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.
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.
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!
Jill
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.
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.
Oh, you mean those trifles?
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?
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.
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?
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.
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.
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.
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?
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?
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?
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.