Cornyn, Holder, torture, and the obstruction of justice

Sen. Cornyn is holding up Eric Holder’s confirmation as Attorney General until holder promises not to prosecute torturers. Isn’t that skating mighty close to the line where legislative oversight becomes obstruction of justice?

Can demanding that someone nominated for a prosecutorial post promise not to prosecute a particular group of lawbreakers, as a condition of agreeing to his appointment, charged as an obstruction of justice? Reading the statute, I don’t see why not.

As to the idea that this is all Holder’s fault for saying that waterboarding is torture, was he supposed to lie under oath? Of course waterboarding is torture, and we have a treaty obligation to prosecute those who engaged in it or ordered it. The new AG faces a complicated policy-political-legal set of problems in dealing with that mess, but the blame rests squarely on the torturers and their accessories after the fact, such as Sen. John Cornyn.

Update A lawyer-reader says such a prosecution would be barred by the “speech & debate” clause. In principle, that just puts the ball in the Senate’s court, but of course there’s no way the Club will act against a member for a mere felony.

Second update Leon Wolf of RedState seems to be proud of his ignorance.

First, he says he doesn’t know what I do for a living, but seems to think I’m some sort of law professor. I guess his Google must be broken.

Second, he doubts that putting political pressure on a prosecutor to drop a case counts as obstruction of justice. 18 U.S.C. 1503 penalizes anyone who:

by any threatening letter or communication, influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice

Let’s see: Telling someone “I’ll keep you from being confirmed unless you promise not to prosecute” sounds a lot like a “threatening communication.” And clearly Cornyn’s intent is to “obstruct or impede the due administration of justice.”

Wolf notes the “speech-or-debate” clause problem mentioned in the update above. The cases aren’t entirely clear on how far this extends outside the Senate chamber or committee-hearing room. Would a phone call from Cornyn to Holder, or to the White House, be covered? A press conference? Maybe. Maybe not.

And of course when I said that if Cornyn’s conduct is protected by the speech-or-debate clause that put the onus for disciplining him back on the Senate, that didn’t imply a criminal sanction. The Senate has the power to expel one of its own members. It’s right there in the Constitution.

I’m pleased to note that Wolf didn’t challenge the basic point of my post, which is that a Senator who uses the confirmation process to protect lawbreakers from prosecution violates his oath of office.

Second update

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com