Marc's Mess: We Have to Wait for Fifth Street

Despite the promise in the letter to serial screwup AG Marc Dann, articles of impeachment will be some time in coming. The House Republicans have Rep. Bill Batchelder looking into it and some comments from the Dem leadership reported in the Dispatch sound equivocal. Bloggers on the left and right are getting bent about backtracking.

Since summer is approaching, the World Series of Poker will start up soon. It's a good a time as any to review a couple truths about Texas Hold 'Em. If you bet big based on your hole cards and your opponent folds, the hand is over. If you bet big and your opponent calls, the hand goes on. If your opponent continues to call, the hand will go on until the dealer lays down the fifth common card ("The River," or "Fifth Street.")

And if you've been called on a big bet, you should think twice about betting big again until you have an idea what your opponent has.

As it is in poker, so it is in Marc's Mess. When Strickland bet big after the Espy report he wasn't exactly bluffing. He has a strong hand. The report outlines improprieties that led not only to a hostile environment for women, but a hostile environment for anyone with an unblackened soul. Dann meanwhile looks like he's holding about a nine high. But you never know. . .

While it offers a solid starting hand, the Espy report only begins to build the case against the AG himself. No pair of aces here. Thanks to his throwing Ed Simpson under the bus, Dann has a colorable argument that he was negligent in failing to prevent the excesses of his cronies, as opposed to actively complicit in those excesses. Based on that report alone, impeachment is a hard sell. Notwithstanding Connie Schultz's argument, the legislature is unlikely to embrace the standard that sex with a subordinate is per se impeachable. Too many legislators, erm, know someone who has gone there before.

The more salable candidates for a bill of impeachment run along two lines. The first is that Dann was far more in his friends' misdeeds than he's admitted. Somewhere in the blizzard of paperwork and subsequent reports is the allegation that complaints against Gutierrez were forwarded to Dann's office and pretty much disappeared into a void there. Mix an ongoing effort to violate workplace discrimination laws (even where those laws aren't technically criminal) and/or to cover up those violations along with everything else, and this starts to look more impeachable. Similarly, if evidence surfaces that Dann knew of Gutierrez's penchant for playing bumper cars with state vehicles and did nothing, we can sell that to the Legislature.

The second line of inquiry is whether Dann lied under oath when interviewed by Espy. In at least two spots, I am suspicious. First is the question of whether he lied about Jessica Utovich spending the night at the now-infamous condo¹. To review, Dann initially says he doesn't remember, then in a subsequent sworn statement, amends that to say that he now remembers she did spend a night or two, though at that time couched it in terms that still preserved deniability about the affair.

It's all well and good for a witness to say he doesn't remember most of the time. Most of the time, that will work even if not actually true. And if it is true that Utovich only stayed the night a couple of times because it was late, it's at least conceivable that Dann wouldn't remember. But if she spent the night because that's when they engaged in the inappropriate part of their "inappropriate relationship," he certainly would remember that. To say he doesn't remember at that point puts us in Steve Martin territory.

A second possibility is that he lied in minimizing his involvement with the Gutierrez hire. I've outlined that case previously.

At this point we have limited information, but probably not enough to say unequivocally that Dann's transgressions are or should be impeachable. We need a few more cards on the table. We need, for instance, to hear from the Shiny-Faced Scheduler herself, and under oath. We need to drag Ed Simpson out from under the bus and see what he has to say. Open questions remain not only about what people know but also whether they are willing to divulge it. And until there are a few more cards under the table, an elected official speaking without reservation about impeachment does so recklessly.

Watching poker offers, among other things, an entertaining way to study how people make decisions based on incomplete information. So does the Dann drama.

¹ModernEsquire is right to a point when he says that a deponent has the ability to review a deposition, but that's only part of the story. First, one generally reviews the transcript for errors in transcription. You can't change the record, only correct how it was recorded. Second, if Utovich spent the night on inappropriate-relationship-related business, his second statement suggesting that she did so only because it was late and she was there on actual AG business doesn't cure the deception, it perpetuates it.

Image courtesy of Wikimedia Commons.