The administration just made a pronouncement that they will not prosecute federal employees (CIA) for engaging in actions that some people think of as illegal. Their argument is that it would be unfair since the justice dept wrote a memo saying that the actions were legal. My question is, why does that matter? If a buddy of mine who works in the Justice Dept writes a memo saying it is OK for me to pass bad checks, does that make it legal? Does it immunize me from legal action? If a prosecutor decides not to prosecute someone even if there is evidence a crime was committed, how can that be allowed? OTOH, how can anyone function if advice from a lawyer can’t be trusted?
Note that I agree that it would be grossly unfair for the US Gov’t to prosecute anyone for actions the Gov’t had deemed legal, but where is the principle that the Gov’t can excuse illegal actions?
Were you acting in an official capacity as a federal officer when you wrote those bad checks?
There’s a general principal in law that an agent of the government can not be prosecuted for lawfully executing his duties. It’s the Justice Department’s job (among other things) to advise the executive on matters of legality, and if an executive officer acts according to that advice, that action alone generally isn’t prosecutable.
With the case of writing bad checks, it’d be pretty obviously illegal, so at the very least the lawyer who advised that it was OK would be in some serious trouble (disbarment, maybe?)
With this torture stuff, I feel totally confident that it’s immoral, but I don’t know the wording of the actual statutes well enough to know it it’s clear-cut illegal. So maybe there’s some wiggle room where the lawyers can say “Look, we gave our legal opinion to the best of our ability. Just because you don’t agree with it doesn’t make us criminals.”
My sense of justice would like to see some consequences for someone – but more than that I’d like to know what stops the next President from rescinding Obama’s orders and starting right back in with the torture again.
In the US legal System, prosecutors have a very large degree of prosecutorial discretion over the crimes that they charge. That is to say that a prosecutor may decide, given a particular set of facts and information, whether or not to prosecute and which of a range of potentially applicable crimes to charge the defendant with. There is usually extremely little review available over the charging decision of a particular prosecutor (though the chief prosecutor [e.g. district attorney/state’s attorney] in a jurisdiction can control the charging decisions of his assistants/deputies).
For fictional depictions of this, in many episodes of Law & Order, Jack McCoy (Sam Waterson) as the lead assistant district attorney prosecuting the case has discussions/arguments over what charges to bring against particular defendants with District Attorney Adam Schiff (Steven Hill) or Arthur Branch (Fred Dalton Thompson) [vary cast and roles with show season].
In the federal criminal justice system, prosecutions are brought in each of the 96 Federal District Courts by the US Attorney for that District (usually through Assistant US Attorneys). Overseeing the US Attorneys is the US Attorney General, who has the authority to set prosecution policy for the Justice Department, and the Attorney General’s boss is the President. As such, the President and the Attorney General have the power to set up a policy that some types of prosecutions will not be undertaken. Theoretically, a local US Attorney could charge in violation of the policy, but since US Attorneys serve at the pleasure of the President, that would be a quick way to get fired (and justifiably for violating Justice Department policy).
By way of contrast, in most states, the local prosecutor is an elected official, usually at the county level, and can set prosecution policy independent of state-level control. There are usually provisions by which the state can appoint a special prosecutor where there are conflicts of interest and in other specified cases, but other than that, whatever the county prosecutor says, goes.