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.
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.
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.
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.
JT,
Maybe you should go take a vacation in a certain hotel up by Boulder this winter.
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.
Best,
JT
Jill:
Agreed. No one wants to believe (or admit) they got snookered. That’s the real power of the con.
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.
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.
JT:
Principles always always cut the deepest when applied against your family and friends. They are no less right however.
Jill, from JT’s article- the Ari Melber Nation link, first paragraph:
http://www.thenation.com/blogs/notion/337598/netroots_summit_grapples_with_bipartisan_attacks_on_rule_of_law
“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.)…”
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.
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?
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.
Mespo:
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.
JT
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.
Anytime. It really changes the whole tone, doesn’t it?
Thanks Patty C that is a important qualification which I will add.
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’.”
Shit, I can’t type my own name!
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!
“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?