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David Kurtz

David Kurtz is Managing Editor and Washington Bureau Chief of Talking Points Memo where he oversees the news operations of TPM and its sister sites.

Articles by David

As long as we're going to be discussing the parameters of executive privilege in the weeks and months ahead, can we start by revisiting the now commonly accepted notion that the President can only get free and unfettered advice if those giving the advice know it will remain confidential?

Every talking head starts the discussion of executive privilege with a solemn nod to this totem. Heck, even Kevin Drum conceded this point in a post back in March:

The president and his immediate staff really do have a strong interest in their ability to receive candid, provocative advice, and that interest is threatened if advisors are worried that the ideas they toss around in private are likely to become public. This is an important principle regardless of who occupies the White House.


Is that really true though? Literally, Kevin is right. Presidents do have a strong interest in this principle. But the President's interest, in this instance, is not in line with the public interest. In fact, executive privilege offers the President and his advisers a perverse disincentive to look after the public interest. Isn't the prospect of public exposure of hare-brained ideas, controversial proposals, and malfeasance and misdeeds the very sort of incentive the public wants looming over the President and his advisers, a dagger of accountability?

A friend of mine thinks we would be much better off subjecting the Oval Office to 24-hour TV coverage, like a CSPAN for the White House. I wouldn't go that far, but the point remains the same. The concoction of cover-ups, frauds, and misadventures in the White House over the last 35 years is precisely what should be exposed to public scrutiny. The logic, such as it is, for executive privilege would apply equally to governors, mayors, and officials at all levels of government. Yet we don't usually grant such broad privileges to other government officials.

Generally, the purpose of a privilege such as attorney-client privilege or doctor-patient privilege is to preserve a relationship that society puts more value on than enforcing the law. There is value in a client being able to fully and completely disclose their legal problems to her attorney without fear of prosecution. There is value in a patient being able to be honest and forthright with her physician without legal repercussion.

Still, there are limits to the privilege. The attorney-client privilege cannot be used to perpetuate a fraud. The doctor-patient privilege does not apply when the doctor has a reasonable apprehension that the patient may cause himself or another serious physical harm. As a society, we have placed a high value on certain relationships, placing them to a limited degree outside of the law, but only up to a certain point, at which time other values become paramount.

So back to the President and executive privilege. If a privilege is intended to resolve a conflict between competing interests in favor of the more important interest, then what interest is executive privilege protecting? There is, it seems to me, only one interest at stake: the public interest. The President is supposed to be acting in the public interest, and so are his advisers. The public disclosure of internal White House deliberations allows the public to hold the President and his advisers accountable to the public interest. If there is a legitimate competing interest here, I don't see it.

Some will argue that without executive privilege the President could be subject to harassment from Congress, that he would never get anything done because of constant subpoenas and hearings, that the effective carrying out of his duties could be undermined. But that's a different argument from the need for the President to get free and unfettered advice, and in any event, a court could resolve issues of harassment without having to grant a broad executive privilege. The scope of and burden imposed by subpoenas is resolved in courts every day.

I fully recognize that there is a basis in law for executive privilege. But both the legal justification for executive privilege and the policy justification rely mostly on the mistaken assumption that the public interest is served by the President being able to avoid public scrutiny in the execution of his public duties.

It's well past time to revisit that assumption.

CNN completes its review of the DC Madam's phone records. Comes up empty on additional gotchas, but sketches out the John subculture in metro DC.

Alberto Gonzales went behind closed doors on the Hill yesterday where he was peppered with questions about that notorious visit to then-Attorney General John Ashcroft while he was hospitalized:

In a closed-door session, House Intelligence Committee Chairman Silvestre Reyes said members were especially interested in the reasons behind Gonzales' controversial 2004 visit to the hospital bedside of John Ashcroft, reportedly to pressure the ailing attorney general to endorse Bush's surveillance program. Ashcroft, said to have been barely conscious at the time, refused.

Gonzales did not express any regret, Reyes said after the hearing ended.

"He, I thought, explained it very well in terms of why they had gone there," said Reyes, D-Texas, declining to provide specifics because many details are classified. . . .

Details of the hospital visit, first revealed in congressional testimony by former Deputy Attorney General James Comey, intensified calls by Democrats and some Republicans for Gonzales' resignation. The attorney general has shown no signs that he will step down.


Congressional Republicans, by and large, still have Gonzales' back:

Ranking Republican Pete Hoekstra urged Congress to move on from speculation over the hospital visit, which he likened to a discussion of "exactly what (flavor) Jell-O Ashcroft was eating in the hospital."


With statesmen like Hoekstra, it's hard to believe the GOP lost its majority.

Update: Speaking of Comey, he's touting Patrick Fitzgerald as a future attorney general.

Late update: Speaking of Fitzgerald, he will be a guest on the NPR show "Wait Wait ... Don't Tell Me." The show was taped last evening, and Fitzgerald received a scooter as a parting gift, engraved with "To Patrick Fitzgerald, USA, This one will stay where you put it." [via War and Piece.]

Secretary of Defense Robert Gates, speaking in March about the Iraq debate in Congress:

I believe that the debate here on the Hill and the issues that have been raised have been helpful in bringing pressure to bear on the Maliki government and on the Iraqis in knowing that there is a very real limit to American patience in this entire enterprise.


Undersecretary of Defense Eric Edelman, in a July 16 letter to Sen. Hillary Clinton:

Premature and public discussion of the withdrawal of U.S. forces from Iraq reinforces enemy propaganda that the United States will abandon its allies in Iraq, much as we are perceived to have done in Vietnam, Lebanon and Somalia.

We received such a well-considered email last night from TPM Reader MA that I'm going to post the whole thing:

Your post . . . about the slowdown in cases in San Francisco got me thinking about the larger bureaucratic issue associated with more than half a dozen years under Bush.

This is a relatively trivial incident, but a while back I attempted to get my passport renewed and discovered the wait times had doubled (partly because of the new rule requiring travelers to Canada to have passports) -- trivial, yes, but it also highlights some of the more mundane effects of an administration run by people who have a fundamental antipathy toward government service and government programs.

This gets writ large in the case of incidents like Hurricane Katrina, the prosecution of the Iraq war and so on...but it also gets writ small in thousands of details of everyday bureaucratic life -- especially as the Bush influence trickles down through the bureaucracy from political appointees to career employees.

If the governing Bush/Cheney philosophy is that the public sector doesn't work, that it is inherently not just inefficient and corrupt, but antagonistic to citizens and individuals, this philosophy has a way of slithering its way into the workings of the system itself -- not just in the case of high profile corruption scandals, but also, again on a more mundane level, in the day-to-day operation of government bureaucracies.

And here's the weird thing, even though that sounds so unexciting, there's something almost stifling about imagining a bureaucracy that really is antagonistic to individuals -- one that not only slows down, but finds some vindication in throwing up road blocks, thwarting citizen requests, and, in the end, not serving the public. I have family members who lived in former communist countries -- and that's really how the bureaucracy was there, and life under those circumstances was made much more difficult, bureaucratic responsibilities increasingly cumbersome, much of the time the system just didn't work, and had to be gamed (or bribed).

Although I have large scale concerns about Bush's handling of the war, the economy, and so on, I also have some more micro scale concerns about what his philosophy of governance means for everyday life and our everyday interactions with the bureaucracy. Indeed, this scale, though more mundane, is also the one that in some ways affects the majority of the population more directly, even if much less dramatically. I've lived in places where the bureaucracy functions quite well, and where citizens take a certain pride in the fact that the government serves them.

The idea of living in a country where the administration's goal is to demonstrate just how bad government is/can be scares me at this very prosaic level -- I want my schools and courts and inspection agencies and passport agencies and so on to be run by people who really believe in government service and in the fact that the government can work effectively to serve the populace. Bush seems to be doing everything he can to dismantle such a world -- and he risks fueling a vicious circle in so doing.

The Financial Times reports that some cases in the San Francisco U.S. Attorney's office are moving so slowly that the Securities and Exchange Commission is considering moving forward with its civil cases alone rather than waiting on the Justice Department, with whom the SEC usually jointly files cases:

The San Francisco slowdown is the most dramatic example of larger problems that have surfaced at the DoJ since the mass sackings of eight US attorneys, including Mr [Kevin] Ryan, caused a furore in February. Six top posts at the DoJ in Washington are empty or filled with temporary appointees, and 23 of the 93 US Attorney’s offices around the country lack permanent political leadership.


Frankly, I wouldn't call this the "most dramatic example" of the problems at DOJ. The politicization at all levels that has emerged since the USAs purge is far more dramatic and more serious. But the FT report does show how even the routine work of the department is being disrupted by the dreadful leadership of Alberto Gonzales.

There's no use trying to debunk each and every lie or half truth that comes out of Tony Snow, but this one has been gnawing at me all day. It comes from a Snow op-ed in this morning's USA Today. Here he is referring to Saddam Hussein: "We never argued that he played a role [in] 9/11; political opponents manufactured the claim to question the president's integrity."

Now it can gnaw on you, too. I feel better already.

Lots of readers have emailed about the Executive Order issued by the President on Tuesday, which broadly empowers the federal government to freeze the assets of Iraqi insurgents and those seeking to destabilize the Iraqi government, including U.S. citizens. Spencer Ackerman has looked into the implications of this new order and has two reports (here and here).

Things continue to look gloomy for Rep. John Doolittle (R-CA). The governor of the Commonwealth of the Northern Mariana Islands, Benigno R. Fitial, announced today that he is cooperating with the federal investigation related to Jack Abramoff:

The Justice Department's interest in Doolittle appears to focus on payments Doolittle's wife, Julie, received from Abramoff for fundraising work unrelated to the Marianas. But Doolittle was also heavily involved in Abramoff's advocacy for the Marianas, endorsing Fitial for governor and pushing federal funding on his behalf.

Doolittle was lobbied on the issue by his own former legislative director, Kevin Ring, who went on to work with Abramoff and now is himself under investigation.

"Doolittle, he's also a friend," said Fitial.

Fitial spoke to reporters after testifying against a Senate bill that would impose U.S. immigration laws on the Commonwealth of the Northern Mariana Islands, a chain of 14 islands just north of Guam in the Pacific. A similar bill passed the Senate in 2000 but Abramoff helped block it from advancing in the House.


I suppose Doolittle will cheer this latest development, too.

No enemy of the U.S. in the last 40 years has had as dim a view of American willpower as neo-conservatives do. To hear them tell the tale, U.S. foreign policy has been one long series of impotent withdrawals.

Here, for example, is Under Secretary of Defense Eric Edelman, in a letter, obtained by the AP, responding to questions from Sen. Hillary Clinton (D-NY) about Pentagon contingency planning for a U.S. withdrawal from Iraq:

Premature and public discussion of the withdrawal of U.S. forces from Iraq reinforces enemy propaganda that the United States will abandon its allies in Iraq, much as we are perceived to have done in Vietnam, Lebanon and Somalia.


Haunted by this dark narrative of failure, the neo-cons are bound and determined not to repeat the weak-willed mistakes of the recent past. Why, even the very discussion of how to get out of this mess will embolden our enemies and undermine our own resolve. Instead, we must march in lockstep forward, chins jutting ahead, ignoring all of the distractions which could so easily turn us into quivering Jello.

How thankful we should be to have brave men like Eric Edelman to stifle debate, to lash us in our moments of weakness, and to encourage us to be oblivious to the reality all around us. Then and only then can we achieve America's true greatness.

If, god forbid, we were to fail, it will not be on account of such noble examples as Eric Edleman. No, it will be the fault of the weak-minded among us, besotted by our culture of tolerance and permissiveness. Men like Eric Edelman can lead, but they cannot make us follow (at least not quite yet--they're working on that). In this, we must do our duty, following without question or reason, without reflection or pause.

Ultimately, as Eric Edelman knows all too well, our own worst enemy is ourselves.

Update: Here's a copy of the letter.

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