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A taste of the medicine

A taste of the medicine

I’m finally back after a full day of travel, where I had to rely on CNN and MSNBC on the plane for coverage of the Politico story about Herman Cain.

I can’t really sort through all the details yet, too much has happened in the last 12 hours.

The fragility of an insurgent campaign was revealed as Cain’s communications team and Cain himself seemed unable to find a quick footing in how to respond.  More to come, for sure, as there will be a drumbeat for release of the files relating to the complaints and  settlements.

The story was a legitimate issue for a presidential candidate; we only wish the mainstream media would investigate Obama’s past with half as much enthusiasm.

But there’s a bigger point here, visible only from 35,000 feet.

This is a taste of the medicine the mainstream media, which includes Politico as I have pointed out before, has in store for the eventual Republican nominee.

Whatever the source of the tip, the presentation was rolled out by Politico in a fashion to do maximum damage to Cain.  The Sunday release was timed to be all over the media on Monday morning.  Jonathan Martin, the lead reporter on the story for Politico, even conducted an ambush interview with Cain shortly after the story broke, receiving a muddled response from Cain.

Politico now has seized on Cain’s inept initial response to make the response to the story the story:

From 35,000 feet it looked like Politico was out to get Cain, not just investigate a story.  The view from above was quite clear.

Update:  I just watched Cain’s interview by Greta Van Susteren, and he was clear and persuasive that there was no harrassment.  As to the inept response to the Politico story, Cain said that while his campaign was notified in advance, Politico never specified what the allegations were and he didn’t know what their angle would be until he saw the story.  He said that he remembered one of the women, and denied that anything inappropriate took place.  He said that Politico gave his staff the name of the second woman, and he was not aware that she ever even complained and he could think of nothing that would give rise to a complaint.


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I’m certainly not the biggest fan of Cain, but this story doesn’t seem too huge to me. From what I’ve heard, the suits were settled in the five figures, with what little I know of the law, that sounds like the cost to litigate to me. What plaintiff would settle for the cost to litigate if they had an actual case?

What’s worse is that this issue *could* have been turned against the Left and trial lawyers. It’s a pretty clear case for abuse. As long as demands for release of papers is going on why not demand the billing hours for the lawyers who represented the plaintiffs?

If it got out that the clear winners were the lawyers and no one else it would do damage to the concept of trial lawyers “looking out for justice”.

Nevertheless, Professor Jacobson is accurate. This was a political assassination by Politico. I will not forget that they do this only to conservatives.

Donald Douglas | October 31, 2011 at 9:23 pm

Yeah, the media’s got it out for him, unfortunately Cain didn’t help himself with the conflicting accounts, which appear as dissembling and perhaps dishonesty. He seemed pretty upbeat, in any case, and I suspect he’ll weather this one without too much damage — as long as no new revelations come out, and there’s no more conflicting stories by the campaign. I know, that’s asking a lot.

    Now that they have detected blood in the water, new “revelations” will almost certainly come out, unless Cain tanks quickly, of course.

    I would expect at this point for the MSM and their allies to let this stew for a bit and then go “full Palin” if it seems to having the desired effect.

    The key to the “full Palin” is telling outrageous lies to make the make the trumped-up charges they really want to stick appear more plausible.

    The more “sober” commentators make themselves seem more “reasonable” by talking down the points of the overtly frothing attackers (e.g. Sullivan, in Palin’s case): “Of it’s ridiculous to suggest […] but…”

    This approach uses headline bias to run up the target’s negatives while distracting that target’s supporters away from the real attacks by getting them outraged at the outrageous attacks.

    A serious, well-prepared candidate would know this and have a plan in place to deal with it. Unfortunately, Cain looks like he was caught off-guard.

    Unless he can win back the initiative, “revelations” can be manufactured faster than he can demonstrate their venality. And so far, Cain’s candidacy has not demonstrated the funamentals needed to weather this sort of attack.

    We’ll see…

Of course they are.

Cain’s problem here is so much the allegation per se, but the fact that he began by running an influence campaign, not a campaign to win the nomination.

Influence campaigns have different goals and are run according to different rules. Critically, they are not intended to withstand scrutiny or attacks.

Cain’s front-runner status is accidental — a consequence of Palin not running. He never expected to be in this position and so did not prepare for it. (This applies as much to his 999 plan as these attacks.)

I expect more situations like this. Cain’s challenge is to make his campaign into a serious bid, without admitting he was ever not serious.

We’ll see if he can pull it off.

That’s how they catch the honest people – the guilty, like Bill Clinton, already have a planned response – in his case it was deny, deny, deny, and know that these things typically last about two days before the media is bored and turns away – except, of course, in the case of CONSERVATIVES, and a conservative black man who is a serious threat to Obama’s re-election – they will be merciless.

I often wonder what the people, like the reporters at Politico, and the Journolisters, will say to themselves, years down the road, when their folly becomes apparent even to them. Will they say they are sorry? Will they repent? Will they say, Oh, God, I was stupid, and banally evil? Probably not. In the liberal mind, the ends justifies the means. Scorched earth.

But they should be ashamed, because they have just proven they have the brains, and the means, and the wherewithal to easily unveil Obama’s college records and all the rest. They CHOOSE not to.

    Owen J in reply to Rose. | October 31, 2011 at 9:56 pm

    Which is why honest men need to have a planned response as well. There is a big difference between honest and being naive; being unprepared.

    We need the former, but we cannot afford the latter.

Cowboy Curtis | October 31, 2011 at 9:38 pm

For whatever its worth, Special Report on FNC said his campaign was approached by Politico over a week ago about the story, so they knew it was coming. And this certainly doesn’t indicate guilt (something I seriously tend to doubt, though don’t outright dismiss–these are politicians, after all), but why the Hell didn’t they have a better reaction ready?

I’ve said repeatedly, Cain is a crappy politician. If they were on notice this was coming, and today’s reaction was the best they could muster, then that just further cements my feeling that he isn’t ready for the show. He’s playing Double A ball in a Major League game.

    SmokeVanThorn in reply to Cowboy Curtis. | November 1, 2011 at 8:00 am

    He should have pointed out that the journalists are heartless for bringing this up, especially because they don’t care that the two complainants are at higher risk for cervical cancer because they were not mandatorily vaccinated at age 12. You know, like an uncrappy politician would.

    I heard somewhere (can’t find it now) that his campaign knew something was coming from Politico, but didn’t know what it was. He could also explain away his apparent contradiction (I didn’t know anything about an investigation, then I knew a little about the investigation) by saying it took him a while to remember the details he was originally given.

    The media will try to make this a big thing, but I don’t think it really is. However, he should prepare for more such attacks so that he is better able to repel the next one. This incident demonstrates his lack of political experience, which is the single most worrisome aspect of his candidacy.

    I really like this guy, but I’m not sure he is well suited to beat Obama.

“Cain is a crappy politician”.

That’s what I like about him and what the establishment fears. He must be destroyed or the political landscape changes…forever. The very idea that a “regular guy” can be President of the United States has been lost over 235 years. We need fewer politicians and more Herman Cains.

    Cowboy Curtis in reply to Deekaman. | October 31, 2011 at 10:10 pm

    There’s a lot to like about the notion in abstract. Problem is, he’s in a political game, and those are the skills necessary to win. We’d all love to got back to the days of Virginia lions that didn’t even actively campaign for themselves. Washington, Jefferson, Monroe, et al. But those days are gone, and they are gone forever. Modern communication has seen to that. So lets fix our eyes on what’s needed to win today, not what’s so attractive about the past.
    The notion that any particular president will prove revolutionary in term of returning us to an earlier, pre-partisan era is mistaken. Neither the press, nor the Democrat party (Republican or third party for that matter) will accede to such a thing. The genie is out of the bottle, and he won’t be put back. Cain, if he were elected, non-politician and all, would be a blip on the radar screen of history, not a trend. That isn’t how I want it or how I like it, but that’s how it is.
    This is a game for all the chips. America’s future is decided in 2012. I want a man who can play the game, not one who’s learning as he goes.

      I agree. And the first step is to get elected. It will take political smarts to accomplish that, but it also takes political smarts to govern effectively, especially if you want to make major changes. We desperately need major changes, more than can realistically get done, but the more the better. We need a smart (conservative) politician to get as much done (or, more accurately, undone) as possible.

“Cain is a crappy politician”.

That’s what I like about him and what the establishment fears. He must be destroyed or the political landscape changes…forever. The very idea that a “regular guy” can be President of the United States has been lost over 235 years. We need fewer politicians and more Herman Cains.

    Owen J in reply to Deekaman. | October 31, 2011 at 10:14 pm

    That’s a likeable trait but the fact is that political acumen matters, especially now.

    If you want a historical perspective, consider two “regular guys” from obscure origins who both became president. Both were very honest and in terms of character, two of the best men ever to hold high office.

    One — Lincoln — was a politcal genius. The other — Grant — a political neophyte who was almost hopelessly naive. Lincoln saved the country; Grant’s adminstration came near to ruining it (and he was personally taken to the cleaners).

    Polictical skill matters. Charm and good intentions will get you a smile and a pat on the back, until the repercussions set in.

I wish Rush Limbaugh wouldn’t call the claims racist. There is nothing racist about them, they’re just biased and wrong. It’s the same tactic the left was using four years ago, and Limbaugh is legitimizing it.

    It’s the same tactic that they’ve regularly used against black men in the past; that does suggest a racial aspect.

      AMWJ in reply to Foxfier. | November 1, 2011 at 4:45 pm

      … as well as white men. It is completely baseless, but to pretend they are treating him differently because he is black is both giving the media WAY too much credit, as well as legitimizing every time a liberal in 2008 claimed it was racist to vote against Obama. It’s the totally wrong way to deal with it.

You are certainly right that Politico has gone flat out with this to destroy Cain’s candidacy which it may well do because he’s a newcomer to all this with a low budget campaign that doesn’t pay for the kind of experienced staff and consultants who might make his response more surefooted, rev up some contrary noise from supporters or even launch a story line more favorable to him (there is more to handling something like this in national media glare than “getting all the bad news out right away”).

I’m not sure I would bless this as a. “legitimate issue for a Presidential candidate.” That depends on what actually happened. It is one thing to be caught chasing your secretary around a desk, pinching behinds in the elevator, or propositioning a subordinate at her performance review. It is quite another to be accused of…what exactly in this case?

Politico knows what the accusations were but pointedly refused to tell us, only characterizing them vaguely. Politico also knows the identities of the two women and has no obigation to keep them secret, but chose to do so anyway — so that no one gets to question them or evaluate their credibility or motivations.

Instead, Politico blasted out a non-story that linked “Cain” “sex” and “inappropriate” in a thousand headlines and news reports so that severe damage was done before Cain uttered a word. I suspect also that Politico was counting on a beginner’s reaction from Cain, making it a piece of cake to hang him with the charge of ambivilent responses within less than 24 hours.

It was a knife neatly plunged in Cain’s back. Now, the guy could get both of the women to endorse him and the damage would still be done, as pile on critics wondered whether he “paid them off a second time.”

Truth to tell, it was a badly sourced tale of not much of anything pumped up to look like something. Politico would not lob such a story at pols who might just bite back — and that’s not limited to liberals or Democrats.

The pregnant question to me is, who gave this story to Politico or at least the initial tip of where to look for what. While it is possible that Politico had six reporters delving into every nook and cranny of Cain’s life — or just stumbled on this at a DC bar from some former lobbyist for the restaurant association — it is unlikely. Far more likely that it came from oppo research by a campaign?

But whose campaign?

Based on who has the most to gain by a collapse of Cain’s support, the leading suspect would have to be Rick Perry.

    Owen J in reply to JEBurke. | October 31, 2011 at 10:22 pm

    “Based on who has the most to gain by a collapse of Cain’s support, the leading suspect would have to be Rick Perry.”

    Speaking of nasty unfounded accusations…

    If you want to play the conspriracy game, why did not it not occur to you that the person with the most gain is Obama?

    I’m sure you meant well, but this sort of thinking demostrates the very worst impluses of unthinking self-destructive partisanship.

    This is exactly what is needed to get Obama reelected and congress back in the hands of his minions.

      JEBurke in reply to Owen J. | October 31, 2011 at 11:14 pm

      No, what demonstrates the very worst Impulses of unthinking self-destructive partisanship” is feeding nasty stories about your rivals to reporters.

      Of course, the tipster could be anyone — or Politico might have dug it up without any tips — two points I made abundantly clear above.

      That said, it is my opinion that the germ of this story came from campaign oppo research. While it might have been the Obama campaign, Obama has nothing to gain by shooting down Herman Cain at this point in time. Obama is best served by a long drawn out GOP battle among multiple candidates that divides Republicans, gets them attacking each other to do Obama’s work, eats through as much money as possible, and leaves the eventual nominee worn out, cash poor and besieged by disappointed partisans. Knocking Cain out early makes no sense for Obama.

      But it makes a great deal of sense for Perry.

        Owen J in reply to JEBurke. | October 31, 2011 at 11:40 pm

        Your tactical analysis may make sense to you, but that does not mean it holds water. A vast array of counter-arguments can be proposed, all equally or more plausible. I could (given more time and imagination than I wish to spend) make the same argument regarding Romney; I could even manufacture a plausible “fact” or two in support, if I wished to try.

        But that is not the point. The point is that you extend valid observations — yes, this is the sort of thing that oppo research is for — to make completely baseless, unfounded specific attacks on a specific person.

        You have no evidence whatsoever to support your allegation. Your argument does not even rise to the level of circumstantial.

        While I have nothing against you personally, it needs to be pointed out this sort of self-destructive behavior is exactly what got us into the current mess.

        It needs to stop.

          JEBurke in reply to Owen J. | November 2, 2011 at 6:20 pm

          Aha, now that Cain has charged that the Perry campaign engineered the Politico story, remember where you read it first!

    spartan in reply to JEBurke. | October 31, 2011 at 11:50 pm

    Perhaps some follow-up questions:
    1) Mr Cain, do you know how many cases of sexual harassment the NRA settled before you arrived?
    2) Do you know how many cases of sexual harassment the NRA settled after you left?
    3) Is the NRA in the habit of paying claims where no evidence of wrongdoing exists?
    4) Did any of these women file a claim with the EEOC and what was the result of the EEOC investigation?
    5) Did you cooperate with any EEOC investigation?

    In 1984, Gart Hart challenged the media in a similar fashion. He claimed he was doing nothing wrong and told the media to go ahead and follow him. Within a short time, Donna Rice became renown and Gart Hart never recovered from his monkey business. I’m not sure if relying on character witnesses makes up for unanswered questions.

    If you want to blame Team Perry, fine. However, the charge makes little sense. Perry has money and organization and Cain only has some momentum. Without organization and money, Cain will eventually lose his momentum. What about Gingrich? or Bachmann? or Romney?
    One could make a case that any one of them could be behind the oppo research. They could easily blame someone else (Perry) and reap the political reward.
    Just a guess, but blaming one’s opponent for one’s failure is not good politics. Conventional political wisdom also says, never pick a fight with someone who buys their ink by the barrel. I doubt the MSM is done with Cain and this story. You would think Cain would use this to demand tort reform or ‘loser pays’ legislation.

Just wait until Politico unleashes all the dirt they have dug up on Obama over the last 3 or 4 years. Oh, wait…

2nd Ammendment Mother | October 31, 2011 at 10:13 pm

My two bits…

The delayed response was probably checking with legal counsel for the Restaurant Association on exactly what he would be allowed to say under the terms of the settle.

Many non-disclosure agreements have a financial penalty attached. Therefore, if the person who brought the claim, her attorneys or anyone that is only known to her; then it seems there is a likelihood that she will need to return the payments.

Settlement is a very loose term… it’s also likely that the person in question accepted a couple of months of salary and unused leave.

It will take a great deal more that this to shake my support for Mr. Cain.

Does harassment take place in the workplace? Of course. Especially if you happen to work for a Democrat administration in the White House!

But all too often unscrupulous people realize they can use the vague and ambiguous law combined with the threat of a complaint to extort a few bucks from their employer.

BannedbytheGuardian | October 31, 2011 at 11:20 pm

The 2 women need to give back their settlement & put it on the line. Voters can make the judgment .

That seems fair to me.

Mark Levin asked in his The Daily Temperature Poll”

“Will the Politico story about Herman Cain influence your view of his candidacy?”

My answer, against the grain, was “YES”

before the attack I was just someone extremely likely to vote Cain in my “Blue State” Primary in March or May or whenever.

After this ..krap…my response is “Yes, hxxl YES” as in “The Bastogne Response” when the Panzer General requested the surrender of the 101st.

It is not lost on me that many of the Democrat real Lynchings were done on fabrications of inappropriate behavior.

There has been only one of Obama’s campaign’s he’s lost and there’s only one campaign that he was NOT able to use legal maneuvers to destroy his opponent, I believe the “Bobby Roush” campaign where he was dealing with a more adept Chicago Streetsmart real Afro-American.

    FYI, you just spawned a new psudo-curse: “hexel yes!”

    I guess the “a campaign adviser who we’re not going to name told us that, in total opposition to everything he’s said for the last week, has on the website and is going to say, he supports abortion in the case of rape and incest” blog from CNN wasn’t effective enough.

    Funny, this attack has actually made that less effective, because it’s so obviously cruddy!

[…] that the Cain “story was a legitimate issue for a presidential candidate“, blogging law professor William A. Jacobson quips, “we only wish the mainstream media […]

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DINORightMarie | November 1, 2011 at 6:35 am

This is nothing but a 21st century Spanish Inquisition. If you don’t CONFESS, CONFESS! to the allegations, than you are simply guilty. After all, there is NO defense for the Spanish Inquisition.

Mark Levin last night tore into this. Brilliant! And, as you say, Professor, your 35,000 feet vantage point gave you crystal clarity of what was really happening.

Cain will survive this. As he has everything else. IMHO, this will just make him stronger; he will learn, and his campaign staff will learn.

I don’t know if he will make it to the presidential slot, but I support him more now than before.

Because the left and his opponents fear him, he clearly is the real deal.

Charles Curran | November 1, 2011 at 10:36 am

Cain’s problem is that he has been ‘Dancing’ around the issue. At first he didn’t know about a settlement, then later he hoped that it was small, and then it was about three months salary. All this in the space of a few hours. He’s already suggested that if more of these come out, they are fiction.The ad with the smoking was a joke. He doesn’t have a staff that is wise to ways of ‘National Elections’. IMHO Cain will be toast when the MSM are through. Which will be soon.

[…] William Jacobson has it right — the original Politico story and the shameless follow-up are just a taste of the medicine that the eventual GOP nominee can expect to get from the mainstream media. Cain today is Perry or Romney or Gingrich tomorrow, while Obama will remain unexamined. Knowing this, Cain’s response is baffling. He wants to be the political equivalent of the Super Bowl MVP quarterback leading his team to victory next year. While the everyman aspects of the man and his campaign are charming, they won’t protect him from the attacks that everyone knows are coming. A winning QB needs to see the field and know the routes and he has to have a solid line protecting him. He has to have the skills to overcome the opposition’s best and worst tactics. Cain isn’t showing that he has those skills. So far, he is more Tim Tebow than Tom Brady, and that won’t do. Posted at 9:15 am on November 1st, 2011 by Tweet […]

[…] Professor Jacobson at Legal Insurrection: “This is a taste of the medicine the mainstream media, which includes Politico as I […]

[…] Still waiting for the holes.  Well, Boehlert, let’s start.  There is the explanation by the fabulous William Jacobson, Professor of Law at Cornell. Jacobson points out that this story was designed to damage a candidate, not to disseminate […]

[…] Still waiting for the holes.  Well, Boehlert, let’s start.  There is the explanation by the fabulous William Jacobson, Professor of Law at Cornell. Jacobson points out that this story was designed to damage a candidate, not to disseminate […]