Suitably Flip

Jury Mollification

As an Arthur Andersen alumnus, I must say I'm cheered and assuaged by the Supreme Court overturning the firm's 2002 obstruction-of-justice conviction.  I'd already left the firm by the time Enron trouble began to brew, but I don't discount the victory of belated vindication for the firm, its partners, and the 28,000 employees who lost their jobs due to the collapse.

That said, as a Certified Fraud Examiner, I'm a little flummoxed by the fact that the botch of yet another high-profile white collar trial owed to jury confusion.  Specifically, the Court found that vague instructions given to the jury enabled them to return a conviction even if they believed the shredding activity in question to have been conducted without illegal intent.

In this case, amorphous jury instructions resulted in an improper conviction.  But the recent pattern has been quite the opposite.

• Former HealthSouth CEO Richard Scrushy's trial has been teetering on the brink of mistrial for days, reportedly due to the jury's confusion (as yet unquelled by multiple follow-up instructions) over the minutia of a conspiracy charge and its 4-page verdict form.
• Amazingly, there is worry of a possible second mistrial for Dennis Kozlowski, former Tyco CEO.

"U.S. Atty. Alice Martin said jurors may be confused by the 37-page form they must fill out to decide the case. Reaching a verdict on the conspiracy charge alone requires considering dozens of questions spread over four pages."

Others among the swelling ranks of high-profile white collar defendants to stymie recent juries:

• Walter Forbes, former CEO of Cendant Corp.
• Frank Quattrone, former star banker at Credit Suisse First Boston
• Michael Rigas, son of Adelphia Communications founder John Rigas
• David Wittig, former CEO of Westar Energy

To be sure, fraud charges are complex and warrant an appropriately detailed treatment.  But given the broad impact of the outcomes of these cases, we ought to make sure that the due peculaiarities don't preclude juries from reaching informed verdicts.

An incisive first step might be to revisit the language of U.S. District Court conspiracy verdict forms tomes.

Relatedly:

Arthur Andersen's statement on the ruling
Full text of the Supreme Court opinion on Arthur Andersen v. United States

Memorial Digest

Power Line Blog on President Bush's remarks at Arlington National Cemetery.
Captain Ed with a nod to our less-sung civilian heroes in harm's way.
Michelle Malkin's extensive blogscour of thoughtful pieces that popped up throughout the weekend.
Glenn Reynolds at Instapundit with a bead on Memorial Day photobloggers.
INDC Journal showcasing some stunning photos.
NY Newsday's profile of one of a handful of ineradicable WWI veterans (hat tip: PoliPundit).

Finally, and to more fully sate my New York slant, Newsday also has details of the 250-strong joint-force (Marines, Coast Guard, police, and firefighters) 3-mile run, which included a Ground Zero wreath-laying by three Iraq-wounded Marines, all part of the 18th annual Fleet Week.

More and more on this year's Fleet Week.

Senate to White House: Look what you made us do.

Just days after the 14 maverick Senators gallantly saved the Republic with their deal to escape the judicial filibuster showdown, the Senate this evening failed to pass Cloture to end debate on the nomination of John Bolton.

Bolton now faces additional Senatorial limbo, courtesy of (among many others) 4 of the munificent 7 Democrats who paid such recent and grandiose lip service to a more restrained use of filibusters.  (They were Senators Byrd, Lieberman, Inouye, and Salazar.)

Senators Kerry, Reid, Boxer, Biden, and Dodd have been good enough to assure us this is no filibuster, but rather an effort to enable Senators to thoroughly discharge their duties of advice and consent.  At issue is the release of information related to Bolton's past requests of the names of U.S. officials named in NSA intercepts.

This is an unexpected level of reverence for such duties from a minority that has neglected the same with regard to judicial nominees over the past 4 years.

Immediately following the reading of the results of the vote (4 short of the 60 required to pass Cloture), Senator Reid rose to announce dolefully that he was "disappointed that [the Senate was] not able to have a vote tonight." He and Senator Biden then proceeded to levy something of an impromptu lecture duet upon the Bush Administration about the harm they bring on their own nominees by withholding such information.  Both spent plenty of time reminding us of the non-filibusterness of this maneuver, that they're "ready to vote", and have "no interest in preventing an up or down vote" for Bolton.

Senator Frist's reaction, namely that we have seen the "engagement of another period of obstruction" and that this development looks and sounds a lot like a filibuster, somewhat shockingly met with agreement by Senator Reid, who offered only the mild caveat that this was the first actual filibuster to take place this year.

Faint consolation, given the "good faith" implementation of Monday's deal that we're asked to anticipate.

Video at The Political Teen (Hat Tip: Michelle Malkin).

"E-brains! E-brains!"

This week's winner of the Strangest Named Government Program Award is the Federal Trade Commission's Operation Spam Zombies.

From the press release:

The Federal Trade Commission and 35 government partners from more than 20 countries have targeted the technology trick used by illegal spammers to tap into consumers’ home computers and use them to send millions of pieces of illegal spam.

Huzzah.  Sounds laudable, at least in spirit.  The thought of 35 worldwide government agencies trying to act in a coordinated manner should at least make for an amusing spectacle.

The FTC has even knocked together a snazzy CG web site with a pleasant under-the-sea motif.  But really, how did they pass up the opportunity to base the design on either or both of the thematic humdingers offered by the name of the initiative?

Four Years in Arrears

Priscilla Owen confirmed by Senate:

The vote was 56-43 in favor of sending Owen to the federal bench. Rhode Island Republican Sen. Lincoln Chafee opposed her confirmation. Democratic Sens. Robert Byrd of West Virginia and Mary Landrieu of Louisiana voted for Owen.

Courtesy of the Department of Justice, Judge Owen's bio and resume.

Measuring "Measured"

The minutes from the May 3 Federal Reserve FOMC meeting are out.  The thrust:

While pressures on inflation had picked up in recent months and pricing power was more evident, longer-term inflation expectations remained well contained. In these circumstances, the Committee believed that policy accommodation could be removed at a pace that would likely be measured but noted that it would respond to changes in economic prospects as needed to fulfill its obligation to maintain price stability.

In the minutes from the two prior meetings (February 2 and March 22), the language was slightly, but tellingly, different:

As a consequence, the Committee again judged that policy accommodation could be removed at a pace that was likely to be measured, although the path of policy would depend importantly on evolving economic prospects.

While bulls were looking for language suggesting a forthcoming pause in rate increases, the new phrasing suggests to me that the Fed is prepared to considering hiking more aggressively, if they see lingering inflation signals.

The market is trading sideways in the half hour following the release, but this looks like fairly bear-friendly verbiage.

And What's the Deal With the Senate?

Regrettably, the much ballyhooed "deal" brought to us by a breathlessly self-congratulatory, bi-partisan group of Senators is little more than an agreement by the Democrats to put down their dukes for the time being, in exchange for a commitment by the 7 "maverick" Republicans to cut off the majority at its knees.

While floor votes for Janice Rogers Brown, William Pryor, and Priscilla R. Owen are welcome and overdue, the leverage conceded to get there was highly lopsided.  Democrats have holstered their filibuster long enough to allow votes on the three forestalled Bush nominees, but retain the right to later redraw it.  Meanwhile, Republicans have not only taken their finger off the "nuclear" trigger, but have effectively cut the finger off.

[Too many self-amputation metaphors?]

Thanks to this agreement, the paramount prize of control over Bush's presumed multiple Supreme Court nominees has been largely ceded to the minority party.  Unless 2 or more of the mavericks turn double-maverick and renege on the deal, Republicans will be unable to wield the judicial filibuster-buster down the road when they'll truly need it (brashly assuming that these 7 Democrats will find any Bush SCOTUS nominee to be "extraordinarily" unqualified).

The deal's aftermath is generating mounds of praise and adulation for the bi-partisan deal team, mostly self-heaped, in honor of their magnanimously rising above politics.  In truth, of course, neither side did anything of the sort.  On the contrary, they engaged in a terrifically high-stakes political power play, one which it must be said the Democrats won handily.

Michelle Malkin, Power Line, Captain Ed, and GOP Bloggers feel my pain.  Fox News has the woeful text of the deal.

A Barrel of Gaffes

Between Episode III and Howard Dean's appearance on NBC News' Meet the Press, this was bound to be a banner weekend for entertainment.  Neither one disappointed.

In addition to repeatedly referring to Saddam Hussein as Osama bin Laden, blaming his erroneous past statements on faulty interpretations by reporters, and casting off host Tim Russert's probings of other rhetorical irregularities as simple out-of-context quotations, Dean also found time to give us a couple of fresh glimpses into the marvelously splintered incongruity of the mind of the DNC chief.

At one point, Chairman Dean loosed this bit of spontaneous belligerence, in response to a question about the demographics of the Dean base (bold and excerpting mine):

DEAN: And I don't--you know, some of the other Christians would dare to say that I'm not a Christian...  Frankly, it's what gets my ire up.  I am sick of being told what I am and what I'm not by other people.  I'll tell you what I am.

The mini tirade was followed soon after by this exchange:

RUSSERT:  In your home state of Vermont, there's a vacancy for the United States Senate about to occur.  Bernie Sanders, the congressman from Vermont, wants to run for that seat.  He is a self-described avowed socialist.

DEAN:  Well, that's what he says.  He's really a populist.

RUSSERT:  But is there room in the Democratic Party for a socialist?

DEAN:  Well, first of all, he's not a socialist, really.

RUSSERT:  He...

DEAN:  He hasn't said that for a while.

RUSSERT:  Oh, he has a...  He wrote in his book Outsider in the House, "I am a Democratic socialist."

DEAN:  Well, a Democratic socialist--all right, we're talking about words here.  And Bernie can call himself anything he wants.  He is basically a liberal Democrat.

Same day, same interview, same speaker:

DEAN:  Hypocrisy is a value that I think has been embraced by the Republican Party.

That's entertainment.

Ankle Biting Pundits and Captain's Quarters have plenty more on Dean's simultaneous disdain and penchant for hypocrisy.

10 Steps to a New, More Presidential You

By now, it's not newsworthy (or even particularly good conversation) that we are a nation of immigrants.  My family immigrated, your family immigrated, Ward Churchill's family immigrated.  The less-spoken corollary to this, of course, is that we are (at least largely (or at least ought strive to be)) a nation of legal immigrants.

Mark Krikorian, Director of the Center for Immigration Studies, has a spectacular cover article in the May 23rd issue of National Review, outlining a straightforward and comprehensive 10-step plan for turning the tide against illegal immigration in the U.S.

Happily, the political mainstream finally seems to have developed an overdue sincerity toward this issue, in recognition of the unparalleled national security risk posed by a lax immigration scheme.  What Krikorian brings into sharp relief, however (beyond the luminously reasoned road map he lays out), is the unparalleled political magnitude of the issue, particularly with regard to the 2008 Presidential election.

Despite receiving a grade of F from Americans for Better Immigration, Hillary Clinton has been one of the most vocal ostensible proponents of overhauling and strengthening immigration control, presumably because she recognizes not only the escalating collective attention trained on the issue, but also the failure to date of the current administration to adequately undertake such an overhaul.

I had the opportunity to attend a lecture given by Krikorian a couple months back (while he simultaneously appeared on O'Reilly – omnipresence apparently being among his talents) and have been frustrated ever since that I didn't take notes.  Thankfully, the NR piece has redeemed my poor diligence.  Absent their respective expositions are Krikorian's "10 steps for a successful Presidential candidate":

1.  Unambiguous commitment to enforcement
2.  No Hobson's choice
3.  Take amnesty off the table
4.  No illegal workers
5.  Work with states and localities
6.  Document security
7.  Check in/check out
8.  Streamline legal immigration
9.  "Temporary" visas
10.  Actively discourage dual citizenship

The overarching thrust is to migrate the structure of incentives, enforcement, and consequences to one that tilts the equation toward a gradual, steady reversal of the problem, rejecting the two primary, unsuccessful fixes attempted in the past – mass roundups and mass amnesty.

The road map succeeds in outlining an utterly achievable, enduringly sustainable methodology for handling the issue – a singular distinction, to my knowledge.  But the most cunning insight may be Krikorian's read that, from a political standpoint, nothing short of the next Presidential administration hangs in the balance.

Shoo, No-Fly

Bangor International Airport must have mixed feelings about all its unscheduled traffic these days.  On the one hand, they've got the extra landing fees and food court sales.  On the other hand, if a bona fide terrorist does make his way into U.S. airspace, there's a solid chance this is where he's going to land.

Thankfully, today's diversion of a Boston-bound Alitalia flight (due to the similarity of a passenger's name to one on the Transportation Security Administration's "no-fly" list) appears to have been a false alarm.  Not only is that happy news, but so is the fact that the TSA is making these connections before the individuals in question reach their destinations.  Indeed, this is the second time in a week we've made the connection in time to burden Bangor with such a flight.

The bad news is the quizzical fact that these name comparisons aren't being made and duly acted upon before departure.  Surely many more individuals that we never hear about are stopped and questioned before boarding, as a response to more timely realization of potential problems.  Still, an analysis as simple as determining inclusion of a name (or a close variant) on a list of no-fly names ought by now to be a rapid, universally required pre-departure procedure for any flight intending to enter U.S. airspace.

Foreign-based airlines complain that such procedures are time-consuming and expensive.  Set aside for a moment the comparison of such burdens to the magnitude of the potential resulting threat.  The financial, operational, and PR headaches of even these occasional flight diversions must be plenty unpleasant for the airlines involved.

If we continue to face habitually offending airlines, despite their having endured one or two such detours, maybe we ought to urge Bangor International to assess a sufficiently punitive, supplemental "unscheduled commercial landing fee" to allow for a more compelling cost-benefit analysis.

Freaky Friday

I don't know whether they were simultaneously muttering about their lots in life to the same bright star, whether they shared an enchanted wish bone, or whether they simply had one of those full-speed head-on collisions, running in the hallway between 3rd and 4th period.  But what's clear is that Newt Gingrich and Jane Fonda woke up in each other's bodies this Friday the 13th.

Exhibits A and B.

A Dog Wagged?

Not only did the Minutemen succeed in casting fresh light on our persistent and dire border crisis, they demonstrated techniques for dealing with it that were so effective, they may now be implemented by the U.S. Border Patrol. Chris Strohm at GovExec.com writes about a new CBP initiative that is considering making use of citizen patrols on a permanent basis.

[Customs and Border Protection Commissioner Robert] Bonner said CBP also is evaluating the effectiveness of using citizen patrols in a more formal way. He referred to the Minuteman Project, which set up citizen camps along a 23-mile stretch of the Arizona-Mexico border in April to observe and report illegal activity.

Minuteman organizers claim their efforts helped the Border Patrol apprehend 335 individuals illegally trying to enter the country, and deterred others who would have tried.

"The actions of the Minutemen were, I believe, well motivated," Bonner said. "There were no incidents, there were no acts of vigilantism, and that's a tribute to the organizers and leaders of the Minuteman Project."

His comments marked some of the highest praise the Minutemen have ever received from the administration.

The Power of Negative Thinking

For some people, no amount of disconfirming data will shake a predetermined conclusion.

This morning's outstanding jobs report from the Labor Department has Wall Street upbeat.  April's job growth hit 274,000, more than 100,000 above estimates.  March and February's job numbers were adjusted significantly upward.

Minutes after the numbers were released, Congresswoman Carloyn Maloney (D-NY) went on Bloomberg TV to try to put the kibosh on the celebration (bold and excerpting mine).

Rep. Carolyn Maloney:  The unemployment numbers seem low, but when you look at the number of people in the job market and the number of people employed, it is a fraction of our population. The one area that is disturbing is the continued loss of manufacturing jobs. Since President Bush took office this country has lost over 2.5 million manufacturing jobs.

Mike Schneider, Bloomberg TV:  The skeptic would say you look for a dark cloud within a silver lining...  As pointed out, we have almost a perfect storm right now of job creation, low unemployment, productivity strength up, hourly earnings up. Something must be going well.

CM:  Well, I would like to say that it looks like a record going in the right direction. Many of the records from the administration are going in the wrong direction. In the last several months we have had record deficits, a record debt and a record trade deficit. These indicators are not good for the future of our economy...  Today, 274,000 jobs is great news. Let's hope this continues. We hope that it will strengthen our economy and our country.

MS:  What do you think is responsible for this? These things don't happen in a vacuum. If administration policies were responsible for lack of growth or higher unemployment or lack of job creation a while back, is the inverse correct this time around, are administration policies paying off?

CM:  Overall you have to look at the total record and since President Bush took office there are fewer-

MS:  You pointed that out... I asked a simple question. Are administration policies responsible for this surge in job creation?

CM:  I would have to look at where the jobs were created. Were they created in the private sector or were they more people employed by the military? I just saw overall jobs numbers. I'm thrilled with it. We have a hearing later on today. I'll have more information then. But I only know the overall job numbers since they just came out. I'd be glad to study it and get back to you.

Focus Locus

The freshly unveiled delays in the construction of the Freedom Tower are disappointing (especially since the timeline was so straightforward up until now), but it's a comfort to know that concern for safety is the impetus for the postponement.

Governor Pataki has ordered a redesign of the flagship structure of Daniel Libeskind's World Trade Center rebuild plan, at the urging of the NYPD to reconsider certain safety issues, most notably moving the building further from West Street and the threat of potential car bombers. Steve Cuozzo at the New York Post outlines a number of more devious explanations that have been suggested to explain the relative inaction to date, ranging from turf battles to the tangled politics of the controversial West Side Stadium.

My guess is that a good share of the delays to date and the pending return to the drawing board owes to the simple fact that the agreed-upon design was never particularly compelling.

Born of a compromise between the two clashing philosophies of "build it bigger and better" and "let's not paint a bulls-eye on lower Manhattan", the current Freedom Tower design does call for a soaring 1,776 foot structure. But fully a third of its height consists of an antenna spire and an enclosed wind farm, leaving its highest occupied floor at a far more modest 1,150 feet (200 feet lower than its twin predecessors), thus failing to achieve either objective. The translucence of the design, while visually intriguing, lays bare the not-quite-boldness and mealy-mouthed irresolution of the design, exposing it as a building of unexceptional height, with a lot of tall stuff on top.

But whether questionable aesthetics, questionable safety, or questionable politics are to blame for the stagnation, Assembly Speaker Sheldon Silver and Congressman Jerry Nadler (both of whose districts include the WTC site) have seized the opportunity to deride both Mayor Bloomberg and Governor Pataki for what they see as a "terrible mistake" and a "total lack of coordination and leadership". Their gripes, fueled by the Governor's announcement of the delay due to the redesign, further chastise him for not taking such action until forced by public pressure.

Perhaps to distract us from that logical kink, Silver explains that part of the problem is that Pataki and Bloomberg are simply distracted by the West Side Stadium issue and ought to concentrate solely on rebuilding the World Trade properties (projects apparently having a mysterious mutual exclusivity). The Speaker has yet to declare an official position on the stadium, in what a cynical sort might view as an attempt to mount political leverage against the pair.

The Speaker's distaste for ambulatory gum chewing isn't limited merely to historic construction projects either. The Silver-led Assembly Democrats blocked a bill passed by the State Senate which would have expanded Megan's Law to include equivalent access to Level 1 and Level 2 (in addition to Level 3) sex offenders in the state's registry. The ostensible reasoning, according to the Niagara Gazette, was that the Assembly was busy trying to get the annual budget submitted on time, a feat with a demonstrably low historical priority.

I'm loathe to second guess these motives, considering protecting children from predators is what's at stake, but here again, a particularly cynical sort might be amused by the coincidence that Speaker Silver's former chief counsel was deemed a Level 1 sex offender by the state.

If the tactic of obstructing the progress of political rivals with hand-wringing about distraction sounds familiar, it's likely because we endured such a massive dose of it from the minority party in the months following the liberation of Iraq. Even today, whenever arguments relevant to the actual merits of Operation Iraqi Freedom run dry, the inevitable lamenting of our tacit decision to let al Qaeda leadership slip away in favor of a misguided adventure can't be far behind.

Thanks to Democrat politicians from the Empire State, however, we now know that even majority parties dabble in disingenuous obstructionism. Attempting concurrent construction projects, much less protecting children while we tweak the budget, is apparently as much a fool's errand as carrying out multiple military engagements.