The criminalization of political difference

Oh boy: "[A]dvisors to Barack Obama are pressing ahead with plans for a nonpartisan commission to investigate alleged abuses under Bush."

One response might be that an investigation is not necessarily a precursor to prosecutions, and so this isn't problematic. When a given behavior has the potential to be either beneficial or harmful, we shouldn't conclude that we have to put a stop to it just because it could become pathological, writing off any benefits that might have accrued. I emphasized that in two posts this year, in the contexts of voter ID laws and executive power; see also Frank Easterbrook, The Chicago School and Exclusionary Conduct, 31 Harv. J. of L. & P.P. 439, 441 (2008) (in the antitrust context, "[i]nstead of making predictions that are impossible to test - and will injure consumers if wrong - [enforcers should] wait to see what happens. If monopolistic prices happen later, prosecute then").

This situation is a little different. Although I agree that, in abstracto, an investigation is not an inherently bad thing, this does not take place in a vacuum, and we know a great deal about the motivations and views of the players involved. This investigation has an uncommonly high probability of turning into something ugly, and a strong chance of turning into something pathological (investigations beget prosecutions, even if only prosecutions ancillary to the original object: for example, Plame, Whitewater, etc.). Moreover, it's hard to see what benefits could possibly accrue even if he investigation stays on the rails.

I suppose that we will find out, because there's little we can do to stop this if President Obama chooses to press ahead. The two most troubling aspects here arise from what the story confirms: that minds on the left remain focused on going back and performing a full cavity search on the Bush administration. First, this will surely bring into the public record matters that should not be in the public record; it will not be an in camera investigation whose results will be sealed for the duration of hostilities. And second, significant pressure now comes to rest on the President Bush to head off the inevitable politically-motivated prosecutions that will arise from that investigation by issuing a blanket pardon, which strikes me as the stuff of banana republics.

Post facto:
On the other side of the web today (12/16/08)