Harvard’s Alan Dershowitz is an Obama supporter but, on this one, he’s on the same page as the editors of National Review (see Tuesday’s NRO editorial, here). Here’s some of what he argues in the WSJ today:
No reasonable person can disagree with the important principle underlying these statements by the democratic nominees that “no one is above the law.” But there is a countervailing principle at play here that is equally important — namely that the results of an election should not determine who is to be prosecuted. These principles inevitably clash when the winners of a presidential election investigate and prosecute the losers, even if the winners honestly believe that the losers committed “genuine crimes” rather than having pursued merely “bad policies.”…
The real question is whether investigating one’s political opponents poses too great a risk of criminalizing policy differences — especially when these differences are highly emotional and contentious, as they are with regard to Iraq, terrorism and the like. The fear of being criminally prosecuted by one’s political adversaries has a chilling effect on creative policy making and implementation….
For those hard-left Democrats who have been pressing their candidates for a promise to prosecute, the list of crimes allegedly committed by the Bush-Cheney administration grows longer and thinner every day….
Our constitutional system of checks and balances provides numerous mechanisms for dealing with “really bad policies,” even those that may be seen by some as bordering on criminal. Congress may investigate, expose and legislate, but it has no authority to prosecute. In extreme cases, impeachment is available. Prosecution should be reserved for the extremely rare situation where the criminal act and mens rea are so apparent to everyone that no reasonable person would suspect partisanship. The best remedy in other cases is to campaign against and defeat those who supported the bad policies.