Biden and Prosecuting the Bush Administration

No fan of the Bush Administration, Alan Dershowitz writes today in the Wall Street Journal that there is an inherent conflict in any plan/suggestion/wish of an Obama/Biden administration prosecuting the Bush administration. Recent Joe Biden was asked if he would pursue violations made by the present administration for violations of the Constitution? Biden idicated that essentially any criminal violation will be dealt with accordingly.

Dershowitz writes:

Mr. Biden's comments echoed what Mr. Obama had said in April when he pledged that, if elected, he would have his attorney general investigate the actions of his predecessor to distinguish between possible "genuine crimes" and "really bad policies." Mr. Obama moderated his statement by stating that he would not want his first term "consumed by what was perceived on the part of Republicans as a partisan witch hunt," because his administration would have many other problems "we've got to solve."

No reasonable person can disagree with the important principle underlying these statements by the democratic nominees that "no one is above the law." But there is a countervailing principle at play here that is equally important -- namely that the results of an election should not determine who is to be prosecuted. These principles inevitably clash when the winners of a presidential election investigate and prosecute the losers, even if the winners honestly believe that the losers committed "genuine crimes" rather than having pursued merely "bad policies."

Under our particular system of government, it is nearly impossible for a winning administration to prosecute those it defeated without it being perceived, quite understandably, as "a partisan witch hunt." This is because the attorney general of the United States, the official who a President Obama would ask to review his predecessors' actions, plays two roles simultaneously -- that of political adviser to the president, and that of chief law enforcement officer of the United States.

That the current crop of Congressional investigations and those that have taken place since Nancy Pelosi ascended to the Speakership have the tinge of a partisan witchunt rather than simply the exercise of Congress's oversight role cannot be escaped. But there is a rather large gulf between investigating and prosecuting and one need not necessarily lead to the other.

Even as a supporter of the Bush Administration, I am not so blinded by loyalty to question some of the political, policy and yes moral decisions that have been made by this administration. If there were laws broken, then yes, prosecutions should occur. But if an Obama Administration wants to make sure it is not engaging in a partisan witchhunt, it had better have an airtight case that even the most ardent Republican would find compelling.

Is it not enough to simply defeat your political opponents at the polls? What ever happened to the idea of a loyal oppositions?