Presidencies are about looking forward, not backwards, so it was predictable that Barack Obama would signal that, if elected, he would have little interest in prosecuting the criminal acts of the current administration.
If Nixon had been imprisoned, it’s doubtful that 30 years later Dick Cheney would have opted to exchange his seat as the head of Halliburton, where he was free to rape and pillage the world with impunity, for the vice presidency, where his power would have been constrained by the U.S. Constitution.
As predictable as Obama’s position is — John Kerry would likely have held the same view under similar circumstances, and certainly John McCain supports it — it is deeply troubling because of the seriousness of the crimes in question, which include lying to Congress about the rationale for war, authorizing torture, betraying a covert CIA agent, criminal negligence in the response to Hurricane Katrina, spying on Americans without warrants, using the Justice Department as the political enforcement arm of the Republican National Committee, election fraud and consorting with corrupt lobbyists, just for starters.
At the Netroots Nation meeting in Austin last weekend, Chicago Law School professor Cass Sunstein, an informal adviser to Obama, warned liberal activists not to expect Barack Obama, if he is elected, to prosecute Bush crimes unless the crimes are what Sunstein described as “egregious”:
[Sunstein] urged caution in prosecuting criminal conduct from the current administration, while also noting that egregious crimes should not be ignored. Prosecuting government officials risks a “cycle” of criminalizing public service, he argued, and Democrats should avoid replicating retributive efforts like the impeachment of President Clinton — or even the “slight appearance” of it.
The fatal flaw in Sunstein’s formulation is that, in fact, there has not been a “cycle of criminalizing public service.” There has been one system of high accountability for Democrats and another system that allows Republican White House officials to escape any sort of accountability whatsoever.
While dozens of Clinton White House officials were dragged before Republican-controlled congressional committees hundreds of times for matters as petty as an investigation into the Clintons’ cat, none of which resulted in a charge of wrongdoing — and Clinton himself was more than held accountable for the crime of lying about an extramarital affair in a deposition for a civil lawsuit — Bush, Cheney and their associates have not been held accountable for a whole host of deliberate criminal acts, especially including lying to Congress and the American people about their reasons for the invasion and occupation of Iraq, which was by all measures an “egregious” abuse of power that has resulted in the deaths of over 4,000 U.S. troops and hundreds of thousands of innocent Iraqis.
Another weakness in Sunstein’s statement, says Jonathan Turley, a George Washington University law professor, who testified for the prosecution in the Clinton impeachment, and who still insists impeaching Clinton was the right thing to do, is that all crimes committed by presidents should be considered to be “egregious” because presidents take an oath to defend and uphold the laws of the United States. According to Turley:
The main concern with Sunsteinâ€™s reported comment[s] is how well they fit within the obvious strategy of the Democratic party leaders: to block any prosecution of either President Bush or his aides for crimes while running on those crimes to maintain and expand their power in Washington. The missing component in this political calculus is, of course, a modicum of principle.
Hereâ€™s the problem about â€œavoiding appearances.â€ There seems ample evidence of crimes committed by this Administration, in my view. To avoid appearances would require avoiding acknowledgment of those alleged crimes: precisely what Attorney General [Michael] Mukasey has been doing by refusing to answer simple legal questions about waterboarding.
In April, Obama himself gave this long-winded response to a question about how, as president, he would treat the criminality of the Bush administration, particularly as it pertains to authorizing torture:
What I would want to do is to have my Justice Department and my attorney general immediately review the information that’s already there and to find out are there inquiries that need to be pursued. I can’t prejudge that because we don’t have access to all the material right now. I think that you are right, if crimes have been committed, they should be investigated. You’re also right that I would not want my first term consumed by what was perceived on the part of Republicans as a partisan witch hunt because I think we’ve got too many problems we’ve got to solve.
So this is an area where I would want to exercise judgment — I would want to find out directly from my attorney general — having pursued, having looked at what’s out there right now — are there possibilities of genuine crimes as opposed to really bad policies. And I think it’s important– one of the things we’ve got to figure out in our political culture generally is distinguishing between really dumb policies and policies that rise to the level of criminal activity. You know, I often get questions about impeachment at town hall meetings and I’ve said that is not something I think would be fruitful to pursue because I think that impeachment is something that should be reserved for exceptional circumstances.
Now, if I found out that there were high officials who knowingly, consciously broke existing laws, engaged in coverups of those crimes with knowledge forefront, then I think a basic principle of our Constitution is nobody above the law — and I think that’s roughly how I would look at it.
A few months after Obama made these comments, he voted to give Bush and his officials immunity from prosecution for the prima facie crime of violating FISA by authorizing the warrantless wiretapping of U.S. citizens.
As a constitutional scholar, Barack Obama knows better than most that the critical issue here is not political retribution, it is justice — primarily because punishing government officials who commit crimes is one instance in which deterrence may actually work.
Years after Richard Nixon escaped justice for the crimes he commissioned as president, he famously told the interviewer David Frost, “When the president does it that means that it is not illegal.” Nixon might have reconsidered that view if he had been held accountable — if, instead of giving him a full pardon, his friend and successor Gerald Ford had allowed Nixon to spend, say, 18 months in the Butner Federal Correctional Complex.
A strong case can be made that if Nixon had been imprisoned, it would be extremely unlikely that 30 years later Dick Cheney would have opted to exchange his seat as the head of Halliburton, where he was free to rape and pillage the world with impunity, for the vice presidency, where his power would have been constrained by the U.S. Constitution.
If letting Nixon go free spawned insurgent oligarchs like Dick Cheney and George Bush, who can say what sort of despots will be unleashed 30 years hence by letting Cheney and Bush escape justice now.
Jonathan Turley recommends this alternative to the “hands off” policy for a prospective Obama presidency toward the criminal activities of the Bush regime: “‘We will prosecute any criminal conduct that we find in any administration, including our own.’ Now,” Turley says, “that doesnâ€™t seem so hard. There is no sophistication or finesse needed. One need only to commit to carry out the rule of law.”