As news came out of the Senate Judiciary Committee's approval of Attorney General Nominee Eric Holder, sending his nomination to the full Senate, reports came out of a possible agreement struck between Holder and various Republican members of the Senate Judiciary Committee. One of those reports, detailed here in the Washington Times, http://www.washingtontimes.com/news/2009/jan/28/exclusive-holder-assures-gop-torture-prosecution/ , suggests a deal that could be described by some ugly terms. According to the Times:
Eric H. Holder Jr.'s confirmation as attorney general is speeding toward approval thanks in part to his private assurances to a key Republican senator that he does not intend to prosecute intelligence agency interrogators for their actions during the prior administration.
The assurances, reported by Sen. Christopher S. Bond, Missouri Republican, to The Washington Times on Wednesday, went beyond Mr. Holder's earlier public testimony in which he said he could not prejudge his actions regarding cases he had not seen.
"I believe [Mr. Holder] will look forward to keep the nation safe and not look backwards to prosecute intelligence operators who were fighting terror and kept our country safe since 9/11," Mr. Bond said in the interview.
A Holder Aide denied that any such deal had been made. As reported in Talking Points Memo here http://tpmdc.talkingpointsmemo.com/2009/01/holder-aide-we-made-no-special-promises-to-bond.php as well as the above Washington Times article, the aide said:
"Eric Holder has not made any commitments about who would or would not be prosecuted," the aide said via e-mail. "He explained his position to Senator Bond as he did in the public hearing and in his responses to written questions."
The aide pointed to Holder's written response to a question from Sen. Jon Kyl (R-AZ):
Prosecutorial and investigative judgments must depend on the facts, and no one is above the law. But where it is clear that a government agent has acted in "reasonable and good-faith reliance on Justice Department legal opinions" authoritatively permitting his conduct, I would find it difficult to justify commencing a full-blown criminal investigation, let alone a prosecution.
--------------The Republican members of the Senate Judiciary Committee including Senator Bond had better hope that no such deal has been struck. A deal that was made under the threat of withholding something from Mr. Holder (approval of his nomination) unless he agreed not to prosecute a crime could be construed as Extortion and Obstruction of Justice. Since this Extortion and Obstruction of Justice would deal with prior bad acts (Torture and crimes against humanity) by other members of the same group, in this case, Republicans (in the Bush administration) and those to whom they gave orders, one could then assert that the GOP is an ongoing criminal organization and seek to prosecute those involved under RICO, the Racketeer Influenced and Corrupt Organizations Act.
This is easier understood if paraphrased. If a member of a mafia crime family went to a district attorney who is applying for membership to a country club and says he will help him get into that country club if he refuses to prosecute a member of that crime family for an unrelated crime otherwise he will block his membership, that is bribery, extortion and obstruction of justice and would also potentially lead to RICO indictments.
RICO has been applied very liberally since it was passed and according to how it reads in the Cornell University Law School site,http://www.law.cornell.edu/uscode/html/uscode18/usc_sup_01_18_10_I_20_96.html would seem to encompass what is suggested to have transpired here. One of the reasons RICO was passed was to allow prosecutors to go after powerful organizations that commit crimes and then use threats and influence peddling to prevent those crimes from being prosecuted. That is exactly what we have here.
Mr. Holder is almost certain to be confirmed by a full Senate vote. If he did agree to what Senator Bond suggests, that probably does not constitute a crime on the part of Mr. Holder if he ignores the alleged agreement. He is, however, duty bound to name a special prosecutor to investigate the situation and he must also investigate the Bush administration's use of torture and other illegal methods of interrogation and treatment of prisoners. To do otherwise would implicate him in the alleged GOP scheme.
Even if the agreement did not happen as Senator Bond alleges, the fact that he thinks that he executed such an agreement, or that he is claiming this agreement exists as a way to try to prevent soon to be Attorney General Holder from prosecuting a crime might constitute Obstruction of Justice or a Conspiracy to Obstruct Justice. It will be interesting to see if anyone else notices this and it will be interesting to see whether Senator Bond and other Republicans back away from these statements.
Moreover, what I wonder if Senator Bond realizes is the very fact that he has publicized that he thinks an agreement is necessary proves that he believes that members of the Bush administration along with those to whom they passed interrogation orders or instructions NEED that agreement. In other words, he thinks they ARE prosecutable and guilty of some crimes. After bragging to the Washington Times about this alleged deal with Holder, Senator Bond may find himself on one of those shows detailing America's dumbest criminals.