If Criminal Penalties Are Removed, What Will Deter Lawbreaking by Political Officials?

The Washington Post's Ruth Marcus today perfectly expresses
the consensus view of establishment Washington regarding the exemption
which political elites should and do enjoy from the rule of law, and,
in doing so, she unintentionally highlights -- as vividly as possible
-- the glaring flaw in this mentality. Marcus reviews the life of Mark
Felt, the number 2 FBI official under J. Edgar Hoover who died this
week. Felt is most famous for having been Bob Woo

The Washington Post's Ruth Marcus today perfectly expresses
the consensus view of establishment Washington regarding the exemption
which political elites should and do enjoy from the rule of law, and,
in doing so, she unintentionally highlights -- as vividly as possible
-- the glaring flaw in this mentality. Marcus reviews the life of Mark
Felt, the number 2 FBI official under J. Edgar Hoover who died this
week. Felt is most famous for having been Bob Woodward's "Deep Throat"
source in the Watergate investigation but, as Marcus details, he was
also convicted in a 1980 criminal trial for having ordered illegal, warrantless physical searches of the homes of various friends and relatives of 1960s radicals.

than 24 hours after Felt was convicted, he (along with an FBI
co-defendant) was pardoned by Ronald Reagan, who justified the pardon
by citing Jimmy Carter's pardon of Vietnam War draft evaders and then
saying, in words obviously relevant now to growing demands for
prosecution of Bush officials:

We can be no
less generous to two men who acted on high principle to bring an end to
the terrorism that was threatening our nation. . . .

men's convictions] grew out of their good-faith belief that their
actions were necessary to preserve the security interests of our
country. The record demonstrates that they acted not with criminal
intent, but in the belief that they had grants of authority reaching to the highest levels of government.

quotes Felt's Special Prosecutor, John Nields, as angrily protesting
Reagan's pardon, pointing out that central to our form of Government is
the proposition that our highest political leaders are constrained by
the Constitution and the rule of law -- a principle Reagan subverted by
protecting these criminals.

Like the good, representative
establishment Washingtonian that she is, Marcus announces that -- when
it comes to the growing controversy over whether Bush officials should
be investigated and prosecuted for their crimes -- she "find[s herself]
more in the camp of Reagan than Nields." Her reasoning is a perfect
distillation of conventional Washington wisdom on this topic:

I understand -- I even share -- Nields's anger over the insult to the rule of law. Yet I'm coming to the conclusion that what's most crucial here is ensuring that these mistakes are not repeated. In the end, that may be more important than punishing those who acted wrongly in pursuit of what they thought was right.

aside Marcus' revealing description of government crimes as
"mistakes." Even on its own terms, even if one accepts her premise
that Bush officials broke the law "in pursuit of what they thought was
right," this argument makes absolutely no sense. In fact, it is as
internally contradictory as an idea can be.

Along with the
desire for just retribution, one of the two principal reasons we impose
penalties for violations of the criminal law is deterrence -- to provide an incentive for potential lawbreakers to refrain from
breaking our laws, rather than deciding that it is beneficial to do
so. Though there is debate about how best to accomplish it and how
effective it ultimately is, deterrence of future crimes has been, and
remains, a core purpose of the criminal law. That is about as basic as
it gets. From Paul Robinson, University of Pennsylvania Law Professor,
and John Darley, Psychology Professor at Princeton, in "The Role of Deterrence in the Criminal Law":

the past several decades, the deterrence of crime has been a
centerpiece of criminal law reform. Law-givers have sought to optimize
the control of crime by devising a penalty-setting system that assigns criminal punishments of a magnitude sufficient to deter a thinking individual from committing a crime.

for lawbreaking is precisely how we try to ensure that crimes "never
happen again." If instead -- as Marcus and so many other urge -- we
hold political leaders harmless when they break the law, if we exempt
them from punishment under the criminal law, then what possible reason would they have from refraining from breaking the law in the future?
A principal reason for imposing punishment on lawbreakers is exactly
what Marcus says she wants to achieve: "ensuring that these mistakes
are not repeated." By telling political leaders that they will not be
punished when they break the law, the exact opposite outcome is
achieved: ensuring that this conduct will be repeated.

* * * * *

contemplate how stupid and irrational everyone would think a person was
being if they wrote an article advancing this argument:

more important than punishing murderers or getting caught up in
protracted disputes about prior murders is the need to prevent murders
from occurring in the future. Therefore, we ought to abandon our quest
to impose punishments on people who get caught having murdered
someone. To expend resources trying to punish murderers is to squander
vital resources on the past, to waste energies that could instead be
more productively devoted to preventing future murders.

are too many important challenges we face to waste time bogged down
litigating past murders. Let's allow murderers to go unpunished so
that we can move beyond the past and concentrate instead on the more
important priority of minimizing the number of murders in the future.

argument, of course, is self-refuting. If we adopt a policy of not
punishing murderers, we will obviously not be preventing future
murders. We will be doing the opposite: ensuring and even encouraging
a massive increase in murders, since people will know that they are now
free to do it with impunity. The prime barrier to most crimes -- the
main deterrent -- is the threat of criminal punishment, of a lengthy
prison term. That's not true of all crimes (the criminal law has had a
negligible effect, for instance, on drug usage, and may not deter
poverty-motivated crimes), but it's certainly true of most serious
crimes, especially by those with power. If you abolish that
punishment, then you inevitably ensure many more crimes in the future,
no matter how many noble efforts you devote towards "making sure it
never happens again" -- whatever that might mean.

The evidence
demonstrating that this is an exact analogy to what Marcus is
advocating, an exact analogy to what we've generally been doing with
political leaders and are doing now, is equally self-evident. A
central observation in Marcus' column is that the controversies that
have now arisen over Bush lawbreaking in the areas of interrogation and
surveillance are not new. As she points out, these are the very same
controversies that we've been confronting for decades.

exactly right. The same controversies over government lawbreaking
arise over and over. And why is that? Because our political leaders
keep breaking the law -- chronically and deliberately. And why do they
keep doing that? Because there is no deterrent against it. Every
time they get caught breaking the law, the Ronald Reagans and
Ruth Marcuses of the world step in to insist that they should not be
punished, that the criminal law is not for elite leaders in political
office, that those involved in the noble function of ruling America are
too intrinsically well-intentioned to warrant punishment even when they
commit crimes, that it's more important to look forward than back.

time we immunize political leaders from the consequences of their
crimes, it's manipulatively justified in the name of "ensuring that it
never happens again." And every time, we do exactly the opposite: we
make sure it will happen again. And it does: Richard Nixon is
pardoned. J. Edgar Hoover's lawbreakers are protected.
The Iran-contra criminals are set free and put back into government.
Lewis Libby is spared having to serve even a single day in prison
despite multiple felony convictions. And now it's time to immunize
even those who tortured detainees and spied on Americans in violation
of numerous treaties, domestic laws, and the most basic precepts of
civilized Western justice.

* * * * *

If someone wants to
argue that America is too good and our Washington elite too important
to allow our powerful political leaders to be subjected to the
indignity of a criminal proceeding, let alone prison, they should argue
that. As warped as that idea is, at least it's candid and coherent.
It's the actual animating principle driving most of this.

this claim that we have to immunize political leaders from the
consequences of their lawbreaking in order to -- as Marcus wrote --
"ensure that these mistakes are not repeated" is manipulative
and Orwellian in the extreme. It's contradictory on its face. It's
just a Beltway buzzphrase, a platitude, completely devoid of specific
meaning and designed to do nothing but obfuscate what is really going

Whenever you hear that claim being made -- that what matters
is not punishment, but ensuring that it never happens again -- notice
that none of the Serious guardians who advocate it ever, ever answer or
even acknowledge this question: other than punishing people
for breaking the law, how is it even theoretically possible to ensure
it doesn't happen again in the future?
We already have
unambiguous laws in place with substantial penalties for violations.
We already impose disclosure obligations, and substantial oversight
duties on the Congress and courts.

All of these laws and
safeguards were blithely disregarded and violated. Other than making
sure that leaders know they will be punished -- like all Americans are
-- when they break the law, how and why does anyone imagine
that we can ensure this "never happens again," especially as we
simultaneously affirm -- yet again -- that political leaders will be
exempted from the rule of law if they do it?
What's the answer to that?

UPDATE: The opening address of Robert Jackson at the Nuremberg Trials
is undoubtedly one of the most important speeches of the last century.
It established the basic precepts of Western Justice. War crimes,
Jackson observed, are such that "civilization cannot tolerate their
being ignored, because it cannot survive their being repeated." And,
contrary to the blatantly self-contradictory claims from today's
Washington elite, he pointed out that the only way to ensure they don't happen again is through real accountability and punishment:

The common sense of mankind demands that law
shall not stop with the punishment of petty crimes by little people. It
must also reach men who possess themselves of great power
. . . .

irrelevant whether crimes rise to that same level or are of the same
magnitude. These were principles of justice that were supposed to
endure and govern how we conducted ourselves generally, beyond that
specific case. In fact, Justice Louis Brandeis, 20 years earlier, observed that it's probably more important -- not less -- to enforce the rule of law when government leaders commit crimes than when ordinary Americans commit them:

a government of law, the existence of the government will be imperiled
if it fails to observe the law scrupulously. Our government is the
potent, the omnipresent teacher. For good or for ill, it teaches the
whole people by example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for the law; it invites every man to become a law unto himself; it invites anarchy.

We haven't just forgotten these principles. We're deliberately -- consciously -- choosing to renounce them.

UPDATE II: At Talk Left, Armando points out
one other towering, destructive flaw in Marcus' "logic" -- logic which,
I want to re-iterate, is worth examining only because it's the
predominant mentality in the Washington establishment. As Armando

[Marcus] claims her ambivalence stems
from "How much can and should government infringe on personal privacy
and individual liberties in the name of guarding against risks to
public safety? What should be the role of criminal law when government
officials overstep permissible bounds in the name of national security?"

answers to these questions are so obvious that it strikes me again that
Ms. Marcus is providing us the question 'is she an idiot or a
malevolent dissembler?' Those questions are answered by the
laws we make. This is called democracy Ms. Marcus. The permitted level
of government infringement on liberty is that which our laws and
Constitution allow. No more. If we wish to give away our freedoms, we
do it by lawful means.
To grant the Executive Branch the power to determine which laws to follow is precisely what the Founders fought against.

does that even need to be pointed out? We already weighed the
competing considerations between freedom and security and then enacted
laws which authorized certain behaviors and criminalized others. If
that balance should be altered, the solution -- in a society that lives
under the rule of law -- is for the laws to be changed democratically,
not for political leaders to decide at will and in secret that they
will break those laws and then argue after the fact that the laws they
broke were bad ones. Political leaders aren't vested with lawbreaking
power. To the contrary, the Constitution explicitly requires that they
"faithfully execute" those laws, not violate them at will.

this all so painfully basic? When the predominant Beltway argument is
stripped of euphemisms, it amounts to nothing less than the claim that
our political leaders should be -- and are -- free to break our laws.
And that's the system we've adopted. It's why Dick Cheney feels free
to smugly admit in public that he authorized these war crimes. He
knows that the Ruth Marcuses of the world will intervene to defend him.
Still, it's one thing to argue that American political leaders should
have the power to commit crimes. It's another thing entirely to advance
the insultingly deceitful and Orwellian claim that doing so is
necessary so we can focus on preventing similar lawbreaking in the

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