Maybe my memory fails me; but I can’t remember when two members of the WaPo columnist in-group got into a public disagreement. It all began when Eugene Robinson, WaPo’s pulitzer prize-winning columnist, praised Eric Holder for re-opening nearly a dozen cases of alleged prisoner abuse and appointing a special prosecutor to carry out the investigation, and initiate prosecutions, if necessary. Robinson called for Holder and John Durham, his special prosecutor to:

”. . . work their way up the chain. In some instances, it may be a mid-level employee who overstepped clear boundaries and ordered subordinates to perform acts that might have taken place in a medieval dungeon. In other cases, illegal acts apparently were approved at the highest levels. Investigators need to be allowed to follow the evidence all the way to the top — into the White House, if that is where the trail leads.”

A little over a week later on September 3, David Broder replied to Robinson, saying he thinks that Robinson was wrong and contending that the danger of seeking accountability for the actions of higher-ups in enabling torture and prisoner abuse is too great, as is the risk of extreme stress and damage to the US political system that we would take if we prosecuted, convicted, and punished those responsible for torture.

Broder’s views received strong reactions very quickly. Marcy Wheeler, Glenn Greenwald, and Brad De Long all weighed in with very critical comments, and Congressman John Conyers also wrote a very persuasive critique of Broder’s position in the Huffington Post. I’ll leave it to my readers to review all of these excellent critiques of Broder’s argument. What I want to talk about here, however, is only one of Broder’s points. He says:

”When President Ford pardoned Nixon in 1974, I wrote one of the few columns endorsing his decision, which was made on the basis that it was more important for America to focus on the task of changing the way it would be governed and addressing the current problems. It took a full generation for the decision to be recognized by the John F. Kennedy Library Foundation and others as the act of courage that it had been.”

Now, I am not saying that President Ford’s act wasn’t courageous. In fact, I’m sure that either choice he made in that situation might have been called courageous, since the decision was a profound one. However, in spite of the consensus, that Ford’s move in pardoning President Nixon was the right thing to do, which allowed the country to heal, and the President to move on, I believe that Ford’s pardon of Nixon and Broder’s support of Ford on grounds that the country couldn’t take the pain of prosecutions, were both very wrong, indeed. And in recent years we’ve had a lot proof of the pudding for that judgment.

President Ford set a dangerous precedent — the precedent that Presidents and other high-level officials who broke the law would not be punished for their crimes because it was too “divisive,” for the nation. Of course, that decision itself was very divisive because it was opposed to the rule of law, and also violates the democratic value that everyone should receive equal treatment under the law. It was a decision that is corrosive for a democracy that is based on equality before the law. It is short-sighted pragmatism run amok. And its consequence was that both in Reagan’s Administration and in George W. Bush’s Administration high-level officials felt justified in breaking the law. They felt this way, in part, because President Ford had significantly weakened the deterrent effect of fear of punishment on those serving the President.

Since Ford’s decision, we’ve had other instances of crimes by high-level officials. In the Iran-Contra affair, federal officials worked to facilitate arms transfers to Iran. The profits from the arms sales were then used to finance activities of the Nicaraguan contras in opposing the Sandinista regime, an act explicitly prohibited by the Boland Amendment to the Defense Appropriations bill originally passed in 1982. Eventually, 14 Government Officials including Caspar Weinberger and John Poindexter were convicted of violating Federal Law. All fourteen were pardoned by Bush 41, in the waning days of his Administration, however. So no high-level people were punished for their crimes in the Iran-Contra affair, and another great blow to the ideal of equality before the law, was delivered by a Republican President, himself a representative of multi-generational wealth.

Now, of course, we have all manner of indications that members of the Administration, both high and low in rank, may have violated the Geneva Convention and US Law in torturing prisoners at various holding places around the world, and at Guantanamo. And we again have people saying that investigations and prosecutions should not occur, others saying that investigations should occur to reveal the whole truth, but that punishments would be too divisive, and still others saying that both investigations and prosecutions should occur, but that after conviction, the President should pardon the offenders because everyone thought they were doing all they could to protect the United States after 9/11.

I think that the action of Gerald Ford in pardoning Richard Nixon rather than allowing the possibility that one day he might be tried for his role in the Watergate burglary, made a big impression on the relatively youthful Dick Cheney and Donald Rumsfeld and on others in the Republican Party. Both must have concluded that at the very highest levels, Government officials might hope to escape the consequences of illegal acts. The lesson was reinforced when George H. W. Bush pardoned the Iran-Contra criminals, and confirmed that high-level people can escape the consequences of their actions, especially in Republican Administrations.

Cheney and Rumsfeld must have entered the Bush Administration with the notion that the President and his highest level servants, at least, might be immune, or could be made immune from prosecution. The basic idea is that the President’s servants take care to provide the President “plausible deniability,” while the servants would get their immunity by receiving pardons from their President in his/her final days in office. But neither one could be sure that this kind of immunity would work if they were not pardoned, and the successor of their President was from another party. Now that kind of successor is present, and Mr. Cheney’s many recent statements about torture policy and accountability may be viewed as the statements of someone who realizes that he can’t be sure whether his theory about immunity is any good in a Democratic Administration. So he bleats about people playing politics, and overlooks the fact that he, more than anyone, helped to create the most blatantly political administration in the history of the United States. What’s that old saying? “He who lives by the sword . . .”

But, wait, now comes David Broder and others who share his views that it is more important to avoid divisiveness, and get on with the nation’s business, than it is to establish that high-level people, like the rest of us, live under the law, just as we do, and must, like the rest of us suffer its penalties if we fail to obey it. Mr. Broder says:

”In times like these, the understandable desire to enforce individual accountability must be weighed against the consequences. This country is facing so many huge challenges at home and abroad that the president cannot afford to be drawn into what would undoubtedly be a major, bitter partisan battle over prosecution of Bush-era officials. The cost to the country would simply be too great.”

But in saying this, Mr. Broder, as he seems to do frequently, uses the wrong framing. It is not just a matter of weighing individual accountability versus the consequences in exacerbating partisan conflict and upsetting people within the CIA. The really important issue is weighing the consequences for American Democracy of letting criminals who broke Federal Law once again walk free because the country is putting pragmatic considerations ahead of equality before the law. One can only do that so many times before one’s citizens laugh at the idea of equality before the law, and before they conclude that democracy is a thing of the past, and that rich and powerful people can never be made accountable. One can only do that so many times before officials serving in an Administration lose their fear of punishment if they were to be caught breaking the law. Republican Administrations have now done this sort of thing twice, and Mr. Broder now thinks that a Democratic Administration should set its own precedent in undermining equality before the law.

Again, I think he is terribly wrong about this. One of the most important principles of our democracy is more important than whether or not there is partisan conflict. It is more important than whether operatives in the CIA have low morale or not. It is more important than almost anything we now have to confront as a nation. For one of our biggest problems is the decline of equality in America over the past 35 years, and a loss of faith in the integrity of our government and its commitment to justice for all. We cannot reverse that loss of faith. We cannot restore equality in America, without also restoring equality before the law. And an important first step in that direction is demonstrating that not even the highest among us are exempt from the obligation to obey the law. And that when they break it, especially in the heinous way that the American torturers did, they must be made to accept the consequences of their actions, not only for the sake of accountability, but also because without the deterrent effect created by equality before the law, there is no limitation on the executive branch of Government. There is no separation of powers. And there is no American Democracy any longer.

(Also posted at the Alllifeisproblemsolving blog, where there may be more comments)