Glenn Reynolds quotes (AEI visiting scholar) Jack Goldsmith:

In my two years in the government, I witnessed top officials and bureaucrats in the White House and throughout the administration openly worrying that investigators acting with the benefit of hindsight in a different political environment would impose criminal penalties on heat-of-battle judgment calls. These men and women did not believe they were breaking the law, and indeed they took extraordinary steps to ensure that they didn’t. But they worried nonetheless because they would be judged in an atmosphere different from when they acted, because the criminal investigative process is mysterious and scary, because lawyers’ fees can cause devastating financial losses, and because an investigation can produce reputation-ruining dishonor and possibly end one’s career, even if you emerge “innocent.”

Reynolds: “As I’ve said before, this war has been overlawyered, which is not to say it has been well-lawyered. … Law and lawyers are swell in their place. The extent of that place, however, is not unlimited.” And a Reynolds commenter says:

Welcome to the post-SarBox, [Eliot] Spitzer world. We in business face this on a regular basis. I can’t decide whether I’m glad public servants experience the same headaches we do or concerned because an intelligence/military failure costs lives, while a business failure costs only money (though when Spitzer was around, it also sometimes cost freedom).

In business, not only has bad judgment become a crime, so has a good decision made on the basis of incomplete information, which later turns out to have been the wrong call. This is not good for America, where innovation and risk are what we do better than Europe, China, or India.

In the words of the master blogger himself, Read the whole thing.

Filed under: Eliot Spitzer, Europe, politics