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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

McClatchy:

Philip Heymann, a Harvard law professor and former deputy attorney general under Reno, said the Justice Department has always been vulnerable to allegations of playing politics with prosecutions.

"But these allegations are vastly greater and more credible," Heymann said. "Really good attorney generals go out of their way to keep appearances straight as well as realities. I think something serious has been going on, and I think it's terribly important that it come out.

"If politicians were going to the White House and saying they didn't want this or that case brought, and the White House was letting the U.S. attorneys know by firing them, it would be terribly immoral and destructive."

An inside look at how the Department of Justice has changed under George W. Bush, and particularly under Alberto Gonzales.

Update: Some readers have asked me to further highlight the piece I linked to above, an interview that Daniel Metcalfe, a recently retired senior career DOJ lawyer, gave to the Legal Times' Tony Mauro. Gladly.

Metcalfe had been with the Justice Department since 1971, so much of the perspective what he is able to offer on the Bush Justice Department is historical. Here is Metcalfe on how quickly things changed after Alberto Gonzales became attorney general:

Ever since the Watergate era, when Edward Levi came in as attorney general to replace former Sen. William Saxby soon after Nixon resigned, the Justice Department maintained a healthy distance between it and what could be called the raw political concerns that are properly within the White House's domain. Even Reagan's first attorney general, William French Smith, did not depart greatly from the standard that Levi set; as for Meese, I knew him to be more heavily involved in defending himself from multiple ethics investigations than in bringing the department too close to the White House, even though he came from there.

More recently, of course, the DOJ-White House distance hit its all-time high-water mark under Janet Reno, especially during Clinton's second term. And even John Ashcroft made it clear to all department employees that, among other things, he held that traditional distance in proper reverence; he proved that this was no mere lip service when, from his hospital bed, he refused to overrule Deputy AG Comey on what is now called the "terrorist surveillance program." Especially in the wake of 9/11, which strongly spurred the morale and dedication of Justice Department employees, myself included, I saw only a limited morale diminution in general during the first term.

But that strong tradition of independence over the previous 30 years was shattered in 2005 with the arrival of the White House counsel as a second-term AG. All sworn assurances to the contrary notwithstanding, it was as if the White House and Justice Department now were artificially tied at the hip -- through their public affairs, legislative affairs and legal policy offices, for example, as well as where you ordinarily would expect such a connection (i.e., Justice's Office of Legal Counsel). I attended many meetings in which this total lack of distance became quite clear, as if the current crop of political appointees in those offices weren't even aware of the important administration-of-justice principles that they were trampling.


Metcalfe also makes an interesting--and on its face, plausible--claim that I don't recall hearing before: namely, that the traditional second term decline in the quality of new political appointees is worse in Republican administrations:

I'll now say something that might sound partisan, even coming from a purposely nonpartisan registered independent, but it's really not: In my experience over 11 presidential administrations, from Nixon I to what can be called Bush III, there is an unmistakable drop-off in overall appointment quality during a second presidential term -- and this definitely is more so during a Republican administration. Perhaps this is due to there being a lower quality of political appointees in Republican administrations to begin with, given that, by and large, they give up more than Democrats do to enter government service, especially with the post-Watergate ethics restrictions that all government officials face.

This observation is nothing new, by the way; one need only look at the relative ages and experience levels of comparable appointees in successive administrations to see it. So when you enter the second term of a Republican administration, you get the worst of all possible worlds: You actually see some influential political appointees who are, to put it bluntly, too subject-matter ignorant to even realize how ignorant they are. (This is assuming that, if they knew, they'd actually care.)

And compounding this, as mentioned earlier, is the strong drive of political appointees at all levels (perhaps more so if they are attorneys, whose background is amenable to legal positions throughout the executive branch) to obtain that maximum capstone position before the second term ends. What happens to bureaucracy at such a time is that it becomes sluggish to the point of constipation, driven only by expediency as gauged from a political or personal agenda, and it sometimes yields some truly mind-boggling results, such as the current U.S. Attorney nightmare.


Metcalfe's perspective is worth considering. It is, in some respects, a more benign explanation for some of what we have seen than I might favor. I use "benign" guardedly because what Metcalfe witnessed in the last two years of his tenure at DOJ was clearly distressing to him and, in his view, marred the department's reputation, something he took great pride in.

What I mean is that the dysfunction he describes at the staff level can be seen as the cause of the purge scandal or it can be seen as a means to an end. If you subscribe to the former view, then Purgegate is a mess that could have been avoided if it had merely been handled better, a public relations snafu due to poor staffing. The latter view, which is perhaps more cynical but I also think more realistic, is that placing young, inexperienced, impressionable staffers in high level department positions enabled higher-ups in the Administration to exert far greater control in promulgating the Rove political agenda. (That staff level youth and inexperience could be blamed when and if the crap hit the fan was merely another advantage to the plan.)

Second term malaise may have a historical precedent, but the politicization of the Justice Department is classic Karl Rove.

I'm afraid yesterday's AP story on No Gun Ri is going to get lost in the swirl of more immediately pressing scandals, but it's such an important piece, I want to draw your attention to it:

Six years after declaring the U.S. killing of Korean War refugees at No Gun Ri was "not deliberate," the Army has acknowledged it found but did not divulge that a high-level document said the U.S. military had a policy of shooting approaching civilians in South Korea.

The document, a letter from the U.S. ambassador in South Korea to the State Department in Washington, is dated the day in 1950 when U.S. troops began the No Gun Ri shootings, in which survivors say hundreds, mostly women and children, were killed.

Exclusion of the embassy letter from the Army's 2001 investigative report is the most significant among numerous omissions of documents and testimony pointing to a policy of firing on refugee groups — undisclosed evidence uncovered by Associated Press archival research and Freedom of Information Act requests. . . .

More than a dozen documents — in which high-ranking U.S. officers tell troops that refugees are "fair game," for example, and order them to "shoot all refugees coming across river" — were found by the AP in the investigators' own archived files after the 2001 inquiry. None of those documents was disclosed in the Army's 300-page public report. . . .

Despite this, the Army's e-mail to the AP maintains, as did the 2001 report, "No policy purporting to authorize soldiers to shoot refugees was ever promulgated to soldiers in the field." . . .


There's a lot more detail in the AP piece about how the 2001 report which exonerated the Army left out or mischaracterized key pieces of evidence from the Army's own records.

It's never too late to get this sort of thing right, and given the looming historical accounting America will have to do on Iraq and the War on Terror, we better learn how to do it right.

Walter Pincus reports on the Administration's proposed revisions to FISA, which include immunizing telecommunications companies who cooperate in the Administration's surveillance programs from lawsuits by their customers. That provision would be retroactive to Sept 11, 2001 (via War and Piece).

White House agrees to coordinate with the Senate Judiciary Committee on choosing an independent consultant to recover all those lost emails.

Nice. The Senate gets to help pick who will find the emails but the White House still hasn't agreed to let the Senate see the emails once they are found. Ah, compromise.

Update: Speaking of compromise, Fred Fielding has his work cut out for him:

Sources tell NPR that Fielding actually wants to negotiate with Congress about how the interviews [of White House staff] will take place. But Fielding has not been able to persuade President Bush to go along.

Condi takes another one for the team:

After intense internal debate, the Bush administration has decided to hold on to five Iranian Revolutionary Guard intelligence agents captured in Iraq, overruling a State Department recommendation to release them, according to U.S. officials.

At a meeting of the president's foreign policy team Tuesday, the administration decided the five Iranians will remain in custody and go through a periodic six-month review used for the 250 other foreign detainees held in Iraq, U.S. officials said. The next review is not expected until July, officials say. . . .

Differences over the five Iranians reflect an emerging divide on how to deal with Iran. Secretary of State Condoleezza Rice went into the meeting Tuesday advising that the men be freed because they are no longer useful, but after a review of options she went along with the consensus, U.S. officials say. Vice President Cheney's office made the firmest case for keeping them.

Drawing on law enforcement records of phone calls, Newsweek has interesting new details on the circumstances of Bernie Kerik's nomination as secretary of homeland security.

[A]round the time of his nomination, Kerik spoke by phone with two people with whom he had a potentially embarrassing history. According to the records, on Dec. 2, 2004, one day before President George W. Bush announced Kerik's nomination, three phone calls were logged between Kerik and New Jersey businessman Frank DiTommaso. A few weeks earlier, DiTommaso's construction firms had been described in court testimony as mob connected. (DiTommaso and his company have denied wrongdoing.)

Shortly after the nomination, Kerik exchanged several phone calls with Jeannette Pinero, a New York prison guard with whom he had an affair. . . . Similar calls were made before the Dec. 10 announcement that Kerik's nomination would be canceled. Two days before the withdrawal, Kerik and DiTommaso exchanged three calls. On the day the nomination crashed, Kerik and Pinero exchanged three calls; the last one was about an hour before the White House pulled Kerik's nomination. The records also show more than a dozen calls between DiTommaso and Kerik after the withdrawn nomination.


Couple the Newsweek revelations with the Post story today on how the White House fast-tracked the Kerik nomination despite internal concerns about Kerik's background and you start to wonder who is leaking all this stuff. Is it Guiliani opponents trying to dent his presidential campaign, or Guiliani supporters trying to air his abundant dirty laundry sooner rather than later?

Attorney General Alberto Gonzales, hard at work:

At a recent "prep" for a prospective Sunday talk-show interview, Gonzales's performance was so poor that top aides scrapped any live appearances. During the March 23 session in the A.G.'s conference room, Gonzales was grilled by a team of top aides and advisers—including former Republican National Committee chair Ed Gillespie and former White House lawyer Tim Flanigan—about what he knew about the plan to fire seven U.S. attorneys last fall. But Gonzales kept contradicting himself and "getting his timeline confused," said one participant who asked not to be identified talking about a private meeting. His advisers finally got "exasperated" with him, the source added.

Sens. Chuck Hagel (R-NE) and Dick Durbin (D-IL) have introduced a bill that would require the intelligence community to produce a NIE on the national security implications of climate change.

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