Hope for accountability

Jack Balkin suggests a plausible scenario in which the Obama administration could be pushed into serious criminal investigation of the Cheney-Bush administration's many misdeeds in The Publicity Principle and Congress's power to investigate Balkinization blog 08/04/08. (It goes without saying that a McCain administration wouldn't do so, period.) Balkin recognizes that an Obama government might make the judgment as it takes office that:

... the next Administration has better things to do with its time, and that such prosecutions might prove a distraction and lead to a cycle of tit-for-tat prosecutions when there is a future change of Administration.

Such reticence in a new Administration is precisely why the publicity principle is so important. Congressmen and Senators do not have the same institutional interests as the next Administration. Some of them, at the very least, may think that publicizing law breaking by the Bush Administration is not a mere distraction from good government. To the contrary, they may believe that revealing wrongdoing is very much in the public interest in order to restore the rule of law, or in the words of a Republican presidential candidate eight years ago, to "restore honor and dignity" to the White House.

Congress does not have the prosecution power, but it does have the power of investigation, and by pushing to expose previous acts of wrongdoing it may force the next Administration to make disclosures, perform investigations, and even bring prosecutions it would prefer to avoid. This is the power and the point of the publicity principle. (my emphasis)

The experience of the last year and a half with Democratic control of Congress isn't entirely encouraging on that score. But it's a feasible scenario.

Tags: barack obama, bush administration

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