Today in a New York Times op-ed, former Bush Attorney General John Ashcroft noted that because the federal government has poured billions of dollars into the nation’s financial institutions to keep them afloat, a dilemma arises over how to deal with these companies’ illegal activities: Does the Justice Department issue an indictment when such an act, as Ashcroft noted, “is often a death sentence for a corporation” and thus would undermine the federal government’s efforts to save these companies and boost the economy?
Ashcroft makes the argument that, while criminal prosecutions may not be warranted, some accountability is necessary:
The government must hold accountable any individuals who acted illegally in this financial meltdown, while preserving the viability of the companies that received bailout funds or stimulus money. Certainly, we should demand justice. But we must all remember that justice is a value, the adherence to which includes seeking the best outcome for the American people. In some cases it will be the punishing of bad actors. In other cases it may involve heavy corporate fines or operating under a carefully tailored agreement.
“[W]hatever are we to do if we discover that in the process of protecting our national security, government officials broke laws against warrantless wiretapping and against torture?” blogger Jack Balkin asks. Indeed, as Balkin noted, Ashcroft’s logic applies directly to investigating the Bush administration’s torture regime:
According to this same logic, the government should demand a full accounting of what Bush Administration officials did and it should institute new methods for monitoring and preventing abuses in the future. It should find ways to hold individuals who broke the law accountable without jeopardizing our existing national security. What the government should not do is what Attorney General Ashcroft argues against in the financial context– to sweep illegal actions under the rug or to go easy on the individuals who broke the law because they work for the federal government.
Ashcroft is unlikely to make an argument that the Bush administration’s torture program should be investigated, primarily because he participated in it. Indeed, Ashcroft was present at top-secret White House meetings beginning in 2002 to discuss the use of torture on terror suspect detainees. According to sources, all principals who attending the meetings approved.