On July 28, 2008, the Justice Department's Office of the Inspector General and Office of Professional Responsibility jointly published the results of a year-long investigation into the hiring practices at the Bush DOJ. As the AP reported, "A new Justice Department report concludes that politics illegally influenced the hiring of career prosecutors and immigration judges, and largely lays the blame on top aides to former Attorney General Alberto Gonzales." Unsurprisingly, the report singled out Gonzales' White House liaison Monica Goodling for "violating federal law and Justice Department policy by discriminating against job applicants who weren't Republican or conservative loyalists."
That finding was unsurprising because Ms. Goodling had already admitted as much. During her May 23, 2007 testimony before the House Judiciary Committee, she acknowledged that "on some occasions" in the hiring of career prosecutors "I crossed the line of the civil service rules." Admitting that she illicitly screened out civil service job applicants who happened to be Democrats, Goodling clarified for all why she sought immunity from the committee 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."
But during his questioning, Indiana Republican Rep. Mike Pence ignored Goodling's confession to make a different point about the Bush administration's purge of U.S. attorneys then under investigation.
"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." [Emphasis mine.]
"I am troubled," Pence concluded, "about the fact that we seem to be moving ever further down the road of the criminalization of politics."
Alas, that was then, and this is now. And now, Mike Pence and his running mate Donald Trump are in danger of being on the receiving end of a Nov. 8 beat down at the hands of Democrat Hillary Clinton. And that means Trump, Pence, and the "lock her up" crowd calling for her arrest and prosecution are demanding the criminalization of politics they once claimed to detest—and much, much worse.
During their second debate last week, The Donald promised Secretary Clinton that under President Trump, "you'd be in jail." Referring to the now-concluded FBI investigation of Clinton's private email server, a probe which produced no charges, Trump promised:
"If I win, I am going to instruct my attorney general to get a special prosecutor to look into your situation, because there has never been so many lies, so much deception. There has never been anything like it, and we're going to have a special prosecutor."
Now, most observers took Trump's pledge for what it is: a threat to American democracy. (For example, see here, here, here and here.) In the modern United States, the very notion of imprisoning political opponents had been beyond the pale. But far from seeing it as "abhorrent," "absurd," and "terrifying," as even former Republican Justice Department appointees summed it up, Trump’s running mate Mike Pence called it a highlight of last Sunday's face-off:
"I thought that was one of the better moments of the debate. I'm old enough to remember a day when a president of the United States erased 18½ minutes and they ran him out of town. She used high technology to erase 33,000 emails."
In case you missed that, the Republican nominee for vice president basically compared Watergate to an ill-timed fart. But Nixon wasn't forced to resign over 18.5 minutes of audiotape. As Ari Melber pointed out, the misuse of his executive power by "interfering with" the Federal Bureau of Investigation "was literally one of the articles of impeachment against Richard Nixon." Right-wing radio host and regular MSNBC guest Hugh Hewitt loved Trump's "because you'd be in jail" line, declaring it belonged "in the eternal debate reel." Of course, when Hewitt was its director, the Nixon Presidential Library described Watergate as a "coup" engineered by Nixon enemies.
That, of course, was the defense Nixon himself cooked up. In his June 14, 1973 discussion with his vice president, Nixon counseled Agnew not to worry about the "crappy little Watergate" he was facing over bribery charges in Maryland that would eventually force his resignation:
Just say that it's persecution. Political partisan persecution crap.
Thus the Republican "criminalization of politics" defense was born. And over the succeeding decades, it would become the go-to scandal shield for GOP lawlessness and wrongdoing for everything from Plamegate and Bush's prosecutors purge to illicit NSA domestic surveillance and Dubya's regime of detainee torture. But it was father, President George H.W. Bush, who is best known for formally introducing the criminalization of politics canard to survive 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. And 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 lawbreaking swarmed to Libby's defense. With Libby's looming indictment in the fall of 2005, Texas Sen. Kay Bailey Hutchison compared him 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 Oct. 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.
(The Hammer ultimately claimed vindication when Texas appeals courts threw out his money laundering conviction.)
So, too, did congressional Republicans sing 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?
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 Sept. 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 Oct. 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 freefall. 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 that 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." 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 smeared the 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 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 senators like Alabama’s Jeff Sessions, Kansas’ Pat Roberts, and Texas’ John Cornyn 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.
The same could said for the rest of the Constitution if Republican Donald J. Trump becomes the 45th President of the United States. But you don't have to take my word for it. Just ask Michael Mukasey, George W. Bush's last Attorney General and first in line to defend detainee torture. Mukasey, who famously suggested President Obama could be impeached over the prisoner swap by which U.S. Army Sgt. Bowe Bergdahl was freed by the Taliban in exchange for five detainees held at Guantanamo Bay, blasted Trump after last week's debate performance:
"It would be like a banana republic. Putting political opponents in jail for offenses committed in a political setting, even if they are criminal offenses -- and they very well may be -- is something that we don't do here."
Undaunted, Donald Trump doubled down, telling a Florida rally on Wednesday that "we have to investigate the investigation." Hillary Clinton doesn't just need to go to jail, he insisted, "She shouldn't be allowed to run for president."
Mukasey's successor Eric Holder begs to differ. In a series of tweets on October 9, Holder warned:
In the USA we do not threaten to jail political opponents. @realDonaldTrump said he would. He is promising to abuse the power of the office.
Holder, President Obama's Attorney General for over six years, knows what he's talking about. After all, Obama admitted that the United States under President Bush "tortured some folks." But despite the government's obligations under U.S. and international law, neither Bush nor the rest of his torture team was ever prosecuted. Never prosecuted because, as Eric Holder said, "We don't want to criminalize policy differences that might exist between the outgoing administration and the administration that is about to take over."
Well, if Donald Trump takes over, he's already promised that as President he will have Obama's Secretary of State Hillary Clinton arrested and prosecuted over a matter the FBI has already investigated and resolved. Candidate Trump made another promise, too. If elected, he will repeat President Bush's war crimes—and worse.
* Among them was James Comey, now the FBI director, who concluded that no prosecution of Hillary Clinton was called for over her private email server. Ironically, the New York Times may have saved the 2004 re-election of President George W. Bush when it agreed to withhold publication until December 2005 of its story of illicit domestic surveillance by the National Security Agency. That bombshell, which included the revelation that then FBI Director Robert Mueller III and then-Deputy Attorney General James Comey threatened to resign over the NSA program then in place, might have thrown the election to Democrat John Kerry in November 2004.