Thursday, December 20, 2007

Political justice

People concerned about the politicization of prosecutions in the Bush Justice Department now have this feel-good story to look at:

The Justice Department delayed prosecuting a key Republican official for jamming the phones of New Hampshire Democrats until after the 2004 election, protecting top GOP officials from the scandal until the voting was over.

An official with detailed knowledge of the investigation into the 2002 Election-Day scheme said the inquiry sputtered for months after a prosecutor sought approval to indict James Tobin, the northeast regional coordinator for the Republican National Committee.

They're referring to this case, which led to the near bankruptcy of the New Hampshire GOP.

There's more:

The official said that department officials rejected prosecutor Todd Hinnen's push to bring criminal charges against the New Hampshire Republican Party.

Weeks before the 2004 election, Hinnen's supervisors directed him to ask a judge to halt action temporarily in a Democratic Party civil suit against the GOP so that it wouldn't hurt the investigation, although Hinnen had expressed no concerns that it would, the official said.

Excellent.

Bad as that looks, there's a legitimate conundrum: How to handle election-related charges on the eve of an election? I appreciate not wanting to drop last-minute indictment bombshells, which could influence an election even though the underlying facts don't ultimately support conviction. Ignoring that reality could lead to sham indictments of opposition party members.

In this case, the underlying facts seemed pretty clear. But considering that Tobin's conviction was overturned on appeal this year and he now awaits a retrial, perhaps some caution was called for -- even though the verdict was overturned on a technicality, not because the court thinks Tobin didn't do anything wrong.

It'd be tempting to adopt one of two objective positions: prosecute without regard to the calendar, or don't file politically-related indictments within 30 days of an election. Either would remove the second-guessing about motive that this case engenders; but both have their flaws -- either the risk of politically-motivated indictments, or the risk of justice delayed and voters kept from having relevant information.

There are no real good answers here. Only the observation that when someone on your team screws up, it's probably better to err on the side of prosecuting too early than it is to delay and risk allegations of a cover-up.

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