This House would grant politicians immunity from prosecution

The premier reason that most states, even those that allow for the prosecution of politicians, abstain from prosecuting them while they hold office is that being a politician is a job that requires one’s undivided attention.  Especially for the holders of prominent national-level offices, writing legislation, responding to crises under one’s purview, consulting one’s constituents, and engaging in campaign work often lead to politicians working an upwards of 12 hour day, every day.  To expect politicians cope with all of these concerns will simultaneously constructing a defense against pending charges would be to abandon all hope of them serving their constituents effectively.  We are rightly aggravated when politicians take extensive vacations or other extracurricular forays.[1]  Being under indictment not only consumes even more of a politician’s time; the stress it causes will inevitably seep into what remaining time they do allocating to fulfilling their duties, further hindering their performance.  The impeachment proceedings for Bill Clinton on charges of perjury and obstruction of justice were so intensive that they took tremendous resources away from not only the president himself, but all branches of the federal government for several months[2], amidst serious domestic and foreign policy concerns such as the ongoing war in Kosovo.

[1] Condon, George E. Jr., ‘The Long History of Criticizing Presidential Vacations’ The Atlantic, 18 August 2011, http://www.theatlantic.com/politics/archive/2011/08/the-long-tradition-of-criticizing-presidential-vacations/243819/ [Accessed September 9, 2011]

[2] Linder, Douglas O., ‘The Impeachment Trial of President William Clinton’, UNIVERSITY OF MISSOURI-KANSAS CITY (UMKC) SCHOOL OF LAW, 2005, http://law2.umkc.edu/faculty/projects/ftrials/clinton/clintontrialaccount.html [Accessed September 19, 2011]

Politicians have to divide their focus anyway.  As the examples above concede, being a politician means being pulled in several different directions.  Elections are particularly distracting, and in jurisdictions with fixed election cycles like the United States can make periods of up to a year prior to the election a write-off for getting real work done.  Thus, personal liability is nothing special among the many concerns a politician has.  In fact, accountability, of this direct type, and for serious offences, is probably more important than most of the things a politician is forced to consider, and at the very least deserves inclusion among them. 

By the most popular definition, a state is the entity with the monopoly on the legitimate use of force within a defined territory.  Politicians, as the government of that state, necessarily wield the institutions of that state force.  This results in the tremendous responsibility of deciding when the overwhelming power of the state is exercised.  This pertains to a variety of areas, such as police action against civil unrest, the interrogation of both alleged and convicted terrorists, and economic policies that subsidize industries with state resources.  While it is certainly possible to brazenly abuse this power, in many cases politicians are presented with options which are, if at all illegal, marginally so, and made with the good faith interest of the nation at heart.  There are even conceivable situations in which a politician may exercise options that are clearly illegal but serve an overwhelming state interest; consider an illegal raid on a private building in order to prevent a nuclear bomb from going off.  While documented instances of policy-makers choosing not to act for a particular reason are rare, several senior CIA officials stated that they had become risk averse merely because the idea of prosecuting officials who made security policy had entered the public discourse.[1]  We ought to place politicians in a situation where the only factor in their decision-making process is what serves the public interest, rather than having to weigh what they consider to be the right action against the chance it will lead to their incarceration.  Attempting to avoid this through a limited system which allowed for the prosecution of apolitical crimes but immunity for political decisions would fail to accomplish the goals of prosecution of politicians, which is primarily to protect against political abuses of state power which threaten the rights of the citizenry.

[1] Crawford, Robert, ‘Torture and the Ideology of National Security’ Global Dialogue, Vol.12 No.1, Winter/Spring 2010, (“A Risk-Averse CIA” subsection) http://www.worlddialogue.org/content.php?id=454 [Accessed 22 September 2011]

No one doubts that politicians have to make morally difficult decisions, where sometimes every option is unpleasant.  However, no one wants politicians to have an unrestricted ability to make ethical questionable decisions.  That is exactly what immunity would deliver them.  A politician who knows that they cannot be touched is incentivized and licensed to be much more brazen in their behavior when in office, and we want a bulwark against unrestricted rule-breaking.  A state of affairs wherein politicians can sometimes be prosecuted creates the ideal amount of disincentive for politicians to break rules; they will do so only when there is a pressing need, and only to a moderate degree.  Because of the plausible justifications for such acts, politicians need not fear prosecution in the overwhelming majority of cases.  For instance, no official from either the UK or USA has been actually indicted with regard to highly-legally-dubious programs to torture detainees[1][2].  Moreover, politicians are seldom prosecuted anyway, especially because they tend to belong to socioeconomic strata that punished less or not all compared to the rest of society.  There is no legitimate need to give them more protection.

[1] Ambinder, Marc, ‘CIA Officers Granted Immunity from Torture Prosecution’, The Atlantic, 16 April 2009, http://www.theatlantic.com/politics/archive/2009/04/cia-officers-granted-immunity-from-torture-prosecution-update/16268/ [Accessed September 9, 2011]

[2] Human Rights Education Association, ‘Torture, Inhuman or Degrading Treatment’, hrea.org, http://www.hrea.org/index.php?doc_id=265 [Accessed September 9, 2011]

The obvious benefit to prosecuting politicians is that it punishes – and thereby deters – corruption by politicians.  However, this benefit can be achieved through other means.  Firstly, many western liberal democracies have one form or another of removing a politician from office in the midst of their term, such as impeachment in the American system or a vote of no confidence against the government in the Westminster system.  While defenders of immunity oppose impeachment as contrary to the principles outlined above (because of the effect that it may have on political duties), this is an option that remains in cases of gross misconduct.   If the political will cannot be mobilized to remove a sitting politician, they are held accountable by the electorate to whom they must answer in the next election, and who will likely punish blatant misuse of political power.  Even if the individual politician has reached a limit on their term of office, or does not seek reelection, they are still held in check by the damage that will be done to their party in the event of major misconduct on their part.  Finally, most politicians are significantly concerned about their legacy, which is tarnished significantly by corruption even if they are never held legally accountable for it.  While Nixon received a full pardon from his success,[1] his name has become synonymous with criminality and scandal: a fate most politicians wish to avoid.

[1] Ford, Gerald R., Proclamation 4311, 8 September 1974, http://www.ford.utexas.edu/library/speeches/740061.htm [Accessed September 9, 2011]

These mechanisms are not immediate enough to put an immediate stop to an aberrant behavior.  Impeachment proceedings take months at least; elections may be years away; and reputational damage is even more long-term.  Moreover, these punishments are nowhere near a sufficient deterrent.  If loss of one’s job, and damage to one’s public image were sufficient deterrents, we would not prosecute business leaders for insider trading, nor celebrities for drunk driving.  The fact is that a criminal justice system which punishes everyone equally is not just fair; it’s also a practical method of achieving meaningful deterrence.  Finally, even if we are willing to settle for one of these lesser punishments, the threat of a great punishment gives prosecutors leverage to strike deals with the politicians, such as offering not to prosecute in exchange for coming forward with the details of misdeeds.

It does tremendous damage to the public perception of a given political position to see the holder of that position on trial for criminal acts.  Politicians are important role models for the populace at large, and shining light on everyone one of their misdeeds is not conducive to them playing such a role.  This hurts the ability of their successors who, though completely innocent, are stepping into an institution now tainted with the image of corruption or scandal.  Finally, the very process of prosecution can be damaging to the country, as citizens on opposing sides of the political spectrum disagree over the legitimacy of charges.  These effects all deal real damage to the political institutions necessary for the functioning of the state.

If we don’t want politicians hurting the dignity of the office, there is only one thing we can do: not elect politicians likely to commit crimes!  Of course, this is often impossible to tell in advance, but the dilemma remains: a crime has been committed, and that hurts the dignity of the office no matter what action we take.  One thing that’s worse than having an office’s holder raked over the coals is for them to get away with a behavior that otherwise warrants punishment.  See discussion below under “hurts the image of the office.”

As noted above, the political life is steeped in difficult decisions, and some of these are bound to result in choices that are at least potentially illegal.  The ability to prosecute politicians incentivizes political opponents to search out past actions by said politicians so as to immobilize them politically.  Such prosecutions are therefore not motivated by concern for justice, nor are they conducive to a well-functioning, multipartisan political system wherein representatives seek to work together to achieve their political ends.  In the most extreme cases, powerful politicians use prosecutions to immobilize their political opponents.

Motivation does not matter.  Almost every time someone presses criminal charges, it is for their own personal concerns (such as wanting retribution), rather than concern for the public good; that does not change the fact that if charges are laid, it is because the prosecuting authority has decided that, regardless of why the crime has come to their attention, the interest of society at large requires that the individual be prosecuted.  If political motivations are what is needed for politicians to be held accountable, so be it.  Even if this is a problem, it can be mitigated with sufficient oversight from an independent prosecuting authority.

The premier reason that most states, even those that allow for the prosecution of politicians, abstain from prosecuting them while they hold office is that being a politician is a job that requires one’s undivided attention.  Especially for the holders of prominent national-level offices, writing legislation, responding to crises under one’s purview, consulting one’s constituents, and engaging in campaign work often lead to politicians working an upwards of 12 hour day, every day.  To expect politicians cope with all of these concerns will simultaneously constructing a defense against pending charges would be to abandon all hope of them serving their constituents effectively.  We are rightly aggravated when politicians take extensive vacations or other extracurricular forays.[1]  Being under indictment not only consumes even more of a politician’s time; the stress it causes will inevitably seep into what remaining time they do allocating to fulfilling their duties, further hindering their performance.  The impeachment proceedings for Bill Clinton on charges of perjury and obstruction of justice were so intensive that they took tremendous resources away from not only the president himself, but all branches of the federal government for several months[2], amidst serious domestic and foreign policy concerns such as the ongoing war in Kosovo.

[1] Condon, George E. Jr., ‘The Long History of Criticizing Presidential Vacations’ The Atlantic, 18 August 2011, http://www.theatlantic.com/politics/archive/2011/08/the-long-tradition-of-criticizing-presidential-vacations/243819/ [Accessed September 9, 2011]

[2] Linder, Douglas O., ‘The Impeachment Trial of President William Clinton’, UNIVERSITY OF MISSOURI-KANSAS CITY (UMKC) SCHOOL OF LAW, 2005, http://law2.umkc.edu/faculty/projects/ftrials/clinton/clintontrialaccount.html [Accessed September 19, 2011]

Politicians have to divide their focus anyway.  As the examples above concede, being a politician means being pulled in several different directions.  Elections are particularly distracting, and in jurisdictions with fixed election cycles like the United States can make periods of up to a year prior to the election a write-off for getting real work done.  Thus, personal liability is nothing special among the many concerns a politician has.  In fact, accountability, of this direct type, and for serious offences, is probably more important than most of the things a politician is forced to consider, and at the very least deserves inclusion among them. 

By the most popular definition, a state is the entity with the monopoly on the legitimate use of force within a defined territory.  Politicians, as the government of that state, necessarily wield the institutions of that state force.  This results in the tremendous responsibility of deciding when the overwhelming power of the state is exercised.  This pertains to a variety of areas, such as police action against civil unrest, the interrogation of both alleged and convicted terrorists, and economic policies that subsidize industries with state resources.  While it is certainly possible to brazenly abuse this power, in many cases politicians are presented with options which are, if at all illegal, marginally so, and made with the good faith interest of the nation at heart.  There are even conceivable situations in which a politician may exercise options that are clearly illegal but serve an overwhelming state interest; consider an illegal raid on a private building in order to prevent a nuclear bomb from going off.  While documented instances of policy-makers choosing not to act for a particular reason are rare, several senior CIA officials stated that they had become risk averse merely because the idea of prosecuting officials who made security policy had entered the public discourse.[1]  We ought to place politicians in a situation where the only factor in their decision-making process is what serves the public interest, rather than having to weigh what they consider to be the right action against the chance it will lead to their incarceration.  Attempting to avoid this through a limited system which allowed for the prosecution of apolitical crimes but immunity for political decisions would fail to accomplish the goals of prosecution of politicians, which is primarily to protect against political abuses of state power which threaten the rights of the citizenry.

[1] Crawford, Robert, ‘Torture and the Ideology of National Security’ Global Dialogue, Vol.12 No.1, Winter/Spring 2010, (“A Risk-Averse CIA” subsection) http://www.worlddialogue.org/content.php?id=454 [Accessed 22 September 2011]

No one doubts that politicians have to make morally difficult decisions, where sometimes every option is unpleasant.  However, no one wants politicians to have an unrestricted ability to make ethical questionable decisions.  That is exactly what immunity would deliver them.  A politician who knows that they cannot be touched is incentivized and licensed to be much more brazen in their behavior when in office, and we want a bulwark against unrestricted rule-breaking.  A state of affairs wherein politicians can sometimes be prosecuted creates the ideal amount of disincentive for politicians to break rules; they will do so only when there is a pressing need, and only to a moderate degree.  Because of the plausible justifications for such acts, politicians need not fear prosecution in the overwhelming majority of cases.  For instance, no official from either the UK or USA has been actually indicted with regard to highly-legally-dubious programs to torture detainees[1][2].  Moreover, politicians are seldom prosecuted anyway, especially because they tend to belong to socioeconomic strata that punished less or not all compared to the rest of society.  There is no legitimate need to give them more protection.

[1] Ambinder, Marc, ‘CIA Officers Granted Immunity from Torture Prosecution’, The Atlantic, 16 April 2009, http://www.theatlantic.com/politics/archive/2009/04/cia-officers-granted-immunity-from-torture-prosecution-update/16268/ [Accessed September 9, 2011]

[2] Human Rights Education Association, ‘Torture, Inhuman or Degrading Treatment’, hrea.org, http://www.hrea.org/index.php?doc_id=265 [Accessed September 9, 2011]

The obvious benefit to prosecuting politicians is that it punishes – and thereby deters – corruption by politicians.  However, this benefit can be achieved through other means.  Firstly, many western liberal democracies have one form or another of removing a politician from office in the midst of their term, such as impeachment in the American system or a vote of no confidence against the government in the Westminster system.  While defenders of immunity oppose impeachment as contrary to the principles outlined above (because of the effect that it may have on political duties), this is an option that remains in cases of gross misconduct.   If the political will cannot be mobilized to remove a sitting politician, they are held accountable by the electorate to whom they must answer in the next election, and who will likely punish blatant misuse of political power.  Even if the individual politician has reached a limit on their term of office, or does not seek reelection, they are still held in check by the damage that will be done to their party in the event of major misconduct on their part.  Finally, most politicians are significantly concerned about their legacy, which is tarnished significantly by corruption even if they are never held legally accountable for it.  While Nixon received a full pardon from his success,[1] his name has become synonymous with criminality and scandal: a fate most politicians wish to avoid.

[1] Ford, Gerald R., Proclamation 4311, 8 September 1974, http://www.ford.utexas.edu/library/speeches/740061.htm [Accessed September 9, 2011]

These mechanisms are not immediate enough to put an immediate stop to an aberrant behavior.  Impeachment proceedings take months at least; elections may be years away; and reputational damage is even more long-term.  Moreover, these punishments are nowhere near a sufficient deterrent.  If loss of one’s job, and damage to one’s public image were sufficient deterrents, we would not prosecute business leaders for insider trading, nor celebrities for drunk driving.  The fact is that a criminal justice system which punishes everyone equally is not just fair; it’s also a practical method of achieving meaningful deterrence.  Finally, even if we are willing to settle for one of these lesser punishments, the threat of a great punishment gives prosecutors leverage to strike deals with the politicians, such as offering not to prosecute in exchange for coming forward with the details of misdeeds.

It does tremendous damage to the public perception of a given political position to see the holder of that position on trial for criminal acts.  Politicians are important role models for the populace at large, and shining light on everyone one of their misdeeds is not conducive to them playing such a role.  This hurts the ability of their successors who, though completely innocent, are stepping into an institution now tainted with the image of corruption or scandal.  Finally, the very process of prosecution can be damaging to the country, as citizens on opposing sides of the political spectrum disagree over the legitimacy of charges.  These effects all deal real damage to the political institutions necessary for the functioning of the state.

If we don’t want politicians hurting the dignity of the office, there is only one thing we can do: not elect politicians likely to commit crimes!  Of course, this is often impossible to tell in advance, but the dilemma remains: a crime has been committed, and that hurts the dignity of the office no matter what action we take.  One thing that’s worse than having an office’s holder raked over the coals is for them to get away with a behavior that otherwise warrants punishment.  See discussion below under “hurts the image of the office.”

As noted above, the political life is steeped in difficult decisions, and some of these are bound to result in choices that are at least potentially illegal.  The ability to prosecute politicians incentivizes political opponents to search out past actions by said politicians so as to immobilize them politically.  Such prosecutions are therefore not motivated by concern for justice, nor are they conducive to a well-functioning, multipartisan political system wherein representatives seek to work together to achieve their political ends.  In the most extreme cases, powerful politicians use prosecutions to immobilize their political opponents.

Motivation does not matter.  Almost every time someone presses criminal charges, it is for their own personal concerns (such as wanting retribution), rather than concern for the public good; that does not change the fact that if charges are laid, it is because the prosecuting authority has decided that, regardless of why the crime has come to their attention, the interest of society at large requires that the individual be prosecuted.  If political motivations are what is needed for politicians to be held accountable, so be it.  Even if this is a problem, it can be mitigated with sufficient oversight from an independent prosecuting authority.

It is impossible to overstate the power that the threat of prosecution has to stay the hand of anyone, including a politician, from transgressing the laws of the state.  In fact, we need more aggressive prosecution of politicians.  Not a single person has been prosecuted for approval illegal torture or wiretapping.  These are illegal actions actually happening which the populace, with only the blunt instrument of voting for or against a politician on the sum total of their policies, is unable to effectively influence.  There is no greater deterrent that could be used against politicians.

See argument above regarding other accountability mechanism. Jeopardizing future electoral success, harming one’s political party, and damage to one’s personal legacy are all meaningful checks on the behavior of politicians.  To suggest that, in the absence of prosecutions, an under-used tool anyway, politicians will be able to abuse their station with impunity, is simply untrue. 

The sort of person who commits an offense has demonstrated irresponsibility and so is unworthy of the public trust.  Would any reasonable citizen wanted to be represented by a domestic abuser, or have a fraudster manage the public treasury?  While almost all people are capable of atonement and redemption, someone who commits crimes worthy of prosecution while in office ought to be immediately removed for the betterment of the state.

This is not necessarily true.  A politician could be a brilliant diplomat who happens to commit a minor offence such as drink driving; very few indictable offences correlate directly with one’s ability to discharge the mandate of a political office.  Historically, politicians have often had their secret vices, including the rumored drug habits of many 19^th century politicians, that have not impeded the performance of their duties.

Every victim deserves to have the perpetrator of their suffering answer for their misdeeds.  It is unjust that certain offenders would avoid retribution, and certain victims would be denied their day in court, simply because of a factor external to the commission of the crime.  Even if the crime is not external to the criminal’s political role, the foundation of a free and fair justice system is that all individuals are treated alike, regardless of perceived importance.  Hence, a wealthy philanthropist will not be spared from prosecution simply because they are a pillar of the community.  Politicians should receive no greater reprieve.

The concept of retribution is a narrow and dubious foundation for justice.  A modern, civilized legal system should not be geared around delivering payback on behalf of victims, but rather around advancing the best consequences for the future.  For exactly this reason legal systems give several ways in which defendants can avoid punishment, even though they are technically guilty, if punishing them would have bad consequences; these include jury nullification and suspended sentences.

Far from the worst PR for an office being that a holder of it is on trial, the worst possible public perception of a political institution is that it is wracked with corruption, with it not even theoretically possible to hold its members to account.  Prosecuting politicians makes it clear that their office is not a den of impunity, and in the wake of a scandal, restoring public confidence in politicians to come. The public wants their politicians to be accountable and granting immunity harms accountability by denying an option.

The difference between the harm to the office of a politician getting away with a crime and the harm from them being tried for that crime is that the trial is inherently public.  Short of widespread corruption – the sort that would probably preclude prosecuting politicians anyway – it is unlikely that unpunished wrongdoing in an office will ever become public.  A trial, by contrast, creates a media flashpoint that captures the public consciousness.  Thus, even if the damage to the integrity of the office is greater per person in cases of unpunished crimes, the act of punishing the crime informs enough people to outweigh the fact that it may not do as much damage per capita.

Prosecutorial immunity brings about a massive side-benefit to being in office.  It is easy to get used to a life where minor indiscretions go regularly unpunished, as has happened with dignitaries holding diplomatic immunity.[1]  Immunity from prosecution may spur a politician to seek reelection into their old age when they are significantly less effective at performing their duties.  This is one reason why in the vast majority of democracies elected representatives, while far from poor, are not paid massive salaries; we don’t want people getting into politics for the wrong reasons.

[1] Uhlig, Mark A., ‘Court Won’t Bar Return of Boy in Abuse Case to Zimbabwe’, The New York Times, 1 January 1988, http://www.nytimes.com/1988/01/01/nyregion/court-won-t-bar-return-of-boy-in-abuse-case-to-zimbabwe.html?pagewanted=print&src=pm [Accessed September 9, 2011]

With regard to this issue, elections are unquestionably an effective alternative mechanism.  The act of a politician in a liberal democracy holding on to office for another term, by definition, requires public assent.  The citizenry has an out: don’t continue electing politicians who aren’t serving the public interest.  Regardless, politicians already have a plethora of motives, both legitimate and self-serving, to hold on to public office; this doesn’t move the barometer on incentives to run.  Most elections are at least modestly well contested precisely because many qualified candidates really want the position.