02/27/2009 05:12 am ET | Updated May 25, 2011

Prosecutions -- A Reply to my Critics

This is a response to the more than 200 comments posted in response to my earlier post, "The Case Against Prosecutions." That post is available here.

First, a personal, rueful observation. There is some sort of law of nature that ensures that if one writes 20 blog posts, the one that is the least precise and least well delivered will be the one that gets the most attention. That's what happened here -- I knew I wasn't being as precise as I ordinarily try to be (one commentator was generous enough to describe the post as out of character), but I had no idea it would make it to the front page or engender this level of response.

As to that response: this post has so far received 200 responses: 198 of you think that I am wrong (most generous), should be fired (moderate), or am unfit for citizenship (the majority, I think.) 2 of you think I have a point. Naturally, I am gratified at this full and frank exchange of ideas.

Obviously I cannot respond to every point that has been made, but here are a few thoughts that might be worthy of your collective consideration.

1) I was unduly vague about what "prosecutions" I was talking about. I obviously did not intend to suggest that no act committed by any member of the Bush administration could be the subject of criminal prosecution! As most of you realized, I meant to refer to the issues that are at the forefront of the public discussion: the initiation of the war in Iraq, the authorization of torture, and the possible violations of the IVth Amendment involved in the administration's data mining operations. Since most of the posted comments focused on those things anyway, that was not the major problem. But it would be ridiculous to suggest that I or anyone else ever argued that no act by an administration official can constitute a prosecutable crime.

2) Many people asked a version of the following question: "if we don't have prosecutions, what will stop people next time?," often with a reference to the Nixon or Iran-Contra pardons. One of the things I tried to emphasize in my original post was the way in which the pardon power has to be factored into the discussion. Barring a constitutional amendment depriving the president of this special power, the effect of criminal prosecutions would likely *not* be to deter future misconduct, it would only be to drastically increase the use of pardons. By contrast, maintaining the present "convention" (in the British constitutional sense) of only initiating criminal prosecutions in cases that clearly reach outside the activities of governance the pardon counter is mostly kept at bay. It is also not the case that if there are not post-election criminal prosecutions there are no possible deterrents to misconduct. Congress plays a role here, as do the Justice Department and private lawsuits. (Some relevant lawsuits are already in progress.) Keep in mind that in a very real sense, the question before us today is the advisability of criminal prosecutions following years of complete failure of the mechanisms that were actually designed to check the exercise of executive power. In a very real sense, the question that is being asked is whether criminal prosecutions by a subsequently elected administration ought to be added to the arsenal of checks and balances. If that is the question, my answer is "no."

3) Other ask "without criminal prosecutions, how will we ever obtain a clear declaration that certain acts are unconstitutional?" Actually, declarations of unconstitutionality almost never result from criminal prosecutions, except in reverse (i.e., judgments to the effect that the prosecution in question violated a defendant's rights). Determinations of constitutionality usually result from civil lawsuits, about which I said nothing at all.

4) Many people misunderstood my argument about intent (others understood it just fine and disagreed, but for the moment I am addressing the first group). The distinction I was drawing was between an act committed with the intent to commit a crime, and an act committed with a legitimate intent that turned out to be a violation of law. I am quite aware of the ways in which this distinction does and does not appear in ordinary criminal law; I was arguing -- whether persuasively or not -- that the distinction should have specific significance in the particular circumstance of criminal charges brought against government officials whose alleged crimes occurred in the course of the performance of their duties. The reason is simple: without some special limiting principle, we risk a situation in which any time an official commits an act that is later authoritatively determined to be unconstitutional or unlawful, that official potentially faces criminal prosecution. I continue to maintain that such an outcome is untenable.

5) Many commentators were either upset that I included political calculations at all, or else insisted that I radically misconstrued the political consequences of one course of action or another. On the second point, we can only disagree. On the first, that's really the key issue here: the proposed prosecutions are not the same as the prosecution of a car thief or drug dealer, they contain a political element. Moreover, prosecutorial discretion is an integral element in the operation of our criminal justice system; it exists precisely in the same way that at every other critical point in the American criminal law system we depend on the irreducible exercise of a individuals' judgment based on the particulars of the case. The jury, the judge, the appellant judge, all work within a complex system of legal rules, but all ultimately are called upon to exercise the ultimately mysterious quality of "judgment." It's why I do not object to judges reaching beyond past precedents to find new understandings of the scope of our liberties; conversely, the same quality of judgment is required in our prosecutors.

6) Last point. I took it as given and obvious that all of my arguments were subject to revision in the event that new information were to come to light. My argument discouraging prosecutions does not translate into an argument discouraging investigations; I was responding to the tenor of a current and public discussion.


Howard Schweber

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