A Proper Distinction
By DAVID BROOKS
The New York Times
March 22, 2007
Thousands of crimes are committed every year, and, given the constraints of time and money, it’s up to prosecutors to decide which ones to pursue.
We’d like to think that prosecutors exercise their discretion with godlike impartiality, but the founders, who had a low but accurate view of human nature, figured that wasn’t possible. They placed the federal prosecutors within the executive branch of government, a political branch. They ordained that prosecutors would be overseen by the attorney general, a political officer.
Since godlike impartiality is probably not possible, the founders figured, at least the prosecutors could be held accountable to the electorate. The founders made prosecutors political appointees.
But the word “political” in this context has two meanings, one philosophic, one partisan. The prosecutors are properly political when their choices are influenced by the policy priorities of elected officeholders. If the president thinks prosecutors should spend more time going after terrorists, prosecutors should follow his lead.
But prosecutors are improperly political if they bow to pressure to protect members of the president’s party or team. Most would agree that Harry Truman was being improperly political when he tried to block the reappointment of Maurice Milligan, a U.S. attorney investigating the Pendergast political machine in Missouri.
The problem is that there is a gray area between these two political roles. People of good faith disagree about whether the Clinton administration behaved improperly in firing almost all of the 93 prosecutors it inherited, in the midst of some high-profile and politically troublesome cases.
Prosecutors, like other professionals, develop a code of honor to help them steer through the gray areas. This code of honor consists of a series of habits and understandings to help individual prosecutors know how to behave when loyalty to the law is in tension with loyalty to the president.
People in well-led agencies are acutely conscious of this sort of honor code. If you work for, say, George Shultz or Robert Rubin, you will have a daily example of how to behave. If you work for some others, your sense of honor will be fuzzy, at best.
When you look at the prosecutors who were fired by the Bush administration, you see some who were fired for proper political reasons and some who were fired for improper ones. Carol Lam seems to have been properly let go because she did not share the president’s priorities on illegal immigration cases. David Iglesias seems to have been improperly let go because he offended some members of the president’s party.
But what’s striking in reading through the Justice Department e-mail messages is that senior people in that agency seem never to have thought about the proper role of politics in their decision-making. They reacted like chickens with their heads cut off when this scandal broke because they could not articulate the differences between a proper political firing and an improper one.
Moreover, they had no coherent sense of honor. Alberto Gonzales apparently never communicated a code of conduct to guide them as they wrestled with various political pressures. That’s a grievous failure of leadership.
The bad behavior has not stopped there. The Democrats, apparently out of legislative ideas after only 11 weeks in the majority, have gone into full scandal mode, professing to be shocked because politics played a role in prosecutorial priorities. They and those on their media food chain have made wild accusations far in advance of the evidence, producing enough cacophonous demagoguery to make rational discussion nearly impossible.
And the White House, instead of trying to restore some proportion, has picked a fight over a transcript. The president says he will allow White House staff to appear before Congress, but not in public, not under oath and not with a transcript. The president apparently expects his supporters to rally behind the sacred cause of No Transcript. In time of war, he’s decided to expend political capital so that his staffers can lie to Congress without legal consequences.
This is a position only a lawyer can love. From compassionate conservatism, we’ve descended to pedantic or legalistic conservatism.
As often happens when you have a government unencumbered by adult supervision, this affair is now spiraling down to the partisan depths. It will take on a life of its own and muddy everyone who touches it. But it all could have been prevented with a few distinctions about the proper role of politics, and a little sense of honor.
The New York Times
March 22, 2007
Thousands of crimes are committed every year, and, given the constraints of time and money, it’s up to prosecutors to decide which ones to pursue.
We’d like to think that prosecutors exercise their discretion with godlike impartiality, but the founders, who had a low but accurate view of human nature, figured that wasn’t possible. They placed the federal prosecutors within the executive branch of government, a political branch. They ordained that prosecutors would be overseen by the attorney general, a political officer.
Since godlike impartiality is probably not possible, the founders figured, at least the prosecutors could be held accountable to the electorate. The founders made prosecutors political appointees.
But the word “political” in this context has two meanings, one philosophic, one partisan. The prosecutors are properly political when their choices are influenced by the policy priorities of elected officeholders. If the president thinks prosecutors should spend more time going after terrorists, prosecutors should follow his lead.
But prosecutors are improperly political if they bow to pressure to protect members of the president’s party or team. Most would agree that Harry Truman was being improperly political when he tried to block the reappointment of Maurice Milligan, a U.S. attorney investigating the Pendergast political machine in Missouri.
The problem is that there is a gray area between these two political roles. People of good faith disagree about whether the Clinton administration behaved improperly in firing almost all of the 93 prosecutors it inherited, in the midst of some high-profile and politically troublesome cases.
Prosecutors, like other professionals, develop a code of honor to help them steer through the gray areas. This code of honor consists of a series of habits and understandings to help individual prosecutors know how to behave when loyalty to the law is in tension with loyalty to the president.
People in well-led agencies are acutely conscious of this sort of honor code. If you work for, say, George Shultz or Robert Rubin, you will have a daily example of how to behave. If you work for some others, your sense of honor will be fuzzy, at best.
When you look at the prosecutors who were fired by the Bush administration, you see some who were fired for proper political reasons and some who were fired for improper ones. Carol Lam seems to have been properly let go because she did not share the president’s priorities on illegal immigration cases. David Iglesias seems to have been improperly let go because he offended some members of the president’s party.
But what’s striking in reading through the Justice Department e-mail messages is that senior people in that agency seem never to have thought about the proper role of politics in their decision-making. They reacted like chickens with their heads cut off when this scandal broke because they could not articulate the differences between a proper political firing and an improper one.
Moreover, they had no coherent sense of honor. Alberto Gonzales apparently never communicated a code of conduct to guide them as they wrestled with various political pressures. That’s a grievous failure of leadership.
The bad behavior has not stopped there. The Democrats, apparently out of legislative ideas after only 11 weeks in the majority, have gone into full scandal mode, professing to be shocked because politics played a role in prosecutorial priorities. They and those on their media food chain have made wild accusations far in advance of the evidence, producing enough cacophonous demagoguery to make rational discussion nearly impossible.
And the White House, instead of trying to restore some proportion, has picked a fight over a transcript. The president says he will allow White House staff to appear before Congress, but not in public, not under oath and not with a transcript. The president apparently expects his supporters to rally behind the sacred cause of No Transcript. In time of war, he’s decided to expend political capital so that his staffers can lie to Congress without legal consequences.
This is a position only a lawyer can love. From compassionate conservatism, we’ve descended to pedantic or legalistic conservatism.
As often happens when you have a government unencumbered by adult supervision, this affair is now spiraling down to the partisan depths. It will take on a life of its own and muddy everyone who touches it. But it all could have been prevented with a few distinctions about the proper role of politics, and a little sense of honor.
posted by greenpagan at 12:05 AM
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