The past week has been very kind to Texas Gov. Rick Perry
and the Republican Party.
That might sound like an odd statement to make after one of the GOP's 2016 highest-profile White House hopefuls was indicted for abuse of power back in the Lone Star State. Nevertheless, there are three reasons to believe it also happens to be true. First, nothing unites conservatives like the specter of one of their own supposedly under assault. (If you had any doubts on this score, Perry's 2016 rivals Ted Cruz, Chris Christie, and Jeb Bush were among those circling the wagons on his behalf.) Second, the editorial pages of the New York Times, the Los Angeles Times, and the Washington Post—along with many liberal commentators —oined their right-wing counterparts in brushing off the charges against Perry as "ridiculous" and "flimsy" and "politically motivated." As Kevin Drum explained, this is yet more evidence of the "Hack Gap" in which left-leaning pundits can and do break from slavish adherence to their side's party line, something now almost unheard of among the right-wing purveyors of propaganda. (You wouldn't need a large room to hold all those in the GOP's amen corner who refused to regurgitate Republican talking points on the stimulus, Obamacare, the Halbig lawsuit against it, Benghazi, the House lawsuit against the president or almost anything else.)
But it is the Republicans' third windfall this week that promises to be its biggest of all. Whether or not Rick Perry is vindicated in Travis County (as most, though not all, observers expect), the decades-old conservative "criminalization of politics" scandal defense apparently already has been. Voices as diverse as Alan Dershowitz, Ruth Marcus, Eugene Volokh, and Richard Hasen have all labeled Perry's prosecution over a veto threat an example of the "criminalization of politics," a smokescreen the GOP has used since before the Texas governor first crawled out from under a rock on his family's ranch. From Iran-Contra and Plamegate to the Bush administration's prosecutors purge and regime of detainee torture and more, Republicans have long turned to their tried-and-untrue sound bite that conservative criminality is merely an example of their Democratic opponents trying to "criminalize politics" and even conservatism itself.
Follow below the fold for more.
As this month's 40th anniversary of Richard Nixon's resignation reminds us, the idea that liberal elites were criminalizing politics as usual has a long heritage among the conservative faithful. Nixon himself described Watergate as "politics pure and simple." Right-wing radio host and former first director of the Nixon presidential library Hugh Hewitt offered an even more sinister explanation. As the Los Angeles Times explained, Hewitt's version of history described Watergate as "a 'coup' engineered by Nixon enemies."
But it is President George H.W. Bush who is most widely credited for formally introducing the criminalization of politics canard after the Iran-Contra affair.
In justifying his Christmas Day 1992 Iran-Contra pardons, Bush the Elder used the talking point that would come to define the discourse of his son's 21st century water carriers. Much like his son's defenders, Bush 41 sought to recast rampant Republican lawlessness in the Reagan White House as mere political disagreement. As the New York Times reported at the time:
Mr. Bush said today that the Walsh prosecution reflected "a profoundly troubling development in the political and legal climate of our country: the criminalization of policy differences."
He added: "These differences should have been addressed in the political arena without the Damocles sword of criminality hanging over the heads of some of the combatants. The proper target is the President, not his subordinates; the proper forum is the voting booth, not the courtroom."
The Iran-Contra scandal, as you'll recall, almost laid waste to the Reagan presidency
. Desperate to free U.S. hostages held by Iranian proxies in Lebanon, President Reagan provided weapons Tehran badly needed in its long war with Saddam Hussein. In a clumsy and illegal attempt to skirt U.S. law, the proceeds of those sales were then funneled to the Contras fighting the Sandinista government in Nicaragua. And as the New York Times
recalled, Reagan's fiasco started with his emissary to Tehran, Robert McFarlane, bearing a cake and a Bible as gifts from the Gipper himself.
The rest, as they say, is history. After the revelations regarding his trip to Tehran and the Iran-Contra scheme, a disgraced McFarlane attempted suicide. After his initial denials, President Reagan was forced to address the nation on March 4, 1987, and acknowledge he indeed swapped arms for hostages:
A few months ago I told the American people I did not trade arms for hostages. My heart and my best intentions still tell me that's true, but the facts and the evidence tell me it is not. As the Tower board reported, what began as a strategic opening to Iran deteriorated, in its implementation, into trading arms for hostages.
Of course, the sad saga didn't end there. Then Lt. Colonel and now Fox News commentator Oliver North saw his Iran-Contra conviction overturned by an appellate court led by faithful Republican partisan and later Iraq WMD commissioner Laurence Silberman. And in December 1992, outgoing President George H.W. Bush offered his Christmas pardons to Defense Secretary Caspar Weinberger and five other Iran-Contra scandal figures. Among them were Elliot Abrams and John Poindexter, men who eight years later reprised their roles in the administration of George W. Bush. And as it turns out, it was Rep. Dick Cheney
, later Bush 41's secretary of defense and Bush 43's vice president, who authored the sneering 1987 Congressional Iran-Contra Committee minority report:
The bottom line, however, is that the mistakes of the Iran-contra affair were just that - mistakes in judgment, and nothing more. There was no constitutional crisis, no systematic disrespect for 'the rule of law,' no grand conspiracy, and no Administration-wide dishonesty or coverup. In fact, the evidence will not support any of the more hysterical conclusions the committees' report tries to reach.
The "criminalization of politics" arrow has been the first one pulled from the Republican scandal quiver ever since.
Take, for example, the outing of covert CIA operative Valerie Plame by the Bush administration in July 2003. After her husband, Ambassador Joe Wilson, wrote his New York Times op-ed about the yellow cake uranium he didn't find in Niger, Americans learned his wife worked for the CIA on, of all things, WMD proliferation issues. Neither Karl Rove nor others were ever charged with the technical and narrowly defined offense of revealing the identity of Valerie Plame to Robert Novak and others. But Cheney's chief-of-staff, Scooter Libby, was convicted on four counts of perjury and obstruction of justice. But to the shock troops of the conservative movement, Libby the felon was a victim of the criminalization of politics.
The usual cavalcade of apologists for Republican law-breaking swarmed to Libby's defense. With his looming indictment in the fall of 2005, Texas Sen. Kay Bailey Hutchison compared Libby to Martha Stewart, and offered a new variant of the old sound bite, the "perjury technicality." Hutchison said she hoped:
That if there is going to be an indictment that says something happened, that it is an indictment on a crime and not some perjury technicality where they couldn't indict on the crime and so they go to something just to show that their two years of investigation was not a waste of time and taxpayer dollars.
Hutchison, of course, had plenty of company in offering the criminalization of politics canard in the CIA leak case. On October 14, 2005, Bill Kristol
complained, "I am worried about what happens to the administration if Rove is indicted," adding, "I think it's the criminalization of politics that's really gotten totally out of hand." In succeeding days, Kristol's Fox News colleagues
Bill O'Reilly, Sean Hannity, Stuart Varney, and Chris Wallace joined the chorus. On October 24, Kristol took to the pages of the Weekly Standard
to denounce a supposed Democratic strategy of criminalizing conservatives
. When Libby was later convicted, the Wall Street Journal
editorial page called for a pardon. The WSJ cited grave dangers if the Libby verdict were to stand: "Perhaps the worst precedent would be normalizing the criminalization of policy differences."
Fox News regular Tucker Carlson tried to normalize a precedent of his own. While failing to mention that his father, Richard, was on the board of the Scooter Libby Legal Defense Fund, Carlson launched a smear campaign against special prosecutor Patrick Fitzgerald. In November 2005, he insisted Fitzgerald was "accusing Libby—falsely and in public—of undermining this country's security," adding, "Fitzgerald should apologize, though of course he never will." Reversing his past position in support of independent counsels, Carlson in February 2007 blasted "this lunatic Fitzgerald, running around destroying people's lives for no good reason." After Fitzgerald in a May 2007 court filing confirmed Plame's covert status, Carlson called the Bush appointee a liar:
CIA clearly didn't really give a shit about keeping her identity secret if she's going to work at f**king Langley...I call bullshit on that, I don't care what they say.
Former House Majority Leader Tom Delay called bullshit, too, when he was indicted on money laundering charges. Delay, who had previously been reprimanded by the House and saw several of his aides convicted in the Jack Abramoff and other scandals, declared as early as April 2005 of the ethics charges then swirling around him, "Democrats have made clear that their only agenda is the politics of personal destruction and the criminalization of politics." Amazingly, that comment came before Delay's own October 2005 indictment in Texas for money laundering in association with his Texans for a Republican Majority (TRMPAC).
Unsurprisingly, the conservative echo chamber rushed to Delay's defense and amplified his talking point. Days after Delay's indictment by District Attorney Ronnie Earle, Robert Novak penned a column titled Criminalizing Politics, concluding:
Democrats are ecstatic. The criminalization of politics may work, even if the case against DeLay is as threadbare as it looks.
Tom Delay, who on the day of his booking said, "Let people see Christ through me," had a similar message following his conviction in November 2010
This is an abuse of power. It's a miscarriage of justice. I still maintain my innocence. The criminalization of politics undermines our very system.
Two days ago, Delay warned Gov. Perry
about the Travis County prosecutor's office, "This is what they do, this is how they intimidate the elected officials in the state Legislature and the governor and around the state." As for The Hammer, he claimed vindication when a Texas appeals court by a 2-1 vote threw out his money laundering conviction last year. But he's not in the clear yet: In March the Texas Court of Criminal Appeals
announced it would review that decision. Either way, the two Texans will be singing from the same "criminalization of politics" hymnal.
So, too, did congressional Republicans during the imbroglio surrounding the politically motivated firings of U.S attorneys in 2006. In May 2007, Republican California Congressman Dan Lundgren was only too happy to offer the criminalization of politics ruse for Monica Goodling and Alberto Gonzales alike. Just moments after acknowledging Goodling's admission of violating civil service rules and Hatch Act prohibitions ("she did admit that she made mistakes in that regard"), Lundgren returned to the script:
Let me just say this -- and I think it's an important point -- there is too much of a tendency in this environment to try and criminalize political disputes. That's been the effort here. They have found no basis for criminality, so the suggestion is now a vote of no confidence. Who knows what is next?
But it was Rep. Mike Pence
(R-IN) who beat Lundgren to the punch, defending Goodling in the opening moments of her testimony. Pence, who famously compared his March 2007 visit to a Baghdad market to shopping in his home state of Indiana, trotted out the tired GOP talking point for her:
I'm listening very intently. I'm studying this case. And I want to explore this issue of illegal behavior with you. Because it seems to me so much of this—and even something of what we've heard today in this otherwise cordial hearing—is about the criminalization of politics. In a very real sense, it seems to be about the attempted criminalization of things that are vital to our constitutional system of government, namely the taking into consideration of politics in the appointment of political officials within the government.
Later that morning, of course, Monica Goodling admitted her own law-breaking and suggested that Attorney General Gonzales may have obstructed justice
in trying to coach her. Acknowledging, "I believe I crossed the line, but I didn't mean to", when screening out civil service job applicants who happened to be Democrats, Goodling clarified for all
why she sought immunity in the first place:
I do acknowledge that I may have gone too far in asking political questions of applicants for career positions, and I may have taken inappropriate political considerations into account on some occasions, and I regret those mistakes.
As it turned out, the DOJ's own inspector general later rejected
Goodling's criminalization of politics maneuver. But in a July 2010 report for the Department of Justice, Bush appointee Nora Dannehy
effectively brushed the prosecutor purge under the rug, concluding the Bush administration's actions in sacking seven U.S. attorneys were inappropriately political, but not criminal.
The same, however, cannot be said of the President Bush's regime of detainee torture implemented after the devastating attacks of September 11, 2001. As I have documented elsewhere, U.S. and international law not only define waterboarding as torture, but require the legal prosecution of the torturers. As Scott Horton explained after Vice President Cheney (soon followed by President Bush) boasted of their support for waterboarding and other so-called "enhanced interrogation techniques:
Section 2340A of the federal criminal code makes it an offense to torture or to conspire to torture. Violators are subject to jail terms or to death in appropriate cases, as where death results from the application of torture techniques. Prosecutors have argued that a criminal investigation into torture undertaken with the direction of the Bush White House would raise complex legal issues, and proof would be difficult. But what about cases in which an instigator openly and notoriously brags about his role in torture?...
What prosecutor can look away when a perpetrator mocks the law itself and revels in his role in violating it? Such cases cry out for prosecution. Dick Cheney wants to be prosecuted. And prosecutors should give him what he wants.
Alas, it was not to be. Despite the agreement by President Obama, Attorney General Holder, and the Senate Intelligence Committee's John McCain
that waterboarding constitutes torture, Bush, Cheney, and their henchmen never faced justice for authorizing torture and forever staining the honor of the United States.
As a candidate for the presidency, then-Sen. Barack Obama denounced waterboarding as torture: "It's time to stop the political parsing and to close the legal loopholes," Obama said on October 29, 2007. "Waterboarding is torture, and so are other 'enhanced interrogation techniques' like 'head-slapping' and 'extreme temperatures.' It's time to reclaim our values and reaffirm our Constitution." As president, Obama reiterated his belief in the illegality of the Bush administration torture techniques. As recently as his May 2013 speech at the National Defense University, President Obama declared:
In some cases, I believe we compromised our basic values -- by using torture to interrogate our enemies, and detaining individuals in a way that ran counter to the rule of law... We unequivocally banned torture, affirmed our commitment to civilian courts, worked to align our policies with the rule of law, and expanded our consultations with Congress.
Yet even he before he was sworn in, President-elect Obama
made it clear that the Bush torture team need not fear punishment from him:
We need to look forward as opposed to looking backwards.
From a political and economic perspective, Obama's fear of looking into that rearview mirror was understandable. After all, the economy he inherited from President Bush was in free fall. In the last quarter of 2008, GDP collapsed by 8.9 percent; 2.2 million jobs evaporated in the first quarter of 2009 alone. With the economy requiring immediate action and his ambitious agenda for 2009, President Obama was afraid to risk a total political conflagration in Washington by launching the kind of investigation the Bush administration's possible war crimes demanded.
So Obama signaled to Team Bush and its Republicans allies there would be no accountability for their high crimes and misdemeanors. And he did so by reducing war crimes to a talking point conservatives love most: criminalizing politics. During his confirmation hearings on January 16, 2009, Attorney General nominee Eric Holder declared, "Waterboarding is torture." But he also reassured Republicans on the Senate Judiciary Committee about something else:
I think President-elect Obama has said it well. We don't want to criminalize policy differences that might exist between the outgoing administration and the administration that is about to take over. We certainly don't want to do that.
Ultimately, President Barack Obama never prosecuted anyone involved in the design and execution of President Bush's program of detainee torture. While the memos authorizing these potential war crimes have seen the light of day, those who ordered and perpetrated them did not. Attorney General Holder announced, "It would be unfair to prosecute dedicated men and women working to protect America for conduct that was sanctioned in advance by the Justice Department." (Ultimately, none were, as Holder in August 2012 ended his last investigation
into two detainee deaths.) President Obama went further in seemingly backing away from any legal action
against the Bush torture team:
In releasing these memos, it is our intention to assure those who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution...
This is a time for reflection, not retribution. I respect the strong views and emotions that these issues evoke. We have been through a dark and painful chapter in our history. But at a time of great challenges and disturbing disunity, nothing will be gained by spending our time and energy laying blame for the past.
But spending that time and energy was never about "laying blame for the past," but redeeming American values by holding America's leaders to account for failing to uphold those values—and the law. As George Washington University Professor Jonathan Turley
, now a supporter of the House GOP lawsuit against the president, put it in 2010:
Because it would have been politically unpopular to prosecute people for torture, the Obama Administration has allowed officials to downgrade torture from a war crime to a talking point.
And a Republican talking point at that. After all, what Eric Holder called "criminalizing policy differences," is the standard defense Republican miscreants have used for decades to fight off scandals, including Iran-Contra, the Valerie Plame affair, illicit domestic surveillance by the NSA and the Bush administration's prosecutors' purge. And when the Obama administration in April 2009 released those four torture memos authored by Bush attorneys Jay Bybee, Stephen Bradbury, and John Yoo, Republicans in Congress and their amen corner in the media charged that the new president was "criminalizing conservatism."
Powerline's John Hinderaker made that exact charge in a piece by the same title. "Many liberals don't just want to defeat conservatives at the polls, they want to send them to jail," he wrote, adding, "Toward that end, they have sometimes tried to criminalize what are essentially policy differences." In a scathing editorial on April 23, 2009, titled, "Presidential Poison," the Wall Street Journal went on the attack using the GOP's tried and untrue criminalizing politics canard:
Mark down the date. Tuesday, April 21, 2009, is the moment that any chance of a new era of bipartisan respect in Washington ended. By inviting the prosecution of Bush officials for their antiterror legal advice, President Obama has injected a poison into our politics that he and the country will live to regret...
Above all, the exercise will only embitter Republicans, including the moderates and national-security hawks Mr. Obama may need in the next four years. As patriotic officials who acted in good faith are indicted, smeared, impeached from judgeships or stripped of their academic tenure, the partisan anger and backlash will grow...
Mr. Obama is more popular than his policies, due in part to his personal charm and his seeming goodwill. By indulging his party's desire to criminalize policy advice, he has unleashed furies that will haunt his Presidency.
But over five years later, no "patriotic official" has been indicted, no judges have been impeached and no professor has been stripped of his academic tenure—not even the one who defined torture
as "equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death." In June, John Yoo
was awarded an endowed faculty chair at the UC Berkeley School of Law. Bush appointee Jay Bybee
remains on the federal bench. Cheney's legal alchemist David Addington
is now creating alternative realities at the Heritage Center. Psychologist James Mitchell
, one of the consultants who helped the Bush administration render the Geneva Conventions quaint, didn't lose his professional credentials, even after claiming, "I'm just a guy who got asked to do something for his country." Jose Rodriguez
, who as head of the CIA's clandestine service personally ordered the destruction of dozens of interrogation videotapes, is a conservative hero who has smeared the soon-to-be-released Senate Intelligence Committee report
on the CIA torture program despite having never read a word of it. Meanwhile, Dick Cheney
appears regularly on your television screen to accuse President Obama of treason. As for Cheney's former Oval Office sock puppet, George W. Bush
, he's free to paint himself in the shower and give speeches to "replenish the ol' coffers."
All of these Republicans—and more—have joined Bush in laughing all the way to bank. The "criminalization of politics" defense not only works for conservatives, it pays well, too. Former Bush GSA chief Lurita Doan, forced from office as a result of her Hatch Act violations, is a columnist and Fox News regular paid to attack the congressional Democrats who uncovered her wrongdoing. Conservatives pointing to the new GAO study concluding President Obama violated the law when he ordered the prisoner swap that resulted in the release of Army Sgt. Bowe Bergdahl had no issue with the Bush administration's program of illicit domestic surveillance by the NSA, a program that flouted the Foreign Intelligence Surveillance Act (FISA). Many of its architects, like Michael Hayden and Keith Hayden, are now enjoying life in the private sector. (Ironically, most of Bush's Justice Department leadership did have a problem with it, and threatened to resign en masse in March 2004 over the program.. Then again, in their defense, Republicans like Sens. Jeff Sessions (R-AL), Pat Roberts (R-KS) and John Cornyn (R-TX) used a different—if similarly disgusting—talking point to explain it away in December 2005:
None of your civil liberties matter much after you're dead.
Cornyn, like his fellow Texans Poppy Bush, Dubya, and Tom Delay, knows a good sound bite when he hears one. And for decades, Republicans and their conservative defenders have reflexively turned to "the criminalization of politics" scam to successfully politicize their actual crimes. (It is worth noting that Republicans were not so generous as to use it on behalf of former Democratic Alabama Gov. Don Siegelman
.) But with the puzzling prosecution of Texas Gov. Rick Perry, that most cynical of GOP talking points might—for once—actually be true. And that is very good news for Perry and his Republican Party. As for Democrats, well, Rick Perry himself probably said it best.