knowing whose phone is being tapped or the target of the wiretap. Unless all AIPAC phones are authorized to be wiretapped. Even if this is true, voice recognition software should have easily identified the person talking to Harman. Also, I don't expect Harman (a US Representative) would be accepting calls from the janitor - only from a very few people in AIPAC.

The benefits of this operation are:

To compromise Harman and deal a blow to the warrantless wiretapping program.

To take attention away from the fact that foreign agents have access to FISA court rulings.

To provide protection to the spy ring operating out of AIPAC.
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Maybe we should all be talking about the fact that Israeli agents have hi-jacked our government. That's something to talk about.

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Israeli agents have hi-jacked our government.

Oy.

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