The Times Misleads On Prosecutorgate "News" And Presents Facts As Opinion

03/20/2007 09:00 pm ET | Updated May 25, 2011

Is New York Times reporter David Stout incapable of performing basic research, or is he parroting Administration talking points in today's article on Prosecutorgate? That's not a rhetorical question. His article distorts the context for Congressional requests for testimony. Meanwhile, elsewhere in the the Times simple factual assertions are being presented as editorial opinion.

Is the Grey Lady turning into Alice in Wonderland?

Stout writes:

"It is fairly common for Cabinet members, who must be confirmed by the Senate, to testify before Congress. But presidents have historically resisted demands for testimony from their closest non-Cabinet advisers on the grounds of privacy and constitutional prerogatives."

At the bottom of this page is a list of thirty - that's 30 - advisors to President Clinton who testified before Congress while Clinton was President. Some of them testified multiple times, and most of their testimony was regarding specious accusations of mismanagement and fraud, none of which ever proved valid.

So is it valid to say that presidents have "historically resisted demands for testimony from their closest non-Cabinet advisors"? Not without including the fact that there were dozens upon dozens of instances of aides testifying before Congress throughout the 1990's. Was this testimony "resisted" by the Clinton Administration? At times. But the facts - as opposed to vague assertions - provide the context.

It's also important to understand why Presidents have resisted requests for testimony, on those occasions when they do - and sometimes they do. Presidents from FDR onward have expressed reluctance to allow their private advisors to testify about the advice they have offered the President on matters of policy.

The assertion of "executive privilege" was originally intended to address the concern that advisors might be reluctant to offer candid advice or present options to the President if they knew they could be subject to fishing expeditions from a hostile Congress.

Sure, one President resisted Congressional requests to have his aides testify under oath for reasons that turned out to be unrelated to the basic notion that advisors should be able to speak freely in the White House. His name was Nixon, and the Congressional investigation in question was the Watergate hearing. That's the only precedent for such a categorical refusal to have aides testify on a matter that could, in fact, involve violations of law.

And make no mistake - this matter could involve violations of the law, as an editorial writer for the Times was perfectly capable of discovering. Potential crimes worth investigating include lying to Congress, impeding an investigation and obstruction of justice As Adam Cohen notes, "United States attorneys can be fired whenever a president wants, but not, as § 1512 (c) puts it, to corruptly obstruct, influence, or impede an official proceeding."

It's puzzling, to say the least. The Times is to be commended for running Cohen's piece, which is clear and fair. But why is it an editorial, and not a news piece? Cohen's not making assertions about the guilt or innocence of Administration officials. He's simply informing the reader which laws might have been broken if allegations like those being raised in this case are true. That's reportage, not editorializing.

Alright, Eskow, you may be saying, you know a hell of a lot about the history of Congressional testimony by Presidential aides. You either know the subject or you've got a lot of time on your hands. You can't blame David Stout because he's not an expert like you. Or maybe you've just got a natural flair for journalism.

That would be no, no, and no, respectively. All I did was google the phrase "congressional testimony presidential advisors." The very first entry was a pdf file from the Federation of American Scientists' highly regarded Secrecy project. Their copiously footnoted paper is entitled "Presidential Advisors' Testimony Before Congressional Committees: An Overview."

You see, Mr. Stout, it isn't that difficult. In fact, it only takes a few minutes. And if you're afraid of blowback from the GOP or your editors, you can even distance yourself from these well-documented facts by inserting the phrase, "According to a footnoted paper by ..."

Meanwhile the question for the New York Times is this: Why are the facts being presented as if they were editorial opinions, while unfounded statements of opinion without solid reporting are presented as fact?

Clinton Advisors Who Gave Testimony Before Congress

  1. Sandy Berger
  2. Lloyd Cutler
  3. W. Neil Eggleston
  4. Lisa Caputo
  5. Mark Gearan
  6. Harold Ickes
  7. Bruce Lindsey
  8. John Podesta
  9. Clifford Sloan
  10. George Stephanopoulos
  11. Margaret Williams
  12. Joel Klein
  13. Thomas McLarty
  14. Beth Nolan
  15. Deborah Gorham
  16. Carolyn Huber
  17. Evelyn Lieberman
  18. Capricia Marshall
  19. Bobby J. Nash
  20. Stephen Neuwith
  21. John Quinn
  22. Jane Sherburne
  23. Patti Solis
  24. Patsy Thomasson
  25. Charles Easley
  26. Lanny Breuer
  27. Cheryl Mills
  28. Dimitri Nionakis
  29. Charles Ruff
  30. Nancy Heinreich