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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

In response to our inquiries, Secretary of Defense Robert Gates has issued a statement responding to the uproar over the letter from Undersecretary of Defense Eric Edelman to Sen. Hillary Clinton condemning her for reinforcing "enemy propaganda." Says Gates:

I have long been a staunch advocate of Congressional oversight, first at the CIA and now at the Defense Department. I have said on several occasions in recent months that I believe that congressional debate on Iraq has been constructive and appropriate. I had not seen Senator Clinton’s reply to Ambassador Edelman’s letter until today. I am looking into the issues she raised and will respond to them early next week.


I'd stop short of calling that a rebuke to Edelman, but just barely short. Greg, who has been dogging this story for the last couple of days, has more at Election Central.

How does the GOP record of obstruction in the Senate compare to past Congresses? McClatchy does the legwork to get the numbers:

Nearly 1 in 6 roll-call votes in the Senate this year have been cloture votes. If this pace of blocking legislation continues, this 110th Congress will be on track to roughly triple the previous record number of cloture votes — 58 each in the two Congresses from 1999-2002, according to the Senate Historical Office.


McClatchy also puts the filibuster in historical context and notes that the Democrats used it more in recent years than in the past. In short, we've been on an upward trend for almost two decades, but the GOP is on pace to use the filibuster more than ever before in the history of the Senate.

TPM Reader TM digs deeper into President Bush's broad assertion of executive privilege:

I think David's point is an excellent one, but he doesn't sink the point home.

While everyone seems to recognize that some form of executive privilege exists, everyone also seems to agree that it doesn't really apply to federal agencies that are created by the Legislative Branch. The Attorney General, for instance, only has the powers he has due to Acts of Congress, and Congress can ask him any questions it wants to about holding him accountable for how he has used those powers and carried out acts of Congress. Getting straight answers is another story, but Congress has clear powers there.

But what if, "hypothetically", political appointees ostensibly accountable to Congress were either:

A) Puppets, taking orders from the White House, without regard or knowledge for why those decisions were being made; or

B) Pretend Puppets, feigning ignorance of how or why decisions were made, pointing the finger at the White House.

And in either case, the White House stonewalls, using claims of executive privilege to withhold information that could explain the actions of executive agencies clearly under the purview of Congressional oversight?

What we would have is the overthrow of de facto congressional oversight.

That's what this is all about.


I don't hold myself out as an expert on executive privilege, but I think TM is right that this is the most dire implication of the President's sweeping application of the theory of the unitary executive to executive privilege. And by "dire" I don't mean to suggest that it's a remote or speculative implication. It is very real.

However, I still maintain that in debating the scope of executive privilege as a policy matter, it concedes too much to say that of course the President can get good advice only if that advice is protected legally from congressional oversight. By then, you are already well down the slippery slope.

As you've probably seen already, President Bush today, for what must be the millionth time, asserted that failure in Iraq “would send an unmistakable signal to America’s enemies that our country can be bullied into retreat.”

To which TPM Reader MR replies:

I say what the rest of the world already knows, that failure in Iraq would send an unmistakable signal that no matter how well prepared your military is, it does you no good if your Commander in Chief over-rides the judgment of the military professionals and fires any general who dares to suggest anything that might be politically inconvenient for the President.


In the course of his comments, the President also criticized the Democrats for having a debate on Iraq while at the same time saying, "Our nation deserves a serious debate about Iraq."

I don't know about you, but that clears things up for me.

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.

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