First, thanks to everyone who responded to my request for assistance with travel expenses for my trip to Washington tomorrow to cover the Scooter Libby trial this week. I just got my thank-you e-mails sent out.

I will be in the actual courtroom, sitting in for Christy of Firedoglake who did such a great job of providing observations and analysis last week. Together with Marcy's outstanding live-blogging from the media courtroom which reads like a line by line transcript (although she cautions it is not), FDL has provided coverage that makes the blogosphere shine.

Originally, I was just going to attend the trial Monday and Tuesday, but Christy has asked if I'd stay the full week, so I will be in the courtroom Monday through Thursday.

I think it's too soon to say whether Karl Rove will be called as a witness at Scooter Libby's trial. Michael Isikoff of Newsweek has a new scoop up telling us Rove and Dan Bartlett have been subpoenaed by Team Libby, but it's not known whether either will testify. Isikoff think it got more likely Rove will testify after Ted Wells gave his opening.

The possibility that Rove could be called to testify would bring his own role into sharper focus—and could prove important to Libby’s lawyers for several reasons. Rove has said in secret testimony that, during a chat on July 11, 2003, Libby told him he learned about Plame’s employment at the CIA from NBC Washington bureau chief Tim Russert, a legal source who asked not to be identified talking about grand jury matters told NEWSWEEK.

Jane Hamsher is back to posting after her surgery, which thankfully, she says went really well. She'll be recovered enough to travel to D.C. to cover the Libby trial beginning Feb. 5th.

What great news, it's great to have her back. Go on over and tell her yourselves.

Law Prof Doug Berman of Sentencing Law and Policy has a post up today asking readers to rate the following injustices:

1.  The federal sentences for two border patrol agents, Ignacio Ramos and Jose Alonso Compean, who each got more than 10 years' in prison for the shooting of a suspected Mexican drug dealer in Texas (details here).

2.  The state sentence for Genarlow Wilson, who got 10 years' in prison for having consensual oral sex with a fellow teenager (details here).

3.  The possible (but not certain) limited period of extreme pain that a convicted and condemned murderer might feel in the course of an execution.

I'll go with number 2, the sentence with Genarlow Wilson. But, I'd have given another example, one of the many defendants serving life in prison for crack offenses due to the sentencing disparity in powder and crack cocaine penalties.

The U.S. Sentencing Commission is calling for public response (pdf) to various guidelines, including those for crack and powder cocaine offenses.

Last July, I wrote a post titled What Obama Needs To Learn From . . . FDR. One of my main points was:

[T]hat is FDR's lesson for Obama. Politics is not a battle for the middle. It is a battle for defining the terms of the political debate. It is a battle to be able to say what is the middle. . . . FDR governed as a liberal but politicked like a populist. . . . The lesson of Hofstadter is to embrace liberal governance and understand populist politics. It may sound cynical, but you must get through the door to govern. Lincoln knew this. FDR knew this. Hofstadter knew this. I hope Obama can learn this.

Today Paul Krugman, who has discussed this issue in some detail with Brad Delong, picks up on the lessons of FDR:

Barack Obama recently lamented the fact that “politics has become so bitter and partisan” — which it certainly has. But he then went on to say that partisanship is why “we can’t tackle the big problems that demand solutions. And that’s what we have to change first.” Um, no. If history is any guide, what we need are political leaders willing to tackle the big problems despite bitter partisan opposition. . . .

Or to put it another way: what we need now is another F.D.R., not another Dwight Eisenhower. . . . I urge Mr. Obama — and everyone else who thinks that good will alone is enough to change the tone of our politics — to read the speeches of Franklin Delano Roosevelt, the quintessential example of a president who tackled big problems that demanded solutions.

For the fact is that F.D.R. faced fierce opposition as he created the institutions — Social Security, unemployment insurance, more progressive taxation and beyond — that helped alleviate inequality. And he didn’t shy away from confrontation. “We had to struggle,” he declared in 1936, “with the old enemies of peace — business and financial monopoly, speculation, reckless banking, class antagonism, sectionalism, war profiteering. ... Never before in all our history have these forces been so united against one candidate as they stand today. They are unanimous in their hate for me — and I welcome their hatred.”

Yes, I made this point also, when Cass Sunstein made his ahistorical argument of FDR as nonpartisan. More.

It must be true that trial lawyers never sleep when they are in trial. Check out the motion (pdf) Team Fitz filed yesterday alleging a new motive for Scooter Libby to lie to investigators and the grand jury. Shorter verson: Libby knew that he had signed non-disclosure agreements in connection with his employment and was afraid that by telling the truth that he disclosed Valerie Wilson's employment with the CIA to reporters, he was in violation of his agreement and would be fired and lose his security clearances.

Fitz alleges:

The government intends to prove that, at the time he made the charged false statements, defendant was aware that, if Ms. Wilson’s employment status was in fact classified, or that Ms. Wilson was in fact a covert CIA officer, in addition to potential criminal prosecution under a number of statutes, defendant faced the possible loss of his security clearances, removal from office, and termination from employment as a result of his disclosures to New York Times reporter Judith Miller and Time magazine reporter Matthew Cooper.

The New York Times had an editorial yesterday on our ever expanding prison population that included the amount we are spending on prisons. It's now up to $60 billion a year.

After a tenfold increase in the nation’s prison population — and a corrections price tag that exceeds $60 billion a year — the states have often been forced to choose between building new prisons or new schools. Worse still, the country has created a growing felon caste, now more than 16 million strong, of felons and ex-felons, who are often driven back to prison by policies that make it impossible for them to find jobs, housing or education.

What's the solution? Use prisons as a sanction of last resort. Let's stop incarcerating the non-dangerous offenders. Let's end mandatory minimum sentences.

Tell Congress to pass the Second Chance Act providing support services to those leaving prison.

The Times offers more good recommendations:

Michael Nifong is having a bad month.

The North Carolina State Bar filed a second, more serious round of ethics charges yesterday against the district attorney in Durham, N.C., accusing him of “systematic abuse of prosecutorial discretion” in the sexual assault case against three former members of the Duke University lacrosse team. ...

Much of the new ethics complaint focuses on Mr. Nifong’s handling of private DNA testing and his remarks to a judge and bar officials about it. Those tests were arranged by Mr. Nifong after a state laboratory found no semen, blood or saliva from lacrosse players on or in the woman or on her clothes. Using a more sophisticated test, the private laboratory found DNA from multiple men on the woman and her underwear, but none from any of the lacrosse players.

Mr. Nifong and the lab director decided to tell defense lawyers only about the positive matches, including a link to the woman’s boyfriend, in a summary report of the DNA work, said the bar, a state agency that regulates lawyers in North Carolina. The negative findings, which the bar said “tended to negate the guilt of the accused,” were included only in laboratory reports not given to defense lawyers for more than six months.

The Real ID law is a real disaster.

Maine lawmakers passed a resolution urging repeal of the Real ID Act, which would create a national digital identification system by 2008. The lawmakers said it would cost Maine about $185 million, fail to boost security and put people at greater risk of identity theft.

Maine is the first state to lodge an official protest against the unfunded mandate, but other states are joining the chorus. A Senate bill to repeal the ill-conceived law deserves prompt attention.

It was a big day in the Scooter Libby trial. Marcy (Empty Wheel) did an outstanding job of live-blogging all of it at Firedoglake, here and here. Three witnesses, former CIA employee Robert Grenier (Tenet's "point person on Iraq",) Libby's former CIA briefer Craig Schmall and Cheney's former press aide Cathie Martin all testified they discussed Joseph Wilson's wife with Scooter Libby before July 10, the date Libby spoke with NBC's Tim Russert.

Libby told investigators and the grand jury he learned of Joseph Wilson's wife from that July 10 conversation with Tim Russert. Russert says he didn't know about Wilson's wife before Robert Novak's article identifying her came out on July 14.

We also know that it was Vice President Dick Cheney who told Libby in June, 2003 about Wilson's wife supposedly being behind Wilson's trip to Niger. And that former State Department Undersecretary Marc Grossman also discussed Wilson's wife and CIA employment with Libby in June, 2003 -- before Libby discussed her at meetings with Judith Miller that month. And that Libby told Ari Fleischer about Wilson's wife during lunch on July 7, 2003, the day before Fleischer left for Africa with President Bush.

Wells tried to show that the memories of all of the witnesses, like Scooter's, were faulty.

They just will not let it go. And rightly so, because it will haunt their reputations forever. Yes, Bush v. Gore:

Three of the five Supreme Court justices who handed the presidency to George W. Bush in 2000 say they had no choice but to intervene in the Florida recount. Comments from Justice Anthony Kennedy and retired Justice Sandra Day O'Connor are in a new book that was published this week. Justice Antonin Scalia made his remarks Tuesday at Iona College in New York.

. . . "It's water over the deck _ get over it," Scalia said, drawing laughs from his audience. His remarks were reported in the Gannett Co.'s Journal-News. . . . "Counting somebody else's dimpled chad and not counting my dimpled chad is not giving equal protection of the law," Scalia said at Iona. . . . "A no-brainer! A state court deciding a federal constitutional issue about the presidential election? Of course you take the case," Kennedy told ABC News correspondent Jan Crawford Greenburg in her new book, "Supreme Conflict."

Kennedy said the justices didn't ask for the case to come their way. Then-Vice President Al Gore's legal team involved the courts in the election by asking a state court to order a recount, Kennedy said.

O'Connor said the Florida court was "off on a trip of its own." Still, O'Connor said the outcome of the election would have been the same even if the court had not intervened.

Every bolded statement is unquestionably false. First, Bush went to court first NOT Gore. Bush filed a federal lawsuit challenging the recount. Second, the Florida Supreme Court decided SOLELY state law. It made NO ruling on federal law whatsoever. Third, if the view of equal protection expressed by Scalia is TRULY his view, then he has been lying in every OTHER EPC case he has opined in. Fpurth, Gore would have won if the recount would have been allowed. In all scenarios where there was a statewide recount that included overvotes, not dimpled chads issues. Just the overvotes.

But let's face it, what is left for these Justices to say? There are no fools here. Their actions in Bush v. Gore were beyond despicable - they undermined democracy and they undermined the Supreme Court as an institution. It is not at all clear we will ever get over what they did. Of course, one can play pop psychologist and see in the SCOTUS decisions of the past 6 years guilty consciences in Justices Kennedy and O'Connor. Lawrence, Hamdi, Rasul, may be the handiwork of that guilt. But we won't forget Bush v. Gore.

It's rare for TalkLeft to have open threads two days in a row. But my cable modem crashed today leaving me without internet access except the slowest kind. Comcast is coming to fix it between 10 and 12 Thursday morning, right before I leave for my appontments of the day. So, until I get it all squared away, I won't be blogging.

Has anyone tried having both cable and dsl working in their house? I'm thinking about it, because then when one goes down at least the other would work. The Cingular WWAN on my laptop moves at the speed of dialup, making it impossible to blog enjoyably...I think of blogging as the Internet on speed, or as the difference between skiing and snowboarding, and when I have two desktops and three laptops in my house and all are working at the speed of dialup, it's just no fun.

So, I'll be back as soon as Comcast fixes the problem , which should be 10 to noon tomorrow morning. In the meantime, here's another open thread for you.