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I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Tuesday, October 03, 2006

John Boehner = Denny Hastert, at least -- Plus, key questions for Tom Reynolds

(Updated below - Updated II - Update III - Update IV - Update V)

(1) The editorial in The Washington Times calling for Denny Hastert's resignation lays out the case quite persuasively, but it is worth remembering that any criticisms of Denny Hastert in the Foley scandal apply equally, at least, to the next-in-line, Majority Leader John Boehner. If Hastert has to resign, how can Boehner stay?

Not only does Boehner admit to having known about what the Washington Times calls the "red flags" raised by Foley's "suggestive and wholly inappropriate e-mail messages," Boehner, ever since this scandal emerged, has been at least as dishonest as Hastert has been (which is saying a lot, since Hastert, as the Washington Times notes, "dissembled, to put it charitably"). And it was Boehner who actively and inexcusably blocked the efforts by House Democrats on Friday to instruct the House Ethics Committee to investigate this matter.

As Brad DeLong documented, Boehner has changed his story multiple times. He first told The Washington Post, definitively, that he talked months ago to Hastert about Foley and "that Hastert assured him 'we're taking care of it.'" But then, when Boehner learned that Hastert had denied knowing about Foley's page problem at all, Beohner "contacted The Post and said he could not remember whether he talked to Hastert." Then, in Roll Call: "Boehner strongly denied media reports late Friday night that he had informed Hastert of the allegations, saying 'That is not true.'" As DeLong emphasized:

Not "I don't remember." Instead: "That is not true." You cannot read Roll Call and both versions of the Post story without concluding that Boehner was lying to somebody last night: three different stories in quick succession defeats all credulity.

And now there seems to be still another Boehner version, as The Palm Beach Post reports this morning: "Boehner told the Dayton Daily News he was '99 percent' sure he talked to Hastert about the matter, but also said he did not recall their conversation."

So: (a) Boehner told Hastert about Foley and Hastert assured him they were "taking care of it"; (b) Boehner does not remember whether he ever talked to Hastert about Foley; (c) Boehner affirmatively claims that it "is not true" that he spoke with Hastert; and now, (d) Boehner is "99 percent" sure he talked to Hastert about Foley but remembers nothing about the converstaion. Does that sound like someone qualified to be Majority Leader of the U.S. House of Representatives, let alone Denny Hastert's replacement for Speaker of the House?

And this event has gone under-noticed because it happened late afternoon last Friday. Nancy Pelosi introduced a Motion on the House floor to mandate that the House Ethics Committee investigate how Foley was able to engage in such inappropriate conduct with Congressional pages and whether the House leadership failed in its duties. Boehner blocked the motion by claiming that they only learned of it that day, and therefore introduced a motion of his own -- which the GOP majority quickly approved -- to have the question of whether there will even be an investigation decided by the House Ethics Committee, the majority 5-member GOP contingent of which (out of 10 Committee members) is composed of the most subservient GOP backbenchers selected exactly for that reason. Predictably, they still have not decided whether they will even "investigate" at all.

The GOP-controlled House is a legislative body which routinely passes the most monumental legislation within days or even hours of its being completed, without there being anywhere near sufficient time for representatives even to read the bill, let alone contemplate its merits or deliberate in any meaningful way. Just this past week, Boehner's House Republican caucus voted to legalize torture, indefinite detention powers and warrantless eavesdropping before the ink on the final drafts was even dry.

They routinely shove legislation down the throats of House members as quickly as they can. Yet Boehner claimed that more time was needed to contemplate a very short and straightforward Motion directing the House Ethics Committee to investigate the Foley matter. The duplicity and obstructionism is hard to fathom, but that is how Congressional Republicans operate. Boehner not only helped conceal Mark Foley's behavior with pages, but he then actively obstructed an attempt to have the House investigate this matter by invoking the flimsiest and most transparently deceitful rationale to do so.

(2) Following up on what I really believe is the most incriminating fact yet -- that it was Tom Reynolds' current Chief of Staff, Kirk Fordham, who negotiated on behalf of Mark Foley to try to persuade ABC not to release the sexually explicit IMs -- last night I e-mailed the post I wrote about the Fordham-ABC negotiations to Brian Crowley, The Palm Beach Post reporter who first reported that Fordham was working to help Foley manage the crisis. I asked Crowley if he knew whether it was Fordham who negotiated with ABC (this was before Aravosis reported that he confirmed that it was). Crowley did not answer, but he did include this in his article this morning:

The Washington Post reported that a former chief of staff for Foley made one last effort to keep the most damaging messages from going public.

According to media reporter Howard Kurtz, the unnamed chief of staff contacted ABC's Brian Ross, offering to give the network an exclusive about Foley's resignation if Ross agreed "not to publish the raw, sexually explicit messages." Foley resigned after ABC confronted him with those messages.

"I said we're not making any deals," Ross said.

Foley's longtime former chief of staff, Kirk Fordham, did not return a call seeking comment. Fordham is now chief of staff for Reynolds, one of the congressmen who notified Hastert of the complaint from a former page.

With so many facts and revelations flying around, it is difficult to have new ones focused on, but I will say again that this is one of the most significant facts, if not the most significant yet, because it directly ties Tom Reynolds -- a key GOP House leader -- to the effort as recently as last Friday to help Mark Foley conceal from the American public the true nature and extent of his behavior. It was the release of the IMs that really made this a story. That Tom Reynolds' Chief of Staff was actively trying to convince ABC to conceal those key documents is just inexcusable and is the very definition of active cover-up.

These questions should be posed continuously to Reynolds until he answers, and the same questions ought to be asked of his Chief of Staff:

* Did Reynolds' Chief of Staff, Kirk Fordham, counsel or advise Mark Foley at any time as to how to handle this scandal?

* Did Reynolds approve of Fordham's doing so and why?

* Has Fordham told Reynolds about his advice to, or efforts on behalf of, Foley -- either during the time he was working with Foley or since?

* Was Fordham also involved in consulting with Reynolds about how to manage the Foley scandal?

* Was Reynolds aware of any attempts by Fordham to convince ABC to keep concealed the sexually explicit IMs conversations in which Foley participated with pages?

* Is Reynolds now aware of any such efforts by Fordham to negotiate an agreement with ABC whereby ABC would agree not to release the IMs?

* Does Reynolds approve of or condemn efforts to have those IMs concealed?

Lots of other questions follow from those, given that Reynolds was almost certainly (and, I believe, reportedly) meeting over the weekend with Hastert, Boehner, Shimkus and others as they all plotted how to respond to the scandal. It seems highly likely, to put it mildly, that (a) Reynolds' own chief of staff was reporting to Reynolds about the work he was doing on behalf of Foley, and (b) Reynolds was informing Hastert, Boehner and company about the work his Chief of Staff was doing to help manage and contain this story. Did they know that Reynolds dispatched his Chief of Staff to help Foley, and did they know what that Chief of Staff was attempting to convince ABC to do?

I can understand, on a personal level, why Mark Foley would not want those IMs released. But the only possible reason why Reynolds and company would work to have them concealed is to avoid the political damage that would result from Americans learning about the true nature of the predatory conduct they helped conceal and enable.

UPDATE: As Billmon asked in comments here last night, what possible justification is there for Howard Kurtz -- who first reported the story of the negotiations to have ABC conceal the Foley IMs -- to refer misleadingly to Fordham, who is Reynolds' curent Chief of Staff, as "a strategist for Rep. Mark Foley" and "Foley's former chief of staff"? Assuming the report was referring to Fordham -- as Aravosis has "confirmed" and as seems independently clear -- Kurtz's source description is completely misleading and seems designed to ensure that Reynolds is not implicated in the story.

That the person doing the negotiating for Foley was Reynolds' Chief of Staff is a critical part of the story. Not only did Kurtz fail to report that, but he actively obscured it by referring to Reynolds in a totally miselading manner. It is redolent of Judy Miller's agreement to refer to Lewis Libby as "a former Hill staffer" -- factually true but wilfully deceitful to readers of the article. Many reporters have done quite a good and uncharacteristically aggressive job in covering this story (and understanding why that is is a project of its own for another day), but -- assuming that Kurtz's report was referring to Fordham -- Kurtz's article reflects his typically shilling, deceitful ways.

UPDATE II: More Republican demands for resignations: from a Press Release (via e-mail) from Rep. (and Senate nominee) Benjamin Cardin (D-Md): "Rep. Benjamin L. Cardin (D-MD) today called on House Speaker J. Dennis Hastert (R-Ill) and other Republican leaders to resign from their leadership positions if they had knowledge of the inappropriate e-mails sent by Rep. Mark Foley to a teenage boy and failed to take action."

And Boehner settles on a story finally, reflecting his plan (which may be the one they settle on) to try to heap all the blame on Hastert, so that once Hastert resigns, they will act as though everything has been resolved:

In a radio interview with 700 WLW radio in Cincinnati, House Majority Leader John Boehner (R-OH) placed responsibility for the Foley matter not being handled properly on House Speaker Dennis Hastert (R-IL).

"I believe I talked to the Speaker and he told me it had been taken care of," said Boehner. "And, and, and my position is it's in his corner, it's his responsibility. The Clerk of the House who runs the page program, the Page Board—all report to the Speaker. And I believe it had been dealt with."

Does John Boehner really think anyone is going to accept the excuse that he failed to take action to investigate Mark Foley because, as Majority Leader, it wasn't his responsibility? The principal problem for them, from the beginning, has been that the more they defend themselves, the worse they sound. At bottom, there simply is no good excuse for knowing about Mark Foley and doing nothing about it, and even the mere act of trying to excuse themselves for it makes them look worse.

And this new Blame Hastert strategy can't and won't work for an obvious reason -- because once Hastert is gone the spotlight on Boehner, Reynolds and the rest will intensify, and their conduct, as I indicated above, can withstand no more scrutiny than Hastert's, maybe even less. As the ABC blog notes immediately after conveying Boehner's new comments: "Please note that by saying that he talked with the Speaker about Foley, Boehner is reversing course and going back to his original position."

It is hard to avoid dreaming about what our country would be like today if the media had devoted even a small fraction of the diligence, scrutiny and adversarial passion to the events of the past five years as they are devoting to this story. But that is a topic for another day; for now, there is no reason to look gift horses in the mouth.

Finally, in an article headlined "Foley Saga No Shock to Some," The LA Times notes the Fordham-Foley-Reynolds connection:

Beck-Heyman, the former page, said several other male pages in his class also had been approached by Foley. "Mark Foley knew he could get away with this type of behavior with male pages because he was a congressman," he said.

Another former staffer said it was an oft-repeated story around Capitol Hill that Foley's former chief of staff, Kirk Fordham, would sometimes accompany the congressman to keep him out of trouble.

Fordham represents a link between Foley and House GOP leaders. Shortly after leaving Foley's office last year, he became chief of staff to Rep. Thomas M. Reynolds (R-N.Y.), chairman of the National Republican Congressional Committee.

Nobody is going to believe that Kirk Fordham was unaware of Foley's predilections. That is beyond dispute. Is anyone really going to believe that Kirk Fordham's boss, Tom Reynolds, was unaware? In terms of vulnerability levels of the three key GOP leaders here, I would rank them in this order, beginning with the most vulnerability: (1) Reynolds, (2) Boehner, (3) Hastert. Given the degree of trouble that Hastert faces, that gives a pretty clear picture of how much trouble the GOP faces.

UPDATE III: John Aravosis points out via e-mail that his post confirming that it was Fordham who negotiated with ABC on behalf of Foley includes the fact that it was Kurtz himself who confirmed that, on the record, to Aravosis.

That means that (a) it is certain that Tom Reynolds' Chief of Staff attempted, as recently as Friday, to conceal from the public some of the most incriminating evidence in this scandal, and (b) Howard Kurtz's story was completely misleading since he not only failed to disclose that it was Fordham, but described him in such a way as to obscure his identity. What excuse is there for that? I would suggest that we ask The Washington Post's media reporter about it, but since that spot is occupied by Kurtz, Kurtz should be compelled to address his actions on his own.

UPDATE IV: Although new "disclosures" like this do not add much to the substance of the story, the media will treat each one of them like a major revelation and these alone will ensure that the story keeps going:

Former Congressman Mark Foley (R-FL) interrupted a vote on the floor of the House in 2003 to engage in Internet sex with a high school student who had served as a congressional page, according to new Internet instant messages provided to ABC News by former pages.

ABC News now has obtained 52 separate instant message exchanges, which former pages say were sent by Foley, using the screen name Maf54, to two different boys under the age of 18. . . .

The House voted that evening on HR 1559, Emergency War Time supplemental appropriations.

According to another message, Foley also invites the teen and a friend to come to his house near Capitol Hill so they can drink alcohol.

The Big Revelation has not yet occurred. That is going to be the first confirmed report of Foley's having actual, in-person sex with one of the pages. At this point, there is no doubt that he did so. He wasn't inviting them over to his apartment to drink alcohol in order to watch television with them. Still, that hasn't been reported yet. We've been building up to it incrementally and Brian Ross is, I have no doubt, scouring his inbox at this moment for the lead that will take him there.

These endless, incremental disclosures are much more painful for the Republicans -- not unlike Chinese Water Torture (which, coincidentally enough, is a technique that the President now has the power to use, thanks in part to legislation approved last week by Denny Hastert, John Boehner, Tom Reynolds and Mark Foley).

UPDATE V: It's good to see that the "conservative congressmen" talking to Rich Lowry have their priorities straight:

Some conservative congressmen are calling around trying to buttress support for Hastert. A conservative member who called me says of leadership that “the media has gotten these guys in a crossfire with each other.” But he thinks it’s important that Hastert not go: “If we decapitate our leadership right now going into the November elections, we lose the whole shooting match. Our base will completely deflate. There is a time and place to talk about vision and leadership [at the top], but now is not the time.”

He says the leadership needs to “get the truth and data-dump it, get it out there as soon as possible.” Part of the problem is that the leadership isn’t working together closely enough: “they’re making decisions in silos, they’re stove-piping it. They need to get some sort of smart outside lawyer to get all the facts assembled as soon as possible.”

The conventional wisdom, which is what Lowry's source is reciting here, is that the way to end a Washington scandal is to disclose all information so that there is nothing left for the media to do, so that there are no more disclosures to feed the story. That is wise enough for most scandals, but that won't help them here. For one thing, most of the upcoming disclosures are not within their control. For instance, there will almost certainly be more tawdry IMs, more pages, and -- as indicated above -- the Main Event of the First Confirmed In-Person Sexual Encounter. Regardless of what Hastert and company do, those will keep the story going with plenty of fuel.

Worse (for them), this story has not endured because everyone is waiting to get more information about what Hastert and his comrades did or didn't do. It would be nice to learn more about that, and I have no doubt that we will, but we already know all we need to know about what they did (and didn't do) in order to be disgusted by their rank corruption and selfish clinging to power. It is that disgust with the GOP House Leadership which is, more than anything else, maintaining and fueling interest in this story. Unless Hastert can "disclose" that he reported Foley to the FBI and asked for an investigation months ago -- and, of coruse, he cannot -- then there aren't any "disclosures" which Hastert can make that will make a real difference. We know all we need to know about Denny Hastert at this point.

Worst of all, though, is the mystifyingly stupid things House Republicans continue to do on an almost daily basis to exacerbate the anger towards them. Doesn't Tom Reynolds have any advisors helping him? What would prompt him to opt for this truly cringe-inducing spectacle of a Press Conference, where he decided to talk about his role in the Foley scandal while surrounded by what appeared to be hordes of small children, and then -- with stupidity so towering that it still seems surreal -- claim that he did all he was obligated to do in this case because he reported what he learned to what he called "my supervisor" (meaning the Speaker of the House). Who wouldn't know that that sort of callous, legalistic, bureaucratic indifference towards what happened to these pages would absolve him of nothing and would only make things worse?

Reynolds' astounding self-defense seemed to alienate even those who want to support him. It prompted this question from Ramesh Ponnuru: "I don't find his I-sent-this-to-my-supervisor-to-deal-with defense terribly inspiring. Is he a file clerk or a congressman?" Kate O'Beirne complained: "their buck-passing is unbecoming of public officials." In fact, they're all pretty angry over there in the Corner at just how inept and embarrassing the House Republicans have been in trying to defend themselves, and I can't say I blame them. Even for those who thought that there was nothing all that wrong with the actions of the GOP Leadership in displaying total indifference to Foley's behavior, one should be able to agree that the overflowing ineptitude (not to mention transparent deceit) with which they are trying to excuse themselves is reason enough to force them out of office.

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