I don’t often disagree with James Taranto, particularly on legal issues, but I think he’s overreacting when he says it was “outrageous” and “ugly” for Newt Gingrich to suggest starting with Barney Frank and Chris Dodd in any discussion about who ought to be in jail over the financial meltdown.

Gingrich made this observation after the WaPost’s Karen Tumulty asked why no Wall Street execs “have gone to jail for the damage they did to the economy.” James is correct to point out that it is Ms. Tumulty who started the discussion down that road. She did this, of course, because she was dutifully pushing the Democratic narrative that the private financial sector, not irrational government policy, triggered our economic woes.

I don’t think even Tumulty was really intimating that people — even villainous businessmen — should be sent to jail without due process of law. That’s the main thrust of Taranto’s complaint, but I imagine most people took her question about why no one had been sent to the slammer to assume the usual criminal process. That’s how I understood it. By her lights, a massively damaging fraud occurred, executives profited from it, that ought to be a crime, and someone ought to have been indicted, tried, convicted and sentenced to prison for it by now. In reality, I don’t think she gave much thought at all to the criminal process — she’s a left-winger trying to shift blame for a catastrophe toward business and away from government. The image of capitalists exchanging their pinstripes for prison jumpers was just meant to be a powerful rhetorical device, not an assertion that we should bypass the usual rules.

That’s obviously the spirit in which Speaker Gingrich took the question. He was not saying that Rep. Frank, Sen. Dodd, or anyone else should be sent to jail without due process. He was positing a competing narrative (actually, building on a competing narrative that Michele Bachmann had posited). He was saying that, if Tumulty wanted to play this game of who ought to be in jail, she should start with the politicians, not the businessmen.

Further, even taking all this at face value, I don’t think it is outrageous to make an argument that a politician should be in jail despite not having “been charged with, much less convicted of, any crime,” as James puts it. Politicians who are key allies of the executive branch are not like ordinary Americans.

Even if someone is as guilty as the day is long, he cannot be charged with a crime unless the executive branch is of a mind to charge him. Ordinary Americans who do not have connections in the executive should expect to be charged if there is sufficient evidence of some crime; therefore, it makes perfect sense to argue that they should not be maligned in the absence of criminal charges. To the contrary, it is entirely possible that connected pols elude charges not because they are innocent but because their connections induce the executive to abdicate its duty to prosecute.

Since no one, in any event, is going to be jailed without due process, and since people of Dodd and Frank’s stature are easily able to defend themselves in the media if Gingrich’s assertions are groundless, I don’t see what the big deal is.