The Lion and Gun

I have by nature a healthy allergy to any use of the justice system for crass political benefit or, perhaps worse, to punish political enemies. And so the calls on the left over the past several years to impeach and try Dick Cheney and George W. Bush have inclined me against the idea. I'm still uncomfortable with it, and lean against prosecution. I think that some crimes should go unpunished; from South African truth and reconciliation tribunals to the pardon of Richard Nixon, there are many different cases where the crimes of leadership burrow so far to the heart of the country that it's better to forgive as a people than to be torn apart. But on this point I'm willing to be persuaded, and conservative Conor Friedersdorf at Culture11 makes a gloomy but compelling argument:

[I]f Dick Cheney is found guilty of a prison worthy offense, the process of investigating, trying and convicting him is going to be an exceedingly ugly one for the country. . . . It is unimaginable that anyone in the upper levels of the Bush Administration would go to jail without fighting for the contrary outcome in the ugliest way.

It is not entirely irrational to fear that judicial proceedings might one day be used by a new president against his political opponents in the previous administration. Nor is it entirely irrational to fear that a future president might fail to take some prudent action to protect the country, applying some overly legalistic standard to his every action for fear of future prosecution, or take brutal, unethical actions while president — perhaps even atempting to hold onto power — to avoid the prospect of jail once leaving power. And it is almost certain, in any case, that legal action of this kind would mean that every president going forward would take even greater pains to hide their every action, decrease transparency, eliminate the possibility of even backward looking scrutiny. . .

Those who think that executive crimes should be punished have the right of it, I think, because not punishing such crimes is more dangerous, and triggers its own slew of frightening incentives, slippery slopes, and unintended consequences, that portend even more dangerous possibilities for the future, and do more to weaken the prospect of representative democracy governed by the rule of law. . . . But we should not fool ourselves that holding someone like Dick Cheney accountable would be a "very good day," given the inevitable reactions to it amoung our countrymen, even if we can agree that it would be a better day than the alternative. . .