(Bloomberg View) -- During his presidency, Barack Obama was under considerable pressure to initiate prosecutions against officials in the George W. Bush administration. Even before taking office, Obama strongly signaled that he would not do this, suggesting that “we need to look forward as opposed to looking backwards.” In 2009, he added, “At a time of great challenges and disturbing disunity, nothing will be gained by spending our time and energy laying blame for the past."
As late as 2015, Human Rights Watch argued for “the opening of new investigations,” complaining that criminal prosecutions of Bush officials were obligatory under international law, above all for what it described as “torture” by the Central Intelligence Agency. It contended that without prosecutions of Bush-era officials, the legacy of the Obama administration would be “forever poisoned.”
To be sure, no one is above the law. Political opponents of a president cannot claim immunity from prosecution. But the bar must be set very high. That conclusion is vindicated not only by principle, but also by longstanding traditions. Whether Republican or Democratic, American presidents have been extraordinarily reluctant to call for prosecution of their political rivals. They have looked forward rather than backward.
With his enthusiasm for prosecuting Hillary Clinton, President Donald Trump is breaking that longstanding norm of American democracy.
Prosecuting political rivals and their associates is a tactic of authoritarians, and it reeks of authoritarianism. It suggests that political victors will not be content to have won; they will bring the force of the criminal law against those they have defeated.
That suggestion is dangerous to self-government and political liberty. It tells people who dissent, or who support rivals to current leaders, that they may be at risk. It turns opposition into an act of courage, rather than an exercise of rights.
Prosecution of political rivals politicizes the Justice Department, and in the most damaging way. Sure, the attorney general works for the president. But in a free society, prosecutorial judgments should be, and should be perceived to be, objective – rooted only in the law and the facts. Whenever national prosecutors pursue a political opponent of their president, many people will ask, naturally enough: What is the real motivation here?
Such prosecutions have the additional vice of intensifying a nation’s political divisions. They suggest that one side has been led by criminals, possibly even traitors. They announce to the millions of people who supported the president’s political opponent: You favored a crook.
For purely partisan reasons, some people will cheer any such prosecution, and others will rage and mourn. After an election, it is far better to accept Abraham Lincoln’s suggestion, offered in a time of Civil War, that we should “bind up the nation's wounds.”
These points raise an obvious question: Why is Trump fixated, nearly a year into his presidency, on prosecuting Hillary Clinton? I think I know the answer, and it is unfathomably sad.
To see it, we have to step back a bit and consider one of George Orwell’s most powerful creations: the Two Minutes Hate, directed against Emmanuel Goldstein, “the Enemy of the People” and opponent of Big Brother.
As Orwell depicts it in “1984,” Big Brother focuses the public on Goldstein’s misdeeds and the continuing threat he poses: “He was the commander of a vast shadowy army, an underground network of conspirators.” As citizens see Goldstein’s face on a screen, they break out into “uncontrollable exclamations of rage,” followed by a “hideous ecstasy of fear and vindictiveness, a desire to kill, to torture, to smash faces in with a sledge-hammer.”
Orwell’s ominous words suggest that every human heart is vulnerable to that ecstasy. “The horrible thing about the Two Minutes Hate was not that one was obliged to act a part, but, on the contrary, that it was impossible to avoid joining in.” (Think of what happens on contemporary social media.)
For Big Brother, the Two Minutes Hate is shrewd politics. It is a diversion from issues of policy, and from problems that people face in their ordinary lives. It focuses citizens’ attention on a malevolent, even demonic force, who continues to threaten them.
Of course, Orwell was producing a caricature, and Donald Trump, freely elected in a system with checks and balances, is no Big Brother. But politicians on the right and the left, and in both democratic and undemocratic societies, have found it useful, or irresistible, to identify their own Goldsteins, and to initiate a period of Hate – minutes, weeks, months or years.
Hillary Clinton is Trump’s Emmanuel Goldstein.
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
Cass R. Sunstein is a Bloomberg View columnist. He is the author of “#Republic: Divided Democracy in the Age of Social Media” and a co-author of “Nudge: Improving Decisions About Health, Wealth and Happiness.”
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