HH: We found them, John Eastman, professor of law at Chapman University Law School, Erwin Chemerinsky, professor of law at Duke University Law School, together again as the Smart Guys. Let’s just plunge in. John Eastman, Washington State Supreme Court rules today, and they uphold marriage as almost all of us understand it to be, and they refused to take away the powers of the legislature. How is the opinion? What was the basis of the reasoning?
JE: The reasoning is as it should have been all along, that there’s a perfect…
HH: Well, there goes John Eastman’s cell phone. You’re banished, John. Erwin Chemerinsky, what about it?
EC: Well, the Washington court held that marriage is between a man and a woman, and upheld the traditional definition of marriage. This is a setback for those like me who believe that gays and lesbians should have the same right to express love and commitment as heterosexuals have. But it’s just that, a setback. I firmly believe that within my lifetime, gays and lesbians will have the same right to marry in most, if not all of the United States as heterosexuals have. That’s true in Canada, it’s true in a number of European countries. It’s going to be true here as well.
HH: But everywhere that it’s true except Massachusetts, it’s been via legislative action. Correct, Erwin?
EC: Well, at this point, a few courts have ruled. I mean, the Massachusetts court came out one way. The New York court a couple of weeks ago by a 4-2 decision came out the other way. Here, the Washington court came out the opposite of Massachusetts. This is being litigated right now at the state level, and we’re going to see this, state by state. But the reality is, public attitudes are changing. Opposition to gay marriage is decreasing. No one’s marriage is threatened if gays and lesbians also get to have the benefit of marriage.
HH: But that’s the argument. I’m just saying, Erwin, that everywhere it’s changed, except Massachusetts, it’s been by legislative action, constitutional majoritarianism, not authoritian imposition by courts, except in the commonwealth.
EC: Well, but when you want affirmative action programs struck down, you don’t describe that as authoritarian imposition. When you want the court protecting property rights more, you don’t describe that as authoritarian imposition. Anyone can describe judicial decisions they don’t like as authoritarian imposition.
HH: Yeah, but they would be wrong, because you’ve got the 14th Amendment in the case of racial discrimination, you’ve got the 5th Amendment in the case of property. You don’t have such an amendment passed with the explicit understanding of the subject matter when it comes to same sex marriage.
EC: That just doesn’t work, because what’s public use for the takings clause, or what’s equal protection for the 14th Amendment, are all judicial judgments. And the reality is, those who believe in gay and lesbian marriage say it’s all about equal protection.
HH: And John Eastman, is it all about equal protection?
JE: Well, under the standard that we’ve applied in equal protection in the past, it’s been whether there’s rational basis for making this kind of classification. There clearly is, and any court that says otherwise is being dishonest with their application of the law. Now there’s a decent argument to be made that this ought to be subject to strict scrutiny, but you can’t get there under rational basis review, which is what the standard in the law that the courts have been applying thus far has been. So I applaud the Washington Supreme Court in faithfully applying the law as it came to it.
HH: Now I want to go back to last week, Erwin. You’re of counsel to Joe Wilson and Valerie Plame, correct?
EC: Right. I’m co-counsel for them in their lawsuit against Vice President Cheney, Lewis Libby and Karl Rove.
HH: And I asserted, and you denied, that Wilson’s story has been changing a lot, correct?
EC: That’s what you said, and I would be glad to document that Wilson’s story has been consistent.
HH: All right. Now I want to go to the crucial fact. He has trouble with the meeting in June, 1999, between Iraq and Niger. He said yes, such a meeting occurred in his CIA debrief in March of 2002. But he doesn’t mention it in his New York Times op-ed on July 6, 2003. Why would he not mention it if we was being honest in the New York Times, Erwin?
EC: Well, I think he was being honest in the New York Times, and there are other letters that he’s written, for example, a 2005 letter to the Senate Intelligence Committee, again restating exactly what he said in his op-ed piece. So I don’t believe that he has in any been disingenuous or changed his story. I also think it’s missing the point. The point of our lawsuit is that Vice President Cheney, Lewis Libby and Karl Rove grossly abused their power by revealing the identity of a secret CIA operative, solely for their own partisan political gain.
HH: But Erwin, we’ve got to get back to this key meeting between Iraq and Niger. In Wilson’s book, The Politics of Truth, he says it occurred, but twice during his second Meet the Press interview in October, 2003, he denies it. He denied it in the Frontline PBS interview in 2003. I mean, did it occur, or didn’t it occur?
EC: But I think you’re missing the point. The point isn’t whether the meeting occurred or not. We can certainly argue about that, and the point isn’t it a consistency, though I believe he’s consistent. The point is you’re trying to shift the blame for abuse of power to the victim. And that’s what I really disagree with. The…
HH: No, I’m not. I’m trying to establish Joe Wilson’s credibility. And I just want…are you aware of this central allegation of the Iraq-Niger meeting, Erwin?
EC: Of course I’m aware of that. But Joe Wilson…
HH: Did it happen or didn’t it?
EC: But you’re missing the point. Joe Wilson maintains he’s been consistent in denying that that meeting occurred. But what I’m saying is I think here, you’re missing the point, because the issue isn’t Joe Wilson’s credibility. If the administration wanted to attack Joe Wilson’s credibility after his New York Times op-ed, they could say whatever they wanted about Joe Wilson. But what they couldn’t say is…
HH: Erwin, again, I’m not concentrating on your lawsuit. I’m getting back to your argument with me and John last week, saying Joe Wilson was credible. And I’m pointing out he said that meeting happened during his debrief in March, 2002. He said yes in his book in January, 2004, but he said no twice on Meet the Press, no once on the PBS interview. He failed to bring it up in the New York Times op-ed. He’s a disingenuous liar, Erwin.
EC: I could not disagree more. I don’t believe he’s disingenuous, nor do I believe he’s a liar. I believe that he has been quite consistent in denying that the meeting occurred. But I also can’t say enough, I think by shifting the focus to him, what you’re missing is what this is about. This isn’t about his credibility. You want to attack his credibility, attack it. That doesn’t justify revealing that his wife was a secret CIA operative.
HH: Erwin, do you believe that meeting occured in June of 1999 between Iraq and Niger?
EC: I certainly believe Joe Wilson that he said that he did not…no, that it did not.
HH: And are you aware of his private CIA debrief in March of 2002?
EC: I’ve read reports of it, yes.
HH: And did those reports include his saying that the meeting occurred?
EC: I don’t recall that. I mean, I’ve heard you say that. I’ve not gone back to look at what that said.
HH: Have you read the book, The Politics of Truth yet?
EC: Yes, I have.
HH: Did he say in his book the meeting occurred?
EC: I don’t remember. I mean, again, my focus has not been on Joe Wilson’s credibility. My focus has been…
HH: Would you guys stick around, because I know we’ve got to go to break, and I want to give John a chance to comment on this, and Erwin a chance to comment on this. By the way, Erwin, the DCI, Tenet, said the meeting occurred in a July 11th, 2003, CIA statement. So at least at that point forward, it’s public knowledge that it occurred, unless you want to say Tenet was lying.
HH: John Eastman, you heard that exchange with Erwin about the Iraq-Niger meeting. Your reaction?
JE: Well, I think it is…the questions you’re asking, Hugh, are highly relevant. Look, you have a partisan buried in the CIA who goes over there, misrepresents what we knew about Iraqi contacts with Niger, and their attempts to obtain yellowcake. He does it in a very public way in the New York Times, and now all of a sudden, criticism of him and exposure of the contacts he has within CIA that led to his trips is off limits somehow. This is rank partisanship on one side, and not on the other. And Bush’s administration was perfectly legitimate in responding to this. And to try and make it out to some Constitutional violation of privacy by people who have put themself out in the front of this in a very public way, I think it disingenuous.
JE: I think the Bush administration was well within its rights to do what it did.
EC: I couldn’t disagree more. I have not gone back and read all of Joe Wilson’s statements, so I’ll admit, I can’t go back, as you were doing, and say he said this on this date or that on another day, because that hasn’t been my focus. I’ve been working very hard on this for several months. My focus has been on what the administration did, and I believe that the administration acted in an absolutely despicable way in choosing to release the identity of a secret CIA operative, solely for their partisan political gain. You want to attack Joe Wilson, criticize Joe Wilson. Say he’s disingenuous. And if you want, you can even call him a liar, though I believe he’s not. But to reveal the identity of a CIA operative is completely inappropriate, and it was an unconstitutional action relative to these individuals.
HH: Now Erwin, Bob Novak has blown your theory out of the air by saying he…the administration didn’t appoach him, he approached the administration, and it’s probably Richard Armitage. I just don’t know how you’re going to make this thing stick. John Eastman?
JE: Yeah, and let me ask one question. If, in fact, Valerie Plame had been partly responsible for sending Joe Wilson over there, because of their relationship, and she was buried in the CIA also trying to discredit this administration, does that not make her exposure fair game? And if the answer to that is yes, this whole thing goes out the window.
EC: It doesn’t.
HH: Erwin, go ahead.
EC: It does not make it fair game. Revealing the identity of a CIA operative is completely inappropriate, to say nothing of illegal. And so our position, she had nothing to do with sending Joe Wilson over. But even if, and I emphasize, even if she did, still to disclose her as a CIA operative ruined her career, put other people in danger, and put them in danger. And that’s the core of our lawsuit.
HH: Okay. We’ll try and continue this tomorrow, America. We’re out of time. John Eastman, Erwin Chemerinsky, thank you. Maybe we’ll get Christopher Hitchens to join us as an expert witness, as to what was said by whom and when. That would be interesting. We’ll try and figure that out.
End of interview.