Does He Who Makes the Rules Get to Break Them Too? (UPDATED)

When I was sworn in as a Nebraska lawyer, I took the following oath:

"You do solemnly swear that you will support the Constitution of the United States, and the Constitution of this state, and that you will faithfully discharge the duties of an attorney and counselor, according to the best of your ability."

It's similar to the oath George Bush took and that Barack Obama will take in that it requires the taker to "support [and uphold] the Constitution of the United States." Since I practice criminal defense law, I'm constantly asked, in defending my clients at sentencing and upon requesting a particular sentence, whether subjecting the person standing beside me to the penalty I request will deter lawbreaking in the future.

We ask that question automatically in criminal court and I find myself addressing it frequently as people ask me, "how can you defend those people?" This common question assumes somehow that "these people" are almost all guilty, that I'm a little suspicious for standing beside them, and that "these people" are not sufficiently punished, likely through my efforts, in court.

This question springs from a common, modern belief in America that somehow we're not punishing criminals enough and that punishment alone will deter criminals. As I've written before, however, (quoting from the New York Times) it's not like we haven't tried punishment through incarceration at alarming rates. As the NYT article I referenced in that post shows: "The United States has less than 5 percent of the world’s population. But it has almost a quarter of the world’s prisoners." The article goes on to show that:

- Americans are locked up for crimes — from writing bad checks to using drugs — that would rarely produce prison sentences in other countries.
- And in particular they are kept incarcerated far longer than prisoners in other nations.
- Criminologists and legal scholars in other industrialized nations say they are mystified and appalled by the number and length of American prison sentences.

But what do you do when a political leader goes on national t.v. and admits to approving waterboarding, as Dick Cheney did last week? Do you, like Mayor Diamond Joe Quimby create a "blue ribbon commission" to investigate, which will likely take up enough time to ensure that criminal prosecutions growing out of it are very unlikely because of statute of limitations issues?

Do you appoint a Republican prosecutor, like Patrick Fitzgerald, to investigate and potentially prosecute the Bush, Cheney, Yoo, Addington, et al, as Greenwald called for on Bill Moyers' Journal last week? Do you simply forgive, forget and move on, as many beltway Democrats will likely prescribe?

As Glenn Greenwald shows, mainstream media calls for prosecutions are growing, as are cries for forgiving and forgetting?

Greenwald yesterday addressed the question "If criminal penalties are removed, what will deter lawbreaking by political officials?" Ironically, in a country with 1/20th of the world's population and 1/4th of its prisoners- which constantly asks itself the question "but won't letting this potential criminal off easy promote disrespect for and violation of the law in the future?"- it has somehow become fashionable to suddenly forgive and forget when it comes to potential criminality on the part of political leaders.

Molly Ivins (in a column I can't find) once said she thought the country which believed it essential to prosecute Nixon had now lost its appetite to prosecute its leaders. This is dangerous whatever your political stripe as not only do we not want to allow law breaking to go unpunished, we certainly don't want to create a climate in which "some pigs are more equal than others" as occurred on the Animal Farm.

In short, if our leaders, who each take oaths to defend and uphold the Constitution, violate it, even having the gall to admit this on national television, they need to be prosecuted in the same way those who carried out their orders were brought to court to answer for these crimes. This should be the case whether we're discussing Obama or Bush, Biden or Cheney, Democrat or Republican. In America, the "law is king" and the Equal Protection clause ensures that, in America, no one is above the law, no matter what his political party.

But when that portion of the Constitution is not enforced against the leaders who swore to uphold it, the system fails and a failed system can only result.

Along these lines, what can we do as lawyers to ensure that the law is applied equally to leaders and laypeople alike? When you defend people, whom the law does apply to (with a vengeance!) it can be difficult to find the time to stand up against a drive to make it not apply to the powerful or the money to give to those who have taken on this fight.

Why not sign a petition aimed at compelling Democrats to seek prosecution of the Bush administration who violated the law of the land and the Constitution they swore to uphold? The American Freedom Campaign is assembling a petition to do just that, which reads:

"We are lawyers and law students in the United States of America. As such, we have all taken (or will be taking) an oath obligating us to defend the Constitution and the rule of law from those who would violate and subvert them, and to hold wrongdoers accountable.

We believe the Bush administration has committed numerous offenses against the Constitution and may have violated federal laws. Evidence exists that it has illegally spied on Americans, tortured and abused men and women in its direct custody, sent others to be tortured by countries like Syria and Egypt, and kept people in prison indefinitely with no chance to challenge the bases of their detention. Moreover, the administration has blatantly defied congressional subpoenas, obstructing constitutional oversight of the executive branch.

Thus, we call on House Judiciary Chairman John Conyers and Senate Judiciary Chairman Patrick Leahy to launch hearings into the possibility that crimes have been committed by this administration in violation of the Constitution, federal statutes, and international treaties. We call for the investigations to go where they must, including into the offices of the President and the Vice President. Should these hearings demonstrate that laws have in fact been broken by this administration, we support all such legal and congressional actions necessary to ensure the survival of our Constitution and the nation we love."

Patrick Fitzgerald (who was nominated to his current position by Republican Senator but who has also taken many steps to disassociate himself from either political party) has the expertise, independence and commitment to the rule of law to pursue these prosecutions. There's an old Jewish proverb I think of frequently that says "He who has the gold makes the rules." This may simply describe human nature and the nature of power. But today this proverb is in danger of becoming "He who has the gold (and the power) and breaks the rules later escapes them" we are in real trouble, as the King, who proclaimed himself above the law and that we therefore had to rebel against and defeat, has returned to power.

UPDATE: In response to a comment by former federal prosecutor and Firedoglake diarist Looseheadprop, I revised the post above and removed any reference to Fitz being a registered or affiliated Republican. After leaving the comment below, I did some research and found that the nomination of Fitz by Sen. Fitzgerald (no relation) drew his party's wrath, especially that of Karl Rove. Fitz apparently even changed his registration from "independent" to "none" after discovering that "independent" denoted a party, which he sought to avoid.

My mistake; you don't have to "lighten up" after all. I'm just happy you stopped by to correct my mistake. I always enjoy your well-researched work at FDL.