Stop Me Before I Politicize Again!

by hilzoy

Glenn Greenwald has had an interesting back and forth with Chuck Todd about comments Todd made on MSNBC's Morning Joe, in which he said, among other things, that the question whether torture should be investigated were "cable catnip" that threatens to distract us from important issues, and that it is "very dangerous" to investigate such things. You can read his comments and watch the video here. The transcript of Glenn's subsequent podcast with Todd is here. 

It's quite something. Todd repeatedly argues that it would be much too messy and political to actually hold government officials accountable for breaking the law. For instance, when Glenn asks why we shouldn't prosecute such officials when we think they've broken the law, Todd replies:

"I agree, in a perfect world - Glenn, in a perfect world, yes. And if you could also guarantee me, that this wouldn't become a show trial, and wouldn't be put, and created so that we had nightly debates about it, that is the ideal way to handle this."

Why only in a perfect world? And what, as Glenn asks, is wrong with "nightly debate about whether our government committed crimes" -- at least when there's credible evidence that it did? 

It's worth reading the podcast transcript in its entirety. Here I just want to make three points. First, the idea that we should not prosecute government officials who break the law whenever it would cause some sort of political fight amounts to the view that we should never prosecute government officials who break the law at all. And this idea is incredibly dangerous. We are supposed to have a government that is bound by law. If no member of the government is ever prosecuted when there's evidence that s/he broke the law, then the only reason why government officials would obey the law is their own conscience and sense of duty. Sometimes that's sufficient, but we'd be fools to rely on it. 

Second, the idea that we should not prosecute politicians who break the law is just one more example of the idea that people with power should be able to live by different rules. When someone borrows an ordinary person's car and, unbeknownst to her, uses it to sell drugs, sending her to jail is "being tough on crime"; when a government official abuses his office, even hinting at prosecution is just "cable catnip" and a sign that you're a member of "the hard left". 

This idea is odious, and it's antithetical to everything this country is supposed to stand for. People with power and privilege have a lot of advantages already. In particular, they will probably always do better in the legal system than the rest of us, since they can afford to hire very good lawyers. For that very reason, we should resist with all our might the idea that they should be given even more privileges. 

Third: the reason why Chuck Todd seems to think that it would be "dangerous" to prosecute government officials when there is evidence that they have broken the law is that it might turn into what he calls "a political trial", and might even become "political footballs". I do not believe that this is a good reason not to investigate crimes. (Lots of trials become "political footballs": the trial of the officers who beat Rodney King, for instance, or Marion Barry's trial for crack cocaine. Does anyone think that we should simply have given those officers or Marion Barry a pass?) But politicized trials do do damage, and so it's worth asking: how might we minimize the chances that some trial might be unduly politicized?

The best answer I can think of is: the media might really try to do a good job of explaining the issues. When someone tried to say something misleading, they could call that person out. When prosecution of a government official was unwarranted, they could make that clear. And when there really was a plausible case that a government official had committed a crime, they could make that clear as well. 

Which is to say: if Chuck Todd were really worried about trials being politicized, he would be in a wonderful position to prevent that from happening. 

But I don't see much evidence that he is interested in that. In the podcast with Glenn, Chuck Todd makes (by my count) plain errors on five important factual questions. He is wrong about the kind of prosecutor under consideration, he is wrong to think that what Holder is proposing to investigate is interrogations that conform to Yoo's legal opinions, he is wrong about the duties of Justice Department lawyers, he was wrong about the legal status of firing the US Attorneys, and he was wrong about the state of American public opinion. And those are just the plain, obvious errors: I'm not counting things like his claim that prosecutions would harm our image abroad, or that there's a serious debate about whether Yoo's memos were defensible.

That's a lot of factual mistakes for one short podcast -- enough to make me think that Chuck Todd is not as concerned as he ought to be about getting it right. If he were, and if he could bring some of his colleagues along, we might not have to worry nearly as much about politicization. 

We should expect more of our journalists. They need to get the facts right. They need to figure out the legal issues at stake in a case like this, not just listen to flacks from both sides, throw up their hands, and say "it's not black and white!" If he did a better job, he wouldn't have to worry so much about politicizing the justice system, and he might take pride in the fact that he helped shed light on complicated issues, when he might have just gotten lazy.

Of course, it's not just Chuck Todd, who is, alas, one of the better TV journalists out there. He's just the one who cited the incompetence of his profession as a reason to abandon the rule of law. 

Comments

[Peter K.]

Now that we have avoided economic collapse, I think they should go ahead. And I do think the investigation will lead high up the chain.
And I think Todd is right in that it will overshadow everything.

And I think there's a good chance it will negate the rest of Obama's agenda and could cause him to lose in 2012 and the dems to lose power, but the law is the law.

Perhaps Greenwald and his type would then give Obama some credit and praise.

[Johnny Canuck]

My observation: There is a cultural divide as to whether US is a monarchy or a democracy. A significant number of Americans think that the President is an absolute monarch limited in time to 4 or 8 years, but unlimited as to what he can do. It is Nixon- when the President authorizes it, it is legal. This is Watergate and Iran-Contra enlarged.

I think Peter K. has it right: it could negate the rest of Obama's agenda.

How about letting it simmer until after the 2012 election? Or How about joining the International Criminal Court, and let them do the prosecutions?

If it is any consolation, consider that Obama is behaving almost as if you have a congressional system in which the legislators legislate rather than simply implement the executive branch's bills.

[Doctor Science]

I honestly cannot make sense of what Todd says. Is this a function of reading the transcript instead of listening? IMHO Glenn does a much better job of speaking in actual sentences that convey coherent ideas from one end of the sentence to the other. But maybe that works better in text than on the air.

[Dave S]

If Todd and his peers had been doing their job over the last eight years, we probably wouldn't be in this situation at all. They actively enabled the lawlessness.

[cleek]

one doesn't get to be a journalist in Todd's position by being an aggressive defender of the truth; you get their by being a docile servant of the status quo.

and good for Greenwald for taking-on this sycophantic little courtier.

[Woody]

Now that we have avoided economic collapse,

erm, what makes you think we've "avoided economic collapse?"

the other shoe--another multi-trillion-dollar real estate fiasco, as another 5-10 million adjustable ARMs reset this summer and fall--has yet to fall...

[efgoldman]

Its really sad that, all through the primaries and election, Todd was considered one of the most knowledgeable and intelligent of Olbermann's commenters. Who would've thought?

And Hilzoy, I didn't comment on either of the big goodbye threads. I am personally, selfishly saddened, but wish you nothing but the best.

I have a future fantasy of you and Rachel Maddow running a really well-funded liberal feminist blogging think tank. Wouldn't THAT be fun?

[Tony P.]

I think Peter K. has it right: it could negate the rest of Obama's agenda.

Sure, it could. But things could also work the other way: the Republican defenders of Bushian incompetence as well lawlessness might lose even more credibility than they already have. The public may begin to doubt their judgement as well as their principles even more. Much depends on whether "the American people", who were demonstrably clever enough to elect Obama, have reverted to being as dull as Peter K and Chuck Todd seem to think they are.

--TP

[Turbulence]

it could negate the rest of Obama's agenda.

You know, somehow, I don't think that prosecuting John 'there is no legal impediment stopping the President from lawfully crushing the testicles of children of people that don't confess' Yoo would be all that unpopular. I mean, exposing this stuff might be disgusting, but I'm not sure I see a political firestorm associated with prosecuting child-testicle-crushing man and friends. What are Republicans going to do, march in lockstop and do everything possible to obstruct the President's agenda? Oh no, not that!

[Batocchio]

I'm not counting things like his claim that prosecutions would harm our image abroad, or that there's a serious debate about whether Yoo's memos were defensible.

These were actually the two claims that leapt out at me when I heard Todd, because I keep hearing them in news accounts. The basic timeline undercuts a good faith defense (torture started before the OLC memos were issued, and there were warnings before and after) even before one delves into how unsound the memos were. I give Todd credit for showing up and being fairly honest about his views. The sad thing is, it is not the social norm for the Beltway crowd to be informed on these issues.

(A very clear, thorough post, and I'll miss you writing them, but best wishes once again.)

[Johnny Canuck]

Turbulence, I think it would be a delight to have Yoo prosecuted; but then do you move on to prosecute the person who gave him the order, and on up to Bush?

I doubt prosecuting any of them will affect US image abroad. The magic of Obama is that he has wiped the slate clean. Only if he messes it up will the world revert to a lower image.

Bush/cheney were a nightmare, gone with the start of the new age.

[Gary Farber]

"I doubt prosecuting any of them will affect US image abroad."

I think it would have an extraordinary effect if we prosecuted Bush and Cheney. Even if they got off.

"The magic of Obama is that he has wiped the slate clean."

This is, I think, a considerable over-statement. He's a new CD in the player, if you will, but the music at times bears, at least for now, varying degrees of similarity to the last CD. Visibly breaking the last CD and declaring that music like that should never be played again by us, would be far more dramatic and important.

Regardless of whether you think it's a good or a bad idea.

"Bush/cheney were a nightmare, gone with the start of the new age."

But so very much of their work, and results, and appointees, live[s] on.

[someotherdude]

Well, who or what was tortured?

Since the US inception, "rights" were reserved for a particular class of person...while all other have to prove their having some type of "humanness."

There is a strong minority, in this country, who believe they are of the class who have inalienable rights, while all others...not so much.

[Turbulence]

I think it would be a delight to have Yoo prosecuted; but then do you move on to prosecute the person who gave him the order, and on up to Bush?

I would hope so. When people break the law, they should be punished. Even if they're the President.

I doubt prosecuting any of them will affect US image abroad. The magic of Obama is that he has wiped the slate clean. Only if he messes it up will the world revert to a lower image. Bush/cheney were a nightmare, gone with the start of the new age.

On these points, I agree with what Gary said.

[Johnny Canuck]

when either a jury refuses to convict or the republicans on the supreme court overturn the conviction, do you think that will be good for US image?

Gary and Turbulence, I guess you do, i don't understand why.

Obama can say the same thing as Bush, but it is heard very differently.

[Gary Farber]

"when either a jury refuses to convict or the republicans on the supreme court overturn the conviction, do you think that will be good for US image?"

I think we'll look better for showing that we can at least try, than we look when we look, as we do now, as if we just don't give a damn.

As a rule, I think it's better to try a murderer, even if your case is shaky, if you've got any reasonable chance at all of prevailing, rather than saying "hey, we'll give you a pass on this one."

[Turbulence]

when either a jury refuses to convict or the republicans on the supreme court overturn the conviction, do you think that will be good for US image?

I think it will actually. Obviously, it would be better to get convictions, but if the people of the world heard the Solicitor General of the United States explaining that Bush was a criminal who belongs in prison, well, I think that would improve our credibility. All the more so if a jury agrees with it.

Right now, people around the world can just assume that Americans agree with Bush. He got reelected didn't he? There was no revolution against him, right? He was never impeached, right? The people's representatives in Congress not only failed to investigate his abuses but gave him practically everything he wanted foreign policy-wise. Right now, America's reputation is still tarred by Bush and it will be until the US government decisively repudiates him. Which I doubt will ever happen.

[Donald Johnson]

"when either a jury refuses to convict or the republicans on the supreme court overturn the conviction, do you think that will be good for US image?"

I think it would be bad for our image, and it should be bad, and if that happens I support any and all attempts to blacken our image as much as it deserves. I tend to support that anyway.

Incidentally, one of the arguments that Todd kept making I've heard before, and it's the sort of thing I never would have thought of, but it makes perfect sense that a Beltway type would think this way--Todd says that if Bush or his minions are prosecuted it makes the US look like one of those countries where an election is followed by the persecution of the people who were thrown out of power. Someone was making that argument here a few days ago. It's the thinking of someone who sees everything as some sort of political game. The notion that one might want to prosecute a President because he is a war criminal just doesn't compute.

[russell]

A friend of mine works as a court-appointed criminal defense attorney in a local district court.

Next time she's working with a kid caught holding some dope, or somebody from the Dominican Republic caught working without papers, or any of the many other folks she works with who are regularly plowed under by the legal system, I'll suggest she try the "in a perfect world" defense.

It's obvious that powerful people live by different rules than the rest of us, but the point of the law is to make that less so, not more.

[DN]

Or How about joining the International Criminal Court, and let them do the prosecutions?

Won't work. The ICC doesn't have retroactive jurisdiction so crimes committed before a nation joins can't be tried there. http://en.wikipedia.org/wiki/International_Criminal_Court#Temporal_jurisdiction

We've got to do it ourselves, folks.

[Anonymous]

Joining the International Criminal Court could be good as a future deterrent though. Ultimately, after all, punishing someone is pointless in of itself (there's no use crying over spilt milk, or spilt lives) and it derives its usefulness because it threatens future punishment if you do the same thing. If America were to wimp out but say "okay we're wimping out on this one, from now on we're letting the ICC decide these things for us" that wouldn't necessarily be as good as actually pressing charges, (because these crimes are in some cases so ridiculously flagrant that we need to do something to show that the United States ITSELF cares about the integrity of law) but it would be a close second place.

[Gary Farber]

"...there's no use crying over spilt milk, or spilt lives...."

I would, in fact, contend that there is a great deal more use in crying over spilt lives, particularly individual lives -- and all lives in aggregate are individual lives -- than in crying over spilt milk.

I've been known to cry over spilt lives on quite a few occasions, and I have no regrets for having done so, nor will I regret future episodes of such crying.

Crying over spilt milk, not so much.

[eglantine]

Brilliant post, Hilzoy. Thank you!

[Rob in CT]

To those who think it will "negate Obama's agenda" I say: SO BE IT. This is more important, IMHO, than the current administration's agenda. Yes, healthcare reform is a big deal. There are always important issues that need to be dealt with. Setting aside my belief that prosecution of these crimes will NOT actually cause government to grind to a halt, I'm willing to run the risk. This goes to the very core of the legitimacy of our government.