Obama Law

An Argument Against Bygones
An email conversation about the news of the day.
Dec. 9 2008 12:56 PM

Obama Law

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Emily, yesterday you asked what the Obama lawyers should do about investigating their Bush predecessors for crimes and ethical violations, "about everything from torture to the suspect firings of nine U.S. attorneys in 2006?"

I'm sure there will be some on both sides of the aisle who will argue that the Obama administration should let bygones be bygones regarding the ongoing probe of special counsel Nora Dannehy into the firings of nine U.S. attorneys, myself included. If these were penny ante traffic-court offenses, I'd agree. But the numerous investigations and hearings have uncovered some modicum of evidence showing felony-level criminality on the part of former Attorney General Alberto Gonzales and possibly other former Bush administration officials. Whether or not the evidence rises to the level of an indictment remains to be seen and rests solely in the considered judgment of Ms. Dannehy.

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Should we tolerate possible criminal activity on the part of the former chief law enforcement officer of the United States? Should a former AG or other former high-level officials be given a pass on possible perjury and obstruction of justice charges just for the sake of moving on? In my view, clearly not. To do so would send an unmistakably clear signal to law enforcement officials throughout the world that the rule of law applies to all but the well-connected. It would also set a terrible precedent for future attorneys general. As a former state and federal prosecutor, I want to believe to the molten core of my being that when the attorney general of the United States says something, he is being 100 percent truthful, 100 percent of the time. Otherwise, he is just another pettifogging, parsing, and mendacious politico. If anything, prosecutors should be held to the same, if not a higher, standard, than the nonprosecutor "civilian." One practical way to begin to repair the damage done to the reputation of the Justice Department is to treat this particular investigation like any other high-level criminal case. The political appointees need to stand back and let the prosecutor do her job. Just as confidence is the key word in the stock market, integrity is the key word in the prosecutor's world. The public has the absolute right to believe that when someone is charged with a crime, whether they are a "coyote" on the southwest border or the former attorney general of the United States, the prosecution's bases are the law and evidence, nothing else.

Obama's team should allow special counsel to take her time to do it right, and if the evidence supports a grand jury indictment, then indict the case. If it doesn't, don't go forward. Justice is not measured by notches on the belt; it is assuredly not about winning a case. Sometimes, it's about reviewing the evidence and not proceeding with a nonprovable case. I know this dynamic from personal experience, as I felt pressured by Republican officials to indict cases I knew I could not prove and to rush a political corruption case that was not ready to indict for partisan gain in a midterm election cycle. To reduce the clamor that this would be merely a hypocritical "political prosecution" motivated by the same type of improper partisan reasons I just described, Dannehy needs to be fully independent and not have her ultimate decision approved or rejected by a political appointee. As I understand it, the AG has the final say in this probe. This is regrettable and does not take the political component out of the charging decision.

Finally, Dec. 7 marked the second anniversary of the infamous phone calls from Main Justice to the seven of us U.S. attorneys. When all the dust finally settles on this scandal, it will be seen as a frontal assault on the independence of the prosecutor. With no independent prosecutors, you cannot have a criminal justice system that is characterized by integrity and fairness.

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David C. Iglesias was the U.S. attorney for the District of New Mexico between 2001 and 2007. He is the author of the book In Justice: Inside the Scandal That Rocked the Bush Administration.

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