Many have condemned the Bush administration for its contempt for the Constitution. Bush at best paid lip service to the Constitution, and when it inconvenienced him he simply ignored it. And he did this while pursuing a dangerously partisan approach to governing.
And, many on this site have gazed into Bush's abyss such that it has gazed into them.
The hypocrisy exposed, below the fold.
The #1 diary on the Rec List suggests criminal prosecutions for two Republican Senators for holding up Eric Holder's nomination for Attorney General over the issue of torture prosecutions. The two Republican Senators, Arlen Specter (R-Fear of Primary Challenge) and John Cornyn (R-Box Turtles) want to secure from him some kind of (non-legally binding) commitment to not prosecute Bush administration officials who waterboarded terrorism suspects.
Now, let me state the obvious: Those two Senators are engaging in irresponsible, inappropriate, outrageous, reprehensible, and obnoxious behavior. It is bad public policy and worse public morality.
And that has no bearing on their criminal culpability. If we truly believe in the rule of law and reject Bushism, we have to adhere to that principle.
Now, on to the actual 'reasoning' for a prosecution of two U.S. Senators.
Applying the Law to the Facts
It appears to me that Senator Arlen Specter and Senator John Cornyn have directly -- most assuredly indirectly -- offered or promised Eric Holder their support for (and/or ceasing their opposition to) his confirmation to the Office of U.S. Attorney General in an attempt to influence Mr. Holder to refrain from carrying out what would be his official acts and duties as Attorney General(4).
I believe it is the Responsibility of the American Press (and their respective constituencies, and the American citizenry-at-large) to ask directly -- and relentlessly, if necessary -- Senators Specter and Cornyn whether:
1. they are trying to influence or induce Attorney General Designate Holder to do or omit doing an official act/duty should he become Attorney General.
2. they are offering or promising to support, or at least offering or promising to withdraw their opposition to, Mr. Holder's nomination in exchange for his pledging to omit doing what he would otherwise consider an official act/duty as Attorney General.
I believe that these questions have already been answered and warrant an investigation of at least these two Senators, but going ahead and confronting them, "point blank", with these questions will either seal the deal, or have Senators Specter and Cornyn backpeddling as they each "lawyer-up" for the investigations, and perhaps indictments, that I believe are warranted.
The diary indeed goes to great pains to point out the first-year law school exercise of stating the facts, stating the law, and applying the law to the facts.
However, there is a small problem in the diarist's proposal:
The Constitution expressly forbids such a prosecution.
So, what does the diarist do? Incredibly, he chooses to not include The United States Constitution as part of 'the law.'
Instead, we get this stunning and irresponsible statement as an allusion to the Constitution:
An additional note: "immunity" from prosecution (or liability in a civil case) is, indeed, a defense. Such defense may be raised and argued by the defendant in a criminal or civil case. It is up to the Court to decide on a case-by-case basis whether an immunity defense applies. It is not for the prosecutor to say, "Well, the defendant may plead immunity as a defense to an act of malfeasance, so I suppose I'll just not bother bringing the case."
Yes, the diarist states that a prosecutor should bring a case, regardless of whether he believes there's a valid defense or privilege. Indeed, it's the opposite. Prosecutors take a pledge to uphold the Constitution of the United States, not ignore it. Prosecutors abuse their office when they bring prosecutions when they believe the defendant is not legally culpable.
But, you ask, is the Constitution really this clear.
Yes, it is.
Section 6: The Senators and Representatives shall receive a compensation for their services, to be ascertained by law, and paid out of the treasury of the United States. They shall in all cases, except treason, felony and breach of the peace, be privileged from arrest during their attendance at the session of their respective Houses, and in going to and returning from the same; and for any speech or debate in either House, they shall not be questioned in any other place.
To put it another way: Senators may not be prosecuted for anything they say or do in carrying out their duties as members of Congress. This means they cannot be sued or imprisoned for what they say on the floor, how they vote, or why they vote.
Just to point out how crystal clear this is: A member of Congress may not be prosecuted for making a speech because he was bribed to make it!
The essence of such a charge in this context is that the Congressman's conduct was improperly motivated, and, as will appear, that is precisely what the Speech or Debate Clause generally forecloses from executive and judicial inquiry.
U.S. v. Johnson, 383 U.S. 169, 180 (1966)
(Of course, he can be indicted for accepting a bribe, which the staute defines as "something of value" i.e. an asset of some monetary value)
Just to be clear: Cornyn and Specter are seeking policy commitments from the nominee for Attorney General regarding how he would exercise his duties in office. This is what confirmation hearings are about--getting the nominees on the record regarding how they will exercise discretion. It is not bribery unless they personally receive some kind of personal financial benefit. See this definition from the Third Court of Appeals:
The improper benefit may consist of money, property, services, or any other act which advances the official's personal or business interests, including a loan. See United States v. Kemp, 500 F.3d 257 (3d Cir. 2007).
Asking a nominee to make such commitments is commonplace. As Adam B points out, Democrats sought commitments to refrain from prosecutions from Michael Mukasey during his hearings.
Now, that request is meritorious and the Cornyn/Specter is not. But, that is a policy disagreement, and policy agreements can't be criminalized in a democracy.
Hastily added postscript:Republicans are seeking to delegitimize inquiries into the criminal and extra-Constitutional abuses under Bush as 'criminalizing politics.' There is no better way to help their cause than to explicitly call for criminalizing politics. If we can't draw the line, no one will.
Second hastily added postscriptTitle adjusted in light of relative positions on the Rec List.