October 2, 2007

Murtha: Underhanded and Overlawyered

Hatched by Dafydd

Via the center-left Politico, federal Judge Rosemary M. Collyer (appointed by George W. Bush in 2002) has ordered Rep. John "Mad Jack" Murtha (D-PA, 65%) to appear in court and be cross examined, in response to a subpoena by Marine Sgt. Frank Wuterich; Wuterich has sued Mad Jack for defamation for Murtha's accusation that the Marines in Haditha, al Anbar province, Iraq, committed "cold-blooded murder and war crimes."

The Politico writer, John Bresnahan, carps about the judge's order and predicts it will be quashed. He argues that Murtha will be allowed to hide behind the "Speech or Debate" clause of the Constitution, forcing a dismissal of the lawsuit when the appellate court hears the case. Legally, he is probably right; but if this happens, the political fallout could be far worse than if Murtha just testified, apologized, and -- as if were -- moved on.

Here is Bresnahan:

Frankly, I don't understand this ruling [forcing Murtha to take the stand and be cross-examined] at all, and I wouldn't be surprised if it is appealed by the Justice Dept. and/or House general counsel's office on behalf of Murtha. Murtha, who can say some inappropriate things once in a while, was clearly acting in his capacity as a lawmaker when he made the comments and is thus protected by the Speech or Debate Clause from any type of prosecution for official acts.

Therefore, this case should have been dismissed, and I hope it will be. It's not that I agree with what Murtha said. I don't know enough about the incident to have an opinion whether Wuterich or the other Marines did anything improper or illegal. But Murtha has a right to say what he did under the Speech or Debate Clause, even if he was wrong about what happened. When we start restricting what members and senators can say in the performance of their jobs, then we are really in trouble as a country.

I would argue that Murtha was not engaged in speech or debate related to passage of a law so much as he was poisoning Americans against our own military in order to further the political (not legislative) fortunes of the Democratic Party. Article I, section 6 of the Constitution includes the following privileges of members of Congress:

They shall in all cases, except treason, felony and breach of the peace, be privileged from arrest during their attendance at the session of their respective Houses, and in going to and returning from the same; and for any speech or debate in either House, they shall not be questioned in any other place.

Of course, Murtha was not speaking in "either House;" he made his accusations during a press conference and a subsequent TV interview. Bresnahan argues that this still qualifies:

But what Murtha did was comment on an incident involving Wuterich and other Marines at a press conference and in a follow-up TV interview. These interviews were related to his opposition to the Iraq war. The courts have found that such press-related activities are a normal part of the duties of a member of Congress, and are therefore covered by the Speech or Debate Clause. Murtha did not have to be on the floor of the House making a speech in order to enjoy the protection of the Speech or Debate Clause.

Yet he, himself admits that not every statement during a press conference or on TV would be covered; it depends on what was said and what was the purpose... which is why we have judges. Were I the judge, I would least consider the argument that Murtha's purpose in falsely accusing the Marines anent Haditha was not to debate a bill in Congress, but rather to smear a bunch of people he just doesn't like.

Suppose Murtha went on 60 Minutes and falsely claimed that the chief legislative aide to House Minority Leader John Boehner (R-OH, 88%) -- who, along with Boehner himself, opposes Murtha's position on earmarks -- was about to be indicted by the FBI for hundreds of acts of bribery... would Murtha be privileged from any legal action brought by Boehner's aide? After all, Murtha could legitimately claim that assassinating the character of Boehner's chief legislative aide would make it easier for Murtha to get his own earmarks passed, since Boehner and his aide would be too busy responding to the false charges to vigorously fight the earmarks.

But let's suppose Bresnahan is right, and the law allows Rep. Murtha to smear the United States military and then hide behind the constitutional clause to avoid paying damages to those he so casually yet severely damaged. How do you think that will play on the hustings?

What will the Republican presidential candidates make of that vile Democratic opportunism? Remember, Murtha is the House Appropriations Defense Subcommittee chairman, and he would have been House Majority Leader, if Squeaker of the House Nancy Pelosi (D-Haight-Ashbury, 95%) had gotten her way. He's not some scurrilous back-bencher; he's "hidalgo," high up the Democratic leadership.

We have a terrible national problem today: One of the two major parties hates President Bush so rabidly, its members are willing to say or do anything to hurt him... even if it means harming individual soldiers and Marines guilty of nothing but performing the very dangerous duty they're assigned, harming the American military, or harming the United States itself.

Democrats have been credibly accused of relying upon votes by aliens, felons, and the dead to win reelection, as with the Sanchez sisters, Reps. Loretta Sanchez (D-CA, 100%) and Linda Sanchez (D-CA, 100%); they have consistently taken this route for many decades... even before the 1960 presidential election.

Likewise, Democrats and their trial-lawyer allies will cheerfully destroy the Boy Sprouts of America, shut off funding to missions and charities because they won't denounce their religious beliefs, and try to subvert and even smash the Catholic Church, if that's what it takes to maintain the Democratic majority in Congress.

The Democratic Party maintains a set of useful idiots and willing accomplices in the elite media (as Rush Limbaugh -- now embattled over yet more false accusations from Democrats -- is wont to say); these dupes and accomplices stoop to astonishing lows:

  • They deliberately expose highly classified anti-terrorist surveillance programs, even those they agree are completely legal, such as the SWIFT surveillance program;
  • They routinely engage in libel and slander of decent, law-abiding Republicans, from Limbaugh to the president and vice president, to Gen. David Petraeus;
  • They poison the reservoir of American polity with vile and false accusations of racism, sexism, and "homophobia" hurled against anyone who disputes any part of "the Vision of the Anointed;"
  • They report fake news -- even news they know is fake, because their own experts told them so: Hundreds of examples of "fauxtography," the deliberate fraud of "Police Captain Jamil Hussein," and Rathergate are just three examples;
  • "Independent, unbiased" news anchors, editors, and writers attend fundraisers for the Democratic Party and its candidates -- then glide into government as Democratic apparachiks (Sidney "Sid Vicious" Blumenthal, George Snuffleupagus, Chris Matthews, Bill Moyers, and on and on), then drift back to being "independent, unbiased" journalists again;
  • The elite media pull shenanigans like falsely reporting that Sen. Al Gore had won Florida, hence the presidency, in the 2000 election -- while the polls in Florida and elsewhere were still open. (That they "made up for it" by later falsely reporting that Bush had won -- after all polls had closed -- is not a defense... it's a secondary indictment. The only correct projection was that the race there was too close to call; there is no excuse for making any projection, nor do they get to shift all responsibility onto Voter News Service.)

The pattern is consistent: Democrats simply don't care what American institutions are ruined and shattered, so long as the Democrat gets reelected -- the loss of American confidence in our own electoral system, once the envy of the world; the loss of the faith-based charitable and service institutions we have relied upon for many, many decades to fill the gap between the public and private sectors; and the subversion of our fundamental freedoms, including freedom of speech... this is all considered acceptable "collateral damage" by the modern Democratic Party.

Given the above, what Democrats need more than anything else is to stop digging the hole deeper, stop attacking the mainstream of this country, and return to the roll of loyal opposition to the president.

So what does their spokesman Mad Jack Murtha do? (Hah, thought I'd forgotten about him, didn't you?) He launches a bizarre, needless, heedless, vicious smear of the very branch of the service he loves to tout for his own credentials... a smear that was always questionable and is now shown to be largely fabricated.

And when one of the victims of the smear sues him, and a judge orders Murtha to testify in the trial -- Murtha's unofficial lawyer over at the Politico advises him to stand on his congressional privilege and laugh in the face of the man he slandered. "Can't catch me, I'm the gingerbread man!"

Oh Lordy, do I hope that Murtha takes Bresnahan's advice. I can think of nothing that would more enrage military families, traditional Americans, and even a great many moderates. And depending on the reaction of his Democratic colleagues, enrage them not only at Murtha but the entire party, too. Imagine, for example, if other Democrats lock arms around him, defending his right to slander, libel, and smear the United States Marine Corps and then "lawyer" his way out of the consequences that would befall us mere humans who did the same.

So as a member and supporter of the Republican Party, I would like to urge Rep. Mad Jack Murtha to just keep on stonewalling, refuse to testify, and continue smearing the Army, Navy, Air Force, Marine Corps, Coast Guard, the state National Guards, and the reserves of all of the above.

Alas, as an American, I cannot. I must instead urge him, for the sake of the nation, to just "man-up" and apologize for bearing false witness against Marines fighting in Iraq. It would help bring us all together and present a united front to our enemies. This tack would be best for the United States of America -- the country Murtha supposedly serves in the United States Congress.

Sadly, I have the peculiar feeling that my secret wish will be fulfilled instead.

Hatched by Dafydd on this day, October 2, 2007, at the time of 4:39 PM

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» Council speak 10/12/2007 from Soccer Dad
The Council has Spoken. This week's winning Council Entry was "Murtha: underhanded and overlawyered, a look at the Congressman's reckless behavior in the aftermath of Haditha. The runner up was Right Wing Nuthouse's The enormous damage to our space pro... [Read More]

Tracked on October 11, 2007 11:33 PM

» Watcher's Council results from The Colossus of Rhodey
And now...  the winning entries in the Watcher's Council vote for this week are Murtha: Underhanded and OverlawyeredBig Lizards by Big Lizards, and Battleground Che by Publius Pundit. Here are the full tallies of all votes cast:VotesCouncil link2M... [Read More]

Tracked on October 12, 2007 5:04 AM

» The Council Has Spoken! from Watcher of Weasels
First off...  any spambots reading this should immediately go here, here, here,  and here.  Die spambots, die!  And now...  the winning entries in the Watcher's Council vote for this week are Murtha: Underhanded and Overlawyere... [Read More]

Tracked on October 12, 2007 12:12 PM


The following hissed in response by: levi from queens

You go on far too long Daffyd. There is no reasonable question but that the speech or debate clause had to do with speech on the floor of congress. Murtha should have committed libel when he was permitted.

The above hissed in response by: levi from queens [TypeKey Profile Page] at October 2, 2007 4:50 PM

The following hissed in response by: LarryD

The Constitutional passage is rather explicit.

Press conferances are not covered.

It's past time that Murtha et al learned that actions have consequences.

The above hissed in response by: LarryD [TypeKey Profile Page] at October 2, 2007 6:00 PM

The following hissed in response by: AMR

Mr. Murtha is a disgrace to even his profession. I can not believe that the constitution provision to protect congressional members’ speech is applicable in this instance. And some of his fellow Marines didn’t care too much for him even before this outrage. There have been rumors running around the Marine chat venues for some time that Rep. Murtha had puffed up his military résumé about his Vietnam service. I would think that one who did that would not place themselves in a position to be challenged but Senator Kerry and Harkin did not follow that logic. I guess they believe that they can rely on the media bias towards their political positions to protect them. The media generally has, but the blogs have not.

As a veteran, I always get very suspicious of someone who uses their military résumé to advance themselves politically and then attack those that serve/have served. I had always thought that we were a fraternity of sorts that protected each other from false accusations. I will admit, though, that I’m just plain biased against politicians, regardless of party.

The above hissed in response by: AMR [TypeKey Profile Page] at October 2, 2007 6:23 PM

The following hissed in response by: Fat Man

I did not do a lot of research, but I am inclined to believe that a Congresscritter can be held liable for slanders uttered at press conferences and similar events:

Analysis and Interpretation of the Constitution prepared by the Congressional Research Service, 2002 Edition, Page 137 [PDF]

Public dissemination of materials outside the halls of Congress is not protected [by the speech and debate clause], the Court held, because it is unnecessary to the performance of official legislative actions. Dissemination of the report within the body was protected, whereas dissemination in normal channels outside it was not. Bifurcation of the legislative process in this way resulted in holding unprotected the republication by a Member of allegedly defamatory remarks outside the legislative body, here through newsletters and press releases.
The clause protects more than speech or debate in either House, the Court affirmed, but in order for the other matters to be covered "they must be an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House." Press releases and newsletters are "[v]aluable and desirable" in "inform[ing] the public and other Members," but neither are essential to the deliberations of the legislative body nor part of the deliberative process.

The above hissed in response by: Fat Man [TypeKey Profile Page] at October 2, 2007 8:02 PM

The following hissed in response by: Diffus

In a world where abortion is protected by the First Amendment but political speech about a candidate, under certain conditions, is not, I wouldn't wager much more than my daily Coke money on whether something is eventually adjudged to be constitutional or not. Constitutional law is, to this non-lawyer, a crapshoot.

The above hissed in response by: Diffus [TypeKey Profile Page] at October 2, 2007 8:22 PM

The following hissed in response by: howardhughes

The legal thought available on the blog sites is impressive as is this blogs comments on Rep. Jack Murtha's request to appear in court in a slander suit against him. A realistic examination, however, should take into account that first, forum shopping is alive and well. Second, most courts are in cities and most cities are managed by Democrats whose tentacles reach judges. Third, lower courts where cases are tried and where more of the communities resources are in use are more vulnerable to influence than courts of appeal. Before a guess on the outcome of any court decision can be made, these conditions have to be examined. Many news articles on court business do include information on who appointed a Federal judge. Sometimes state and county judges are identified as to party preference indirectly. That the validity of such observation is warranted is provided by Justice O.W.Holmes's comment upon seeing a finished portrait of himself in black robes, looking distinquised,"That isn't me but it is a good thing for people to think that it is."

The above hissed in response by: howardhughes [TypeKey Profile Page] at October 3, 2007 5:36 AM

The following hissed in response by: Dan Kauffman

When we start restricting what members and senators can say in the performance of their jobs, then we are really in trouble as a country

Then maybe the gentleman can explain why when another Senator read a message sent to her by a constituent serving in Iraq which said

"Marines stand and fight, they never cut and run"

It was stricken from the Congressional Record??

The above hissed in response by: Dan Kauffman [TypeKey Profile Page] at October 3, 2007 5:43 AM

The following hissed in response by: Big D

Well, I say let Murtha and other Democrats slander and lie with impunity. I prefer them emboldened to say what they really think, tell us what they really want, rather than the pretense.

When did the loyal opposition become the permanent opposition in this country? Just wondering.

Also, the other day I was watching a news show, and they presented, as if it were fact, that Gore actually won Florida, and that the election was taken from Gore by the Supreme Court.

So not only are all our institutions to be sacrificed to gain power, but history itself is on the chopping block. Whatever it takes.

The above hissed in response by: Big D [TypeKey Profile Page] at October 3, 2007 9:47 AM

The following hissed in response by: leftnomore

This post needs to be printed and handed out all over this nation. I have been looking for someone to distill the evils of this godless Demo mob, and DaH just provided it. THANK YOU!

The above hissed in response by: leftnomore [TypeKey Profile Page] at October 3, 2007 11:50 AM

The following hissed in response by: David M

Trackbacked by The Thunder Run - Web Reconnaissance for 10/03/2007
A short recon of what’s out there that might draw your attention, updated throughout the day...so check back often.

The above hissed in response by: David M [TypeKey Profile Page] at October 3, 2007 1:21 PM

The following hissed in response by: LarryD

Update: Legal background from an attorney, over at American Thinker.

The above hissed in response by: LarryD [TypeKey Profile Page] at October 4, 2007 6:21 AM

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