Next he set in motion a process to challenge the science protecting the fish, according to a former Oregon congressman who lobbied for the farmers.

Any guesses on who this source is?

"Exactly when are Cheney and Rove going to have to answer even one question on this subject?"

As important for Oregonians: when is Gordon Smith going to have to answer even one question about his complicity?

No wonder Gordo has chosen to remain in hiding!

Next he set in motion a process to challenge the science protecting the fish, according to a former Oregon congressman who lobbied for the farmers.

Any guesses on who this source is?

How about Walden's predecessor - Bob Smith?

Thanks everyone for digging up the dirt on this story from the Oregon angle. We do need to find out how Gordon Smith was involved - what did he know and when did he know it?

My question to the lawyers is why hasn't one of the impacted parties - the fisherman, the tribes, the fish representatives - filed a Hatch Act complaint on Rove, Cheney, and possibly Smith.

Here are the instructions:

How to File a Complaint Alleging a Violation of the Hatch Act

Filers alleging a violation of the Hatch Act may use Form OSC-13 (Complaint of Possible Prohibited Political Activity) to submit their allegation to OSC. Form OSC-13 can be printed from this Web site. Filers can fill the form online or fill it out after printing the form. Once the form is filled it should be mailed or faxed (202-653-5151) to OSC. If filers use another format to submit a Hatch Act violation, the following information should be included:

* name, mailing address, and telephone number of the complainant, and a time when the complainant can be safely contacted, unless the matter is submitted anonymously;
* the department or agency, location, and organizational unit complained of; and
* a concise description of the actions complained about, names and positions of employees who took these actions, if known to the complainant, and dates, preferably in chronological order, together with any documentary evidence the complainant may have.

Complaints should be sent to:

Hatch Act Unit
U.S. Office of Special Counsel
1730 M Street, N.W., Suite 201
Washington, DC 20036-4505.

Cheney's an incredibly heavy anchor on Smith's reelection chances. Let's make sure they stay chained to each other. Smith carried Dick's water for far too long and needs to go.

On that note, add another candidate on the Dem side: http://www.dailytidings.com/2007/0627/stories/0627_golden.php

Too many Smittys...

TJ writes: "It is in fact Robert Smith--he's on the record in that story, they just don't name him until farther down." "Smith was not passive in all this. He ASKED Rove to get involved." "...and some of the droppings definitely belong to Smith himself."

TJ, all of the above is about Bob Smith, correct?

Others write: "We do need to find out how Gordon Smith was involved ..." "Cheney's an incredibly heavy anchor on Smith's reelection chances."

Was it Rep. Smith, or Sen. Smith? Since Rep. Smith is no longer running for Walden's seat, how does his screw ups hurt Sen. Smith?

There are just too many Smittys....

Here's how Sen. Smith is involved (though the article is more about Rove's ways and means): http://www.truthout.org/docs_2006/062007J.shtml

There is also a recent BlueOregon post about how Smith and Walden sold the salmon for votes.

Hey, thanks for the link. And I second the motion.

Here it is:

Hooley calls for Cheney investigation Posted by The Oregonian June 27, 2007 17:05PM WASHINGTON - Rep. Darlene Hooley, D-Ore., is leading the call for a congressional investigation into Vice President Dick Cheney's involvement in the Klamath Basin water dispute in 2001. A story in The Washington Post Wednesday detailed Cheney's management of the situation... Hooley and Rep. Mike Thompson, D-Calif., on Wednesday evening circulated a letter among their House colleagues asking Rep. Nick Rahall, chairman of the House Resources Committee, to investigate. Thirty-four of their colleagues signed the letter, including Oregon Democrats Earl Blumenauer, Peter DeFazio and David Wu. "His political interference resulted in a 10-year water plan for the Klamath River that has been unanimously ruled 'arbitrary and capricious and in violation of the Endangered Species Act,' by three courts," the letter said. "Moreover, his action resulted in the largest adult salmon kill in the history of the West. The ramifications of that salmon kill are still being felt today as returns to the Klamath River are so low that commercial, sport and tribal fishing seasons have been curtailed for the past three years." ... "His blatant disregard for law cannot be ignored," they wrote. ...

Wow! You go, Michelle. This is the best piece of reporting I think I have ever seen on Blue Oregon. Outstanding work and worthy of glossy print on magazine racks nation-wide.

Hey, are you making fun?! I have been following this story, and I was surprised/shocked to see it featured front and center in this last Cheney installment. I think it's important that we try to build a record of information about it on our local blogs. This is a story that has festered for years it seems. Because of the Washington Post's coverage, however, the profile of this issue just got a lot higher. There has been a good deal of original reporting about it over at Loaded Orygun over the past several weeks, with more to come. Even Keith Olbermann was talking about it tonight.

Michelle and other, can you help me with my understanding of the Hatch Act a little bit here? Though it was originally intended to prevent the use of government power to influence elections, my understanding is that the President and the Vice President are themselves exempt from the Hatch Act. Does this synch with your understanding of the act? Under this scenario, it would be Rove and other who could be charged with a Hatch Act violation -- but not Cheney.

Am I failing to understand the Hatch Act correctly? I'm hoping there is a way to nail Cheney for his actions with regards to this case, but I just want to confirm that the Hatch Act is itself the correct vehicle, or that there is another vehicle related to the premise behind the Hatch Act.

thanks, ~Garlynn

Why didn't Darlene Hooley mention Gordon Smith as the obvious beneficiary of Cheney's intervention? It's such an obvious oversight that you have to wonder if she has reasons to leave Smith out or if the Oregonian simply suppressed any reference to Smith.

Torrid-

Yes, in my research into the Hatch Act, I ran across some griping about Gore making fundraising calls -- but the ultimate conclusion seemed to be that the POTUS and the VP are both not subject to the provisions of the Hatch Act.

Which is why I asked my question... it would seem that Rove is subject to the Hatch Act, but not Cheney. Is there some other law that Cheney violated, or a different provision of the Hatch Act that would apply to his case but not Gore's?

My limited understanding of the Hatch Act is that it is primarily directed at federal employees and agency officials, not White House staff. Presidential appointees who are Senate-confirmed are exempt from Hatch Act restrictions on political activity while on the job or in a federal office (although they still can't use the office to influence an election, or pressure employees to do so).

Political briefings by the White House Office of Political Affairs aren't likely to violate the Hatch Act unless they mention a specific candidate and ask a federal bureau to use its official power to help. GSA Administrator Doan appears to have foolishly crossed that line. But if all political briefings were prohibited, how could there be a WH Office of Political Affairs?

It's pretty clear that the Bush Administration has blurred the line between policy and politics, and they should be roundly criticized for that. But it's a little naive to say White House political operatives don't get to dictate the policy based on electoral considerations. Every policy decision made at the White House, by any president, takes into account the political implications of the decision. Presidents and their staffs are well within their rights to reject the professional recommendations of career staff and agency officials and make decisions based on politics. For instance, Clinton made a political decision when he rejected the advice of HHS officials and signed the Welfare Reform bill. Two top HHS officials resigned in protest (one of whom was Peter Edelman, father of Jonah Edelman, founder of the Oregon Chalkboard Project).

Dick Cheney was wrong to push for more water to be released in the Klamath River basin, but not because it might have violated the Hatch Act. He was wrong because it was the wrong thing to do. Let's not lose sight of that.

Kari: Unless I'm missing your point, I think I agreed with you when I said: Political briefings by the White House Office of Political Affairs aren't likely to violate the Hatch Act unless they mention a specific candidate and ask a federal bureau to use its official power to help.

As to whether it is "illegal and unethical" to base policy on expected electoral outcomes, I really think that's too broad a statement. Was it wrong for Clinton to sign welfare reform given that his predominant reason was to help with his own reelection and that of moderate Democrats in Congress? Could an executive ever ignore known electoral calculations when deciding difficult policy issues? In fact, we all expect them to take electoral politics into account -- the stories that make the news are the rare cases when a politician doesn't act in his own or his party's self-interest.

There is of course a line that can be crossed: When the sole reason for a policy decision is to change an electoral outcome, that's probably a violation of the Hatch Act. But in the Klamath water case, Cheney's decision is consistent with his long record of screwing the environment in order to help farmers and industry. The fact that it might have helped Smith is almost certainly just an added bonus.

It is a decision that statutorially must be made on the basis of best scientific evidence known at the time. The entry of domestic, electoral politics into the decision is odious and entirely untoward.

You're right, TJ, their decision was a violation of the ESA, and they got slapped for it. It does not follow, however, that it was a violation of the Hatch Act. Even if you can show that one reason for the decision was to help Smith and shore up the GOP base, that probably won't cut it. Helping Smith would have to be the primary intent of the policy.

(One thing I am confused by is the involvement of the National Academy of Sciences. The NAS is no partisan think tank, and the fact that they disagreed with the government scientists is what gave Cheney the cover that he needed. Absent that draft report, it would have been far more difficult for them.)

The ESA is also pretty rare in that it requires a science-based approach. Most federal statutes have a significant amount of room for executive discretion. One factor that both Democratic and Republican presidents will take into account in using that discretion is the impact it will have on their electoral prospects. I don't think we should spend too much time insisting on a policy purity that, once we have a Democrat in the White House, we may find we don't really want.

Torrid-

Thanks for the clarification. I agree that the Hatch Act probably covers Rove's actions, but probably not Cheney's. Hmm. Is it possible that Cheney actually violated no law with this actions, though he may have caused a federal agency to run afoul of a law by following his direction?

Bottom line: If any administration official and/or politician rejects scientific data and analysis to set policy that is beneficial to them politically but destructive to others, then it seems there is a distinct probability of a crime having been committed. Whether that amounts to a violation of the Hatch Act or some other law remains to be decided. With 33,000 dead fish in the Klamath River and the livelihood of fishermen jeopardized for years to come, this looks like a case crying out for investigation or cover up depending on which side you're on.

If any administration official and/or politician rejects scientific data and analysis to set policy that is beneficial to them politically but destructive to others, then it seems there is a distinct probability of a crime having been committed.

Okay, try this on. In 2000, Governor Dean of Vermont asked the Clinton Administration for approval of a Medicaid waiver that would give Vermont residents under 300% of poverty deep discounts on prescription drugs. The program didn't cost the state anything because they used federally-mandated Medicaid rebates from drug companies to pay for the discounts. Career staffers working for OMB and HHS warned that the program was illegal. Clinton's top White House domestic policy advisors overruled the staff and demanded that Dean's waiver be approved. It was, big PhARMA sued, and in June 2001 the US Court of Appeals shut down the Vermont waiver and ruled that the Administration had violated the law.

So the Clinton administration, under pressure from Dean and liberal interest groups itching for a fight against drug companies, rejected the objective analysis of career staffers and made a political decision to attack big PhARMA and give Dean a victory. This ain't a whole lot different than the Klamath case, is it? But it sure feels different when the one on the losing end (at least for a few months) is the drug lobby.

My point is this: It's not unethical or illegal for politicians to make political decisions that may push the envelope -- sometimes in a good direction, sometimes in a bad. The courts are there to make sure they don't violate any laws. I want the next democratic president to push hard on important issues, even if he occasionally gets overturned on appeal.

This and this are helpful in analyzing Hatch Act violations.
This from TPM Muckraker is also a good, concise encapsulation that pulls everything together.

Miles-

thanks for all of the helpful analysis - I think it is clear now that ordering an agency to undertake an action that is illegal, whether VT drug waivers or ESA violations, is not in itself a violation of the Hatch Act.

But the question for me is still that if this action was taken to deliberately influence the outcome of Smith's election, is that a violation of the Hatch Act. I think we have learned that the VP is exempt, but that Karl Rove may not be. And that is where Rove's powerpoint (the same one he uses for fundraising) and remarks on Jan 6, 2002 may be the point of violation. Here is the Wall Street Journal excerpt.

On Jan. 5, Mr. Rove accompanied the president to an appearance in Portland with Mr. Smith. The president signaled his desire to accommodate agricultural interests, saying "We'll do everything we can to make sure water is available for those who farm."

But the question for me is still that if this action was taken to deliberately influence the outcome of Smith's election, is that a violation of the Hatch Act.

Starting again with the caveat that I know very little about the Hatch Act, my guess is that the Hatch Act would only be violated in this case if Rove or another Administration official specifically directed Interior to release the Klamath water to farmers because they wanted to help Smith win reelection.

I think we know, though, that wasn't the sole reason, and was probably just a pleasant side effect of the policy. Bush said he wanted to support farmers, Cheney believes in using public resources for private gain, and so this decision was entirely consistent with the Administration's larger policy goals. (It was inconsistent with the ESA, however, which is why that law is so important.)

Now, a separate question is whether Rove's presentation at the Fish and Wildlife retreat violated the Hatch Act. My guess is that a court would find it did not. Even Rove's comment that the political appointees needed to "support our base" doesn't necessarily do it, since the president had already said he wanted to help the farmers -- part of the GOP base. I'm not sure there's anything wrong with advocating for policies that are favored by your supporters.

I hate defending this Administration. What they did in the Klamath basin was absolutely wrong. But it was wrong because it violated the ESA and was the wrong decision, not because it was "too political".

Italics off.

Making bona fide, good faith policy judgments? Cheney and Rove? Try again.

my guess is that the Hatch Act would only be violated in this case if Rove or another Administration official specifically directed Interior to release the Klamath water to farmers because they wanted to help Smith win reelection.

My guess is that the folks sitting in that room felt that Rove was specifically directing them to release the water - why else would it have been done when all of the science indicated it should not be released.

This is exactly why we need an investigation - why was the water released, what was the nexus to Rove's presentation/pressure, etc. It is clear Rove/Cheney took every effort to maintain plausible deniability - that does not mean they are innocent.

TJ, I think you're splitting a hair that can't be split.

In the Klamath case, federal scientists said "This is the best science available, and it says we shouldn't release the water." Cheney, who wanted a different policy outcome, went and got another scientific opinion from the NAS (again, a credible group) and used that instead. The courts found his decision to be illegal, and it was overturned.

In the Vermont drug case, federal health care analysts said "We cannot approve this waiver because it violates Medicaid law." Clinton's top health policy official, who wanted a different policy outcome, ignored that advice and approved it anyway. The courts found his decision to be illegal, and it was overturned.

Both Administrations wanted a different policy outcome than what the law allowed. Both made the executive decision to push forward regardless, and both were slapped down. You could even argue that the Bush Administration was less egregious because at least they tried to get a second opinion and use it as a fig leaf. Clinton's folks just forged ahead knowing their decision was illegal.

I think the only way you can view these situations as substantively different is if your view is clouded by partisanship.