Don't Criminalize the Investigations. Immunize the Witnesses!
Keep your eye on the mission, which is to save us from an ambitious tyranny. We cannot accomplish this life-and-death task if we turn it over to the lawyers. It's a political mission, not a law enforcement roundup. We need to know, in detail, what happened. We have to know the details, which will, if we are good, enable us to dismantle an enormously ambitious attempt to change America in precisely the way Alexis de Tocqueville predicted. As I wrote four years ago, American tyranny would not resemble those of the past. It would consist of a series of rules and regulations than would enervate us, and reduce us to objects of manipulation by an arrogant state:
That power is absolute, minute, regular, provident and mild. It would be like the authority of a parent if, like that authority, its object was to prepare men for manhood; but it seeks, on the contrary, to keep them in perpetual childhood: it is well content that the people should rejoice, provided they think of nothing but rejoicing. For their happiness such a government willingly labors, but it chooses to be the sole agent and the only arbiter of that happiness; it provides for their security, foresees and supplies their necessities, facilitates their pleasures, manages their principal concerns, directs their industry, regulates the descent of property, and subdivides their inheritances: what remains, but to spare them all the care of thinking and all the trouble of living?
We can see this impulse at work in an amazing number of governmental initiatives, from the truly terrifying new speech code for all American colleges and universities that receive federal funds, to the previously unimaginable intrusion of the Feds into our privacy, whether via the IRS or the Justice Department, as in the criminalization of journalists doing their jobs. It goes on and on, from Obamacare to the greatly expanded role of Washington in corporate enterprise, and to myriad regulations--many of which we do not even know--and executive orders.
For the future of the American enterprise, it does not matter if Obama and his colleagues deliberately set out to create a Tocquevillian American tyranny, or if it is simply a hell that grew out of good intentions. It's there, and it's getting worse. We need to block and undo it, which requires that we have a full picture of it.
The scandals give us a chance. They open windows into the progress of that "absolute, minute, regular, and provident" power, and we need to look through all of them. But if we criminalize the investigations, if witnesses are afraid they will be indicted, prosecuted, and punished if they tell the truth about what they've been up to, our chances of getting the full picture will be enormously, maybe even fatally, diminished.
We want the truth, the whole truth. The best way to get it is to immunize congressional witnesses who tell the story. That way, they will be part of a common effort to understand what went wrong, rather than targets of a criminal investigation. It may surprise you to learn that there are many civil servants who have quietly asked to be subpoenaed so their superiors will not accuse them of ratting out their bureaucratic cohorts. Fair enough. Subpoena them, and give them the protection of immunity, provided they tell the truth.
The cudgel of criminal action should be reserved for those who insist on clamming up, for they are obstructing investigations desperately needed to protect and advance our freedoms. But, as Andy McCarthy argues with his usual brilliance, for heaven's sake let's not have special prosecutors, who will throw a mantle of secrecy ("can't talk about it, there's a criminal investigation here") over the whole thing. We want transparency, not secrecy. Secrecy is part of the problem and no part of the solution.
This requires Congress to carry the burden, and ferret out the truth. It's hard to imagine our elected representatives will do themselves proud. So be it. It'll be messy. But then, democracy is messy. Chaos can be creative. The pols will need an attentive and responsible press to call attention to their errors and their omissions. Hard to imagine that, too. So be it. There's a lot of journalists, editors, talk show hosts, bloggers and even entertainers out there. I think we can sort it out. Bring it on. Give us a chance.
I sure hope we can get this right, even approximately right. When we elected Obama I said that we were in for a hell of a fight. We've got it. Let's make the best of it. It's political, stupid, in a very fundamental way: it's about freedom and tyranny, the essence of American politics. Don't turn it over to the lawyers. Get the story. Tell it all. Then we'll figure out how best to deal with the mess we're in.