Political Harmony or the Rule of Law?

Glenn Greenwald
Saturday July 19, 2008 09:14 EDT
Political harmony v. the rule of law: an easy choice for the political establishment

Read the whole article at Salon.com

Former Congressman Harold Ford appeared at the Netroots Nation conference yesterday, argued that Bush officials shouldn't be held accountable for crimes they committed while in office, and then insisted that Democrats shouldn't be expected to defend civil liberties and Constitutional rights because -- as one observer summarized Ford's point -- "the Constitution doesn't poll very well."

...Regarding Ford's argument, casual_observer says in comments:

I think this is it, in crystallized form. "Accountability" equals loss of majority for one's party. Majority -- power -- is all that matters. 'Law' comes in a distant second, if it is considered at all.

...(Greenwald) I'd say that Ford's view is as much a shared, Bipartisan Article of Faith among our political class as any other single idea. Here's what The New Yorker's Jane Mayer reported last week during her Washington Post chat:
Albany New York: QUESTIONER...am very interested in your take on why there's been... little effective political opposition to any of this Administration's initiatives. Is it a question of limited public awareness or interest, or a more political calculation that one shouldn't appear to be soft on terrorism?

Jane Mayer: Since you're in New York, let me tell you about a conversation I had with one of your senators, Chuck Schumer. When I asked him why, given his safe seat, and ostensible concern for civil liberties, he didn't speak out more against the Bush Administration's detention and interrogation programs, he said in essence that voters don't care about these issues. So, he said, he wasn't going to talk about them.

Writing from the Netroots Nation conference, The Nation's Ari Melber detailed what he calls "Bipartisan Attacks on the Rule of Law," ...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.

As I documented last week, the idea that the Rule of Law is only for common people, but not for our political leaders and Washington elite, is pervasive among the political and pundit class, in both parties. While common Americans should be imprisoned in record numbers when they break the law, the worst that should happen to the political elite when they commit crimes is that they should be voted out of office. That's the dominant mentality governing how our political system works.

For all the talk about how radical and lawless the Bush administration has been, this widely-shared view that our political leaders should be immune from consequences for lawbreaking is the administration's defining belief. After the 2004 election, President Bush held a news conference and was asked about the failures in Iraq, and this is what he said:

QUESTION: Why hasn't anyone been held accountable, either through firings or demotions, for what some people see as mistakes or misjudgments?

THE PRESIDENT: Well, we had an accountability moment, and that's called the 2004 election.

On December 16, 2005 -- the day after the NYT revealed that Bush was breaking the law in spying on Americans without warrants -- Digby noted that exchange and wrote:
He, like Nixon, believes that the president has only one "accountability moment" while he is president. His re-election. Beyond that, he has been given a blank check. And that includes breaking the law since if the president does it, it's not illegal, the president being the executive branch which is not subject to any other branch of government.

But it isn't only the Bush administration that believes that. That was why Gerald Ford was widely praised for pardoning Nixon (Ford said "he acted to restore harmony and move on"). That's the same argument used by Bush 41 to pardon Iran-contra lawbreakers, and it's what the Washington Establishment said when -- liberal and conservative pundits alike -- they defended those pardons of Casper Weinberger and the other Iran-contra lawbreakers:

Another favored Republican was Reagan's Defense Secretary Caspar Weinberger, who like Shultz earned his insider spurs during the Nixon administration. Weinberger's false Iran-contra testimony was even more blatant than Shultz's, causing Walsh to indict Weinberger for perjury in 1992.

The Washington elites rallied to Weinberger's defense. In the salons of Georgetown, there was palpable relief in December 1992 when President Bush pardoned Weinberger and five other Iran-contra defendants, effectively ending the Iran-contra investigation.

...And this is exactly what we are now hearing from the likes of Harold Ford, Chuck Schumer, Cass Sunstein, David Broder, Tim Rutten, and on and on and on -- criminal prosecutions for government lawbreakers are far too disruptive and politically untenable and unfair. The only fair reaction is just to vote them out of office or wait until they leave on their own accord. All of the Beltway platitudes are trotted out -- we can't look backwards, or "criminalize policy disputes," or get caught up in unpleasant battles over prosecutions when we have too many other important problems too solve -- all in order to argue that, no matter what happens, our glorious political leaders should never be held accountable in a court of law, like everyone else is, when they break the law.

NOTE: Why would we expect political officials to do anything other than break the law if we continuously tell them -- as we've been doing -- that they are exempt from consequences? And how can Bush -- or Nixon -- be criticized for conceiving of the Presidency as being above the law when that's how our political establishment, including many Democrats, explicitly conceive of it as well?

In today's The New York Times, Charlie Savage reports that right-wing activists have already begun agitating for full-scale pardons for all parties involved in Bush's illegal surveillance and torture programs:

As the administration wrestles with the cascade of petitions, some lawyers and law professors are raising a related question: Will Mr. Bush grant pre-emptive pardons to officials involved in controversial counterterrorism programs?

...Given the widespread consensus in our political class that criminal investigations and prosecutions for the crimes of political leaders are terribly uncouth and disruptive, it seems as though few things are more unnecessary than issuing pardons of this sort. But if Bush does end up issuing full-scale pardons for anyone involved in his illegal torture and surveillance programs, how can the Democratic leadership and pundit class object? They're busy arguing now that the rule of law isn't applicable to high government officials and that we should -- once again -- just overlook and forget about the rampant lawbreaking by our Government.

Full-scale pardons are just the natural extension of this view -- as is future presidential lawbreaking. We can pretend that Bush and Nixon had radical and fringe views of presidential lawbreaking but those views are far more accepted than such pretenses suggest.

UPDATE: About Harold Ford's appearance at Netroots Nation, Ezra Klein says that because the netroots is so much more powerful and influential within the Democratic Party than the DLC is, it's unnecessary for the netroots to battle against the likes of Harold Ford. It's truly baffling how anyone could have watched the Bush-enabling Democrats over the last two years and claim that the DLC mentality is marginalized and the netroots mentality is predominant. If anything, the fading away of the DLC is a function of the fact that its worldview predominates in the Democratic Party..