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.
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?????
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.”
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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?”
“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.”
Huh?
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.
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?
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.
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.
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.
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.
CURSE YOU RAFFLAW: I’m still trying to find Terry Gross’ interview with Jeff Sharlet on “The Family”. I hate her site archive search. While looking for that I did come upon the other interview I wanted to find about Obama and the press. The reporter does not seem hostile to Obama. It’s from the link below.
http://www.npr.org/templates/story/story.php?storyId=89687774
Jill
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.
Jill
Jill,
Here is today’s example of why I do not like Andrea Mitchell. http://www.crooksandliars.com/2008/07/21/andrea-mitchell-obama-gave-fake-interviews/. Mitchell is complaining that the people talking to Obama are not journalists so they are “fake”. I wouldn’t be surprised if the people asking Obama these fake questions, do a better job than Mitchell.
I dare say, I see Bush mirroring Saddam.
Psychologically speaking, you always ‘hate’ the worst in yourself.
Speaking of Roman tyrants, I compare Bush to Nero. While Washington burned….., you know the rest.
“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.”
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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.
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.
Jill
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.
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.
Jill
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.
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(:!
http://deepbackground.msnbc.msn.com/archive/2008/04/03/857959.aspx