Obama Adviser Cass Sunstein Rejects Prosecution of “Non-Egregious” Bush Crimes

With many Democrats still fuming over the refusal of Democratic leaders like Speaker Nancy Pelosi to allow even impeachment hearings into detailed allegations of crimes by President Bush in office, close Obama adviser (and University of Chicago Law Professor) Cass Sunstein recently rejected the notion of prosecuting Bush officials for crimes such as torture and unlawful surveillance. After Sen. Obama’s unpopular vote on the FISA bill, it has triggered a blogger backlash — raising questions about the commitment of the Democrats to do anything other than taking office and reaping the benefits of power.

The exchange with Sunstein was detailed by The Nation’s Ari Melber. Melber wrote that Sunstein rejected any such prosecution:

Prosecuting government officials risks a “cycle” of criminalizing public service, [Sunstein] argued, and Democrats should avoid replicating retributive efforts like the impeachment of President Clinton — or even the “slight appearance” of it.

Sunstein did add that “egregious crimes should not be ignored,” according to one site, click here. It is entirely unclear what that means since some of us take the views that any crimes committed by the government are egregious. Those non-egregious crimes are precisely what worries many lawyers who were looking for a simple commitment to prosecute crimes committed by the government.

We will have to wait for a further response from Sunstein, but liberal groups are up in arms given his close association with Sen. Obama.

Sunstein and I were on opposite sides on the Clinton impeachment. While I voted for Clinton and came from a well-known democratic family in Chicago, I believe (and still believed) that Clinton was rightfully impeached for lying under oath. One of the objections that I made in an academic writing at the time was that some professors seemed to accept that Clinton did commit perjury but argued that it should not have been prosecuted as an impeachable offense — or a criminal offense. As with the current controversy, many argued that some crimes could be prosecuted while others tolerated or excused. It was the same egregious versus non-egregious distinction. Obviously, it could be argued that perjury is not an impeachable offense — though I strongly disagree with this view. However, many also opposed any criminal prosecution in the Clinton case. At the time, many cited the dangers to the presidency in such cases as raising the appearance of political prosecutions (much like the current rationale with Bush). I view the dangers as far worse when you fail to act in the face of a crime committed by a president, even one who I supported. I feel equally strongly that President Bush should be subject to impeachment based on the commission of the crimes of torture and unlawful surveillance.

The main concern with Sunstein’s reported comment 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.

This was the subject of my countdown discussion this week, click here.

Here’s the problem about “avoiding appearances.” 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 Mukasey has been doing by refusing to answer simple legal questions about waterboarding.

How about this for an alternative? We will prosecute any criminal conduct that we find in any administration, including our own. Now, that doesn’t seem so hard. There is no sophistication or finesse needed. One need only to commit to carry out the rule of law.

The combination of Obama’s vote to retroactively grant immunity for the telecoms and Sunstein’s comments are an obvious cause for alarm. We have had almost eight years of legal relativism by both parties. For a prior column on the danger of relativism in presidents, click here A little moral clarity would be a welcomed change.

For further discussion of the Sunstein statements, click here and here.

102 thoughts on “Obama Adviser Cass Sunstein Rejects Prosecution of “Non-Egregious” Bush Crimes

  1. “Prosecuting government officials risks a “cycle” of criminalizing public service, [Sunstein] argued,…”

    Criminalizing public “service” is exactly the problem. The risk lies in failure to hold criminals to account, no matter what party they belong to.

    Why is Obama so eager to grant himself extrodinary powers as a potential president and (unless he repudiates his advisor’s statment) equally eager to keep misuse of power from proscecution?

  2. This group of Democratic leaders have accomplished the impossible!

    They are making Bush 43 look good. On the same day Pelosi is chiding the President for having to “clean up all of his messes”, Investor’s Business Daily is calling for HER impeachment! You can’t make this stuff up!

    Know what’s even worse? Of late, I’ve found myself agreeing with Sean Hannity, Ann Coulter, (God forgive me) Michelle Malkin, and half the people over at FOX . . . and I’ve voted as a centrist Democrat most of my life!

  3. JT, I’m not sure which version of the article you were commenting on. There is apparently one minor updated qualification.

    “Cass Sunstein, an informal adviser to Barack Obama from the University of Chicago Law School, urged caution in prosecuting criminal conduct from the current administration, while also noting that ‘egregious crimes should not be ignore’.”

  4. JT:
    I do not understand Obama’s reluctance to enforce the law. I agree with Queen Victoria when commenting to Disraeli about the nature of power: ” I do not believe it fair to say that we own that which we cannot defend.” If he hopes to maintain any respect for the law among the populace, he’d be well-advised to enforce it among the political elites, lest he risk what Louis the XV called “le deluge.” Driving some of these career politicians out does not seem to me to be such a bad idea. I do appreciate Sunstein’s largess that “egregious crimes” should not be ignored. John Adams, he’s not!

    Oh and about principle, I think there is an overriding one–you scratch my backside, and I’ll cover yours.

  5. Patty C:

    I am not sure that it does change the tone. As I noted in the blog, I generally do not distinguish between egregious and non-egregious crimes committed by a president. I consider any crimes by the government to be egregious. It seems to me that this is an effort to dampen down demands for action.


    I had this problem with many of my friends in the Clinton period. It seemed to me that folks were trying very hard to excuse an act of perjury by a president based on its subject matter or his opponents.


  6. Patty,

    Where was your quote taken from? I read the articles and they were as JT. had in his post. Did you find a different article? Would you be able to link to it on this site?

  7. I was being a smidge sarcastic, JT.

    I, like you, think he probably meant what he said the first time.

    No one wants to see Bush et al prosecuted more that I.

    My problem with Clinton’s ultimate downfall was that the Republican’s hounded him and Hillary from the time they arrived in Washington, especially during his second term when he could have acoomplished so much more.

    You are right. He lied under oath and for that he deserved to be impeached. It’s a shame that because of a marital indiscretion, things ever got that far.

  8. Jill, from JT’s article- the Ari Melber Nation link, first paragraph:


    “Politicians, legal experts and progressive activists grappled with Republican abuses of power at the third annual netroots convention on Friday, debating how an Obama Administration might restore the rule of law. Cass Sunstein, an informal adviser to Barack Obama from the University of Chicago Law School, 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. (Note: I updated this passage after talking with Professor Sunstein; the earlier version did not include his remarks about not ignoring egregious crimes. Some of the panel videos are available online, though so far not this one, if possible I will post more quotes from the panel when video becomes available.)…”

  9. JT:

    Principles always always cut the deepest when applied against your family and friends. They are no less right however.

  10. I really worry that Democrats count on people believeing we have no where to go but them in the upcoming election. A candidate should be worthy of our vote. Many Democrats have not been and are not now, worthy of our votes. As I said, I’m not certain of a good course of action here. But we have time to think things through. I do know the moment any candidate believes they can act badly and get away with it, they will act badly.

  11. mespo,

    I really agree with that statement. I think this is causing a hugh problem for many people now. It’s similar to the reaction to the religious posts. It’s easier for a lot of people to criticise someone else’s religion but ignore what’s happening in their own.

  12. Jill:

    Agreed. No one wants to believe (or admit) they got snookered. That’s the real power of the con.

  13. Sorry, Patty C, after reading your comments so long, I should have picked that up. Over work and no play is making Jonathan’s a dull (and dim) boy.



  14. O.K. What is going on. The first five stories do not contain posting blizzards from martha h and bartlebee…

    Don’t know what the Democrats are doing but Obama seems steady on in is unity approach, something he has not strayed from despite MSM attempting to paint him left vs. right.

  15. I got into this discussion pretty late, but as far as I am concerned any and all alleged crimes by the Bush Administration should be investigated and if the facts confirm a crime, should be prosecuted to the full extent of the law. Any crime by a President or his/her administration should be investigated. There is always the possibility of the prosecutor using his/her discretion for minor issues, but they should all be investigated fully. This administration is counting on its Republcian friends and the Democrats who don’t want to get their hands dirty exposing the crimes of George W. Bush and of his staff.
    Did Prof. Sunstein give any definition to the term “egregious” crime? Maybe I missed it in the articles, but does he consider torture egregious enough to investigate? How about violating FISA and spying without a warrant? How about vote fraud in Florida and Ohio in 2000 and 2004? How about lying to the American public about WMD’s and the al-Qaeda link to Saddam? I consider all of these way beyond egregious. I hope Obama isn’t relying on Prof. Sunstein’s advice if the above “crimes” are not egregious enough to be investigated and prosecuted.

  16. Pizza night at the Virginia test-barbie this week!

    Along with grilled veggies and Italian Sausage, I recommend trying the prosciutto, gorgonzola, fig jam and fresh rosemary pizza paired with a Pinot Noir.

  17. After reading “The Family” I have been wondering if the election is being fixed around the candidates. It would be a lot cleaner than messing around with voting machines again. Clinton, McCain and Obama all have ties to these people. The Family wins any way you look at it. I know that sounds paranoid but after the past 8 years I don’t think you can be overly paranoid(:!


  18. Jill,
    That is a scary article about that Coe character. One thing to keep in mind. Any story from Andrea Mitchell I always am suspicious of. Any religious leader who compares the devotion and blind faith that followers of HItler had to what followers of Christ should have is worrisome. Blind religous faith is not a good thing. Especially when it comes this close to the powers of government. I would be more worried about the Diebold connection to the voting machines in Ohio that this Coe guy.

  19. rafflaw,

    This is not a trick question, I really don’t know… Why are you suspicious of Andrea Mitchell? I was just reading “The Family” and began wondering if there was a connection between all these candidates and The Family aka The Christian Mafia (they call themselves that). This entire election cycle has seemed way “off” to me in so many ways. So I went to the google and found this and a couple other articles on this connection. I should have said I don’t know anything about the writer of this article, because I don’t. I may have made a bad choice with that link and I apologize,

    In Ohio we’ve gone to paper ballots, thank god, because there was plenty of cheating going on here!

    I’d be interested to hear your and other’s thoughts about this book. The author was interviewed by Terry Gross and it was quite something to hear.


  20. Jill,
    I have sensed a conservative lean, to put it mildly, from Andrea Mitchell’s reporting over these past few years. Your link was the first I had heard of this Coe character. She was constantly giving the Repblicans the benefit of the doubt and not affording that same benefit to the Dems. I think I had heard a little about the prayer breakfast participants in the past, but not to this detail. It was both enlightening and a little scary. I haven’t read the book and to be honest, I would have a hard time believing that George W. Bush and some of the hard line Republican Senators would be in partnership with any Democrat. There has been such vicious partisan attacks by the Rovian Republicans these past 7 or 8 years that both sides getting together would be tough for me to believe. But, if there is money involved for the “family” members who are involved, then I guess that I shouldn’t be surprised if a connection was uncovered.
    I hope the paper ballots help in Ohio. We have touch screens with paper verification in my area in Illinois.

  21. rafflaw,

    This is the very interesting thing about The Family. It isn’t concerned with left or right, even someone who is Jewish or Muslim may belong. They are concerned primarily with “key men” (occasionally women) whom they believe, “are chosen by God to direct the affairs of the nation”. They do not want a democracy. They want the KINGDOM (emphasis mine) of God on earth. I will try to find the link to the Terry Gross interview. This isn’t a conspiracy, The author has the paper trail to back up what he’s writing. These people cultivate the powerful anytime, anywhere, they claim for Jesus.


  22. “The main concern with Sunstein’s reported comment 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.”


    I was reading Gibbon this evening and came across a passage that sprang from the page into the blog. Commenting on appearances versus reality in government and true motivations of our masters, the great historian remarked in chapter 3 of “Decline and Fall….”:

    “To resume, in a few words, the system of the Imperial government, as it was instituted by Augustus, and maintained by those princes who understood their own interest and that of the people, it may be defined an absolute monarchy disguised by the forms of a commonwealth. The masters of the Roman world surrounded their throne with darkness, concealed their irresistible strength, and humbly professed themselves the accountable ministers of the senate, whose supreme decrees they dictated and obeyed.” …. “Augustus was sensible that mankind is governed by names; nor was he deceived in his expectation, that the senate and people would submit to slavery, provided they were respectfully assured that they still enjoyed their ancient freedom.”

    Sounds remarkably prescient today and certainly in keeping with the “strategy.” Those old timers knew a tyrant when they saw one.

  23. I dare say, I see Bush mirroring Saddam.

    Psychologically speaking, you always ‘hate’ the worst in yourself.

  24. rafflaw,

    I’ll be the first to agree with you that the MSM pretty much all seem like fake interviewers. What you may not be aware of is that Obama does indeed tightly control media access to himself. This worries me. He’s not one to sit down and do a long interview containing open questions with follow up for anyone, military, civilian or MSM. I don’t put any stock in these trip interviews no matter who is asking questions or who the candidate is. You can be certain that there will be almost no real reporting on them. These trips are heavily managed, always.


  25. Bush and Cheney deserve to be prosecuted for every offense they have comitted. Their record is abysmal. However, I’m currently slogging through Nixonland and it is painful, given that I lived through those times as an activist. Let’s get the guy elected first and then hold his feet to the fire if need be. Until then the paranoic in me does not want Obama to make prosecution of these criminals (innocent til proven guilty we must grant) because I don’t want him to give them any more reason to take him out. I’m sorry for the sentiment, but coming of age in the 60’s has left some doubt in me as to the legitimacy of the whole political process. Since I believe violence is not justified, or effective, my choice is to try to maintain belief in our system, but sometimes late at night, the traumatic memories
    of those times return to me.

  26. MichaeSpindell:

    I ‘m with you. Give me some prosecutorial authority, and it’s not a stretch to say that I ‘d be surveilling them round the clock for jaywalking.

  27. Mespo,
    Given their views on the legitimacy of government spying,
    God only knows what we’d find on relevant tapes that would cook their goose. While torture can be prosecuted for the act itself, imagine prosecuting the case utilizing all of its’ sado-masochistic undertones to enlighten the jury as to motive. I’ve always been a believer in the petard hoist.

  28. The trouble with the supposed avoidance of “criminalizing public service” crap is that politicians are not all that substantially engaged in public service. They are in it for the power. Public service is what the public employees provide. I am not at all worried about criminalizing improper use of public power.

  29. There is something I do not understand about this whole discussion. As various Constitutional scholars have pointed out, the authors of the Constitution intentionally left the criteria for impeachment vague because 1. it was impossible for them to enumerate all impeachable acts and 2. they didn’t want to make impeachable offenses simply ‘criminal’ offenses because they were more worried about the security of the country and the preservation of democracy. Article II, Section 4, states the grounds for impeachment as: “treason, bribery, or other high crimes and misdemeanors.” To me, far and away the most impeachable action of bush was lying to the American people continuously for roughly 18 months solid (by himself, cheney, rice, rumsfeld and others) in order to justify an invasion and occupation of a country that had not attacked us and that in no way posed no imminent threat to us. This is certainly a treasonous act. The second tier of offenses should include the 1000+ ‘signing statements’ – each of which is unconstitutional. But Turley doesn’t even mention these. Next I would rank the ‘illegal search and seizure’ violations of the secret and illegal surveillance. Torture, while heinous, I would rank next because it is less of a threat to the security of the country. How can Turley possibly not consider lying and fraud to take the country into a deadly, costly, and uncertain invasion of a foreign country to be an impeachable offense?

  30. “While I voted for Clinton and came from a well-known democratic family in Chicago, I believe (and still believed) that Clinton was rightfully impeached for lying under oath. I feel equally strongly that President Bush should be subject to impeachment based on the commission of the crimes of torture and unlawful surveillance.”


    Clinton’s lie had nothing to do with the Presidency per se. IMHO the impeachment process the Founders laid out was intended for egregious political crimes, not simply for the president committing a crime that could be committed by any citizen.

    As for Bush, while I agree those are crimes, the far bigger crime was invading Iraq under false pretenses. While it’s not as much a violation of statute as the crimes you list (although wars of aggression are war crimes, and presumably that’s “statute” if the US is a signatory to the treaties defining those crimes), it’s a graver crime IMHO and precisely the kind that the Founders envisioned using impeachment for.

  31. liberal:

    “IMHO the impeachment process the Founders laid out was intended for egregious political crimes, not simply for the president committing a crime that could be committed by any citizen.”

    So a President found guilty of child molestation occurring off the grounds of the White House should face no impeachment. Huh? Where in Art. II Sec. 4 of the Constitution do you read “political crimes” as a prerequisite of “Treason, Bribery, or other high Crimes and Misdemeanors?”

  32. Liberal is right, impeachment isn’t appropriate for Clinton’s ‘lying under oath’. Perjury might be impeachable but it’s not perjury unless the lie is relevant to the charge, which his was not.

    Whereas, Bush has committed many high crimes, having completely ignored his oath to protect and defend the Constitution of this Great Nation. Our fourth amendment and the Congress’ power to decide whether we declare war are two huge examples; outing a covert operative is another. NEED I CONTINUE?????

  33. Having taken 2 classes from Sunstein, I think I see where he’s coming from. But respectfully, Professor S., you’re wrong.

    Sunstein wants to preserve a civility and cooperativeness in government that simply doesn’t exist any more. He’s right that it would be nice to have less obstructionism in Congress — and it would be a disaster if a political career came with a high risk of prosecution after the fact. Not only would good people avoid high office, but also nobody would dare let go of power. The problem is, we are already basically there. The Republicans are not going to play nice no matter how civil the Democrats are. In the majority they bully, break the rules, and impeach; in the minority they set new records for filibustering.

    The new reality for politics may very well be the overuse of impeachments and retrospective prosecution. We’ll have to adapt to it. Maybe some day we can find a way back from it. But unilateral disarmament is not the answer.

  34. Sunstein is a lawyer? Where’d he get his degree? Costco?

    Look, Sunstein: there is public service, and there is crime. They are not the same thing. It’s apples and oranges. Public service simply cannot be “criminalized.” A person holding public office who uses that office to commit crimes is not in public service but in self service.

    Y’know, this really is a very simple concept. This is how it works: You pay public servants, and you prosecute criminals. See how easy it is once you get the hang of it?

    It’s hard to believe you’re a law professor at the University of Chicago. Did you cut ninth-grade Civics class a lot?

  35. What we have now is a “ratchet” of criminal public service. Nixon resigns in discrace, Ford pardons him. Reagan’s people do Iran-Contra, G.H.W. Bush pardons them. Clinton lies about his private life, he’s impeached. Now Bush commits so many crimes the indictment would be as long as the Starr report, and we’re being advised to pretend it all never happened.

    A “cycle” would be an improvement. Republicans apparently cannot be deterred except by the threat of punishment. As any baseball fan knows, if their guy starts pitching inside, our guy starts pitching inside. Ultimately, it helps keep the peace.

    I can’t believe Sunstein does not know this. What’s his angle?

  36. Stuart Eugene Thiel:

    “I can’t believe Sunstein does not know this. What’s his angle?”


    Likely it’s intellectual and political cowardice coupled with an obsessive desire to avoid conflict at all costs. Not exactly true to our ideals is it?

  37. The basic principle here which leads to ambiguity is that politicians should not be punished for policy decisions, or in other words policy should not be criminalized. Nixon was involved in ordinary criminal activity (burglary) so there was no ambiguity in that case – breaking into the Democratic party headquarters could not be camouflaged as protecting the citizens of the US.

    Few people in the US (although I am one of them) think that a US president should be punished for invading another country and causing hundreds of thousands of deaths, for no good reason. Most people are dissatified with the Iraq war because we have not “won”, not because it is immoral. Likewise torture and unconstitutional surveillance may not be regarded as criminal if their purpose was to protect the US.

    There may be a similarity between the Bush and Nixon administrations in that it could be the cover-up, not the crime, to which they are vulnerable. If the records could be obtained, it may be hard for the Bush administration to avoid prosecution and conviction for perjury. The records would probably reveal ordinary corruption as well.

  38. Skeptonomist,
    I couldn’t disagree more with you when you say most people are dissatisfied with the Iraq war because we have not won. That may be part of it, but I believe the a large proportion of, if now a majority, believe that it was wrong to go to Iraq to begin with. Your comment torture and spying may not be illegal if you were doing them to protect the county is jsut plain wrong. The FISA statute was plain and clear that it was the exclusive means for a President to comply with in order to spy on Americans. And torture has been illegal in the U.S. and Internationally for decades and we have prosecuted our own people and foreign military for torture in the past. To put the proviso that if I was trying to protect the country is a standard that is not found in the law and is so vague and broad that just about any action could be covered by it.

  39. Something is only considered a public service when the service performed was not a crime. This is the error of Sustein et al’s reasoning. You can not criminalize public service.

    The other issue of legal relativism is such reasoning becomes the bases for ill advised law making. That is, such reasoning allows for the attempt to legislate responsibility in total. Just as in the reasoning as to why our system requires one to prove guilt as oppose to proving innocense because you can not prove innocense one can not legislate responsibility. We can only define what is a crime and hold ourselves to such.

    Define what you are not, and you can be all that remains. Define what you are, and you can only be that as defined.

  40. […] Obama Adviser Cass Sunstein Rejects Prosecution of “Non-Egregious” Bush Crimes (by Jonathan Turley) With many Democrats still fuming over the refusal of Democratic leaders like Speaker Nancy Pelosi to allow even impeachment hearings into detailed allegations of crimes by President Bush in office, close Obama adviser (and University of Chicago Law Professor) Cass Sunstein recently rejected the notion of prosecuting Bush officials for crimes such as torture and unlawful surveillance… The exchange with Sunstein was detailed by The Nation’s Ari Melber. Melber wrote that Sunstein rejected any such prosecution: “Prosecuting government officials risks a ‘cycle’ of criminalizing public service, [Sunstein] argued, and Democrats should avoid replicating retributive efforts like the impeachment of President Clinton — or even the ‘slight appearance’ of it.” […]

  41. Can’t agree at all with the author on spending any taxpayer money to prosecute Clinton for lying while trying to keep his privacy. Clinton did a stupid act, but what he does with his private life, is just that. How much money did we spend on his blowjob? Get a life. Now we are using the fallout from that deplorable impeachment to justify not going after a President who deserves impeachment and who’s crimes are negatively affecting the rights and sanctity of U.S. citizens, and getting innocent people all around the world killed. An administration of criminality gets to walk away scott free.

    Wrong justification, but I agree with the need to go after lawbreaking in government. This free, stay out of jail card process has to stop. Rewarding powerful lobbys with what they want is counter to the American ideal. Obama did not make any sense with his Yes vote to the FISA bill. So much for his slogan of “Change”. That talk hasn’t been walked when it counts. He won’t take money from anyone associated with Lobbying, yet he handed the Telecom lobbiests exactly what they wanted, so why would Telecoms or other entities under the spotlight changing to a more honest running of the business if there is benefit not to do so, or no punishment for being caught?

  42. […] Obama Adviser Cass Sunstein Rejects Prosecution of “Non-Egregious” Bush Crimes (by Jonathan Turley) With many Democrats still fuming over the refusal of Democratic leaders like Speaker Nancy Pelosi to allow even impeachment hearings into detailed allegations of crimes by President Bush in office, close Obama adviser (and University of Chicago Law Professor) Cass Sunstein recently rejected the notion of prosecuting Bush officials for crimes such as torture and unlawful surveillance… The exchange with Sunstein was detailed by The Nation’s Ari Melber. Melber wrote that Sunstein rejected any such prosecution: “Prosecuting government officials risks a ‘cycle’ of criminalizing public service, [Sunstein] argued, and Democrats should avoid replicating retributive efforts like the impeachment of President Clinton — or even the ‘slight appearance’ of it.” […]

  43. Rich Key,
    I agree with you that the Obama vote on FISA was a mistake. I also agree that the telcoms are getting away with serious crimes as is Bush. We can only hope thet Obama steps up to the plate after the election. We must keep the pressure up on Obama and his advisors to hold Bush and his regime accountable for their criminal actions. Large and Small.

  44. Suppose we buy into the “egregious” criterion. What does Sunstein consider “egregious”, and how can there be an investigation to determine whether crimes are egregious?

    What about: Appointing toadies as U.S. attorneys to prosecute Democratic politicians selectively, while sabotaging or slow-walking investigations into corruption by leading Republicans? Framing Democratic politicians, prosecuting them, and putting them in jail? Ignoring Congressional subpoenas for information on these subjects? “Losing” millions of relevant emails, or illegally forwarding them through other email addresses?

    What about: Implementing a system of kidnapping people off the street and transporting them to be tortured for months or years, sometimes to death?

    What about: Illegally establishing a police state?

    And, of course: Manufacturing bogus evidence to attack another country, causing hundreds of thousands of deaths and millions displaced from their homes?

  45. Pithy discussion with excellent points back and forth, on a disagreeable topic. I personally would have wanted Obama to take a different position on FISA and other things, but the guy is doing what he perceives is needed for him to get elected. To me his election takes priority over his positions because it is apparent that McCain would continue to gut the Constitution and make our country: One Nation Under Corporate Governance.

    I am not a big fan of fascism, but that is where the current conservative philosophy inexorably leads. This cycle of conservative dominance needs to be broken or we all will lose. If one reads their founding philospohers (yes I’m aware the sentiments pre-date them) Bill Rusher and Bill Buckley, the conclusion is that they anathematize democracy and are comfortable with the rule of plutocracy. Not being a plutocrat myself, this disturbs me and engenders fear for my progeny.

    What many on the left and in the center miss is that these people may have the manners of gentlemen, but they have the souls of criminals. They play games of ego and power, while we on the left argue over issues. I don’t want to see their tactics followed in an ascent to power, that path corrupts. I appreciate the intelligence with which Obama has crafted his campaign and understand the need for him to do it this way. Sunstein, hopefully is just following the campaign line.

  46. I’d just like to point out the whole “non-egregious” addition is just another example of my favorite logical fallacy.

    No Non-egregious Scotsman puts cream on their oats.

  47. Michael,

    I can’t agree with you. Obama voted for extralegal powers to apply to cheneybush and if he’s president, himself. I do not see anything in Obama’s past that would lead me to believe he will get elected and disavow those powers. Quite the opposite.

    I said this before but I think the left wants their own strongman to come in and make everything right again. People are really desperate. That makes us vunerable to loss of critical thought and real evaluation of events. Many facists are on and have been on, the left. The idea of a strongman is deep in our conscience. We think that is only for other countries or people on the right, but we think that at our peril.

    Glad you’re back!


  48. Spindell…I too am beginning the return of that bad memory of Nixonland….and what has come out of the first 100 pages is when we elect a psychopath (AKA Bush/Cheney) it does deep damage to a society for a generation or longer.

    That said Prof Turley you are correct, any crime committed by a government official/entity is an egregious crime by definition since by its inherent nature is two crimes simultaneously: the underlying offense and then the abuse of power where the office/entity’s power was used in the commission of the crime. Often there is a third level of the crime where there is the cover up better defined as obstruction of justice.

    The problem is the entire logic is upside down. First any and all government officials are sworn in to uphold and protect the Constitution and the Laws of the Land, and if there is a commission or allegation of a crime the duty and requirement to investigate.

    The succeeding investigation should lead to its eventual conclusion—meaning the determination whether a crime or crimes were committed and then whether there is a cause beyond a reasonable doubt to prosecute.

    Obama and his advisor, Sustein has already short circuited that process—meaning that they are then sustaining or establishing precedence for future Administrations that they can commit crimes and not be prosecuted for them.

    If however it is stated that if investigations will ensue if there is cause and prosecutions will be made if there is evidence than future Administrations know they could be held criminally liable.

    That all said Prof Turley it is my projected opinion that this is merely the first step on the road. I am of opinion that I think the International Community will hold Obama’s (or McCain’s)and the US’s feet to the fire by opening a tribunal of war crimes against the Bush Administration. Eventually if the US does not hold their own leader accountable the Hague will and the US will be faced with a serious nationalistic question of whether to give up their former executive officers or not. My personal guess is that Bush and Cheney families will have relocated to Dubai to seek asylum. This will be a high price for America to pay if we don’t take care of our own law.

  49. […] Obama Adviser Cass Sunstein Rejects Prosecution of “Non-Egregious” Bush Crimes (by Jonathan Turley) With many Democrats still fuming over the refusal of Democratic leaders like Speaker Nancy Pelosi to allow even impeachment hearings into detailed allegations of crimes by President Bush in office, close Obama adviser (and University of Chicago Law Professor) Cass Sunstein recently rejected the notion of prosecuting Bush officials for crimes such as torture and unlawful surveillance… The exchange with Sunstein was detailed by The Nation’s Ari Melber. Melber wrote that Sunstein rejected any such prosecution: “Prosecuting government officials risks a ‘cycle’ of criminalizing public service, [Sunstein] argued, and Democrats should avoid replicating retributive efforts like the impeachment of President Clinton — or even the ‘slight appearance’ of it.” […]

  50. It is the perpetrators of crime who criminalize. We bring them to justice to deter further criminalization.

  51. The Constitution Proceeds My Being – My Response to Cass R. Sunstein

    Jerry Voorhis, whom Nixon defeated in our local congressional race, on review of the call for Nixon’s impeachment said that Watergate was just “the tip of the iceberg” and that Nixon should have been impeached when he announced that he would ignore the so-called “Mansfield Amendment.” To wit:

    ” Unless Congress has the statesmanship, the courage and the respect for its prerogatives to impeach Richard Nixon, the consequences for the future of constitutional government, as well as honest government, will be bleak indeed. It will furthermore be almost as serious a mistake for the Congress to impeach Mr. Nixon for technical reasons only as for it not to impeach him at all.”

    And further that the most important basis for impeachment was the:

    “usurpation by Mr. Nixon of legislative powers that belong exclusively to the Congress under the Constitution.”

    My report as it comes from Nixon’s old congressional district and as God is my Fuhrer believe that: We are in a state of constitutional crisis. For Rumsfeld to lobby on intelligence reform and now have military acts off the books means that the “linchpin” of the constitution, the taxing and spending powers of Congress, of raising standing armies, has now been violated. My Congressman David Dreier now has no way to effect neither my Liberty nor my Republic. You do not appear to be interested either Mr Sunstein.

    Our constitution was specifically designed to avoid this combination of the President’s office with the Defense Department; that the King shall not have his own standing army to send willy-nilly to wherever he thinks he has the pleasure too. The appointment of a sitting General to an executive position – the CIA – only consolidates this dangerous process that is under play.

    The basis for this power grab, the claim of inherent power of the president, has already been settled under Nixon’s attempt during the so-called Vietnam War. As Nixon’s assistant attorney general Rehnquist made the argument of inherent power to wiretap the White Panther Party without a warrant – during a war. This power, which was claimed to be held, under the President’s Oath of Office, was rejected by the Supreme Court in a unanimous decision against suspending all or parts of the Constitution. Because this was Rehnquist’s argument as assistant attorney general he had to recuse himself from his very first decision after being appointed to the Supreme Court and rightly so. And guess what? America was still standing in the morning after this and Nixon’s resignation avoiding his impeachment. This is in spite of a average of 6 bombings a day, 86 killed policemen, and a record 33,604 thousand injuries between the fall of 1969 and spring of 1970 by our own citizens protesting over the illegal invasion of Cambodia. Not to mention the response and statistics to the the duration of the Vietnam war.

    That is why I can never believe McCain and the neo-cons or Alitos et al., claims to absolute presidential power as Commander-and-Chief even during war. Was not Nixon’s claim during a war? And did not the Supreme Court rule absolutely not? It is the same Oath of Office is it not? Unfortunately, old Rehnquist(and now McCain), conveniently ignored this when he reviewed his history of the power of the President during war. He brings up WWI and WWII in this review. But, for some reason, he completely skips how his “inherent” argument on presidential power was slapped down by the Supreme Court during the undeclared, illegal and immoral so-called Vietnam War. This is bald face intellectual dishonesty, if not outright historical revisionism, that completely belies the important decision on the necessity of War – not to mention the young lives thrown willy-nilly into harm’s way.

    This missing history is more reason why I completely reject Bushes, and now McCain’s, medieval thesis that constitutional government is too weak to survive in a difficult world and that we should defer to a sole sovereign power since 9/11. It is a FALSE claim of sovereignty! In all we have become weaker since taking on this post 9/11 repeat of Rehnquist’s “in terrorem” position. (I would like to read his memo on the subject of presidential power and the invasion of Cambodia but alas that memo has disappeared, nowhere to be found on the Internet. The persuasive force of his ideas no longer count I can only suppose).

    I only fear that if our new Supreme Court Justices Roberts and Alito accept and reverse on appeal the 2-1 Fourth Circuit ruling in Al-Marri v. Wright and take what was a tragedy we survived and turn a repeated claim of 17th century inherent power into a farce that destroys the sheet anchor of our Republic – our precious Constitution – along with the Bill of Rights. I would rather throw Bush, McCain and you overboard Mr. Cass R. Sunstein than our Fundamental Constitutional Rights. You are so far out of your league on the history do Obama a favor and bow out.

    Where is your statesmanship, your honor and your respect? Your bleak report is a FARCE!

    I am Citizen Michael John Keenan. Live Free or Die!

    P.S. Rehnquists memo is now posted at the DOD.

  52. Equating Clinton’s perjury with Bush’s crimes is ludicrous. The impeachment fiasco was an obvious waste of time. Two points though: first at least Clinton was having sex with a consenting female and not a male congressional aide or an undercover, male cop in a washroom; and secondly, if I was married to Hillary long enough even an unattractive sow like Lewinsky might do. He probably just closed his eyes and fantasized about the sheep back in Arkansas.

  53. I am heartbroken and sympathetic to the Palestinian’s plight except when men, like you, from any place say things like say things like

    “secondly, if I was married to Hillary long enough even an unattractive sow like Lewinsky might do. He probably just closed his eyes and fantasized about the sheep back in Arkansas.”

    You are a pig, zakimar – sight unseen. I can smell you from here.

    By American standards, both Hillary and Monica are attractive women.
    They are not skinny models. Most healthy, curvaceous women aren’t.

    To each his own.

  54. Unfortunately, you assumed I was talking about Hillary’s physical appearance so what you say and what you think are two different things. She is a 60 year old woman and I don’t have the same grandmother issues that you obviously do. I was referring to the woman that said vote for me or McCain because Obama isn’t qualified and the racist that said good white Americans don’t vote for Obama. And for Lewinsky, any person that would fornicate with an adulterous, deceitful, old MARRIED man and keep a semen stained dress (to sniff it, lick it, save money on dry cleaning – take your pick), is dirtier than a sow – I was just being polite. So neither of those two “curvaceous women” is “healthy”.

    And you obviously have the soul of a Clinton if you can forget about the suffering of millions of people because of something that any one person says – no matter how much you disagree. Please keep you false sympathy to yourself; it’s not doing anyone any good.

  55. I assumed you are a chauvinist and correctly so, apparently.

    Bill Clinton wasn’t running.

    BTW, she said ‘hardworking’ Americans not ‘white’.

    I haven’t forgotten about the Palestinian plight, my wish is to
    forget about you.

  56. On your five points:

    I am not a chauvinist and if my daughters grew up to think and talk like Hillary, I would beg God for forgiveness for any part in raising them that way. Any woman who would stay with and support a man who humiliated her and her daughter like Bill did has no self-respect and certainly doesn’t deserve any respect either.

    I never said Bill was running, but when you’re married to a redneck and have him campaigning for you (comparing Obama to Jackson) and don’t refute what is said, you’re a racist too. First black president indeed.

    And her direct quote was: “Senator Obama’s support among working, hard-working Americans, white Americans, is weakening again”. She really is a dirty, racist, redneck, maybe worse than her husband.

    And let’s not forget about her hoping that Obama would be assassinated before the convention.

    Sorry, but the forgetting about me I can’t help you with. I understand there are drugs for that however.

    And thank you for remembering the Palestinian plight; it may make an orphan amputee miss his parents or his limbs a little less.

  57. I beg to differ you are about as chauvinist as they come.

    You hate Americans, Jews, and women. I’ll bet American Jewish women really make your skin crawl.

    One hypothetical question for you, how would you handle it if one of your daughters chose to have ‘premarital’ sex with someone she loved?
    OR what if, totally against her will, or against your wife’s will, one of them was brutally raped?

    BTW, the exact quote(s) etc with which you follow(ed) up – was in response to an AP article.

    Despite you have decided, a lot of us filter our own ‘News’.

  58. I don’t know where you get that I hate women. I LOVE women, especially my wife and baby girls. Secondly, I DON’T hate Jews. Jews and Arabs are the same race and are cousins both share one father – Abraham. What follows is a previous message that I have to keep repeating to people that can’t distinguish between Jews and Zionists (many of whom are CHRISTIANS).

    Please do not libel me further. I have not made ANY “hateful” comments about the “Jewish people”. I have pointed out the hateful things SOME Jews do and I make no apologies for hating Zionists. Zionism is Apartheid which is Racism and should be hated by all decent people. No person is better than any other and should be given special rights in this life or the next solely based on their race.

    Unfortunately, some races, religions and groups believe in hate and Zionists belong to this group. I am not surprised that many Americans and the US Government sees nothing wrong with Zionism because many Americans have no regard for their own indigenous people (that’s Injins to those that don’t know what indigenous is), didn’t oppose Apartheid in South Africa and until a few months ago had Nelson Mandela on their terrorist list for decades.

    As for the question of my daughters’ partners, I will do my best to raise her properly and since they are intelligent, beautiful, sweet and kind, I trust them to make the right decisions. As for any rapists, I know that it would be wrong and have me end up in jail AND Hell, but I would kill (preferably slowly and inflicting the most pain possible) that person(s) after having cut of their privates (which is ok under Islamic law). My daughters are my life and I would do and risk anything for them, even eternal Hell.

    Finally, I think most people saw that Hillary AND Bill were closet racists and that’s why Black support of her dropped so quickly. Remember she was beating Obama among blacks before some of her and her husband’s comments.

  59. About the Clinton comparison: Clinton was impeached; but his “crime” was not found to be of the nature to be removed from office. Personally, I would agree with the pass given to Clinton. There is a difference between commiting “perjury” (it was entrappment) about a totally personal and embarrassing incident and fabricating evidence that leads to war, torture and secret eavesdropping. Let Bush be impeached and then the Senate and House can decide if his crimes merit being removed from office. At least we will know the standard. As it is there is double standard: one for Democrats, one for Republicans.

  60. I agree with what you say, but I think your argument is more complex than it need be.

    The Republicans are bullies and the Democrats are geeks. Both are cowards, but bullies need someone to stand up to them in order for their cowardice to become apparent and no one has yet stood up to them.

    Even one of the most popular men in the country, Barak Obama is afraid (see his responses to FISA and AIPAC).

  61. We agree on one thing – no person is better than any other…

    Stereotypes and generalizations make conversation so interesting,
    don’t you agree?

    I note you do not deny ‘hate’ for Americans.

    Do you live in this country? Were you educated here?

    What’s your story?

  62. I find that racists hurt their victims but also their children and themselves, so I try to only hate those that are beyond help. I obviously hate Zionists and other racists, bigots, pedophiles religious zealots and most of all hypocrites. I used to love America. I spent about one month per year there on business and vacations. I was in the US for both the Oklahoma attack and World Trade Center attack. On both occasions I remember saying to my wife and friends, “I hope Muslims didn’t have anything to do with that”. I remember reading stories about Muslims being attacked after the Oklahoma bombing and how one Muslim woman miscarried because of the attack on her. Sadly I was relieved when it was a Christian that was responsible. Unfortunately, on 11-SEP-01, when I saw the reports after the attack I realized that this would be used as an excuse to kill thousands, maybe hundreds of thousands of Muslims, just as the death of 2280 soldiers and 68 civilians that died at Pearl Harbor somehow justified the nuclear bombing deaths of over 200 000 civilians not to mentions the thousands of miscarried, stillborn and deformed children born afterward. When I saw the attacks on American Muslims, their homes, businesses and mosques afterward, I promised that I would never come back to the States. Because if anyone ever attacked my wife, I would find and kill them and if it was my child, they’d be tortured until they begged me to kill them. That being said, I haven’t been back and after Bush attacked Iraq, I have boycotted ALL US products and will never spend one more cent on American products until there is a Palestine or until the US stops giving Israel billions in money and weapons every year while ignoring the suffering of the Palestinians.

    Not wanting to hold the US responsible for the actions of the Government, I was going to move my family to the US in 2005 if Bush wasn’t re-elected. But when I saw how close it was and that Bush got four more years, I realized that at least half of the voting population supports the murder of innocent people as by late 2004 almost everyone knew that Iraq had nothing to with 9/11. And when I saw that show 30 Days on TV where a Caucasian, American, Christian man went to a city in Michigan and pretended to be a Muslim for 30 days and I saw how he was treated in 2008, I realized that too many Americans are bigots and I gave up the idea of setting up my business in the US and buying a home there.

    So to answer your question, I still love about 50% of the American people. Now I’m helping the Canadian economy and will be buying my third property next month. Ironically the only bigotry I’ve seen here was from (you guessed it) Zionists Jews in Canada.

  63. Thanks for sharing that.

    I have been trying to post on the DOJ/Goodling subject of tonight’s
    KO appearance which is ue any oment- without success.

    I want to talk more about your experiences later!

  64. If it makes you feel any better, I often don’t have great first impressions of people I meet, but at LEAST half of them, and their families, become those whom I learn to admire in ‘unimaginable’ ways.

    I don’t look at religion or race or gender.

    I look at life – survival.

  65. I do love the universities in the US and who knows, by the time my babies go to university, the US may have changed enough for me to move my family there.

  66. If the Bush crime family is NOT prosecuted, quite simply it will be time for a revolution. As in armed insurrection.

  67. A portion of the legal basis of this discussion appears to revolve around the concept of “scope of employment” and when a government official can be held to legal account for violating this principle. If every action, legal or not is covered by the color of the official acting within the scope of his or her employment then any criminal activity is legitimized if it is engaged in while employed by the government and acting however loosely within the scope of those duties.

  68. Bush is the worst president in American history. Bush facilitated the 9/11 attacks. Subsequently, Bush lied to Congress and the American people relative to the reasons for invading Iraq. Bush purposefully misled Congress and the American people. Then, Bush murdered more than 4,000 United States service members. And Bush wounded more than 30,000 United States service members. In torturing prisoners of war, Bush patently violated the Geneva Convention. Bush unlawfully wiretapped United States citizens. In using “signing statements” to challenge hundreds of laws passed by Congress, Bush violated the Constitution. Bush has ignored global warming. Bush is guilty of criminal negligence relative to the response to Hurricane Katrina. Bush disobeys our democratic values and Constitution. Bush is a disgrace to the United States.

    Bush should be prosecuted for war crimes.

    Submitted by Andrew Yu-Jen Wang
    B.S., Summa Cum Laude, 1996
    Messiah College, Grantham, PA

  69. Sunstein: “Prosecuting government officials risks a “cycle” of criminalizing public service, [Sunstein] argued, and Democrats should avoid replicating retributive efforts like the impeachment of President Clinton — or even the “slight appearance” of it.”Sunstein did add that “egregious crimes should not be ignored….”


    I think Cass Sunstein must even now be canceling his subscription to the Washington Post following the guest commentary written by a Air Force special ops interrogator with the pseudonym “Matthew Alexander.” According to Alexander, who promoted more successful alternatives to torture in 2006, “[t]orture and abuse cost American lives. I learned in Iraq that the No. 1 reason foreign fighters flocked there to fight were the abuses carried out at Abu Ghraib and Guantanamo. Our policy of torture was directly and swiftly recruiting fighters for al-Qaeda in Iraq. The large majority of suicide bombings in Iraq are still carried out by these foreigners. They are also involved in most of the attacks on U.S. and coalition forces in Iraq. It’s no exaggeration to say that at least half of our losses and casualties in that country have come at the hands of foreigners who joined the fray because of our program of detainee abuse. The number of U.S. soldiers who have died because of our torture policy will never be definitively known, but it is fair to say that it is close to the number of lives lost on Sept. 11, 2001. How anyone can say that torture keeps Americans safe is beyond me — unless you don’t count American soldiers as Americans.”

    I could not have written a better indictment for Bybee, Yoo, Bush et als. than this one. If Cass Sunstein demands compelling evidence of egregiousness before doing the right thing let him begin here.

  70. Here’s another one! From the Electronic Frontier Foundation today:

    “San Francisco – On Tuesday, December 2, at 10 a.m., the Electronic Frontier Foundation (EFF) will challenge the constitutionality of a federal law aimed at granting immunity to telecommunications companies participating in illegal domestic surveillance.

    At Tuesday’s hearing, EFF will argue that the flawed FISA Amendments Act (FAA) improperly attempts to take away Americans’ claims arising out of the First and Fourth Amendments, violates the federal government’s separation of powers as established in the Constitution, and robs innocent telecom customers of their rights without due process of law. Signed by President Bush earlier this year, the FAA allows for the dismissal of the lawsuits over the telecoms’ participation in the warrantless surveillance program if the government secretly certifies to the court that the surveillance did not occur, was legal, or was authorized by the president. Attorney General Michael Mukasey filed that classified certification with the court in September and is demanding that the cases be dismissed.

    EFF is representing the plaintiffs in Hepting v. AT&T, a class action lawsuit brought on behalf of millions of AT&T customers whose private domestic communications and communications records were illegally handed over to the National Security Agency. EFF has been appointed co-coordinating counsel along with the American Civil Liberties Union (ACLU) for all 46 outstanding lawsuits concerning the government’s warrantless surveillance program.”

  71. […] the same Cass Sunstein rumored to be on Obama’s short list for SCOTUS, and who doesn’t think it’s a good idea to prosecute the Bush administration for their criminal behavior. Jonathan Turley on July 21, 2008: […]

  72. The agonizing dilemma we constantly have to confront is that those people who gravitate toward the centers of power in any society are precisely the people to whom we should never delegate power. I’m a senior who has gone through life pondering this problem and have yet to come up with a workable solution to what seems to be an eternal curse.

  73. The Apocalypse for Dummies….

    What can you do besides shake your head and give a rueful laugh at the irony of a high end mole in a Karl Marx suit appointing so many ‘Czars’? What can you do except stare in bug-eyed wonder at the overwhelming number of members of The Tribe who take…

  74. A Harvard College classmate of Cass Sunstein, whom he knew personally very well at Harvard at their Currier House dormitory, where they often ate dinner together, is a political refugee from the US in Belgium, a victim of death threats by friends of George Bush and US federal judges named in court filings as guilty of fraud and extortion and other crimes.

    There are legal cases in process in Belgium, regarding the US threats of murder against Cass Sunstein’s classmate, and how the US judges are even ordering the victim’s websites blocked from Google in order to help US agents murder Sunstein’s classmate in Belgium.

    Loyal to all corruption of the US government and Bush’s friends, Cass Sunstein is refusing to answer questions from journalists about the case, and refusing to respond to any communications from his Harvard College classmate either.

    Details here – with links to other articles, see especially, ‘Two EU Writers Under Threat of Murder’:


  75. I’d be inclined to acknowledge with you on this. Which is not something I typically do! I enjoy reading a post that will make people think. Also, thanks for allowing me to speak my mind!

  76. Pretty part of content. I just stumbled upon your web site and in accession capital to claim that I acquire actually enjoyed account your weblog posts. Any way I will be subscribing to your augment and even I achievement you get entry to constantly quickly.

Comments are closed.