With Liberty and Justice for Some (17 page)

When Roosevelt assumed the presidency, businesses were threatening to destroy the basic principle of equality under the law, just as they have done during the past decade-plus orgy of deregulation. Yet through sheer force of personality and resolute confidence in the justice of his convictions, Roosevelt persuaded the citizenry and his fellow elected officials to regulate and reduce the power of those who held the most influence. In 1903, at the height of a backlash over his efforts to target the nation’s most powerful elites, he delivered his third annual message to Congress, pronouncing: “No man is above the law and no man is below it; nor do we ask any man’s permission when we require him to obey it. Obedience to the law is demanded as a right; not asked as a favor.”

The radically different ethos of Roosevelt’s time, as compared to our own day, is also reflected in the healthy fear that financial elites had back then of public resentment over their concentrated power. John D. Rockefeller’s penchant for riding down the street and handing out gold coins was motivated not by generosity of spirit but by fear of public backlash against his privileges. Today’s financial elites evince no such concern, and with good reason: they have seen even the most blatantly sleazy and criminal among them escape from scandals with their fortunes and liberty untouched.

As a trivial but telling example of this new indifference, consider that in August 2009—just after Goldman’s “blowout” profits had been announced, with the vast bulk of the country beset by unemployment, foreclosure, and other forms of economic suffering—the
New York Post
reported that Laura Blankfein, the wife of Goldman CEO Lloyd Blankfein, and her friend Susan Friedman, the spouse of another Goldman partner, had created an ugly public scene at a Hamptons fund-raiser, yelling in protest because they were forced to wait in line with lesser donors.

When today’s financial elites do make gestures to appease the public, they are often so halfhearted and miserly that they achieve the opposite effect. The miniscandal caused by Blankfein and Friedman followed closely on the heels of a memo from Goldman’s CEO requesting that Goldman executives temporarily refrain from public displays of opulence until public outrage at the firm died down. When leaked, that memo generated even more anger.

In September 2009, by way of responding to increasing outrage over its shocking profits so soon after the taxpayers rescued it, Goldman announced that it was putting $200 million into a charitable foundation aimed at supporting educational initiatives around the world. As virtually every press report noted, though, given the size of Goldman’s quarterly profits, that was a ridiculously small amount to trumpet. Clearly, Goldman’s executives were confident that their ownership of the government insulates them from any real accountability, and they simply perceived no need to give away a larger amount of money to satisfy the public. Public rage today is impotent; it has no mechanism to produce consequences.

By contrast, the commitment to equality under the law was so strong in the early twentieth century that criminal investigations proceeded even when there was a handy excuse to sweep the lawbreaking under a rug. Consider, for example, the famous Teapot Dome scandal. In 1922, a little over a decade after Theodore Roosevelt left office, President Warren Harding’s secretary of the interior, Albert B. Fall, leased the U.S. Navy’s petroleum reserves in Teapot Dome, Wyoming, and other locations to Sinclair Oil without soliciting any competitive bids. In return, Fall received at least $100,000 in gifts disguised as interest-free “loans.”

The
Wall Street Journal
reported on this lease using information leaked from a source within the Interior Department. The very next day, Democratic senator John Kendrick introduced a resolution to investigate the matter. Initially skeptical but troubled by the allegations, the legendary Republican senator “Fighting” Bob La Follette arranged for a thorough investigation and even allowed a member of the opposition party, Democrat Thomas Walsh, to chair the panel.

Just as the investigation began to intensify, in the summer of 1923, Harding died in office. This is the point where most modern Beltway insiders would expect any inquiry into the Harding administration to quietly go away. After all, what is the point of obsessing over the past? But rather than simply moving on, Harding’s successor, Calvin Coolidge, continued to pay attention to what had transpired and eventually appointed a special counsel to prosecute the wrongdoing uncovered by Walsh’s investigation. Coolidge justified this as being necessary under the rule of law: “I feel the public is entitled to know that in the conduct of such action no one is shielded for any party, political or other reason.”

By 1929, Fall became the first cabinet official to go to prison. Almost overnight, Harding was posthumously transformed from a popular president into a national disgrace, all through the efforts of his own party. (No wonder that, shortly before he died, Harding had reportedly remarked: “I have no trouble with my enemies. I can take care of my enemies in a fight. But my friends, my goddamned friends, they’re the ones who keep me walking the floor at nights!”) Compare this to today, when a Democratic president, the supposed opponent of the Republican Party, refuses to investigate and prosecute pervasive wrongdoing that occurred under his Republican predecessor, invoking instead the absurd principle of look-forward-not-back.

In 1922, a single no-bid kickback contract retroactively destroyed an administration’s reputation. In the twenty-first century, this sort of brazen corruption is not even a blip on the radar. Instead, far more systematic and devastating criminality is protected—most aggressively by the very people charged with punishing it.

In June 2010, this decline was aptly summarized in a
USA Today
op-ed by the George Washington University law professor Jonathan Turley. The article’s headline poignantly asked, “Do Laws Even Matter Today?” Enumerating the countless scandals of elite lawlessness that have gone entirely unpunished and even uninvestigated over the last decade, Professor Turley wrote:

What we have allowed to take root is the living, breathing embodiment of lawlessness. It is a full-scale rejection of what Jefferson, in his letter to George Washington, described as “the foundation on which all [constitutions] are built”: “the denial of every preeminence.” Through their ownership of political and legal institutions, corporations and banks have secured not only virtually absolute immunity from the dictates and accountability of law, but also the power to shape new legislation as a tool to advance their interests. This rancid state of affairs is everything the founders had most urgently wanted to avoid, and is exactly the dynamic that even the most sober legal theorists have described for centuries as the hallmark of lawlessness and tyranny.

Before he was elected president, Barack Obama repeatedly accused the Bush administration of breaking the law in numerous areas. As a senator, he had opposed the confirmation of Bush’s former NSA chief Michael Hayden as CIA director on the ground that Hayden was “the architect and chief defender of a program of wiretapping and collection of phone records outside of FISA oversight”; voting against Hayden, Obama argued, would “send a signal to this Administration that…President Bush is not above the law.” As a presidential candidate, he condemned waterboarding and other interrogation practices Bush had ordered, straightforwardly describing them as “torture,” the authorization of which is a criminal offense under U.S. law. To a cheering crowd, Obama vowed, “The era of Scooter Libby justice…will be over.”

Obama placed the restoration of the rule of law at the heart of his campaign, promising to reverse the culture of lawlessness in Washington. “No more ignoring the law when it’s inconvenient. That is not who we are,” he pledged. “We will again set an example for the world that the law is not subject to the whims of stubborn rulers, and that justice is not arbitrary.” This promise was a core feature of his candidacy. As
GQ
pointed out in December 2010, Obama positioned himself as “a constitutional scholar devoted to restoring the rule of law”:

Georgetown law professor David Cole underscored, “Obama promised change on a variety of fronts, but the central front was the rule of law.”

In April 2008, when Obama’s primary battle with Hillary Clinton was at its peak, Will Bunch of the
Philadelphia Daily News
asked the candidate whether an Obama administration would “seek to prosecute officials of the former Bush administration on the revelations that they greenlighted torture, or for other potential crimes that took place in the White House.” Bunch cited a recent
ABC News
report detailing that torture techniques were not just approved but “choreographed” by “the most senior Bush administration officials” at a series of meetings in the White House situation room. Reportedly presiding at these meetings was then–National Security Adviser Condoleezza Rice, and participating were, among others, Defense Secretary Donald Rumsfeld, Attorney General John Ashcroft, CIA Director George Tenet, and Secretary of State Colin Powell.

According to
ABC
, these officials agreed that detainees could be “slapped, pushed, deprived of sleep or subjected to simulated drowning, called waterboarding.” They also “approved interrogations that combined different methods, pushing the limits of international law and even the Justice Department’s own legal approval.” The torture policies being discussed were so extreme that even Ashcroft—who had demonized critics of Bush’s post-9/11 policies as aiders and abettors of terrorism—felt moved to observe: “Why are we talking about this in the White House? History will not judge this kindly.”

Taking up Bunch’s question, Obama responded, “What I would want to do is to have my Justice Department and my Attorney General immediately review the information that’s already there and to find out are there inquiries that need to be pursued.” On the matter of prosecutions, Obama rightly noted, “I can’t prejudge that because we don’t have access to all the material right now.” Still, he repeated his commitment to discovering the truth: “I would want to find out directly from my Attorney General—having pursued, having looked at what’s out there right now—are there possibilities of genuine crimes?”

Obama did nod toward the precepts of elite immunity familiar since Ford pardoned Nixon, saying that he “would not want [his] first term consumed by what was perceived on the part of Republicans as a partisan witch hunt” and that “one of the things we’ve got to figure out in our political culture generally is distinguishing between really dumb policies and policies that rise to the level of criminal activity.” But Obama emphasized that, those considerations notwithstanding, he was a believer in the rule of law.

Sensibly enough, Bunch concluded, “Obama sent a clear signal that…he is at the least open to the possibility of investigating potential high crimes in the Bush White House.”

Such investigations started to seem all the more likely when Obama, shortly after winning the election, chose Eric Holder as his attorney general. In a June 2008 speech to the American Constitution Society, Holder had denounced the “disrespect of the rule of law” shown by Bush officials, going so far as to explicitly accuse them of having committed numerous crimes.

Most notable was Holder’s insistence that the “patriotism of those responsible for these policies…does nothing to mitigate the fact that these steps were wrong when they were initiated and they are wrong today.” In what was widely understood to be a demand for accountability, Holder declared, “We owe the American people a reckoning.” What was at stake was the soul of the nation.

Top Democrats in Congress, too, pledged throughout 2008 to conduct formal investigations into a wide array of Bush-era crimes. Bush officials had spent two years brazenly refusing to comply with an array of congressional subpoenas. With Bush out of the White House, Democrats promised, this stonewalling would end.

But almost immediately after winning the election—indeed, before he was even inaugurated—Obama beat a quick retreat, abandoning and even renouncing his prior righteous rhetoric about the rule of law. Instead, he passionately devoted himself to blocking and suppressing all investigations of the Bush administration, whether carried out by the DOJ or by Congress, by U.S. courts or by judges overseas. Thus began Obama’s crusade as a champion of elite immunity—of the very “Scooter Libby justice” he had vowed to end.

In fact, Obama went beyond the Nixon pardon, telecom immunity, and even the failure to investigate rampant Wall Street illegality. Those measures were indeed lawless, but there was at least some legal pretext for them: the Constitution gives presidents the power of granting pardons; retroactive telecom immunity was bestowed through an act of Congress; and the DOJ can hide behind claims of prosecutorial discretion when it refuses to hold financial elites accountable. But Obama’s wholesale protection of Bush-era criminals enjoyed none of those excuses. Instead, his administration, in the course of obstructing investigations, explicitly disregarded numerous legal dictates and thus profoundly violated both the president’s specific constitutional duty to “take Care that the Laws be faithfully executed” and the general principle of equality under the law.

A Quick Retreat

Nine days before Obama’s inauguration, the
New York Times
published an article headlined “Obama Reluctant to Look Into Bush Programs.” It compiled a series of unmistakable signals from Obama and his closest aides that the campaign vow to examine Bush crimes was being tossed overboard. On Capitol Hill, the article reported, there “has been a growing sense that Mr. Obama was not inclined to pursue these matters.”

The most significant of those preinauguration signals was an interview that the president-elect gave to
ABC News
on January 11, 2009.
ABC News
had invited viewers to vote on the questions that they most wanted to hear Obama answer, and Obama’s own Web site,
change.gov
, had done the same. The interviewer, George Stephanopoulos, noted that the most popular question on Obama’s site was: “Will you appoint a special prosecutor, ideally Patrick Fitzgerald, to independently investigate the greatest crimes of the Bush administration, including torture and warrantless wiretapping?”

Obama began his response by paying lip service to the core principle of the American founding: “We’re going to be looking at past practices and I don’t believe that anybody is above the law.” But he devoted the bulk of his answer to laying the foundation for his future opposition to investigations of any kind.

Obama’s insistence that “we need to look forward as opposed to looking backwards” echoed similar phrasing from Gerald Ford, George H. W. Bush, and Bill Clinton. And given that “looking backwards” is, by definition, what any investigation entails, it was a motto of pure lawlessness.

Stephanopoulos then asked Obama whether he would at least approve a 9/11-type “commission with independent subpoena power” in order to bring Bush-era crimes to light. Obama was no more receptive to that suggestion. While again including the cursory caveat that this “doesn’t mean that if somebody has blatantly broken the law, that they are above the law,” he immediately negated that principle by reaffirming his disinclination to look into what Bush officials had done: “My instinct is for us to focus on how do we make sure that moving forward we are doing the right thing…. My orientation’s going to be to move forward.” Stephanopoulos asked him once more whether he was “ruling out prosecution,” and Obama—while noting that ultimately prosecutions are decided by the attorney general—again underscored his own obvious opposition: “My general belief is that when it comes to national security, what we have to focus on is getting things right in the future, as opposed to looking at what we got wrong in the past.”

“Look forward, not backward” became the mantra that Obama and his top aides would endlessly repeat to justify their active suppression of all forms of accountability for crimes committed by the Bush administration. A particularly illustrative example of this mentality arose less than three months into Obama’s presidency. On April 16, 2009, Obama declassified and publicly released four Bush-era Justice Department memos that described in detail the brutal and patently illegal torture techniques that America’s highest political leaders had ordered over the prior eight years. At the same time, however, Obama announced that there would be no prosecutions of the government officials who had ordered or implemented the methods discussed. “This is a time for reflection, not retribution,” he intoned.

Behold the language of elite immunity. Punishing political leaders for well-documented crimes is scorned as “retribution” and “laying blame for the past.” Those who believe that the rule of law should be applied to all are dismissed as “the forces that divide us.” The bottomless corruption of letting elites break the law without suffering any consequences is sanctified as “mov[ing] forward” and “com[ing] together on behalf of our common future.”

Obama’s attitude was all the more remarkable because the crimes described in the memos involved not a mere break-in targeting an opposing party’s office or the covert provision of weapons to a foreign regime that the United States wished to influence. Rather, the declassified DOJ memos constituted compelling evidence that the U.S. government had authorized and carried out brutal torture—one of the most serious and heavily sanctioned crimes under U.S. domestic law, and a war crime that carries the death penalty in international law. As Bush’s own attorney general, Michael Mukasey, unequivocally told the
Wall Street Journal
three days before Obama’s inauguration, “Torture is a crime.”

Indeed, the exact same interrogation tactics that the Bush administration authorized had been prosecuted in the past as felonies and war crimes. In 2007, the federal judge Evan Wallach had reminded
Washington Post
readers that in previous decades the U.S. government had “not only condemned the use of water torture but had severely punished those who applied it.” Wallach noted that at the end of the World War II the United States had organized war crimes tribunals against Japanese soldiers, several of whom were convicted of torture: “The principal proof upon which their torture convictions were based was conduct that we would now call waterboarding.” And Attorney General Holder himself, five days prior to Obama’s inauguration, pointed out that “we prosecuted our own soldiers for using it in Vietnam…. Waterboarding is torture.”