With Liberty and Justice for Some (22 page)

Instead, what angered them—the only thing that angered them—was the prospect that Democrats would pursue the investigation. As they so often do, these TV personalities insisted that they were merely speaking for the ordinary American people.
Time
’s Stengel said: “I am so uninterested in the Democrats wanting Karl Rove, because it is so bad for them. Because it shows business as usual, tit for tat, vengeance. That’s not what voters want to see.” Matthews warned that trying to figure out the truth behind the dismissals would be perceived as “politics” and would backfire on Democrats. O’Donnell agreed, adding, “The Democrats have to be very careful that they look like they’re not the party of investigation rather than legislation in trying to change things.”

In fact, exactly the opposite was true. Immediately before the 2006 midterm election that gave Democrats control of Congress, a CNN poll had asked voters this question: “Do you think it would be good for the country or bad for the country if the Democrats in Congress were able to conduct official investigations into what the Bush administration has done in the past six years?” Fifty-seven percent of the respondents—a distinct majority—believed it would be good if such investigations could be conducted, while only 41 percent believed it would be bad.

Even worse for the journalists’ anti-investigation claims was a substantial set of polling data from
USA Today
. Released literally days before Matthews and his guests made their confident assertions about the public’s desires, the poll touched on precisely the question they addressed. It revealed overwhelming majorities demanding that the U.S. attorneys investigation be pursued and that Rove be forced to testify.

Americans are inculcated from childhood with the proposition that nobody is above the law, that in this country the most powerful political official will be punished for breaking the law in the same way as the least powerful citizen. That was why there was such intense opposition to Ford’s pardon of Nixon even when the political and media classes overwhelmingly endorsed it, and that disparity has persisted. Polls constantly show substantial portions of the public demanding investigations of politicians’ wrongdoing, even while the public’s self-anointed spokespeople in the media falsely claim that most oppose such accountability.

The same dynamic arose in relation to the torture investigations. It was conventional wisdom among journalists that Americans view the world through the prism of Jack Bauer and therefore wanted our government to torture. And so, they insisted, Americans did not want, and indeed would not tolerate, criminal investigations into what had been done by Bush officials.

Polls quickly and clearly revealed those claims to be false. A
Washington Post
/
ABC News
poll in January 2009 found that by a wide margin—58 percent to 40 percent—Americans said that torture should never be used, no matter the circumstances. More to the point, a full 50 percent of Americans said that the Obama administration should investigate whether the Bush administration’s treatment of detainees was illegal. And a distinct majority (52 percent to 42 percent) opposed the idea of Bush issuing pardons to those “who carried out his administration’s policy on the treatment of terrorism suspects.”

Other polls found even greater majorities in favor of the rule of law. On February 12, 2009,
USA Today
reported that “close to two-thirds of those surveyed said there should be investigations into allegations that the Bush team used torture to interrogate terrorism suspects and its program of wiretapping U.S. citizens without getting warrants.” A Gallup poll the same month detailed very similar findings: 71 percent favored either criminal or congressional investigations into whether the Bush White House had attempted to use the DOJ for political purposes (41 percent favored criminal investigations); 63 percent favored either criminal or congressional investigations into whether the Bush administration’s wiretapping of telephones without warrants was illegal (38 percent favored criminal investigations); and 62 percent favored either criminal or congressional investigations into torture (38 percent favored criminal investigations). In essence, it was only hard-core Republican partisans—a minority of the country—who wanted to sweep this systematic wrongdoing under the rug.

All of that polling data was released at the same time that the
Washington Post
’s David Ignatius was denouncing those who favored investigations as nothing more than “liberal score-settlers.” Senator Lindsey Graham was featured in
Politico
stating without contradiction that “only the hard left” favors investigations.
Newsweek
’s John Barry insisted that there should be no investigations because they were about nothing more than a desire for “vengeance, pure and simple.” On January 22, 2009, the
Washington Post
reporter Lois Romano was asked about investigations and prosecutions and likewise claimed that the public was against them.

It’s remarkable that large pro-investigation majorities were seen in the January and February 2009 polls even though few members of the media or leaders of either party were promoting that viewpoint. As it gradually became clear that not only Republicans but also President Obama and the Democratic leadership opposed any inquiries into Bush-era lawbreaking, the polls did begin shifting against the idea of investigations. That’s not surprising: once both political parties agree on a position, it becomes unchallenged consensus and is rarely even debated or contested again. But before Obama’s anti-investigation posture became clear, large portions of the public clearly had been eager for inquiries into Bush’s policies—exactly the opposite of what so many prominent journalists repeatedly claimed.

Whether majorities favor criminal investigations and prosecutions is, of course, irrelevant to the question whether they should occur. Decisions about equality under the law and accountability for crimes should be driven by legal principles, not majoritarian sentiment. But the polls do expose the fact that establishment journalists are not representing the public but rather competing to see who can most dutifully repeat the administration’s self-justification.

On April 19, 2009, in the wake of the release of the OLC torture memos,
Meet the Press
convened a panel to discuss what should be done about the crimes those documents reflected. The panel was moderated by David Gregory and included five exceedingly typical Beltway insiders: the
Washington Post
’s Steven Pearlstein,
Fortune
’s Nina Easton,
Time
’s Rick Stengel, former GOP House majority leader Dick Armey, and former conservative Democratic Representative Harold Ford Jr. Exactly as one would expect, they were all in full and complete agreement that there must be no investigations or prosecutions of any kind. Not a syllable was uttered to suggest that political officials should be treated the same as ordinary Americans when they got caught breaking the law. Instead, all the panel members recited the same Washington gospel that is always hauled out to justify elite immunity.

What a characteristically vibrant, spirited, and diverse media debate that was. The way in which the entire gathering harmoniously repeated the same White House refrain was disturbing indeed. Needless to say, this profound sense of leniency and forgiveness is exclusively reserved for Washington and financial elites. Such sentiments are almost never heard from the media when it comes time to mete out some punishment to ordinary Americans. (The next time you’re pulled over by a police officer for speeding, try quoting Barack Obama and his media defenders: “This is a time for reflection, not retribution.” See if that works. If not, perhaps this will do: “It’s time to focus on the future, not look to the past.” Still no luck?)

As time went on, the establishment media came up with ever more contorted defenses for the political elites.
Newsweek
’s intelligence community reporter John Barry scorned investigations as “the politics of vengeance” and urged Obama “to avoid the blame game” regarding what he euphemistically called “Bush’s security failings.” As a journalist, Barry is supposed to serve as an adversarial check on wrongdoing in the intelligence community, yet he immediately positioned himself as one of the most aggressive and loyal spokesmen for the agencies he covers, demanding that their actions be shielded and forgotten rather than examined and judged.

Then there was
Time
’s Joe Klein, who was more explicit than most in defending the right of political officials to break the law with impunity. In arguing against any action that might lead to accountability for the torture regime, he enumerated what he saw as the dangers for Obama in alienating CIA officials: morale will drop; they’ll all retire at the time he needs them most for Afghanistan and Pakistan; investigations might spark a “rebellion in the clandestine service.” Apparently, we must let CIA personnel break the law lest they become demoralized. Klein also offered the deeply Orwellian observation that “some operators” are required “to behave extra-legally for the greater good of the nation.” Note that Klein was not merely arguing against investigating Bush-era activities but also insisting that criminal behavior is actually vital for the country’s well-being and must be protected.

Finally we come to Ruth Marcus, whose December 2008 column in the
Washington Post
unwittingly displayed the utter incoherence that lies at the crux of the case for elite immunity. Marcus began by reviewing the life of Mark Felt, the number two FBI official under J. Edgar Hoover, who had just died that week. Felt was most famous for having been Bob Woodward’s “Deep Throat” source in the Watergate investigation, but Marcus focused on a different part of his life: the 1980 criminal trial in which Felt was convicted of having ordered illegal, warrantless searches of the homes of 1960s radicals and their friends and relatives.

Less than twenty-four hours after Felt’s 1980 conviction, he (along with an FBI codefendant) was pardoned by Ronald Reagan. Reagan justified his pardon with these following words, obviously relevant to the contemporary debate about possible prosecution of Bush officials.

To give the other side its due, Marcus quoted Felt’s special prosecutor, John Nields, who angrily protested the Reagan pardon by pointing out that even the highest levels of government are supposed to be constrained by the Constitution and the rule of law. But like the good, representative establishment media figure that she is, Marcus concluded that in the modern-day controversy over whether Bush officials should be investigated and prosecuted for their crimes, she felt more at home “in the camp of Reagan than Nields.” Her reasoning was a perfect distillation of conventional Washington wisdom on this topic.

Leave aside Marcus’s revealing and now-common description of government crimes as mere “mistakes.” Further leave aside the implicit premise that punishment is unwarranted when crimes are committed by those who acted “in pursuit of what they thought was right,” an excuse that would set free many (perhaps most) convicted criminals. What is particularly striking about Marcus’s argument—that what matters is preventing future criminality, not punishing past transgressions—is how utterly, blatantly self-contradictory it is.