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RE: Darrell Issa And the Criminalization of Politics

Pete, you sound a helpful warning on the dangers of overreach and the disturbing tendency to summon special prosecutors as a cure-all for bad government. There are a couple of issues that, I think, are helpful to keep in mind as we look at the issue of oversight and, more broadly, of divided government.

It is understandable that the Republicans would welcome the opportunity for congressional oversight. We have had virtually none of it during the last 18 months. Whether it has been on the failings that led up to Fort Hood, the dismissal of the New Black Panther case, the potential conflicts of interest for Justice Department lawyers who previously represented terrorists, or dozens of other issues, congressional Democrats have placed party loyalty above their obligation to act as a check on the executive branch through congressional oversight. Subpoenas are needed when the government refuses to cooperate with Congressional investigators. Some of those demands for information are not legitimate, in which case Congress generally retreats or is rebuffed by the courts. But at other times, it is the last resort when confronting a Nixonesque administration. In short, Congressional oversight can be abused and boomerang on the investigators, but when an administration is as overreaching and nontransparent as this one, robust oversight is generally a good idea.

The other issue to keep in mind is the distinction between political and legal consequences. Not every bad decision or decision undertaken for corrupt motives is illegal, but there is still a need to expose it and subject the participants to the scrutiny of voters. Normally this is a function we’d expect the media to perform. But again, they are doing a fraction of what they should and normally would do — if a Republicans were in power. For example, a congressional investigation on the shady job offers need not be intended to or result in criminal prosecution; the need to expose the ethical standards of this administration is more than enough reason to conduct some hearings and require testimony under oath.

I would suggest that the proper balance in this is ample congressional oversight, but selective (very selective) use of criminal proceedings. The punishment for unwise, ethically repugnant, and incompetent office holders should come from the ballot box. But to do that we first have to figure out what they are up to. In the Obama era, I think we could use plenty more of that.


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