President Obama and his spokespersons are deflecting questions about prosecuting former Bush administration lawyers who wrote memos saying that harsh interrogation techniques are legal. Their line, as stated by Valerie Jarrett for example, is that the Attorney General “is supposed to make decisions about prosecution.”
But the administration’s position is incohernt because Obama has stated that anyone who committed acts approved by the Justice Department should not be prosecuted. If it is appropriate for Obama to take a position on prosecuting CIA operatives (as clearly it is), then it is not inappropriate for him to take a position regarding the prosecution of DOJ lawyers.
This is not to say that both groups occupy the same ground on the meritis. Actually, I think those who did nothing more than express a legal opinion stand on stronger legal ground. But procedurally, there is no principled basis for Obama becoming involved in the decision on the CIA operatives while taking a powder on the DOJ lawyers.
Both decisions, in fact, transcend pure considerations of criminal law. The decision regarding CIA personnel implicates, among other things, CIA morale. The decision regarding DOJ lawyers implicates, among other things, the ability of the president to obtain candid legal advice.
Obama may be hiding behind the Attorney General for now in order to avoid the wrath of his lefty base. But if the Attorney General somehow decides that DOJ lawyers should be prosecuted, Obama will have to defend that decision. It will not be enough to say that Eric Holder decided to proceed. Obama’s pre-judgment in favor of the CIA operatives reminds us that the president can short-circuit prosecutions.
If, on the other hand, Holder concludes that there is no crime to prosecute, Obama can hide behind that opiniion. For if there is no crime, there can be no prosecutiion. And it is the proper role of the Attorney General to determine whether a crime has been committed..