Holder Reportedly Considering Special Prosecutor — But Serious Questions Remain

holderericNewsweek is reporting that Attorney General Eric Holder is leaning toward the appointment of a special prosecutor on the issue of torture. Much, however, was not stated and there remains a question of whether Holder will appoint a special prosecutor with the full authority to pursue any and all crimes related to the torture policy. There are rumors that, if an investigation occurs, it may be sharply curtailed.

Notably, these stories do not mention the unlawful surveillance programs, including recent accounts of previously undisclosed secret programs.

The most worrisome statement came from spokesman Matt Miller who said that “[a]s the attorney general has made clear, it would be unfair to prosecute any official who acted in good faith based on legal guidance from the Justice Department.” That dovetails with rumors that Holder is going to announce an investigation and then gut it but saying that no one will be prosecuted for following the legal advice of the Justice Department, even if it called for the commission of war crimes. It is a position that directly contradicts our position in the prosecution of war criminals during World War II where “following orders” was rejected as a defense.

Under Holder’s approach, all a president must do is appoint lawyers who will endorse war crimes — and thereby prevent any prosecutions for the crimes. Holder cannot take the high ground by appointing a special prosecution who is barred from pursuing any crime supported by the evidence. Obviously, any crime would still have to pass through a grand jury, a trial court, and a trial jury. Holder needs to appoint a prosecutor who will be allowed to investigate unfettered and unmolested in the pursuit of justice.

For the full story, click here.

56 thoughts on “Holder Reportedly Considering Special Prosecutor — But Serious Questions Remain”

  1. Mespo,

    Prosecutorial discretion is by no means absolute. The office of the Attorney General cannot exercise a (discretionary) power greater than the power of the document (i.e. the Constitution) to which it owes its existence.

    “we have never suggested that the President, or any other official, has an immunity that extends beyond the scope of any action taken in an official capacity.” Clinton v. Jones?

    And what would John Marshall say?

    “[An Attorney General??] has no more right to decline the exercise of [power] which is given, than to usurp that which is not given. The one or the other would be treason to the Constitution???” ( Cohens v. Virginia, 6 Wheat, 264, 404)

    After all Mespo, under Article IV, we New Yorkers are guaranteed a republican form of government; aren’t we?

  2. I realize that I have come to this discussion late, I apologize. I have to admit that I was excited to see the news items about the possible Holder decision to investigate. Now that Cheney’s secret CIA program has hit the fan, Holder has more political cover to name a prosecutor. My only concern is how broad the mandate will be. Investigating only the CIA agents who overstepped the “illegal” legal memos is unacceptable and would be akin to a whitewash. I am hopeful that Holder will do the right thing, but I am not holding my breath.

  3. jonathan,

    love you on olbermann and rachel maddow, among others.

    isn’t it time to take to the streets. how about a million man march, for holder to hire a real special prosecutor, to go where the evidence takes him ,not limited by his administration? i’m serious.
    i went to washington with the aclu on habeus corpus a couple of years ago. barney frank (my congressman didn’t giver us a sniff), ted kennedy’s office was excellent, and kerry, ho hum. the point is we had a about 3-5,000 from around the country and got no respect.
    let the aclu take the lead or some other organization. let’s line up the buses, and go from all over the country to change this. let’s figure out a way to get the “mainstream media” to cover this with some respect and honesty. let’s get comments not from the pundits, but from the sneators and congrees people. let’s get them on the record.

    just a thought, when congress comes back from break, lets raise some peaceful hell.


    ps. if you watched moyers friday, we need to do the same for health care, or more bandaids, no single payer, no govt option.

    come on lets organize – let’s get their attention, let’s expose the links betw lobbyists, former members of congress, and the corporate world, every time we can make a connection.

  4. Jill 1, July 13, 2009 at 9:08 pm


    There are four main food groups. They have an overlord. His name is Junk Food. That’s all you need to know. 🙂

    While I agree and do not pay homage to the Dark Over Lords Offerings too often. Does Ice Cream get special dispensation? As it is a Dairy product with all sorts of inert goods. Even homemade has a certain amount of bad stuff in it. But it is still good. I have been on the Banana Split craze by Blue Bell. Still 1/2 gallon and can usually purchase it for 3 for 10. I am gaining an affection for the Triple Chocolate coated Almond Fudge. But one that had my attention was Grooms Cake,(Groom’s Cake Ice Cream is a luscious chocolate ice cream with chocolate cake pieces and chocolate coated strawberry hearts, surrounded by swirls of strawberry sauce and chocolate icing.) Sorry it was gone in about an hour. Yes, a half gallon.

  5. BVM:

    “Holder is a coward, traitor and criminal.”


    You are fast becoming one of those ubiquitous idiots I see traipsing around town in shabby attire, thumping Holy Books and, with deep sonorous voices, assuring me that the end is near and I need to repent. I pay little attention to them either except to wonder why the believe unjustified adamance is equal to reasonable persuasion.

  6. Jill:

    “Our law says he and the AG must prosecute war crimes.”


    Not so; our law is not that simple. Prosecutors have wide discretion in the timing, means, and methods used by them to enforce the law. That is why at Nuremberg not every Nazi was prosecuted, and why every mobster is not immediately arrested for crimes committed. When you elect persons to public office they owe you “not [their] industry only, but [their] judgment; and [they] betray, instead of serving you, if[they] sacrifice it to your opinion,” as Edmund Burke famously said.* Prosecutorial discretion is specifically recognized by the Statute of Rome which set the guidelines for the International Criminal Court, and is firmly ensconced in our common law.

    Burke’s words are likewise relevant on the role of our elected officials:

    “Certainly, gentlemen, it ought to be the happiness and glory of a representative to live in the strictest union, the closest correspondence, and the most unreserved communication with his constituents. Their wishes ought to have great weight with him; their opinion, high respect; their business, unremitted attention. It is his duty to sacrifice his repose, his pleasures, his satisfactions, to theirs; and above all, ever, and in all cases, to prefer their interest to his own. But his unbiassed opinion, his mature judgment, his enlightened conscience, he ought not to sacrifice to you, to any man, or to any set of men living.

    My worthy colleague says, his will ought to be subservient to yours. If that be all, the thing is innocent. If government were a matter of will upon any side, yours, without question, ought to be superior. But government and legislation are matters of reason and judgment, and not of inclination; and what sort of reason is that, in which the determination precedes the discussion; in which one set of men deliberate, and another decide; and where those who form the conclusion are perhaps three hundred miles distant from those who hear the arguments?

    To deliver an opinion, is the right of all men; that of constituents is a weighty and respectable opinion, which a representative ought always to rejoice to hear; and which he ought always most seriously to consider. But authoritative instructions; mandates issued, which the member is bound blindly and implicitly to obey, to vote, and to argue for, though contrary to the clearest conviction of his judgment and conscience,–these are things utterly unknown to the laws of this land, and which arise from a fundamental mistake of the whole order and tenor of our constitution.”*

    *Edmund Burke, Speech to the Electors of Bristol
    3 Nov. 1774

  7. mespo,

    The president has access to classified information that we do not have. That does not relieve him of his oath of office, nor does it relieve Holder from his oath. War crimes have clearly been committed. We are a nation of law not a nation run by a “commander on the ground”. Our law says he and the AG must prosecute war crimes. Obama may make avilable his classified information in a court of law, but if our Constitution means anything, he may not act above the law.

  8. Mespo:

    “I agree but, as they say, he is the “commander on the ground,” and he may see things we cannot.”

    Chances are, however, that he sees the opportunity to politicize crime as less hampering to carrying out his agenda.

  9. I thought Professor Turley was the consummate law professor while discussing this issue on Countdown tonight.

  10. “Mespo,

    Why can’t Obama simply stand by the “because it’s the law ma’am” argument?

    Positivism does have some virtues; don’t you know.”


    I agree but, as they say, he is the “commander on the ground,” and he may see things we cannot.

  11. Wexler called for a special prosecutor. Here’s what he said (excerpt):

    “All of the evidence publicly available raises significant questions as to whether the Bush Administration or interrogators violated the law regarding the authorization and use of interrogation techniques. Such techniques such as excessive waterboarding and extreme physical brutality likely violated existing American law and international treaties against torture and led to the death of prisoners held in US custody.

    The Attorney General testified in the Judiciary Committee recently: “If somebody was tortured to death, clearly a crime would have occurred.”

    There are those who fear that an investigation will distract and divide us at a time when we need to focus on very pressing issues such as health care, the economy, and foreign policy. The truth is that we can and must do both. Just as we must repair our health care and economic system, we must also repair of system of justice.

    The appointment of a Special Prosecutor has nothing to do with politics. It has to do with the seriousness of the allegations and the evidence that supports them.

    In fact, by appointing a Special Prosecutor – the Department of Justice separates itself from the investigation, allowing the evidence to be considered totally independent of political or institutional influences.

    I refuse to believe that many Americans, regardless of their political leanings, would want any President, Vice President, or Cabinet official to exist above the law. That is not democracy.

    Should we fail to investigate alleged abuses of power – even at this late date – we concede our rights and set dangerous precedents for the future.

    Enforcement of our laws preserves the balance of power – not simply between branches of government – but between citizens and their elected leaders.”

  12. eniobob,

    You’ll get a laugh from this. It’s old also, a response to David Corn. submitted by Bob Fertik on April 27, 2009 – 10:46am. I don’t know if David Corn has changed his mind since this time:

    “My esteemed friend David Corn analyzes “The Problem with a Special Prosecutor,” …

    Here is “The Problem with David Corn.”

    The groups calling for a Special Prosecutor did not put “exposing wrongdoing” at the top of our to-do list. We put criminal accountability – a criminal investigation followed by prosecution if warranted – at the top of our list. Why?

    First, a crime was committed. In fact they were war crimes. Three prisoners were waterboarded and waterboarding is torture (to everyone but the Busheviks). The Convention Against Torture requires the U.S. to prosecute torture. So calling for a Special Prosecutor is simply complying with our treaty obligations. Peggy Noonan’s alternative – “keep on walking” – is itself illegal, and by failing to prosecute, President Obama could be charged with obstruction of justice…”


  13. Mespo,

    Why can’t Obama simply stand by the “because it’s the law ma’am” argument?

    Positivism does have some virtues; don’t you know.

  14. Vince,

    What are you pointing to specifically in the vid you posted?

  15. I’m enjoying the discussion here this afternoon. Some great minds. Thank you, everyone.

    In my opinion, this is the most pivitoal moment in American history. In the next 24 months, the fate of our nation will be decided. If Bush and Cheney are not investigated and tried for their alleged crimes, then the rule of law will begin to decline as a value in the minds of the public at large. This, I believe, will correspond in a decline of the United States in terms of global influence both politically and economically (which is, sadly, already underway). This decline will only be bolstered by the role our banks and government played in the financial crisis, and the painful burn most Americans are still feeling from the foreclosures and medical bankrupticies.

    Furthermore, and this I find personally most troublesome, the greatness of our Constitution, as presented to students in schools across this country, is being shown, in the most public of ways, to be a lie. If students cannot trust the information their teacher is telling them, what does that say about the future of primary and secondary education in this country? Ugh.

    And how will the Constitution be viewed in another 200 years? Just a philosophical idea some folks had about forming “a more perfect union?” Maybe President Bush was a visionary when he referred to it as, “just a goddamned piece of paper!”

    The Constitution was written to protect the citizenry from the tyranny of the state. Now, seemingly, it is used at will to protect the state at the expense of the citizenry. Ironic.

    Is time for happy hour yet? 🙂

  16. http://www.youtube.com/watch?v=oRp_mVi969I&feature=related

    posting from: http://jonathanturley.org/2009/07/10/reports-shows-additional-undisclosed-surveillance-programs-and-likely-unlawful-conduct-by-bush-administration/#comment-67223

    Patty C 1, July 13, 2009 at 3:13 pm

    Can somebody ’splain this to me. I’m a Democrat and I’d love to indict Bush. Why did JT say that “no Democrat wants to indict him [Bush]“?

    I trust he meant Dems in Congress, because he certainly wasn’t speaking for me on that score, either.

    There are still things coming out that we didn’t know before. If Holder is feeling a need to control it, perhaps he’s doing so, now, before he commences it.

    Too many years of heartbreak have gone by for it to turn out any other way but well. Not if I have anything to say about it.

    I don’t have to have it fast. I want it right.

  17. mespo,

    Obama is fighting the release of the IG report. He claims releasing it will damage “national security”. He also has made it clear may times that he does not want to prosecute (in those exact words). He would like to “look forward” (which as we are still torturing, means, not looking at the past or the present). If fighting the release of information on multiple fronts and continuing to torture are Obama’s way of getting the public on board for prosecutions, his is a unique strategy. This strategy is awfully cruel as it requires others to keep on being harmed until he can “get the public on board”. Even more oddly, much of the public is already on board with the prosecutions.

    “Lawyers from the American Civil Liberties Union have just been notified that there will be a hearing on Wednesday morning in the group’s lawsuit to have a much-anticipated 2004 CIA Inspector General’s report on “enhanced interrogation” publicly released. The report is believed to contain some key information on the nature of what others call the “Bush torture program.” The Obama White House has been fighting to have the report suppressed with CIA Director Leon Panetta telling federal Judge Alvin Hellerstein in June that the release of the report would result in “exceptionally grave damage to the national security.” At present, the Obama administration has stalled the release until August 31, a delay the ACLU is protesting….”


  18. I have been curious about Obama’s true attitude toward prosecuting what even he must see as obvious war crimes perpetrated by the Bush Administration. In an effort to know, I consulted Obama’s book, “The Audacity of Hope.” It doesn’t deal with that issue specifically, but he does talk about dealing with another adversary, and it may be instructive:

    “The struggle against Islamic-based terrorism will be not simply a military campaign but a battle for public opinion in the Islamic world, among our allies & in the US.”

    I have no reason to doubt that this is his approach to handling a particularly difficult international problem with serious implications for his Presidency and the world, if he fails or looks reckelss or jingoistic in the process of winning. If we extrapolate to his equally thorny domestic problem of prosecuting the Bush excesses without appearing partisan or petty, shouldn’t we expect the same approach? Are these damning reports from the Inspectors’ General and DOJ and other government sources merely random or part of a wider effort to enlist public sentiment to indict an Administration that the public elected to office knowing full well many of its flaws in 2004? I do not believe that Obama et courtiers didn’t foresee this issue of past governmental wrongdoing on the horizon, and I do not believe in coincidences.

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