While Rep. Darrell Issa (R-CA) has deemed the Sestak no-pay-for-no-play non-scandal an "illegal quid pro quo" and "Obama's Watergate," the overwhelming consensus of legal opinion had concluded otherwise. While Bush White House ethics officer Richard Painter told his fellow Republicans to "move on," Steve Bunnell of the firm O'Melveny & Myers announced, "There is nothing inherently bad about it unless you think politics and democracy are bad."
But for over a generation, it has been the Republicans and their conservative amen corner who have tried to brush off charges of their own corruption and lawlessness as "criminalizing politics." And from Iran-Contra, Plamegate and Tom Delay to the U.S. attorneys purge to detainee torture, Republicans survived their endless scandals by instead successfully politicizing crime.
Ironically, it was President Bush's father who introduced the criminalization of politics defense into the Republican strategic lexicon. In justifying his Iran-Contra pardons, President George H.W. Bush used the talking point that would come to define the discourse of his son's 21st century water carriers. Much like his son's defenders, Bush 41 sought to recast rampant Republican White House criminality as mere political disagreement:
Mr. Bush said today that the Walsh prosecution reflected "a profoundly troubling development in the political and legal climate of our country: the criminalization of policy differences."
The "criminalizing politics" canard has been part of the Republican scandal survival kit ever since.
Take, for example, the imbroglio surrounding the politically motivated firings of U.S attorneys in 2006. On PBS Newhour in May 2007, Republican California Congressman Dan Lundgren was only too happy to offer the criminalization of politics ruse for Monica Goodling and Alberto Gonzales alike. Just moments after acknowledging Goodling's admission of violating civil rules and Hatch Act prohibitions ("she did admit that she made mistakes in that regard"), Lundgren returned the script:
"Let me just say this -- and I think it's an important point -- there is too much of a tendency in this environment to try and criminalize political disputes. That's been the effort here. They have found no basis for criminality, so the suggestion is now a vote of no confidence. Who knows what is next?"
But it was Rep. Mike Pence (R-IN) who beat Lundgren to the punch, defending Goodling in the opening moments of her testimony. Pence, who famously compared his March 2007 visit to a Baghdad market to shopping in his home state of Indiana, trotted out the tired GOP talking point for her:
"I'm listening very intently. I'm studying this case. And I want to explore this issue of illegal behavior with you. Because it seems to me so much of this -- and even something of what we've heard today in this otherwise cordial hearing -- is about the criminalization of politics. In a very real sense, it seems to be aabout the attempted criminalization of things that are vital to our constitutional system of government, namely the taking into consideration of politics in the appointment of political officials within the government."
Later that morning, of course, Monica Goodling admitted her own lawbreaking and suggested that Attorney General Gonzales may have obstructed justice in trying to coach her. Acknowledging that "I believe I crossed the line, but I didn't mean to", Goodling clarified for all why she sought immunity in the first place:
"I do acknowledge that I may have gone too far in asking political questions of applicants for career positions, and I may have taken inappropriate political considerations into account on some occasions, and I regret those mistakes."
(As it turned out, the DOJ's own inspector general later rejected Goodling's criminalization of politics maneuver.)
GonzoGate, however, is far from the first 21st century use of the "criminalizing politics" defense by Team GOP and its echo chamber. Consider the case of Tom Delay. As early as April 2005, a furious Delay declared of the ethic charges swirling around him, "Democrats have made clear that their only agenda is the politics of personal destruction and the criminalization of politics." Amazingly, that comment came before Delay's own October 2005 indictment in Texas for money laundering in association with his Texans for a Republican Majority (TRMPAC).
Unsurprisingly, the conservative echo chamber rushed to Delay's defense and magnified his talking point. Days after Delay's indictment by District Attorney Ronnie Earle, Robert Novak penned a column titled "Criminalizing Politics", concluding:
'Democrats are ecstatic. The criminalization of politics may work, even if the case against DeLay is as threadbare as it looks."
No discussion of Robert Novak and the Republican redefinition of GOP crime as everyday political disagreements could be complete without a look the outing of CIA agent Valerie Plame. While neither Karl Rove nor others were ever charged with the technical and narrowly defined offense of revealing the identity of Valerie Plame to Robert Novak and others, Cheney chief-of-staff Scooter Libby was convicted by jury on four counts of perjury and obstruction of justice. But for the familiar goose-steppers of the conservative ascendancy, Libby the felon too was a victim of the criminalization of politics.
The usual cavalcade of apologists for Republican law-breaking swarmed to Libby's defense. With his looming indictment in the fall of 2005, Texas Senator Kay Bailey Hutchison compared Libby to Martha Stewart, and offered a new variant of the Delay sound bite, the "perjury technicality." Hutchison said she hoped that:
"That if there is going to be an indictment that says something happened, that it is an indictment on a crime and not some perjury technicality where they couldn't indict on the crime and so they go to something just to show that their two years of investigation was not a waste of time and taxpayer dollars."
Hutchison, of course, had plenty of company in offering the criminalization of politics canard in the CIA leak case. On October 14, 2005, Bill Kristol complained, "I am worried about what happens to the administration if Rove is indicted," adding, "I think it's the criminalization of politics that's really gotten totally out of hand." In succeeding days, Kristol's Fox News colleagues Bill O'Reilly, Sean Hannity, Stuart Varney and Chris Wallace joined the chorus singing from the RNC's criminalization of politics hymnal. On October 24th, Kristol took to the pages of the Weekly Standard to denounce a supposed Democratic strategy of "criminalizing conservatives." When Libby was later convicted, the Wall Street Journal editorial page called for a pardon. The WSJ cited grave dangers if the Libby verdict were to stand: "perhaps the worst precedent would be normalizing the criminalization of policy differences."
Sadly, two years later, President Obama and his Attorney General Eric Holder were complicit in aiding and abetting the Republican criminalization of politics defense. This time, the misdeeds concerned the Bush administration's regime of detainee torture.
During his confirmation hearings in January 2009, Attorney General Eric Holder reassured Republican torture enthusiasts in the Senate when he declared "we don't want to criminalize policy differences that might exist" with the outgoing Bush White House. But with prosecution of the Bush torture team back on the table after the release of the OLC memos and reports from the Senate Armed Services and Intelligence committees, the Republican echo chamber is quickly circling the wagons in defense of the indefensible.
In a scathing April 2009 editorial titled, "Presidential Poison," the Wall Street Journal went on the attack using the GOP's tried and untrue criminalizing politics canard:
Mark down the date. Tuesday, April 21, 2009, is the moment that any chance of a new era of bipartisan respect in Washington ended. By inviting the prosecution of Bush officials for their antiterror legal advice, President Obama has injected a poison into our politics that he and the country will live to regret...
Above all, the exercise will only embitter Republicans, including the moderates and national-security hawks Mr. Obama may need in the next four years. As patriotic officials who acted in good faith are indicted, smeared, impeached from judgeships or stripped of their academic tenure, the partisan anger and backlash will grow...
Mr. Obama is more popular than his policies, due in part to his personal charm and his seeming goodwill. By indulging his party's desire to criminalize policy advice, he has unleashed furies that will haunt his Presidency.
Of course, those furies were unleashed long before Barack Obama took the oath of office. But just in case Americans needed a reminder, former "blog of the year" Power Line lashed out in a piece called "Criminalizing Conservatism." Rather than advising conservatives to try the novel approach to governing which excludes committing crimes, John Hinderaker warned that his persecuted right-wing partisans are rapidly becoming an endangered species:
"Many liberals don't just want to defeat conservatives at the polls, they want to send them to jail. Toward that end, they have sometimes tried to criminalize what are essentially policy differences...
"President Obama and his party may achieve another objective by publicly making this kind of threat: deterring Republicans from serving in public life. For many Republicans considering whether to accept an appointment to government office, the prospect that they may be subjected to criminal prosecution if the next administration is Democratic could well tip the balance in favor of remaining in private life."
Columnist and Fox News regular Fred Barnes has been making that same bogus case for years. Whether the scandal involved Plamegate, federal prosecutors or even public broadcasting, Barnes played the same "criminalizing politics" card. And with the prospect of torture prosecutions, he's sounding like a broken record:
"Pat Leahy, the senator from Vermont, is one of the most partisan people in the history of politics, and certainly in Congress today. And what he wants is to criminalize policy differences...I think that's exactly the wrong thing to do."
Regrettably, Barnes was seconded by David Broder, the supposed dean of the Washington press corps, who declared of the potential prosecution of the Bush torture team in April 2009:
"It would set the precedent for turning all future policy disagreements into political or criminal vendettas"
Predictably, Senators Kit Bond and John McCain among others faithfully reproduced the GOP talking point about potential torture prosecution constituting a "banana republic," Following the script, Bond insisted, "We don't criminally prosecute people we disagree with when we change office."
Not that is, when a Republican administration is replaced by Democrats in the White House. Republicans had no issue when Ronald Reagan dangled a job to Senator S.I. Hayakawa to lure him of out of the 1982 Republican primary in California or when, as Richard Painter noted, "President Bush occasionally intervened in Republican primaries (including on behalf of Senator Specter in 2004)." And Issa and his colleagues were silent when President Obama offered Judd Gregg the post of Commerce Secretary along with a promise to keep his New Hampshire Senate seat in Republican hands.
So much for crying foul over the criminalization of politics.
(This piece also appears at Perrspectives/a>.)