Obama recognizes: whether to prosecute is not his decision

An "independent" Justice Department means that decisions about whether to indict are shielded from political considerations of the White House.

Published April 21, 2009 5:28PM (EDT)

(updated below)

One of the central principles of our justice system is supposed to be that specific decisions about Justice Department prosecutions are to be made independent of all political considerations, including the White House's political agenda or the President's political interests.  Numerous recent scandals have arisen from this principle -- the October, 1973 refusal of Nixon Attorney General Eliot Richardson to follow Nixon's orders to fire Watergate Special Prosecutor Archibald Cox and Nixon's subsequent demand that Richardson resign as part of Nixon's Saturday Night Massacre; the repeated demands from the Right that Attorney General Janet Reno act "independently" by appointing Independent Prosecutors to criminally investigate every last one of the Clinton White House's alleged improprieties; and the numerous instances of Alberto Gonzales' Justice Department collaborating with the White House and using political -- rather than legal -- considerations to make decisions about prosecutions.

This is the principle that has made it so strange, and increasingly disturbing, that the power to decide whether Bush officials should be prosecuted was being vested in Barack Obama. Whether to commence criminal investigations and prosecutions of specific acts of alleged criminality is not Obama's decision to make.  It is the duty of the Justice Department, and ultimately the Attorney General, to make those decisions based strictly on legal considerations, and independent of the political interests of the White House.  Whether or not Obama favors prosecutions is really irrelevant, and one could almost reasonably argue that the increasingly aggressive pressure he and his aides, such as Rahm Emanuel, have been exerting to impede prosecutions was becoming improper.  Given the magnitude of these questions, I think it's unreasonable to argue that the President should refrain entirely from opining on such questions, but the line of propriety can easily be crossed and -- especially with the recent comments of Emanuel and Robert Gibbs all but decreeing that there would be no prosecutions -- that line was starting to be broached.

DOJ lawyers tend to safeguard their apolitical independence rather vigilantly -- at least the honest ones do -- and there has to be some growing resistance inside the DOJ to the idea that decisions about whether to prosecute will be dictated to them by political officials in the White House, including the President.  Clearly, Obama today -- in the face of rapidly rising pressure to investigate -- seems to have re-considered that approach.  Obama just plainly contradicted what Rahm Emanuel said over the weekend and what Robert Gibbs said yesterday when he announced this afternoon -- appropriately so -- that the decision of whether to prosecute Bush lawyers who authorized torture ("those who formulated those legal decisions") was one for the Attorney General, and not Obama, to make, and that Obama did not want to "prejudge" that question.  Futher recognizing the growing inevitability of some type of investigation (there are many more inflammatory torture disclosures that will come), Obama expressed his preference for some type of "independent" investigation over a purely Congressional hearing:

One can only speculate about whether this is all just a means of shielding Obama from the fall-out of whatever decision is ultimately made, but regardless of what motivates it, Obama said the right thing here.  It is simply not his decision to make, and he should not be trying to pressure the DOJ one way or the other.  

Obama's statement today is being somewhat melodramatically presented by establishment journalists as his "leaving the door open" to prosecutions, but the real point is that this was never his door to shut in the first place.  Presidents have the authority to set general policy for the Justice Department (which would include general investigative and prosecutorial priorities), but not to dictate individual decisions about prosecutions.  In fact, for a White House to try to influence those decisions is a form of corruption.  This principle was understood by Democrats so clearly when Bush was President that Senate Democrats were actually demanding legislation to limit the ability of the White House and DOJ to communicate with one another about pending investigations.  As Atrios put it earlier today:

I'm so old I can remember those ancient days when it was accepted that the Justice Department was independent from the president, that the Attorney General and others should make decisions absent political considerations, and that when it seemed as if independence might not be possible, the AG should recuse him/herself and appoint a special prosecutor.

I'm not the first person to bring this up recently, but the point is that it shouldn't be Obama's and Rahm Emmanuel's decision whether to prosecute anybody. If there's suspicion and clear evidence that people broke laws, an inquiry should begin. If the AG feels undue pressure from President Change and his gang then he should appoint a special prosecutor to try to wall off the investigation from political pressure.

It's been rather amazing to watch some Obama supporters over the past several weeks argue that prosecutions should not be pursued because doing so would undermine Obama's political interests or jeopardize his legislative goals.  Those aren't good -- or even legitimate -- reasons to refrain from prosecutions.  Whether the DOJ prosecutes in a specific case should be grounded in apolitical legal considerations, not political ones.  That's what "the rule of law" means.  Politically influential people aren't entitled to immunity when they break the law on the ground that immunizing them would make the President politically stronger. 

But we so fetishize the omnipotence of the President as the central and absolute power that we look to him to make all decisions for us ("will you prosecute, Mr. President?").  We barely recognize any longer that there are other political officials with independent authority and responsibilites.  And the idea that high political officials should be immunized from the consequences of their lawbreaking -- that political considerations should preclude holding them accountable --  is so ingrained that many people who advocate it barely bother to mask how overtly corrupt that mentality is.  Time's Joe Klein yesterday (emphasis added):

Actually, I will concede one thing to Greenwald: I've been opposed to prosecuting the Bush miscreants--for political reasons, mostly. The President has put an awful lot of important domestic and foreign business on the table and this whole issue of what went on under Bush, and is no longer happening now, is a diversion from getting the important stuff done.

Note how Klein -- who angrily mocked the idea that Lewis Libby should ever spend a day in jail for such "ridiculous" reasons (i.e., being convicted of multiple felony counts of obstruction of justice) -- considers legal accountability for political elites who committed grotesque war crimes to be a "diversion from getting the important stuff done."  So many Democrats spent so many years attacking Alberto Gonzales for "politicizing" decisions about prosecutions, and now many of those same people are explicitly demanding that the Obama DOJ refrain from prosecuting Bush criminals -- to use Klein's phrase -- "for political reasons."   Jane Hamsher illustrates the sheer lawlessness of Klein's mindset here, and it is quite representative of the strident opposition among our political elites to legal accountability for their fellow Washington insiders.

There may be good arguments, for strategic reasons, to opt for a full-scale independent investigation to enable all facts to be publicly disclosed before embarking on prosecutions (Harper's Scott Horton and Elizabeth de la Vega both make strong cases for that approach).  There may even be legitimate reasons why an independent prosecutor, with all the evidence assembled, might ultimately decide, as a matter of standard prosecutorial discretion, that prosecutions should not be pursued (that's what Patrick Fitzgerald did when he refrained from indicting Karl Rove in the Libby matter).  But the fact that Obama himself opposes prosecutions, or that accountability for these crimes would create political difficulties or "distractions" for the White House, are completely inappropriate reasons for refraining from enforcing the rule of law.  Decisions about prosecutions are meant to be apolitical.  Those decisions are about vindicating equality under the law, not about forging bipartisanship by placating the political party of the criminals and ensuring that our political elites continue, in the name of "harmony," to retain their license to break our laws with impunity.


UPDATE:  Anyone who doubts that there has been a serious sea change in the political climate regarding this topic should watch the White House briefing today by Robert Gibbs:  almost 45 minutes straight of aggressive, surprisingly well-crafted and informed questions from the White House press corps about investigations and prosecutions for Bush crimes.  There's still a very long way to go before any accountability is likely -- the lawbreaking license our political class has claimed will not be dispensed with easily -- but it is clearly headed, however slowly, in the right direction.

By Glenn Greenwald

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