Betsy Devine: Funny ha-ha and/or funny peculiar

Kyoto stone wall

Originally uploaded by betsythedevine.

Left to itself, the earth of NH produces glacial rocks, year after year, eroded up out of our topsoil by rain and snow. NH farming — and just 100 years ago, NH was almost all farmland –meant dragging the glacial rocks to the edge of your field, where they could be piled up into New England stone walls.

New England stone walls — I’ve even built one myself — don’t need any mortar. You start with a ground layer of your heaviest boulders. Self-protection dictates this, because higher layers of the wall are made of rocks that you have lifted and dropped!

Once you set the ground layer, a matching process begins between rough rock and odd-shaped crevice. Two big rounded stones sitting side by side on the ground create an implied empty space between them into which one of your left-over rocks will fit better than any of your others…

I’ve been admiring the different ways that Japanese stone walls get built from the same kinds of rough, gray glacial till…

Tobin’s appeal was already in process when I arrived this morning at Boston’s US Court of Appeals. A subset of the usual small crowd was there–no reporters, so far as I could tell, so let me be the first to tell you that Chief Judge Michael Boudin (Harvard Law, class of 1964) seems completely in tune with the arguments of James Tobin’s attorney John G. Kester (Harvard Law, class of 1963). In his summation, Kester (former president of the Harvard Law Review, Law Clerk to Supreme Court Justice Hugo L. Black, 1963-1965) addressed Boudin (former president, Harvard Law Review, Law Clerk to Supreme Court Justice John Harlan, 1965-1966) in a tone of utmost relaxed collegiality. Kester boiled down all the multiple pages of documents supplied by his younger helots at Williams and Connelly, into three points. Tellingly, every one of Kester’s very different three points seemed to meet with approval from Judge Boudin:

1. Tobin never entered any agreement with McGee or Raymond. Criminality doesn’t extend to “but for” causation. If it did, every criminal’s mother would be in the dock.
2. This same panel of appeals court judges (Boudin, Torruela, and Lynch) set a precedent in the appeal of Garcia-Torrés which must be followed now.
3. The government decided that the 2002 phone-jamming was bad and unsavory–“We might agree”, added Kester. But there was no statute against it. The government “concocted” a case from a statute made to prevent quite different behavior.

It took Kester all of three minutes to make his three points–then he sat down. He could afford to relax because Judge Boudin had been very excitably haranguing US Attorney Andrew Levchuk with the defense’s own points when I got to the courtroom.

“You have taken advantage of the vagueness of the statute,” Boudin proclaimed. One key defense contention throughout the case has been that the law against telephone “harassment” should not be construed using the plain dictionary meaning of harassment. They claim the law is either so specific that it forbids only calls made for a few specific motives or else so vague that nobody could guess that jamming phone lines is harassment.

Levchuk pointed out, with considerable tact, that he’d submitted documentation of many examples and precedents for the plain commonsense interpretation of “harassment” by other courts with regard to the statute. This statement met no approval from Judge Boudin. “You’re taking almost as extreme a broad view as the narrow view that you claim the defense is taking,” he reproached Levchuk. “Well, thank you, Mr. Levchuk, your appearance here has been very helpful.”

Well, I’m waiting to hear what the three-judge panel decides, although Torruella and Lynch had very little to say at this morning’s hearing.

Caveat–I am not an official court stenographer, just somebody trying to reconstruct lots of court action from the few notes I scribbled down into my notebook. According to the Appeals Court Clerk, nobody transcribes these court sessions–but a tape is available for $26.

A panel of three federal judges in Boston is scheduled to hear more about phone-jamming this morning. According to court documents, Tobin will be represented by John G. Kester, former Deputy Ass’t Secretary of the Army, Harvard Law alum, and a partner from the same DC law firm that was paid millions by the RNC to represent Tobin during his criminal trial. The RNC says it no longer pays Tobin’s lawyers. What nobody says is who now pays them.

On the table this morning are three different appeals. (Here’s a Flickr set of the relevant documents.) Williams and Connelly claim that the Appeals Court should 1) overturn the NH jury’s finding that he was guilty and/or 2) cancel his sentence to 10 months in prison and/or 3) grant him a second trial.

I am genuinely sorry for Mr. Tobin.

In related, interesting news…

Remember the tantalizing sworn testimony from Chuck McGee that Darrell Henry helped to engineer a post-phone-jam phone jam? And later stories that Henry said he’d get help from the US Chamber of Commerce?

James Tobin’s NRSC boss during the 2002 phone-jamming was Chris LaCivita. In 2006, LaCivita’s official bio at the website of Terry Nelson’s consulting firm, Crosslink Strategy Group makes a big point of LaCivita’s earlier work–for the Chamber of Commerce.

I find that information very interesting.

On Monday, December 4, Democrats and Republicans were set to battle once more about NH’s phone-jamming scandal–but on Friday, December 1, NH Democrats ended their lawsuit in exchange for an undisclosed settlement.

How much did the Democrats get? In between (it’s a wide range) $4,974 and $4.1 million (John DiStaso, November 30). Even the higher figure wouldn’t seem like too much for a list of defendants that included (among many others) the Republican National Committee, which spent millions already on James Tobin’s defense.

NH Democratic State Chair Kathy Sullivan, who told the AP she would issue a statement Saturday, has insisted the Democrats’ civil suit had been filed to obtain answers, not money.

Even so, as the case dragged on, year after year, its burden on NH Democrats and their lawyers has been heavy. Republican lawyers filed motion after motion, seeking to dismiss or delay the lawsuit. Even when Judge Mangones finally let Democrats question some of the DC higher-ups who might be implicated, stonewalling just moved to a higher level.

From John DiStaso’s November 2 “Granite Status” column:

Darrell Henry, a former energy industry lobbyist,.. refused to answer any of about two dozen questions related to the phone-jamming operation.

McGee had testified at the trial of convicted conspirator James Tobin that when the phone-jam was called off early on election day, Henry offered to contact associates in Washington to continue it.

When Sandler asked about what he told McGee, Henry said, “I assert my privilege.”

Henry, on advice of counsel, gave that answer to just about everything, even when he was asked to describe his educational background and employment history.

Maybe now that Democrats have broken the Republican stranglehold on House and Senate, an independent prosecutor may be able to get answers to questions that NH’s Bush-appointed US Attorney never chased down.

Today, NH Democrats gave up on trying.

Update: Kathy Sullivan’s statement, at least as it was reported by the AP, was not informative.

Update: The cash-strapped NH Republican State Committee will pay NH Democrats $125,000 over five years. The RNC and NRSC, with better lawyers, pay only $5,000 each.

I was there (and “real reporters” were not) in NH Federal District Court on November 16, when 34 year-old Shaun Hansen pled guilty to two felony counts arising from the 2002 NH phone-jamming scandal. Ten days after the Democrats’ national landslide victory, Bush-appointed US Attorneys in both NH and Idaho pledged not to question Shaun Hansen any further about his role in jamming NH phones on Election Day 2002.

Hansen’s deal with the feds, and his vague and evasive “factual plea” warrant scrutiny which the press has not given it–so here’s the PDF file.

And here, for eye-opening comparison is Hansen’s list of affirmative defenses.

Just a few smoking guns…

Guilty plea, page 4: The Department of Justice recommends sentencing leniency “based upon the defendant’s apparent prompt recognition and affirmative acceptance of personal responsibility for the offense.”

Prompt? Hansen jammed phones in November 2002. His “prompt” response to his 2006 indictment was an attempt to get the charges dismissed–or, failing that, to point out the lines of guilt connecting it through the Republican hierarchy all the way to the White House.

Affirmative defense, page 3: Hansen “had performed services for GOP Marketplace in the past and, based on its name and the type of work the business had been contracted to
perform, he reasonably assumed that GOP Marketplace was a governmental entity or at least that the activities that his business was being asked to perform had been approved in advance by the national Republican party.”

Search Hansen’s guilty plea in vain for any effort by the US Attorney to uncover the story behind these intriguing statement. Heck, search it in vain for the word “Republican”!

Affirmative defense, page 2: If the case comes to trial, Hansen “will present evidence that he and his business partner, Lee Leblanc, were parties to a conference call in which Messrs. Raymond and Cupit and an unknown ‘attorney’ provided further assurances that the acts which they and their business were contracted to perform in November 2002 were completely legal.”

Search Hansen’s guilty plea in vain for any information about this intriguing phone call, or for any clear details about dates or people involved. Guilty plea, page 10: “In or about late October or early November of 2002, a coconspirator telephoned Hansen to discuss a project.” That’s the level of detail of Shaun Hansen’s confession.

What this plea bargain looks like to me is a last-ditch attempt to close down the phone-jamming inquiry before Democrats get to ask Attorney General Alberto Gonzales about his six-months-and-counting non-response to their request for a special prosecutor.

NB. DOJ Attorney Andrew Levchuk, who headed the prosecutorial team against both Hansen and James Tobin, deserves kudos for hard work under adverse conditions. But Levchuk’s boss here is the US Attorney for the State of NH, Bush appointee Thomas Colantuono, whose many ties to the people being investigated and even to the lawyers defending those people in the Democrats’ civil suit have raised many eyebrows over his role in this case.

Dear Bill and Ri–

Well–the national GOP has apparently switched tactics this year–in 2004, the windshields of cars outside St. Joe’s Cathedral in Manchester had 3 separate GOP flyers on pre-Election Sunday! 

This year, NH GOP true-believers can’t even fill up a meeting with Laura Bush but the national party is rolling in money–so this year’s last-minute stunt is 300,000 deceptive robo-calls coming in from Virginia.

The call starts off on an upbeat note–“I’m calling with some information about Paul Hodes….”, giving the impression that the Hodes campaign is sending out robo-calls, three or four in a day to the same household, some coming as early as 5 o’clock in the morning. Irate letters to the Concord Monitor say, “I’m voting for Bass because Hodes is making these robo-calls.” 

Only Hodes isn’t making those robo-calls–the National Republican Congressional Committee is.  If you listen all the way to the end of the robocall, which nobody does because we’re all sick of them–well, read the Concord Monitor story for more: 
http://www.concordmonitor.com/apps/pbcs.dll/article?AID=/20061105/REPOSITORY/611050397

Still, I had a wonderful time today, up in NH, despite the naked windshields of churchgoers’ cars. There was frost in the morning, sunshine at noon, and takeout burritos from my favorite restaurant (Shorty’s in Manchester) to take home to Frank. I visited Manchester, Concord, and Nashua–met lots of energetic and pumped-up Democrats of many ages, saw two Republican headquarters closed up and shuttered. 

But no windshield flyers, so I just hope that the many kind people who went out to look on my behalf had as many other consolations as I did. Now let’s get big media onto  those 300,000 deceptive robocalls!

xxxx
Betsy

Why didn’t I guess–this year’s last-minute deception is illegal phone-calls with a new twist on deception. Says Eric Moskowitz of the Concord Monitor: A letter-writer to the Monitor said she had been “bombarded by recorded election messages from [Democratic candidate] Paul Hodes.” Marilyn Jewell of Concord wrote that she would be sure to vote for [his Republican opponent Charlie] Bass, in part because “he doesn’t pester me to death.” What’s wrong with this picture? Hodes isn’t pummeling voters with repeated robocalls–Republicans are.

But it sure does sound that way, for the first ten seconds (“Hello, I’m calling with information about Paul Hodes…”) Hang up the phone? That’s fine with the robocallers, because they’ll call you back, again and again and again.

And NH isn’t the only place where this is happening.

• Here’s a recording from Illinois of three robocalls to the same answering machine: “Hello, I’m calling with information about Tammy Duckworth…”
• In Connecticut, these phone calls start coming as early as 5 a.m.
• At DailyKos, SB Woodside, tracking the national story, lists 15 races where this is going on.
• Also tracking the story, Talking Points Memo links to another robocall recording, this one from New York.

So where is our national media on this national story?

Too slow to catch up with this brand-new voter suppression tactic, at least until well after Tuesday’s election.

“The calls are designed to make you hang up right after the words ‘Paul Hodes,”‘ says Hodes campaign spokesman Reid Cherlin.

* OK, it’s a nasty trick, but is it illegal? Well, shouldn’t it be? FCC regulations provide that all prerecorded messages must “at the beginning of the message, state clearly the identity of the business, individual, or other entity that is responsible for initiating the call.” [47 C.F.R. § 64.1200(b)]

Hello, “real media”–could you please cover this story?

p.s. Many thanks to Dave Winer, David Weinberger, Jeff Jarvis, Frank Paynter, and Elaine of Kalilily for your support on the the last-minute-deception story!

Update: I just got recordings of two NH robocalls.

Last-minute mailer from NH Republicans Originally uploaded by betsythedevine.

Today is Sunday. On Sunday, millions of Americans gather in churches to celebrate their sense of wonder at the universe, their allegiance to tradition, and their hope for a future more just than the world around them. On the last Sunday before Election Day, Republican operatives go out in force with a last-minute message to stick under windshield wipers. And mainstream media is too slow, too divided, to report on what people are being told. But those “secret messages” won’t be secret if you and I take the time to make them public. I’m headed to spend my morning in church parking lots, photographing those last-minute leafletters and their leaflets. And whatever I find, I’ll put up on Flickr and tag it “Election2006” so that others can see it too. Please join me–email me your photos if you don’t have a way to post them yourself–we have a voice now, so let’s use it–join me!

p.s. That picture is a last-minute mailer from the NH Republican State Committee. Thanks to D Fowle of the NH Gazette for posting that photo and inspiring my quest!

p.p.s. I’m up in NH — photos when I get home. The news here is that real NH Republican voters are too turned off to turn out for leafletting church parking lots–yay, NH! I knew people in my state had a lot of sense.

In the absence of actual volunteers, anyone willing to go door-to-door with GOP leaflets are allegedly getting $100 bucks for their troubles. And, in the absence of actual volunteers, the National Republican Congressional Committee has turned to 300,000 robocalls to NH, hitting some voters three or four times a day with calls that sound as if the Democrats made them.

Democrats have protested to the US Attorney that these calls are targetting even people on the national don’t call list–that’s illegal in NH. The NRCC says that calls will continue because NH law “does not apply” to calls made form out of state.

You’ve just got to love those Republican family values.

NBC’s Hardball talked phone-jamming with disgraced GOP phone-jammer Allen Raymond. A partial transcript, posted at MediaMatters:

NBC’s LISA MYERS: In an exclusive interview, Raymond admits that, four years ago, he went beyond pushing the envelope and actually crossed the line. He spent three months in prison. Now, in a civil suit, Democrats are trying to tie his misdeeds to the White House.

It all happened during a hard-fought battle for the U.S. Senate in New Hampshire between then-Democratic Governor Jean Shaheen and Republican John Sununu. Raymond was running a telemarketing firm. He says an old friend from the Republican National Committee, James Tobin, came to him with an idea: use nonstop hang-up calls to tie up Democratic phone lines on Election Day.

So, you were trying to create chaos and keep Democrats from getting out their vote?

RAYMOND: That’s right. We were trying to create chaos and prevent the Democratic Party from operating efficiently.

MYERS: On Election Day, the plan worked until nervous state Republicans pulled the plug. And the Republican candidate won, though there’s no evidence that phone jamming made the difference.

How common are dirty tricks in both Republican and Democratic politics?

RAYMOND: I think they’re fairly common, but let’s be clear on something. New Hampshire phone jamming was not a dirty trick; it was criminal.

Raymond understands the distinction, but does NBC?

Apparently not.

The frame story for NBC was that Republicans and Democrats are equally dirty.

Uh huh. So here we have a Republican felony reaching high enough that, after consulting the White House, the Republican National Committee spent $3 million and counting for high-priced defense lawyers. And here we have an unsupported statement that Democrats also engage in dirty tricks.

In our major media, that’s what passes for balance.

NBC’s Hardball talked phone-jamming with Allen Raymond. A partial transcript, posted at MediaMatters:

NBC’s LISA MYERS: In an exclusive interview, Raymond admits that, four years ago, he went beyond pushing the envelope and actually crossed the line. He spent three months in prison. Now, in a civil suit, Democrats are trying to tie his misdeeds to the White House.

It all happened during a hard-fought battle for the U.S. Senate in New Hampshire between then-Democratic Governor Jean Shaheen and Republican John Sununu. Raymond was running a telemarketing firm. He says an old friend from the Republican National Committee, James Tobin, came to him with an idea: use nonstop hang-up calls to tie up Democratic phone lines on Election Day.

So, you were trying to create chaos and keep Democrats from getting out their vote?

RAYMOND: That’s right. We were trying to create chaos and prevent the Democratic Party from operating efficiently.

MYERS: On Election Day, the plan worked until nervous state Republicans pulled the plug. And the Republican candidate won, though there’s no evidence that phone jamming made the difference.

How common are dirty tricks in both Republican and Democratic politics?

RAYMOND: I think they’re fairly common, but let’s be clear on something. New Hampshire phone jamming was not a dirty trick; it was criminal.