Post-partisan harmony vs. the rule of law

A clear consensus is emerging: Obama shouldn't jeopardize all the important things he has to do by investigating crimes committed by Bush officials.

Published November 13, 2008 12:41PM (EST)

(Updated below - Update II - Update III - Update IV - Update V)

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.

But our political establishment venerates "centrism" and "bi-partisanship" as the highest religious concepts.  Those terms are, in reality, nothing more than vehicles to insulate government officials and the political establishment generally from any accountability.  Their only real meaning is that cooperation within the political establishment is paramount, regardless of political principles and the rule of law.  Hence, investigations and especially prosecutions are scorned as terribly divisive and partisan, even when they involve crimes; good "non-partisans" and "centrists" eschew such unpleasantries, by definition.  

In his 1776 revolutionary pamphlet, Common Sense, Thomas Paine famously declared that "so far as we approve of monarchy, the law is King."  But the Robert Litts and Cass Sunsteins and David Broders have radically re-written that principle so that, now, "trans-partisan harmony is King," which means, in turn, that the President -- whose crimes should no longer be prosecuted due to fear of sowing "divisiveness" -- resides above the rule of law, and thus possesses one of the defining traits of a King.  

As political scientists have documented, one hallmark of tin-pot tyrannies is the belief that political leaders should be liberated from the constraints of law as long as that helps to achieve good results.  That's the defining mentality of those who crave benevolent tyrants  -- our Leaders have so many Good and Important Things to do for us that they can't be distracted and weighed down by abstract luxuries like upholding the rule of law.  That's now clearly the prevailing consensus of our political establishment.

UPDATE: One other point worth making:  the very same Robert Litt urging that Bush officials not be investigated or prosecuted spent much of his career as a federal prosecutor, aggressively prosecuting and imprisoning all sorts of ordinary Americans.  He was one of the most vocal advocates for prohibiting government-proof encryption technology in order to preserve the Government's ability to access people's computer communications as part of criminal investigations, and was part of a Clinton DOJ that very aggressively pursued even garden-variety drug cases and used mandatory sentencing guidelines to ensure harsher sentences for common criminals.

In other words, Litt isn't someone who is an advocate in general for exempting people from the rule of law.  Instead, the lawbreaking license he defends is for high government officials only (and, presumably, for the large corporate-defendants and extremely rich individuals who can afford to retain Litt's current firm, Arnold & Porter, to defend them).  What he's doing is expressing the core premise of America's two-tiered system of justice:  we imprison more of our population than any other country on the planet and move increasingly towards ever harsher and more merciless criminal justice rules for them, while exempting our highest political leaders entirely from consequences for lawbreaking.

* * * * *

I'll be on Warren Olney's To the Point today at 2:10 pm EST to discuss various matters relating to investigations of Bush crimes.  Local listings and live audio stream can be found here.

UPDATE II: Among the client matters included on Litt's Arnold & Porter page is this:

Represented several employees of intelligence agencies in connection with criminal investigations. None has been charged.

If the investigations and prosecutions which Litt is arguing against on policy grounds would include his own paying clients, then that's something The Washington Post should have mentioned (and it's something Litt should have disclosed to the reporter), as it would mean that he's not advocating as the objective analyst which The Post depicts him as being, but instead, is just shilling for his own clients.  If he represents CIA or NSA or White House officials involved in the surveillance and intelligence programs in question, that obviously motivates his insistence that investigations not be pursued.

I've emailed Litt to ask him if that's the case, though more generally, it's amazing how often that works in Washington:  those who pose as "advocates" of a political view seem so frequently to have undisclosed financial and/or personal stakes in the position they're defending.

UPDATE III: Litt replies via email:

I do not comment on client matters for the record. If you are willing to take an off the record answer as guidance I am willing to give you some.

And although I suspect that you are not going to agree with me on this, let me say that I enjoy your stuff.

Though I wasn't asking about specific clients, but rather generally whether Litt has clients who would benefit from what he is advocating, the response is not unreasonable.  Lawyers typically refuse instinctively to answer questions about their clients.  I'll follow-up with him and if there is anything to add after I do so that he's willing to put on the record, I will.

UPDATE IV: I debated exactly this issue earlier today on To the Point, along with two other guests -- former Reagan and Bush 41 OLC head and Pepperdine Law Professor Douglas Kmiec and former Reagan DOJ official Lee Casey -- both of whom argued against criminal prosecutions, and New York Times Magazine reporter Jonathan Mahler (who wrote this excellent article this weekend entitled "After the Imperial Presidency" and who took no position on whether Bush officials should be prosecuted).

It was a fairly lively and constructive debate, highlighting most of the key issues, and can be heard here (the debate begins at roughly 7:15 and my participation begins at roughly 13:00).  Independently, I had several lengthy exchanges on these issues today via email with the aforementioned-Robert Litt, and will publish those if he consents.

UPDATE V: An amazing number of people -- including Bush opponents -- are now arguing (in comments and elsewhere) that all the Good and Important things that Barack Obama is about to do for all of us -- all the Big Problems he's about to fix -- outweigh the need to subject high political officials to the rule of law.  Apparently, by this reasoning, unless we agree that our highest political leaders are free to break the law with impunity, then we'll lose out.  I address this "reasoning" here.

I would also recommend that anyone who has this attitude -- "oh, we have too many Big Problems now to bother with this whole "rule of law' nonsense" -- read this post from conservative Daniel Larison as well as this one from conservative Conor Friedersdorf.  Both of them understand -- much better than many Democrats, apparently -- the intolerable consequences from allowing high political leaders to break the law because we decide there is some material benefit to be had by giving them that license.

By Glenn Greenwald

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