Depoliticizing Crime and Decriminalizing Politics

TCS Daily

March 23, 2007

The recent flap over the Bush Administration’s firing of eight U.S. attorneys has demonstrated the escalation of two related and unfortunate trends in American politics: the politicization of crime and the criminalization of politics.

Attorney General Alberto Gonzales and other Administration officials have contended that the firings were for “performance” reasons and emphasized that they were well within the prerogative of the president, since U.S. Attorneys are appointees who “serve at the pleasure of the president.” Congressional Democrats (and an increasing number of Congressional Republicans) smell something fishy in some of the firings, whose timings were suspiciously close with impending indictments against prominent Republicans or failed attempts to exercise political pressure to bring prosecutions against Democrats for voter fraud. Further, some contend that Administration officials may have perjured themselves in misrepresenting the nature of the firings to Congress.

New York Times columnist David Brooks points out that the word “political” is being used in multiple ways in this debate: “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.” Liberal pundit Michael Kinsley agrees: “If the president believes strongly in prosecuting pornographers, he is not just within his rights but within his duties to fire a prosecutor who ignores those cases. If, at the other extreme, he wants a prosecutor to drop a case against a large contributor, that is political in the bad sense.”

Washington Monthly blogger Kevin Drum‘s invocation of Nixon’s Saturday Night Massacre is a useful one. Rather obviously, firing a prosecutor because he’s getting too close to the president or his friends is outrageous. It’s not illegal, however.

Brooks and Troy University political scientist Steven Taylor, both Republicans who voted twice for Bush, argue that the administration likely crossed the line into the “bad” politics in some of the firings. Moreover, they contend that the senior staff’s representation of the facts to Congress is at best troubling and at worst illegal.

Regardless of whether any laws were broken, there has been a disturbing lack of professionalism in the way this has been handled, from the overzealous reaction to the president’s expressed concern about going after voter fraud to the instinctive CYA mode when Congress started making inquiries. Gonzales, former presidential counsel Harriet Miers, and others acted like young interns trying to please the boss rather than seasoned executives trying to serve the boss’ greater interests. Professionals perform due diligence and come back and explain to the boss why what he wants can’t be done or at least outline the risks. There’s no evidence I can see that this was done.

Not only does “political” have multiple meanings with a continuum of nuance between them, so does “performance.” For political appointees, the president’s areas of emphasis presumably drive the definition. As Kinsley notes, if a U.S. Attorney is failing to be aggressive in going after the types of cases that the president wants prosecuted, he is not performing his job to expectations and should expect to be fired. If, on the other hand, there is a Saturday Night Massacre situation-the attorney is refusing to prosecute or back off based on partisan pressure-then we have a scandalous situation. There is suspicion that this is the case in at least a couple of the firings, although that has yet to be demonstrated beyond circumstantial evidence.

As freelance writer Jim Henley and others have noted about this and other political brouhahas, the real scandal is often what’s legal. Some things, like the prosecution or non-prosecution of crimes, rather obviously shouldn’t be influenced by partisan political considerations. Yet, the 93 lead federal prosecutors, the Solicitor General, and the Attorney General are all political appointees who, by virtue of that means of selection, are there to carry out the wishes of the president. This creates an inherent appearance of impropriety even when things are kosher.

Because of the wide scope of their duties, the AG and Solicitor General almost have to be appointed by the president. Fortunately, they are highly visible figures (at least in political circles) and Congress and watchdog groups can easily keep an eye over them. Conversely, U.S. Attorneys have a relatively narrow function and most operate in obscurity far from the Capitol. It’s far from clear why they should be hired and fired on a political basis.

Liberal blogger Jonathan Singer contends that, “While it is certainly expected that an administration would infuse politics into its decision-making process and even consider partisan ramifications at any turn, the degree to which the Bush administration has relied on partisan politics to make decisions and to which it has partisanized the levers of the federal government is truly unprecedented.” My only quibble-and it’s just that, not an excuse-is that Bush is following a trend, not creating one. That is, what I have termed “the politicization of everything” has been going on for quite some time now. Bill Clinton’s administration took it to a level of high art. Unfortunately, its successor, which ran on a pledge to “restore decency and integrity to the Oval Office,” has instead raised the bar.

The corollary phenomenon, an outgrowth of the Watergate scandal, is the criminalization of even minor political disputes. Petty squabbles over such things as whether Bush 41 chief of staff John Sununu improperly used government vehicles to enhance his stamp collection or the firings of low-level Travel Office staffers in the Clinton Administration have led to calls for criminal investigation. The use of independent counsels, special prosecutors, congressional subpoenas and the like are so pervasive as to be commonplace. The unfortunate result is more entrenchment and reluctance to simply come forward and admit mistakes. Ironically, as we saw in the Scooter Libby trial, that often leads to actual criminal conduct.

It’s time to reverse both these trends. Taking U.S. Attorneys out of the political process by making them either term appointments, as with the FBI Director or Federal Reserve Chairman, who are fireable only for cause, or making them non-appointed Senior Executive Service civil servants, would be an excellent start to the depoliticization of crime, at least on the federal level. Decriminalizing politics, on the other hand, will not be so easy.

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