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Harman-AIPAC: The Latest Developments
Some recent developments in the fast-moving Harman-AIPAC story to update you on...
- Nancy Pelosi told reporters that she was briefed "a few years ago" by the NSA that they had wiretapped Harman, but wasn't told what was found, and never alerted Harman.
- CQ's Jeff Stein, who broke the original story Monday, now reports that the NSA wiretapped what appears to be a separate, later conversation between Harman and the "suspected Israeli agent." In this second conversation, Harman's interlocutor informed Harman that "Pelosi went ballistic" when a major Democratic fundraiser told Pelosi that unless she made Harman the chair of the Intelligence committee, Pelosi would "get no more contributions from me." (The fundraiser has since been identified as the California businessman Haim Saban.) The conversation was picked up as part of an investigation into the suspected agent.
- Harman may have damaged herself by giving what seem to be inconsistent statements during yesterday's media blitz. In several interviews, she gave the clear impression that she didn't remember the specific conversation being referred to in CQ's original report. "This is four years ago. I have many conversations every day with advocacy groups," she told CNN's Wolf Blitzer, in a typical comment. But in a later interview with NPR, after repeating that stance, Harman declared: "The person I was talking to was an American citizen." Pressed by her interviewer as to how she could know that, she backtracked slightly: "Well, I know that anyone I would have talked to about, you know, the AIPAC prosecution would have been an American citizen. I didn't talk to some foreigner about it."
One outstanding question we've been mulling here: CQ's original report said that Justice Deprtment lawyers reading the transcripts of the wiretapped conversation -- in which Harman is said to have agreed to the quid pro quo with AIPAC -- concluded that Harman had committed a crime, and moved to open an investigation of her (later, reportedly, quashed by Alberto Gonzales for political reasons).
If the quid pro quo was discussed, it was certainly have been sleazy. But why would it have been a crime? Harman denies doing anything to follow thru on the bargain by intervening in the AIPAC case, and there's no public evidence that she did intervene. And even if she had, it's unclear what the crime would have been.
We'll bring you more on this as we get some clarity...
Late Update: Stein has given an interview to the journalist Scott Horton, which sheds a bit more light on this question. As summarized by the blogger Philip Weiss:
On hearing the tape, Justice Department lawyers' felt that they had caught Harman in a "completed crime" that demanded investigation. Stein defined completed crime as a "prima facie case that a crime was committed, in this case, that she did something in exchange for something, in other words, a sort of pay-for-play or influence peddling kind of thing... It looks like, by just merely promising to do that, merely promising to do that, she had committed a crime.... 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, this could potentially have been seen as a classic public corruption case -- a public official using his or her influence to obtain a thing of value. The question would be: if there's no evidence that Harman actually followed through -- as opposed to just pledging to do so -- would that still constitute a potential crime?
Josh
Zachary
How was this possible without FISA Court?
Where was and/or where is the FISA Court on
this issue?
What are the NSA and FISA complete disclosures and to whom have they also discussed these issues?
Where are and where is the US Congressional John Conyer Judicary Committee 8/2008 Hearings and Subpoenas within the ongoing? 'Executive Powers and Its Limitations' IMPEACHMENT HEARINGS!! that where testimony was entered as the most important Hearings within the recent Century!!!!
April 22, 2009 3:55 PM | Reply | Permalink
FISA Court? We don't need no stinking FISA Court! We work for the Bush administration, in a parallel universe!
April 22, 2009 4:05 PM | Reply | Permalink
Who is to say that Harman didn't agree to go along with the AIPAC proposal just to get them off the phone without having any intention of following up with any action?
April 23, 2009 12:21 AM | Reply | Permalink
What are you smoking, dude?
April 23, 2009 5:17 AM | Reply | Permalink
Just looking at the facts as they are being presented.
April 23, 2009 10:57 AM | Reply | Permalink
It was with FISA approval according to the orignal reporting on this from CQ.
April 22, 2009 4:48 PM | Reply | Permalink
If so, then why didn't Zachary Roth pick that up as part of his analysis?
Wondering if Roth covered the Blago case aswell?
Could he explain if there are any parallels here with the Blago case? Didn't Blago get outed before he got to do anything, but he still got impeached?
April 22, 2009 5:09 PM | Reply | Permalink
But this was also during the period that Bush had entered his secret decree declaring that as war-prezdint and desider-in-chief of the unitary executive, he had the power to give himself double secret powers to spy without getting a warrant from the FISA court first.
April 22, 2009 5:25 PM | Reply | Permalink
Is an agreement to accept a bribe a crime, even if the bribe is never delivered?
April 22, 2009 4:40 PM | Reply | Permalink
Or if that agreement was made just to get off the phone with no intention of any follow-up?
April 23, 2009 12:24 AM | Reply | Permalink
Intent is the key.
April 23, 2009 5:18 AM | Reply | Permalink
So, if the intent was to just get off the phone with no intent to follow up, it would not be a crime?
April 23, 2009 10:51 AM | Reply | Permalink
Come ON. FISA was written back in the 1970's when only the nuclear armed Russkies hated us. In the 2K, we have the box-cutter armed TERRORISTS. Time to crap the Constitution (except the 2nd Amendment, OF COURSE) cause the cavemen are after us.
April 22, 2009 4:40 PM | Reply | Permalink
"Attempt" clearly requires an "overt act" in furtherance of the crime. "Conspiracy" requires something less than an overt act, but something more than being present with a bunch of other conspirators. There has to be some affirmative that expression of assent to the plot.
One interesting note, however: the fact that the "donor" went ahead with his part of the bargain could be enough to show that there was a conspiracy.
And of course, Pelosi's reaction is entirely predictable.
April 22, 2009 4:52 PM | Reply | Permalink
"The question would be: if there's no evidence that Harman actually followed through -- as opposed to just pledging to do so -- would that still constitute a potential crime?"
This is the same question and scenario with regards to Blagojevich, whe promised to do something, but never had the chance to follow through. Conspiracy at best.
April 22, 2009 6:11 PM | Reply | Permalink
Conspracy at best? Pretty much the same thing as Fitz got Blogo for. Conspiracy is a pretty wide ranging "crime" but often it is easier to get a conviction on.
There was a case decades ago where a small group of Clan types got together and burned a cross in the group leader's back yard. Since they didn't get a fire permit (a misdemeander) the group was charged with conspiracy to have a fire without a permit, a felony. They were convicted. In that case it was a completed act since they videotaped it which is how it came to light.
April 22, 2009 8:12 PM | Reply | Permalink
No comparison, Blago faces several counts of corruption far beyond trying to sell the Senate seat. The only reason Fitzgerald brought it up was to prevent a crime not to convict, that would have happened anyway.
April 23, 2009 12:05 PM | Reply | Permalink
ProfessorB,
You are right about Blago's number of corruption charges. I shouldn't have made that comparison. The Klan case would be closer where the conspiracy charge was used to magnify the crime. Oddly, even there the actual torching of the cross was't needed for the conspiracy, just the agreement to do so.
I'm of two minds on the Klan case. It's good to see them dealt with but one wonders if prosecutorial disgression isn't depended on a bit too much. When do people say "wait a minute?"
April 23, 2009 5:21 PM | Reply | Permalink
Harman's best defense would be: "I was lying when I said I would help. I was not under oath at the time. I just wanted to get off the phone. I am now under oath and deny that there was ever any intention to follow up on this.
So much for using her statement captured on the phone to railroad her anywhere.
April 23, 2009 10:56 AM | Reply | Permalink
I'm still troubled by this whole "Bring it on" business. It's probably been said, but I think that using that phrase rarely ends well...
Plus, aren't there any law students reading these pages? Get cracking!
April 22, 2009 6:33 PM | Reply | Permalink
This is another one of those trademark Rovian cases (see Siegelman) that just doesn't add up unless you add into the mix the criminals from the Bush administration.
Alberto's quashing the investigation of Harman's crime gives the appearance the charges against Harman were crafted to get Harman to approve those warrantless wiretaps against Americans that Bush said we didn't do.
I say investigate Harman, the guy that left her off the hook (Gonzales) and his fearless leader (Bush) who really believes in torture, because he's such a whimp!
pv2k
April 22, 2009 6:54 PM | Reply | Permalink
"Public Corruption"
Hell, this just gets better and better.
Better than a fiction book or movie.
You don't have to be a blind conservative not to see it, just an ignorant one to deny it.
April 22, 2009 6:58 PM | Reply | Permalink
This info was gathered by NSA secret wiretaps for what purpose???
Clearly, none of this is admissable in court, since these were not legitimate wiretaps pertaining to a corruption investigation.
Instead, this is the worst kind of government fishing expedition.
I'd like to see this crap hold up in a court with a jury. Oh wait, it's all classified. Sorry, the jury can't consider any of it.
April 22, 2009 7:09 PM | Reply | Permalink
ps. Who leaked this? That's a good question -- I didn't think Holder's DOJ was pursuing this, right? So if DOJ wasn't pursuing, and it happened some years ago, why the leak now?????
April 22, 2009 7:11 PM | Reply | Permalink
"...This info was gathered by NSA secret wiretaps for what purpose???..."
Steins 2nd CQ article:
Remembering we are told she was 'not' the initial target of the eavesdropping.
So, it still could make sense... It's the NSA that has all the state-of-art eavesdropping equipment, and I'm thinking what's wrong with the FBI requesting NSA assistance? I'm trying to find an audio of James Bamford [of “The Shadow Factory: The Ultra-Secret NSA from 9/11 to the Eavesdropping on America” fame -- I haven't read his book yet] who I believe, if my memory serves me right, says this goes on all the time.
Also from a another blogger -- who brings up a whole other side to this saga on who exactly has access to our NSA eavesdropping equipment -- Oh like Israel -- Deeper down the rabbit hole.
http://oxdown.firedoglake.com/diary/1070
Plus, does anyone know how FISA works if an individual, say, has dual-citzenship and spends a considerable amount of time overseas?
April 22, 2009 7:58 PM | Reply | Permalink
I think it was his 3rd actually.
April 22, 2009 8:16 PM | Reply | Permalink
I love it. Bush and Gonzales broke down the DoJ so bad nobody even knows what a crime IS, anymore.
April 22, 2009 7:33 PM | Reply | Permalink
Also, over at the Philip Weiss blog, a blogger picked this up from the NY Times article:
Looks like there 'could' be more evidence we don't know about? I'm not in law enforcement, or a lawyer, but it looks like they could have some pretty damning evidence on her, and may be giving her a chance to come clean, rather than her publicly going over a cliff?
April 22, 2009 8:15 PM | Reply | Permalink
Maybe I shouldn't have used the word 'evidence' because there was no investigation [I'm no lawyer], maybe 'admission' would be a better word?
Also, I'm listening to the second part of the Horton/Stein interview and he clearly says that Gonzo told the intelligence agencies not to notify Pelosi etc and to stand down? But Pelosi is now saying she did know. FBI was not allowed to investigate for 'political reasons' not for justice reasons -- however, wondering if the taps were still running -- due to the AIPAC case being dragged out and this person may have been a suspected 'double' agent?
April 22, 2009 8:46 PM | Reply | Permalink
Jane Jane Jane
http://www.strimoo.com/video/10258739/Saturday-Night-Live-Point-Counterpoint-Lee-Marvin-Michelle-Tr-MySpaceVideos.html
April 22, 2009 9:09 PM | Reply | Permalink
I'm trying to understand how this has all of a sudden become such an outrage. I thought everyone knew about this kind of thing going on and that it had to have had the tacit approval of people very high up.
So now this is more important than the fact that Wall Street is not content to just rob America blind, but is lobbying Congress to continue to do so with complete impunity.
I guess that this is fine so long as they don't wire tap or torture anyone in the process.
C
April 22, 2009 9:48 PM | Reply | Permalink
You caught the Rovian-Bu$h dodge too, eh? Good!
April 23, 2009 5:24 AM | Reply | Permalink
I am an attorney, and I think everyone is reading the law wrong here. There is no need for a conspiracy or attempt charge. This crime was completed. The crime is agreeing to do something in exchange for something of value - not actually doing that something. When Harman made the agreement, the crime was complete. There is no need for attempt or conspiracy. For good reason, it is a crime to even agree (with the required mens rea) to this kind of bribe, regardless of whether you carry it out.
Harman is in deep doo doo. If these reports are true, there is no way she stays in Congress. This crime, committed with a "foreign agent" is darn near treason.
April 22, 2009 10:35 PM | Reply | Permalink
Can you explain why nothing seems to be being done about or to that "foreign agent" spy?
April 23, 2009 12:30 AM | Reply | Permalink
Nothing will be done. Because as we all know, Israel (along with Jesus) walks on water as does AIPAC.
C
April 22, 2009 10:48 PM | Reply | Permalink
There are really at least two issues here.
1. The wiretap which caught Harman's voice was concerned with an espionage case against AIPAC, or at least members of AIPAC. It was a wiretap on a phone used to call Harman to offer her a quid-pro-quo - help in getting the Chairmanship of the Intelligence Committee in return for quashing an investigation into AIPAC.
It would be interesting to know whether this wiretap was compromised and AIPAC knew the phone was wiretapped before the call was made to Harman.
which brings us to:
2. Harman is now implicated in a separate investigation of influence peddling - accepting help in getting the position as Chairman of the Intelligence Committee - requiring the Speaker of the House, Pelosi, to be notified that a Member of the House is under investigation.
The only connection to the two investigations is the phone call from that wiretapped phone (at AIPAC?) which set up Harman for a fall.
April 22, 2009 11:00 PM | Reply | Permalink
Pardon me, but would you mind explaining why Harman was the one set up as the fall-guy? There are 434 other members in the House they could have used, so why her?
April 23, 2009 5:31 AM | Reply | Permalink
What could possible make you think that Harman was the only Representative contacted?
Just because she is the only one we have heard about?
April 23, 2009 11:04 AM | Reply | Permalink
Nancy Pelosi went ballistic?
I'm shocked, SHOCKED.
She seems like such a level-headed person!
April 22, 2009 11:32 PM | Reply | Permalink
rthorat, with all due respect, I am not sure what you mean by "there is no need for attempt or conspiracy." What you described is, by definition, conspiracy. While, in some jurisdictions, a conspiracy requires an agreement between two or more people to commit a crime AND an overt act in preparation of that crime, basically anything can be inferred as an overt act. Even if that is the case here, the "get no more contributions from me" exchange with Pelosi is arguably an overt act.
That being said, I agree with you about everything else - the crime was completed, as the agreement was the crime itself. In my opinion, however, I think that crime was, at least in the legal sense, a conspiracy.
And just a thought, but I wonder if she could also be charged with solicitation (asking someone to commit a crime with the intent that they do it). If the quid pro quo idea was hers, or if she initially suggested it in any way, then she could technically be charged with solicitation, even if the crime was never completed.
This is all so, I don't even know the right word...crazy?
April 23, 2009 1:23 AM | Reply | Permalink
That "overt act" of:
"the "get no more contributions from me" exchange with Pelosi is arguably an overt act."
was not an overt act done by Harman.
Are you saying that discontinuing political contributions is now a criminal act? Or threatening to discontinue those contributions is a criminal act? How did we get to this?
While I would agree that any Representative, including Pelosi, who gave in to threats of not receiving political contributions, and who would change their votes or use their influence to keep getting those contributions is guilty of a crime, the person threatening to withhold those contributions is not guilty of anything except gaming the system.
Of course, if compaign contributions are considered to be bribes, that makes it a different story entirely. If they are truly voluntary contributions, then threatening to withhold them cannot be criminal.
April 23, 2009 11:16 AM | Reply | Permalink
Isn't this the same situation of the Illinois Gov., talked about selling US Senate seat but never followed thru, and he was kicked out of office.
Harman supposedly made a quid pro quo with an foreign agent, if true, shouldn't she be given the same punishment, kicked out of office
Another argument for public financing of congressional campaigns!!!!
April 23, 2009 1:32 AM | Reply | Permalink
"Flaunt it, baby, flaunt it!"
April 23, 2009 6:20 AM | Reply | Permalink
"If the quid pro quo was discussed, it was certainly have been sleazy. But why would it have been a crime?"
This is classic influence peddling - the law does not require that Harman actually do anything. Indeed, she apparently only agreed to perform "if needed," but that is clearly enough. She agreed to use her position to attempt to influence policy in return for a personal advantage - i.e., she agreed to take a bribe. How hard is that?
April 23, 2009 11:58 AM | Reply | Permalink
We need much younger people in positions of authority who have their brains still about them and who are courageous enough to be honest and protect the American liberties those much more honest and freedom loving gave their lives for.
Pelosi and Harman are too old to think effectively – same problem with Alan Greenspan and Rumsfeld
April 23, 2009 1:26 PM | Reply | Permalink
rthorat, thanks for the clarification of the points of law.
johann, surely you can't be serious. Do you work for AIPAC?
Charge Harman with every crime that can be construed to have occurred. Treason would be lovely, but probably can't be proved, unless it can be proved that she knew that the AIPAC agent was also the agent of a foreign government, or that she intended to help a foreign government at the expense of US interests.
Anybody and everybody who places the national interest of Israel or any other country above the US national interest should be deported to that country. The scourge Jane Harman would be a great place to start.
April 23, 2009 2:19 PM | Reply | Permalink
Johann: the overt act, if it is statutorily required, can be committed by any member of a conspiracy for all to be guilty of the crime.
So the fact that Harman wasn't a direct participant in the "get no contributions from me" exchange doesn't matter; it wouldn't get Harman off the hook in this situation, because she already made the quid pro quo agreement, thereby participating in a conspiracy.
It is not the act of discontinuing political contributions that is the crime, as you suggested; it is the act of agreeing to commit a crime (corruption/quid pro quo), which is a conspiracy.
I hope this clarifies what I was trying to say.
April 23, 2009 3:07 PM | Reply | Permalink