Post-partisan harmony vs. the rule of law
A Washington Post article today on the need to restore confidence in the Justice Department quotes former high-level Clinton DOJ official Robert Litt urging the new Obama administration to avoid any investigations or prosecutions of Bush lawbreaking:
Obama will have to do a careful balancing act. At a conference in Washington this week, former department criminal division chief Robert S. Litt asked that the new administration avoid fighting old battles that could be perceived as vindictive, such as seeking to prosecute government officials involved in decisions about interrogation and the gathering of domestic intelligence. Human rights groups have called for such investigations, as has House Judiciary Committee Chairman John Conyers Jr. (D-Mich.).
"It would not be beneficial to spend a lot of time calling people up to Congress or in front of grand juries," Litt said. "It would really spend a lot of the bipartisan capital Obama managed to build up."
There is a coherent way to argue against investigations and prosecutions of actions by Bush officials: one could argue that they weren't illegal. Obviously, if one believes that, then that is conclusive on the question.
But that's not what Litt is arguing here. Instead, his belief is that Bush officials should be protected from DOJ proceedings even if they committed crimes. And his reason for that is as petty and vapid as it is corrupt: namely, it is more important to have post-partisan harmony in our political class than it is to hold Presidents and other high officials accountable when they break the law.
How is this anything other than a full-scale exemption issued to political leaders to break our laws? There's nothing unique about circumstances now. New Presidents are always going to have Very Important Things to do. And investigations and prosecutions of past administration officials are always going to be politically divisive. By definition, investigations of past criminality are going to be "distractions" from the Important Work that political leaders must attend to. They're always going to be what Litt perversely refers to as "old battles." To argue that new administrations should refrain from investigating crimes that were committed by past administrations due to the need to avoid partisan division is to announce that the rule of law does not apply to our highest political leaders. It's just as simple as that.
This brazen defense of lawlessness articulated by Litt is now as close to a unanimous, bipartisan consensus across the political establishment as it gets. This is what has been advocated by everyone from David Broder to top Obama adviser Cass Sunstein. There are few things more difficult than finding someone of prominence in the establishment that disagrees with this view. Our political class has decided that high political officials -- particularly the President and those closest to him -- are literally exempt from the rule of law.
In today's New York Times, Charlie Savage identifies the self-serving motive leading new Presidents to continuously uphold this lawbreaking license for their predecessors:
Because every president eventually leaves office, incoming chief executives have an incentive to quash investigations into their predecessor’s tenure. Mr. Bush used executive privilege for the first time in 2001, to block a subpoena by Congressional Republicans investigating the Clinton administration.
In other words, by letting criminal bygones be bygones within the Executive branch (Ford's pardon of Nixon, the Iran-contra crimes, and now Bush lawbreaking), Presidents maintain their gentleman's agreement that they are free to commit crimes in office -- break our laws -- with total impunity.
Nobody believes that "policy differences" should be criminalized. That's a strawman -- an obfuscating term -- erected by those who are defending presidential lawbreaking license without having the intellectual honesty to admit they're doing that. This is about having laws in place that clearly and explicitly say that "X shall be a felony," only to then watch as the President does X, and thereafter have our political establishment announce that it's more important to avoid partisan anger than it is to hold high political officials accountable under the rule of law.
Here, X = "eavesdropping on Americans with no warrants," and "torturing detainees," and "destroying evidence relating to investigations," and "interfering in criminal prosecutions for political purposes." Those are crimes -- felonies -- in every sense of the word, not policy differences. And they are all actions in which Bush officials have clearly engaged.
