10/28/2011 05:16 pm ET Updated Dec 06, 2017

The Politically-Minded Prosecution

As Speaker of the House in the 1990s, Newt Gingrich was famous for his "Contract with America."  To some detractors, it was his contract "on America." His willingness to provoke has not ebbed. Now, he offers prosecution as his palimpsest.

As he boldly said during the October 11 Republican candidates debate, he proposes to attack, in a new way, the current Administration officials responsible (in his view) for the economy -- Messrs. Bernanke, Geithner, Dodd and Frank. As he sees it, not only are their policies "corrupt," but Dodd and Frank should actually be jailed for conflicts that led to the legislation that bears their names. In other words, effectively, "We don't like this Administration's policies, so we plan to indict them when we get elected."

Gingrich essentially invites a wholesale change to how politics is conducted in the United States. In past examples, when cooler heads prevailed, the Justice Department has resisted such invitations. Many believed at the time, for example, that President Ford was guilty of trading Richard Nixon a pardon for the presidency; that some of President Clinton's "midnight clemencies" were corrupt; and that the authors of the Bush II Administration torture memos should have been prosecuted. None were prosecuted.

Thankfully, the idea of a newly-elected administration criminally prosecuting members of prior administrations over their policies has not prevailed here. Put simply, the Justice Department has properly recognized that the "remedy" of prosecution is not a panacea. Rather, the electorate is called upon to address at the ballot any displeasure with a party and its policies. For example, Gerald Ford may have lost his presidency at the polls precisely for having granted the pardon -- a fair, if not necessarily meritorious, reaction.

Perhaps there is merit to candidate Gingrich's view that Senator Dodd, who co-authored Dodd/Frank, was too cozy with Countrywide, or that Congressman Frank was too close to a Freddie Mac lobbyist. If so, their conduct would deserve scrutiny by prosecutors. Nonetheless, failed (though properly enacted) policies by public officials should not be the starting point for a candidate's call for a criminal prosecution. Gingrich's starting point, thus, is clearly flawed. He asserts that the Administration's economic policies are -- his word -- "corrupt." Having made that bald assertion, he concludes that someone deserves to be prosecuted. Indeed, in response to Charlie Rose's direct question -- "Clearly, you're not saying they should go to jail?" -- Gingrich essentially says: absolutely!

Such a precedent would invariably encourage legislators and presidents to take the easy path, namely, tack to the center. This would be a regrettable result. We want leaders to pitch, not throw -- to make decisions, without fear that next year's candidate will use his election as fodder to not only throw the "bad guys" out, but also to toss them in prison once he is in office.
As a practical matter, Gingrich's campaign proposal will likely come to naught (along with his candidacy). When candidates prevail, common sense typically also prevails -- the victors see the wisdom of the goose/gander adage. They don't want their successors to use political prosecutions of others as precedent against them.

Still, we don't want presidential candidates stoking such flames for the often-radicalized Tea Party followers on the right or Occupy Wall Street ("OWS") protestors on the left. Both are sincerely troubled, rightly so, over the economy. Nonetheless, both may sometimes be goaded into seeking Beltway scapegoats for a predicament du jour -- sometimes in the person of a cabinet member, legislator or even the president.

We live at a time when the world's problems -- economic, social or security-related -- require that the grownups in the room recognize that words, indeed, do matter. A public demand to criminalize failed policies is hardly the answer, not to mention counterproductive. Gingrich, even if his call to arms makes good theater, is a very smart man and knows better. He also knows too well that he himself wouldn't want jurors from e.g., New York City, Philadelphia or Detroit, to one day decide his "guilt" (or innocence) if a Gingrich Administration's economic policies fail.

Criminal trials aren't and can't be about social policy. Criminal courts have enough on their plates in being asked to address violations of specific criminal statutes. The politics of those public officials who created laws or regulations that turn out to be unpopular, or even an abject failure, should remain far beyond their bailiwick.