HUFFINGTON
08.04.13
THE UNTOUCHABLES
and accountability: the prosecution and subsequent suicide of Internet activist Aaron Swartz; the
Obama administration’s unprecedented prosecution of whistleblowers; the related Department
of Justice investigations into the
sources of leaks that have raised
First Amendment concerns; and
aggressive prosecutions that look
politically motivated, such as the
pursuit of medical marijuana offenders in states where the drug
has been legalized for that purpose. In May, an 82-year-old nun
and two other peace activists were
convicted of “sabotage” and other
“crimes of violence” for breaking
into a nuclear weapons plant to
unfurl banners, spray paint and
sing hymns. Even many on the political right, traditionally a source
of law-and-order-minded support
for prosecutors, have raised concerns about “overcriminalization”
and the corresponding power the
trend has given prosecutors.
Most recently, the Justice Department came under fire for its
investigation of leaks to the media, including a broad subpoena
for phone records of the Associated Press, and for obtaining the
phone and email records of Fox
News reporter James Rosen. In
the Rosen case, Attorney General
Eric Holder personally signed off
on a warrant that claimed that
merely pu blishing information
that had been leaked to him made
Rosen a criminal co-conspirator.
Many have pointed out that such
a charge would make it a crime to
practice journalism.
President Obama has since expressed his dismay at the Rosen
warrant, but his response was curious. He asked Holder to investigate the possible misconduct that
not only occurred under Holder’s
supervision, but in which Holder
himself may have participated.
In asking Eric Holder to investigate Eric Holder, Obama illustrated
the difficulty of adequately addressing prosecutorial misconduct
as well as anyone possibly could:
Prosecutors are relied upon to police themselves, and it isn’t working. A growing chorus of voices in
the legal community says the problem is rooted in a culture of infallibility, from Holder on down. And
it’s against this backdrop — this
environment of legal invincibility — that we get the revelations of
massive data collection by the National Security Agency, government
employees who lie to Congress with
no repercussions, and government
investigators, courts and prosecutors operating in secret.
In 2011, the U.S. Supreme Court