Sunday, April 19, 2009

Presidential Justice: A Constitutional Question

While I note President Obama's "decision" that CIA  agents who participated in torture will not be prosecuted, I am left wondering.

Where at law does the President derive this ultimate authority to determine on political grounds who will or will not be prosecuted in America for alleged criminal offences?

Has there not been an ongoing investigation  over suggestions of that very kind of political interference by the Bush White House  in the Justice Department's 2006 firing of nine U.S. attorneys for apparently partisan reasons?  

See Dan Froomkin's Washington Post report, Pointing the Finger at the White House, from September 29, 2008:
"The most serious allegations that arose were that the U.S. Attorneys were removed based on improper political factors, including to affect the way they handled certain voter fraud or public corruption investigations and prosecutions. Our investigation found significant evidence that political partisan considerations were an important factor in the removal of several of the U.S. Attorneys.
...All this despite the facts that, as the report makes clear, the idea of firing U.S. attorney originated in the White House, no one within the Justice Department has been able to provide a persuasive explanation for why several of the names showed up on the firing list, and the White House aides who just might possibly be in a position to resolve the mystery insist on remaining silent.

And while I do not want  venture into hyperbole by suggesting any parallel - as there is none at this point -  I will at very least make historical reference to an August 1974 legal memorandum to U.S. Special Prosecutor Leon Jawarski  on the possible indictment of  former President Richard Nixon.  

This memorandum adressed allegations of obstruction of justice stemming from Mr. Nixon's  role in an alleged conspiracy to cover up illegal activity by his political operatives in order to sheild them from prosecution and to insulate the Nixon Administration from political and legal repercussions:

In our view there is clear evidence that Richard M. Nixon participated in a conspiracy to obstruct justice by concealing the identity of those responsible for the Watergate break-in and other criminal offenses. There is a presumption (which in the past we have operated upon) that Richard M. Nixon, like every citizen, is subject to the rule of law. Accordingly, one begins with the premise that if there is sufficient evidence, Mr. Nixon should be indicted and prosecuted. 

As I understood it, U.S. Presidents do not have authority to unilaterally determine whether criminal  prosecutions occur in America, nor may they tamper with ongoing investigations to influence prosecutorial determinations on these questions.

Presidents may issue pardons to preclude prosecution, as did President Gerald Ford on September 8, 1974, but absent such pardons, I would suggest they have no lawful role in matters of prosecutorial discretion.  

- Garry J. Wise, Toronto

Update: April 22, 2009

Glen Greenwald advanced a similar argument yesterday. See Obama recognizes: whether to prosecute is not his decision.

- GJW

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