Professor Bainbridge...on law, politics, religion, culture & food

Obama’s Prudence re Investigations

Andrew Sullivan frequently explains his support for Barack Obama by claiming that Obama is a prudent statesman. In the spirit of giving credit where credit is due, I point to a recent speech flagged by Phil Carter in which Obama struck what I think is exactly the right tone:

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. I can’t prejudge that because we don’t have access to all the material right now. I think that you are right, if crimes have been committed, they should be investigated. You’re also right that I would not want my first term consumed by what was perceived on the part of Republicans as a partisan witch hunt because I think we’ve got too many problems we’ve got to solve.

So this is an area where I would want to exercise judgment—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 as opposed to really bad policies. And I think it’s important-- one of the things we’ve got to figure out in our political culture generally is distinguishing betyween really dumb policies and policies that rise to the level of criminal activity.

Whereas Carter sees this as a shot across the Bush administration’s bow, I see it as a highly prudential statement about prosecutorial discretion.

If crimes were committed, prosecute them, but exercise prosecutorial discretion so as to avoid getting bogged down in an unending series of investigations.

OTOH, Hugh Hewitt looked at the same speech and saw this:

Senator Obama plays to the fringe, and reinforces the growing perception that he is a radical, not a “moderate.”

Could the Democrats nominate the only candidate who could lose 40 states, or perhaps more?

In any case, I am reminded of the left’s outrage when Bush fired US Attorneys for deviating from administration law enforcement policies. Back then I wrote that:

I think it is perfectly appropriate for the President and Attorney General to set law enforcement priorities. Say, the Attorney General says pornography is a priority. US Attorneys who fail to enforce that priority appropriately can be fired. Contra what some in the blogosphere seem to believe, US Attorneys serve at the pleasure of the President and may be terminated either with or without cause at any time.

I woder how Obama would handle the following scenario: Based on advice from his top legal advisors, Obama concludes that no war crimes cases should be brought against any Bush administration personnel. But the US Attorney for the Northern District of California decides to indict John Yoo. Would Obama stop him or would Obama allow the case to become a political cause célèbre that distracts public attention for much of his first term?

A related thought: What are the odds that Bush will grant last minute pardons to his national security team? It would be more defensible than, say, Bill Clinton’s pardon of Marc Rich.