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October 18, 2006 06:59 PM UTC
57 Comments
The press has been afforded such protections in the past (now under attack by the Bush administration) because it was argued that they were promoting free speech and providing a public service. But what happens in an environment (and this is arguably one) when the press is not providing that service? Or when it appears to be ignoring or even shouting down alternative opinions?
Why should the press be considered so much cleaner than a political campaign (and so worthy of these protections)? They are for-profit corporations afterall, with the venial interests and bottom-lines of all businesses. And they even endorse candidates, so their self-interest is compounded. Save for tradition (legal and popular), what makes them so different?
And when they behave in a demonstrably partisan fashion? It might be a very interesting Court battle, very long, detailed, perhaps ploughing new ground.
As with most of your “subjects for debate” this one is not very interesting. I can’t get into areas that require a press pass, and neither can a political campaign. A court battle may happen, but I am sure this will not be one of the questions. Think of someone on Wallstreet who got in trouble for trading on inside information. Could they say they won’t disclose their soruce for the inside information because it is confidential? Of course not.
and you are entitled to it. But can you be “sure” this will not be one of the issues?
This matter is not covered under SEC law. It concerns questions of privacy, of free speech, of the public interest. Good ACLU territory if you ask me. Maybe I’ll call them myself.
With how much you spin. I didn’t say that your creation of an “issue” wouldn’t be a question in general. I said it wouldn’t be a question in a court case as to whether the Beauprez people broke a criminal law. No judge will care if Beauprez says his source was confidential. If they broke the law there will be no need to even address the question.
In his defense, President Clinton successfully made perjury about sex and O.J. successfully advanced a defense that depended on a theory of other perpetrators. The defense usually gets to argue what it wants. There are whistleblower statutes that could be called into play here, if one indeed exists.
the First Amendment to the Constitution protects the press and is the basis for shield laws which, you accurately point out, are under fire from courts and prosecutors nationwide. These things are written into law, not just the sophomoric musings of legal relativists.
Press, speech, religion and freedom of assembly. None of which have anything to do with this criminal case.
There is no criminal case, yet. And what it has to do with will be determined by the participants at trial. You do not get to make those grounds rules. Neither do I.
the closing statement on today’s CBI news release: “During the course of this CRIMINAL INVESTIGATION it will not be possible to provide updates as to the case status”
but a criminal investigation could result in no charges being filed. Once charges are filed, a case is opened with a docket number, etc.
In the police world, when a criminal complaint is filed (crime reported), a case report is initiated, assigned a case number and subsequent investigation includes this, whether an arrest is ever made or charges ever brought. If it’s different in the CBI/FBI world, then let’s just call it a criminal investigation, OK? But let’s not split hairs.
But cases need defendants. Who someone feels should be the defendant really isn’t the same thing.
Court cases need criminal defendants. Police cases don’t. Good thing this mess will have both.
The press release doesn’t question WHETHER the information was accessed — they now know that it has been “tapped” and they next step will be to identify the party(ies). Somebody is apparently going down — my bet is that it won’t be BB.
but it still is just a press release. We really should wait for the charges to come down. Sounds like the feds will be handling it.
was directly from the CBI — not the Denver media
from an agency that is no longer the primary investigating agency.
You make a good point, we have no idea whether the Beauprez campaign can claim the law infringes on their ability to practice their old-time religion.
My point, however, was that it’s ludicrous to compare the press and a political operative’s ability to guarantee secrecy to a source. Different ballgames entirely. One is named in the Constitution, one isn’t.
And as to whether it’s a criminal case yet, the AP story tells it thus:
The information came from the National Crime Information Center, a federal database available only to law-enforcement officials, CBI Director Robert Cantwell said.
“Because this is a federally controlled and regulated system, CBI has requested the assistance of the FBI to further pursue the investigation,” Cantwell said. “The FBI and CBI will be working jointly to complete the investigation.”
Use of the federal criminal database for any purpose other than law enforcement is a crime punishable by fines and up to a year in prison.
And again, if a criminal case is filed, the defense will make of it what they will. Read USA v. Jordan.
I am obviously not the legal scholar you are, but I have a question regarding your comments on whistleblowers: It was my understanding that whistleblowers are protected when they expose something “illegal”. Now, it appears to me the “act” of the informant was the “illegal” part of this equation — the fact the gentleman that is the subject of this debacle committed a crime in California AFTER he left Colorado doesn’t seem to me to constitute a crime by any law enforcement individual in Colorado — so how does the “whistleblower” status apply. Using what I think is your logic, you seem to imply that Bill Ritter is somehow guilty of an offense because a guy committed a crime in CA after he left CO. Am I missing something?
By throwing around vaguely understood phrases like “whistleblower,” “protection of sources” and “doctor-patient privilege,” the apologists for gutter-level campaign tactics can distract the conversation from the real questions.
Besides the quite interesting one about who breached the privacy of this fellow, we also have the question of whether or not it was policy in the Denver DA’s office to subvert federal immigration law by substituting a false charge.
If it goes to trial, I suspect the prosecutor will give us the first answer and a good defense attorney the second.
The practice of plea-bargaining offenses, as conducted by every prosecutor in Colorado, had already been amply “exposed” by listing instances discovered using legal methods. If the cat’s already out of the bag, does a “whistleblower” have a leg to stand on?
of subverting federal immigration law. Are you saying that every prosecutor in Colorado subverts federal immigration law? Now that would be a national scandal. And it is an issue that people really, really care about.
I do not know and I’d be happy to learn the answer. However, Denver DA pleas to farm trespass had already been documented thoroughly using LEGAL methods. What this has to do with Beauprez’ camp using illegaly obtained records is … ?
“Under most whistleblower protection laws, an employee is under no obligation to demonstrate the validity of his or her substantive allegations. Although the safety or legal concern that resulted in the initial whistleblower disclosure need only be based on a good faith belief that an actual violation occurred, this ‘good faith’ belief must be based on ‘reasonably perceived violations’ of the applicable law or regulations. Employees are under no duty to demonstrate the underlying veracity or accuracy of their allegations.”
not a “usual” case. So — who is the employer?
Point 1: John Boy Marshall says: …”As I understand it, the law says you cannot access those databases”
Rationale: To cover ones butt you have someone else do the dirty work for you. Watergate wasn’t about the break-in. It was about the cover-up after the break-in.
Point 2: John Boy continues: “We haven’t accessed those databases. We haven’t asked anybody to do that.”…
Rationale: Simply ask someone else to do that for us. Some county sheriff, police officer, etc.
Point 3: BWB states that: “We were given information by an extremely credible source.”
Rationale: What extremely credible source? Law enforcement, etc.? Information was forwarded to campaign.
Point 4: We verified that information again and are convinced that it’s accurate.”
Rationale: How did the campaign verify the information if it was confidential? How was it that they were able to access the data base for purposes of verification? Or did they? Was it possible for them to merely track down each of the individual arrest records and court documents?
Summation: The campaign received (either knowlingly or unknowingly) otherwise confidential and law enforcement eyes only information from a person or persons (yet unnamed). The campaign verified the confidential information and BWB approved its release.
Therefore, the campaign (in their own statements) is saying that they received the confidntial information. Knew that it was confidential and restricted, sought to confirm the authenticity of the data and approved its release. So, in a nutshell, BWB is admitting to the receipt of an “otherwise” unlawful document and its use for political gain? That can’t be good.
Am I missing something here?
Oh, I get the strategy. If BWB were to be elected, and then prosecuted for the crime, he would then be replaced as Governor by an appointment from the Colorado Republican Executive Committee. Therefore, he will follow this thru knowing that he has nothing to lose. If he loses to Ritter, then hopefully the issue will merely go away.
Now I get it…Silly me.
in his letter to the CBI, two issues were cited by the trial judge:
“Voters’ privacy rights were violated.”
“The NCIC results were passed outside of the protections of law enforcement.”
It might be, as you say, that the Beauprez campaign violated the privacy rights of a heroin dealer (pled down to ag trespass) and subsequent child sex offender, who is in the United States illegally and possibly still at large.
As for the second issue, NCIC results are “passed outside the protections of law enforcement” every day in Denver. Anyone, without ID, can access criminal records that contain NCIC and CBI print-outs available to law enforcement.
As I said, it should be a very interesting case, with lots of twists and turns and unforeseen outcomes.
and there certainly isn’t a need for a court case to decide such an issue. If the Beauprez campaign won’t reveal their source to the CBI, they may be crossing the line into other crimes.
Besides, if as you say the NCIC information is passed outside of law enforcement everyday and that is Congressman Beauprez’s source, then there is no harm in telling the public that and presenting the documents to verfy that.
Congressman Beauprez’s stand on all of this is a charade. On the one hand he says that all the information was gathered legally and on the other he won’t reveal the source because he promised then anonymity. Without revealing the name(s) of his source(s), he could certain reveal where the information came from. In other words did it come from a database and which one without revealing the name of the person who gave him that information. In that manner his source is protected (at least for the moment). There isn’t any rational reason why he is wihtholding this information.
Congressman Beauprez’s asserted privilege is a mirage.
And I agree that its statements AS REPORTED IN THE PRESS appear to be contradictory. But neither of us know with what arguments a case like this might be defended. The case cited by Ritter’s attorney in his letter to the CBI was argued very well and a great many careers suffered on all sides.
The prosecutor could go down the line of theft of government property. The “street” value of an NCIC report was established in a recent federal case coming out of New York, in which a staffer for a state Attorney General accessed hundreds of NCIC files and sold them for $100 each to an ex-FBI agent, who sold them to organized crime. She got 3 years probation and a $100 fine.
This case points up the fact that it is law enforcement itself that is usually guilty of improperly accessing these databases. When I look at Evan Dreyer’s statements regarding how he came to the conclusion that John Marshall did something improper I find his explanation, while certainly less contradictory, rather vague.
Could it be that someone in the Ritter campaign had the DA’s office access the NCIC file in question? And in doing so, knew the answer in advance of posing the question? That is the usual way in politics, isn’t it?
According to the media, the DA’s office has certainly tracked the Beauprez campaign’s public records requests (even those outside its purview) and its spokesperson has often served to refute Beauprez’ assertions, ads, etc. (note that this spokesperson was appointed by, and has contributed to, Bill Ritter).
I wonder, is the CBI going to do a full investigation that includes the DA’s office and the Ritter campaign?
Anyybody can go onto cbirecordscheck.com and get criminal histories from CBI. But, NCIC access is supposed to be restricted to law enforcement; it isn’t supposed to be distributed beyond law enforcement. And it appears that it was the NCIC records, NOT CBI records, that provided the link here. That must be why Beauprez and his camp are sweating, because if it had just been CBI, there’d be no issue.
The CBI records I refer to contain the terminal number of the Denver PD operator on them. They are not from the public database, they are the direct single-state search available only to law enforcement (AND to anyone who happens to show up during business hours at Denver’s record room).
These CBI records contain the FBI number, etc. You will also often find NCIC print-outs in the files. The prosecutor gets this when he orders a multi-state search, and then drops it into the public record.
why can’t Congressman Beauprez’s campaign admit that. That would end the need for a costly investigation. There is obviously more going on here than that.
Congressman Beauprez said in the papers this morning that he and his campaign have the same privilege as Woodward and Berstein had during Watergate with “Deep Throat.” Apparently, what Congressman Beauprez doesn’t understand in that analogy is the fact he is playing the role of Richard Nixon. In the same vein, I wonder if John Marshall has ever heard of Haldeman and Ehrlichman.
Frankly, its time for other Republican candidates, regardless of how politically painful it may be, to cut their ties with the top of the ticket and demand that Congressman Beauprez clearly and unequivocally make public the information he is hiding. Attorney General John Suthers, who has done a wonderful job as AG, should lead the way for the good of Colorado as well as for his reelection.
There is simply nothing to litigate or discuss. No privilege exists or ever will. Existing privileges, like the attorney-client privilege, are narrowly construed by the courts. The attorney-client privilege exists so clients and attorneys can discuss legal matters openly and honestly with each other free from fear that it will be disclosed later. The courts are not going to recognize a privilege that allows a political campaign to stonewall and cover-up possible criminal activity any more than they would allow corporations to suddenly announce that all communications between officers of the company are somehow always confidential or privileged.
Tomorrow is Day 7 of the Cover-up.
but I can’t answer why the Beauprez campaign won’t reveal its source.
The source obviously disclosed a corrupt practice (dropping charges, making up a new charge, all to keep a deportable alien in the country), so perhaps he or she fears some form of retribution. Such a situation might be covered under whistleblower laws.
You narrowly bring the discussion to attorney-client privilege, but what of members of the press protecting sources or members of the sanctuary movement protected an endangered alien? We don’t know enough here to say there’s “nothing to litigate or discuss”.
Stay tuned, keep an open mind. This should be a very interesting case.
Those statutes protect someone from retribution from an employer etc. Those statutes do not allow third parties to shield the identity of someone. They certainly don’t give a political campaign cover for that. The purpose of the whistleblower statutes certainly dosen’t excuse illegal use of the NCIC database or allow a third party to cover-up such activity.
If someone illegally accessed the NCIC database, the whistleblower statutes cannot be used as a legal defense. Your assumption that whoever did so was uncovering corrupt activity is a political opinion, not a fact. As we all know from reading the blogs, the newspapers and other media sources, the TV ad that is based on this case dosen’t include many relevant facts that justified the plea bargain. Whoever accessed the database wasn’t acting as a whistleblower but as a political operative. There is a big difference.
who was outing a corrupt practice. I don’t know, but neither do you. I’m raising this possibility based on (1) who has access to NCIC, and (2) the “informant” being talked about in the press.
Finally, I wouldn’t be so sure about your thought that a whistleblower statute couldn’t be used as a defense for improperly accessing the NCIC database. Read USA v. Jordan.
….as opposed to he’s not Bill Ritter, he’s never plea bargained, and he’s never eaten monkey meat.
And what is Both Ways’ positive message: A vote for Bob Beauprez is a vote to protect the First Amendment right of politicians to obtain (legally or otherwise) confidential information which can then be published without fear of having to disclose the source(s).
And here we thought he was just running a negative, anti-Ritter campaign. I foresee the ACLU honoring him with an award at next year’s annual fundraising dinner……
Much to their credit.
are right on target and they should be answered by the Beauprez campaign.
Congressman Beauprez has no legal basis to wihthold his “source” from anybody. Since he won’t reveal the persons name, the press should ask him if the source is in law enforcement. That won’t reveal the source but it will certainly tell us (the public) about where the information came from.
There is only one explanation for hiding the name of the source, to cover-up something Congressman Beauprez doesn’t want the public to know. If its all legal as he says, then it won’t harm him or any one else to reveal his source. Feigning that the individual was promised anoynmity and therefore it is dishonorable to break that promise simply doesn’t override the public’s right to know if some one who is running for governor has violated the criminal statutes or someone who works for his campaign has. After all, the chief responsibility and duty of the governor of Colorado, is to see that all the laws, including criminal laws, are enforced. There is no excuse for this behavior.
last hour on the Mike Rosen show.
I think BB handled himself quit well. Ritter kept attacking BB about his “source”. BB attacked Ritter on his letting criminals off with little to no punishment.
Neither would address either issue directly. Typical politicians both.
But on a whole, anyone that says BB’s campaign is over is a fool.
Ritter better watch himself as he has a fight on his hands.
This will be absolutely no cake walk as many think.
Bob Beauprez is certainly not toast. If you believe that, the only one toasted is you. Oh, I know, moan on about the polls. Even I would admit that Bob is probably still behind. The difference between the toasties and me is that I think that gap between Bob and Bill is small enough for Beauprez to come back from in the final few days.
I don’t know if anyone has noticed, but the Beauprez campaign has made a U-turn on stategery. The thinking of the party was that we got smoked in ’04 because we followed Rove’s thinking that if you turn the base out, you win. That was certainly true for our president, but it also got a lot of local Republicans beaten pretty badly. So this fall the idea was to court the squishy moms and moderates and just pray the base turns out.
It’s not been working. Those moms and mods have largely been attracted to Plea-bargain Bill. So now Beauprez realizes that if he can pull out the base again, as Bush did two years ago, he will win (where that leaves the local candidates, I don’t know). Now he’s been hitting the social issues a little harder and suddenly, no shock here, the polls have showed him clawing back.
It may be too late, although I highly doubt it. After all, like it or not, this is still a red state that turned out 53% for Bush and that’s a clean majority. Beauprez needs to find those voters, fast. If he does, John Elway will no longer stand as the state’s greatest comeback artist. Can anyone say, “Big Time Bob?”
I admire your optimism, I really do. I’m cynical enough to believe that there is no way that Winter can come back even though I despise Tancredo. You obviously believe that BWB can come back even in the face of this everlooming scandal, and that really takes a myopic faith.
First of all, you are giving way too much credit to Marshall. Comparing him to Rove is laughable. Rove knows how to turn tides. He does it by using the populace. By letting others do the dirty work. And by dirty work I mean he lets people like Dobson and Falwell create wedge issues like gay marriage. Then he also advices congressman to create wedge issues like national security, the war in Iraq, etc. BWB and Marshall do not have that kind of clout. In fact, with the looming scandal getting national press they may not have much money soon either. Dont forget, that year that Bush won this state, we also got a dem majority in the colorado legislature for the first time in 44 years.
Colorado is purple, not red. Any attempts to paint it otherwise is naive.
Let’s be clear on something. News media and blogs do not have investigative powers, and BWB does not have to reveal his source to them. There is no evidence that he has not provided that information to law enforcement, so obstruction of justice is premature here, at best.
John Marshall is an idiot, and probably is done as a political operative, whether he is ever charged with a crime. I don’t know for sure what the penalty for access to classified information is, but unless there is clear nexus between him and the act, there probably will be no prosecution. As we’ve seen repeatedly at the national level lately, this is a difficult area to investigate and litigate.
But, I see lots of signs that the (R)s know it’s over. High level Owens appointees are packing their bags, and turning out the lights. It’s sad because some very good people are going out the door.
The scorched earth way we are doing politics is not beneficial to the country.
Owens has managed to appoint some very good people. That said, this is a zero-sum game and there will be as many good people walking in the door in January.
They are one of the reasons there needs to be some sort of balance. Look at way Delay changed K-street and you might get the idea. I was watching James Baker the other day on Hardball and he was commenting on the lack of bipartisianship. It all started with the 1994 elections and hopefully will die in the 2006 elections. The “uniter” (ahem) Bush has had no oversight from the present Republican led do nothing congress.I don’t think either side has all the answers but the lack of the Republican reaching out to the other side of the aisle is the cause.
Take the time to read up on Dick Tuck. The Wiki article is pretty good. Rationales like yours are how we got here: They did it so we’ll do it. Do a little read up on negotiation technique as well. Unilateral disarmament can be amazingly effective.
gotten their Nick Nolte haircuts yet?В And don’t let Musgrave hear that you used campaign money to get them, either.В (though I guess R’s could argue that mug shots are a legitimate and necessary campaign expense)В В Might also want to check with Ken Mehlman to see if he has an SOP for the Republican perp walk.В Maybe a ‘Dancing With the Stars’ type video?В ‘Perp Walking with the Republicans,’ starring Tom DeLay, Duke Cunningham, Michael Scanlon, Scooter Libby, Claude Allen, Ken Lay, Jack Abramoff, Brian Doyle, Adam Kidan, James Tobin, David Safavian and Bob Ney with guest appearances by up-and-comers Mark Foley, Italia Federici and Kurt Weldon?
Don’t forget little Beau Rowland……….and Nathan Lamborn, too!
Remember, people are already voting–BB is going to have to get some serious Mo (in the right direction) if he’s going to make any sort of comeback. Polls DO matter, especially right now since election day is today, and tomorrow and and…
This was Beauprez’s race to loose, even after Holtzman had his ego race. What the hell happened?