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Obama Recognizes: Whether to Prosecute is Not His Decision

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by Glenn Greenwald

21 Apr 09 | Salon

One of the central principles of our justice system is supposed to be that specific decisions about Justice Department prosecutions are to be made independent of all political considerations, including the White House’s political agenda or the President’s political interests.

Numerous recent scandals have arisen from this principle — the October, 1973 refusal of Nixon Attorney General Eliot Richardson to follow Nixon’s orders to fire Watergate Special Prosecutor Archibald Cox and Nixon’s subsequent demand that Richardson resign as part of Nixon’s Saturday Night Massacre; the repeated demands from the Right that Attorney General Janet Reno act “independently” by appointing Independent Prosecutors to criminally investigate every last one of the Clinton White House’s alleged improprieties; and the numerous instances of Alberto Gonzales’ Justice Department collaborating with the White House and using political — rather than legal — considerations to make decisions about prosecutions.

This is the principle that has made it so strange, and increasingly disturbing, that the power to decide whether Bush officials should be prosecuted was being vested in Barack Obama. Whether to commence criminal investigations and prosecutions of specific acts of alleged criminality is not Obama’s decision to make. It is the duty of the Justice Department, and ultimately the Attorney General, to make those decisions based strictly on legal considerations, and independent of the political interests of the White House. Whether or not Obama favors prosecutions is really irrelevant, and one could almost reasonably argue that the increasingly aggressive pressure he and his aides, such as Rahm Emanuel, have been exerting to impede prosecutions was becoming improper. Given the magnitude of these questions, I think it’s unreasonable to argue that the President should refrain entirely from opining on such questions, but the line of propriety can easily be crossed and — especially with the recent comments of Emanuel and Robert Gibbs all but decreeing that there would be no prosecutions — that line was starting to be broached. >>>

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Written by Editors

21 April 2009 at 3:49 pm

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