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Assume Bush Broke the Law

Matthew Yglesias:

David Broder:

I have not worried about the fundamental commitment of the American people since 1974. In that year, they were confronted with the stunning evidence that their president had conducted a criminal conspiracy out of the Oval Office. In response, the American people reminded Richard Nixon, the man they had just recently reelected overwhelmingly, that in this country, no one, not even the president, is above the law. They required him to yield his office.

That is not the sign of a nation that has lost its sense of values or forgotten the principles on which this system rests.

And yet here we are in 2008. And I don’t think anyone can seriously dispute that the current President of the United States violated the Foreign Intelligence Surveillance Act or any number of legal commitments to refrain from torture. Some people think these violations were good policy. Many of those who regard those violations as good policy, also maintain that higher constitutional principles grant the President the right to break the law. Which is precisely what you could say on behalf of Richard Nixon. And Bush, like Nixon, has become unpopular. But Bush won’t be hounded out of office.

I’m not exactly sure what accounts for the difference. I wasn’t alive in 1973-74. I have a vague sense that at that time America’s elites operated with some sense of conscience and dignity, and it was taken for granted even among Republican leaders that one couldn’t just break the law. These days, a misleading deposition taken in the course of a frivolous lawsuit aimed at avoiding the revelation of an affair is a grave national crisis, but it’s taken for granted that only a lunatic would believe that Bush or any of his henchmen should be held accountable in any way for repeated violations of the law. I don’t really know what changed, or why David Broder and other gatekeepers of elite consensus can’t see that something’s gone wrong here, but I’m not happy about it.

C’mon, this is easy. Nixon engaged in what we corporate law types call self-dealing. He broke the law for personal political gain. In doing so, moreover, he broke the basic principle of democracy that elections ought to be fair.

Clinton’s undoubted perjury likewise was done for personal gain.

Even assuming Bush and his cohorts have broken the law in connection with their prosecution of the GWOT, nobody can reasonably argue they did so for personal gain. At worst, they did so out of a mistaken belief that they were serving the higher good of national preservation, just as Abraham Lincoln did during the Civil War by suspending the writ of habeas corpus without Congressional action and then ignoring Chief Justice Taney’s decision in Ex Parte Merryman. BTW, can you imagine the uproar Yglesias would lead if Bush were to treat the Supreme Court’s decision in Boumediene the way Lincoln treated Taney’s Merryman decision?

I’m not saying that this makes a legal difference. I’m just saying that the moral distinction between self-dealing and errors of judgment is obvious to the meanest intelligence. The American people seem to get it, even if Yglesias doesn’t.

Update: Kevin Drum gets it:

… the difference here really is pretty obvious. Nixon broke the law repeatedly for purely political purposes: to help his friends, punish his enemies, and keep tabs on domestic groups he happened to personally dislike. There was no ideological dispute about the value of what Nixon did: once it became clear that he had actually done the stuff he was accused of, liberals and conservatives alike agreed that he had to go.

Obviously that’s not the case this time around. So far, anyway, there’s no evidence that George Bush has done anything wrong for purely venal purposes. He approved torture of prisoners and violated FISA because he genuinely thought it was necessary for national security reasons after 9/11 — and unfortunately, lots of people agreed with him at the time and continue to agree with him today. I too wish there were a broader consensus that Bush has acted illegally and ought to be held accountable, but the fact that he hasn’t met Nixon’s fate doesn’t really say all that much about how tolerant we are of executive lawbreaking. Ideological disputes are simply a different kettle of fish than personal vendettas.

Precisely.