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August 28, 2004, 12:20 P.M.

The attacks on John Kerry’s Vietnam service record now seem to be played out as far as Rove and the boys want them to. There is direct evidence coming to light of links between the Bush campaign and the anti-Kerry adds and the credibility of the attacks has been seriously undermined. To Rove, these developments signal that it is time to declare victory move on and that looks like what is happening.

The President still refuses to denounce the 527 attack ads. He obviously doesn’t want to do so on the eve of the release of the next series of ads aimed at trial lawyers and John Edwards in particular. This series of attacks, sponsored by another 527 group with ties to the president, will almost certainly have a run similar to the Swift Boat ads, and will almost certainly contain as much misinformation. Here is a good article from the Boston Globe on the subject"


"Now, smearing the trial lawyers"

By Robert Kuttner | August 25, 2004

IF YOU LIKE the Karl Rove-inspired attack on John Kerry's Swift Boat service, you're going to love the US Chamber of Commerce's coming assault on John Edwards. Like the right-wing vets smearing Kerry's Vietnam record, the anti-Edwards group is nominally an independent committee. But as The New York Times reports, the cochairmen of the new "November Fund" are a former Republican National Committee charman, Bill Brock, and a former chief of staff to Bush Sr., Craig Fuller. The core of their attack will be that Edwards is (gasp) a trial lawyer. For decades, "trial lawyer" has been used in Republican speeches as an epithet. Business executives applaud in appreciation -- and everyone else scratches his head. What's so terrible about trial lawyers? Are they worse than, say, corporate lawyers?

The attack on trial lawyers as ambulance chasers and cost inflators invites exploration. The corporate elite and the GOP have three grudges against "trial lawyers." First, damage awards cost business money when they uncover corporate practices that swindle, maim, or kill ordinary citizens. And as champions of the little guy, trial lawyers are among the few well-heeled professionals who donate more money to Democrats than Republicans. Break their rice bowl and there will be one less source of money for the opposition party.

It further galls the right that some small fraction of trial lawyers actually get rich by helping injured people to collect. Notice that when some business mogul becomes a billionaire, the right insists that he earned that money by bettering mankind. But when a talented personal injury lawyer prospers by helping an injury victim, he's a parasitic shyster.

So the business lobbies and the Republicans have been promoting what they call "tort reform." The idea is to make it harder for ordinary people to recover damages and to limit the amount they can collect. But what of the substance of the right's case? Isn't there a real problem here?

Not really. For starters, the right can blame itself. As more of the economy becomes deregulated, the common-law remedy of going to court is often all that allows victims any redress. The right's war on health, safety, financial, and environmental regulation is substantially responsible for the litigation they now oppose as well.

Regulation, in this respect, is the ounce of prevention. Litigation sorts out the mess afterwards when regulators could not police corporate conduct in advance, and lawsuits usefully bring ugly facts to light. If the tobacco industry didn't want lawsuits, it shouldn't have hidden evidence that smoking caused cancer.

Or take Enron. In the 1990s, the corporate right and the Republican Party got rid of much of the regulation that should have prevented the conflicts of interests that allowed Enron's scam to flourish. Once Enron folded, private lawsuits uncovered a lot of the details of the wrongdoing. Thousands of former employees still lost most of their pensions, but they got something. So if you don't want litigation, stop shooting the regulators. Take away the threat of a lawsuit, and unscrupulous businesses will be even freer to do damage.

Yes, there are a few spectacular cases of runaway juries and exorbitant awards, but also many thousands of legitimate lawsuits that are the little guy's only source of redress. That's why, when you get beyond the country club set, very few regular people understand why they're suppose to hiss when they hear the dread words, "trial lawyer."

The right also blames a large portion of medical inflation on malpractice awards. In fact, rising malpractice premiums and "defensive medicine" account for less than 10 percent of rising medical costs. The bigger causes of medical inflation are new technology, an aging population -- and the 30 percent in profits and administrative costs taken by for-profit health insurers. Scapegoating malpractice awards is a handy diversion.

It's true that doctors in a few specialties have faced big premium hikes in their malpractice insurance. But many medical societies are notoriously reluctant to police their own. That's why you read so many newspaper stories about physicians whose licenses should have been lifted years ago. There are relatively few bad apples in a noble profession, but a small fraction of doctors account for a large share of malpractice costs.

The attack on trial lawyers is an attack on the rights of ordinary Americans by the corporate elite. It will be useful to have that reality come to light. If Edwards is half the skilled attorney he's said to be, he'll learn from the Kerry smear and turn the tables on this bogus attack, swiftly.

Robert Kuttner is coeditor of The American Prospect. His column appears regularly in the Globe.

August 28, 2004, 11:10 A.M.

We received this note from reader, Brian M:

Dear Ed,

Here's my sizing up of the winners and losers regarding the Najjaf seige and the implications of its outcome:

al-Sistani: gold medal. His undoubtedly-American-sponsored hiatus to London for surgery played more into al-Sistani's hands than anyone's, particularly Washington's. He was evidently able to come into Najjaf with mass and instantaneous support and put an end to an explosive situation without firing a shot. His power base seems unassailable.

al-Sadr: silver medal. Regardless of the news-spin, he also won this episode. Consider: a few thousand of his irregulars stand up to the most powerful military in the world and those irregulars walk out with heads held high. That will play big in the minds of the rank and file, not to mention improving al-Sadr's standing in the political pecking order.

Alawi: finished near the bottom of the pack. Throughout this ordeal his repeated threats to storm the shrine "within hours" proved hollow. He no longer has credibility as a leader with any power. My view is that there is little chance he will be able to retain his position after the elections which al-Sistani is demanding by January.

Iraqi police: finished just behind Alawi. Their having fired on the evidently unarmed supporters of al-Sistani has made them appear as little more than stooges of Alawi and George Bush.

George Bush: egg on face. Regardless of media spin to the contrary, this is an ignominious defeat -- perhaps the beginning of the end of the occupation of (i.e., defeat in) Iraq. The one good point is that the shrine wasn't destroyed. But it was damaged, and regardless of who did it, the Americans will get the blame. Really, I can't imagine that Bush and his cronies could have bungled this adventure better if they had been trying.

Conclusion: it appears to me that the probable outcome of this greater Iraqi exercise is an Islamic Republic of Iraq. The two main power brokers appear presently to be two clerics who are sympathetic to principles of Islamic governance, and one of those clerics -- the more moderate al-Sistani -- is sick and at the twilight of his earthly years. There does not appear to be anyone credible on the horizon to challenge them, except perhaps the Kurds who want the establishment of their own state. The Turks would never stand for the establishment of a Kurdish state, and, given their incursion of the early 1990's, would probably invade. Thus the alternative to an Islamic Republic seems to be either civil or regional war.

Nice job, Geedub!


Brian M


I couldn't agree more. Saddam maintained power by brutally repressing all of the religious and ethnic forces in Iraq. While he was in power, he was extremely effective at holding the various factions at bay. The only way that he and his predecessors have kept the three major factions (and various geographic regions together) under control was with unimaginable violence and terror. Without those forces holding together a region that was unnaturally forged into a nation in the first place, the whole thing will naturally dissolve into its component elements. The Islamist future of the country has always seemed an inevitable step in the process to me. A major problem is that the political and economic pressures caused by oil reserves and the geographic location of those resorces will not allow the county to break down into separate nations along traditional ethnic and religious lines. This does not bode well for the Kurds who are truly between Scylla and Charibdis. On one hand they face Turkey which will never allow a Kurdish state and on the other there are the Islamist factions (both Shi'ia and Sunni) who covet northern oil reserves. The Bushies will not offer protectction from either as they have demonstrated in the past. Al-Sistani is certainy a bright guy, a shrewed politician and a relative moderate, but he is old and sick. He is perhaps the one guy who could prevent or postpone the regional or civil war that you, I think correctly, see as an alternative to an Islamic Republic. But, hey, did I mention that Kerry really wasn't actually in Viet Nam....

August 23, 2004, 5:20 P.M.

Absolute Power Corrupts Absolutely, Or Governor Machiavelli: Governor Benson’s term as principe has yielded some very interesting controversies: his appointment of former business associates and unqualified cronies to head state agencies; the investigation of accounting irregularities at Enterasys, in which the Governor maintains an ownership interest; the golf course scandal and the D’Alessandro/Pepin insurance scandal. Seeing these scandals discussed on the pages of various New Hampshire newspapers has apparently had no effect on the Governor’s behavior. His latest escapade has Benson directly interfering with an investigation into the actions of former Attorney General Peter Heed. Power does seem to corrupt, but absolute power currupts absolutely and this administration proves the adage.

Because Peter Heed was at the time the State’s senior law enforcement officer, an independent prosecutor was assigned to investigate the allegations against Heed. Sullivan County Attorney Marc Hathaway was eventually assigned to conduct the investigation into Heeds’ alleged improper conduct with a female state employee. Following Sullivan’s investigation, Heed was cleared of any wrongdoing. But Hathaway also found that there were "serious irregularities" that had threatened to compromise the investigation. Those "irregularities" centered around the involvement of Safety Commissioner Dick Flynn and the Governor in the process.

Marc Hathaway’s investigation did not end with Heed’s resignation. Hathaway, a dedicated and truly independent investigator, set out to determine the propriety of the roles of the Governor and the Commissioner in the investigation. Hathaway’s report, released on August 20, concludes that both Benson and Flynn "improperly manipulated an investigation into a sexual misconduct complaint against former Attorney General Peter Heed." According to Hathaway’s report, Benson and Flynn worked together to convince Heed to resign. In the process, Flynn disclosed confidential information to Benson about Heed, in violation of a specific order from Hathaway. Flynn also ordered the State Police investigation into Heed’s alleged misconduct stopped, over the objection of the officers doing the investigation. Hathaway’s findings are now being reviewed by current Attorney General Kelly Ayotte.

Of course the Governor sees nothing wrong with what went on behind the scenes because in his view the correct outcome, the removal of the Attorney General, was reached. Benson himself has noted the potential political effect of Heed’s actions at the conference on Benson’s re-election. This issue was apparently discussed with Heed in an effort to get Heed to resign.

In assessing his concerns over what Flynn and Benson did, Hathaway noted: "The people of New Hampshire, be they victim, witness, suspect or uninvolved citizen, are entitled to a criminal justice system that conducts its business fairly, professionally, with integrity, with respect for the process and with an appropriate professional independence." The Governor and Commissioner Flynn apparently don’t see it that way. Both of them acted for political reasons to deny Mr. Heed a full and fair investigation and to deny the rest of us the right to know that our government can act in such a way as to balance all of the concerns expressed so eloquently by Mr. Hathaway.

Predictably, the Governor has declared the Hathaway report a victory and has pledged to move on. He sees no problem, moral or legal, with his own actions or those of Mr. Flynn. It also looks from his statements that he might even be willing to cut Dick Flynn loose to save his own neck. Flynn shared confidential information about the investigation with Benson and for that alone he should lose his job. He is the state’s top cop and he used his power and influence for purely political reasons.

So now the Heed investigation is complete, and it has found no wrongdoing. What it has disclosed and uncovered is the depth of the Governor’s arrogance, disregard for the law and his willingness to use his office to his own ends. It has also uncovered the extent of Dick Flynn’s power and influence and his willingness to wield it for political purposes. Once again, Benson’s motto seems to be that the ends justify the means, so long as Benson wins in the end. Let’s hope he doesn’t.

August 22, 2004, 12:00 P.M.

From the mailbag: We received the following note from reader, Brian M.:

Dear Ed,

I must say that I'm amused with the forces sympathetic to Bush and their efforts to smear Kerry's war record. All that Kerry has to do now is show up at the debate with Bush, open the black box containing his Purple Hearts and then smile politely for the cameras. All that Edwards needs to do is to ask Cheney, "how many deferrments did you get from Vietnam? Four? Five?" (It was actually five.)

Brian M

We agree.

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