Garzón

Two investigating magistrates (Varela and Marchena), prosecuting another investigating magistrate (Garzón) for misconduct, are being accused of misconduct. That accusation has been levelled in the court of public opinion; formal complaints will follow if Garzón is found innocent.

There are four issues in the Garzón case, and a problem arising from all four. First, the issues:

1) Did Garzón accept payment from a major Spanish bank in return for favours? The bank financed a lecture series at an NYU research centre subsidised by two other bank and Coca-Cola, among others. NYU has issued a statement exonerating Garzón, who had seen identical charges against him dropped twice since 2008. For an account of the charges, see the following piece from last Sunday's Vanguardia:

If after a leave of absence Garzón did not declare a conflict of interest in cases to which the bank was party, the problem may be with conflict of interest guidelines rather than the judge. The investigating magistrate handling the case, Manuel Marchena, has also been busy on the lecture circuit, giving talks at events that have sponsors.

2) Did Garzón knowingly exceed his powers in ordering that conversations between suspects in a political corruption case and their lawyers be taped?

3) Did Garzón knowingly exceed his powers in undertaking his investigation of Civil War-era mass murders? Human Rights Watch and Amnesty International have criticised Spain for keeping a 1977 political amnesty law on the books, arguing that it comes into conflict with points of international law from which Spain is not exempt, under its treaty obligations. The UN Human Rights Committee has likewise asked that the 1977 law be repealed.

4) How can it be proven that a public official has knowingly exceeded his or her powers? Garzón is a magistrate working within a complex judicial framework. His actions have not been arbitrary; he believes them to be grounded in points of law. In the ordinary course of court business, disputes over Garzón's actions would be approached as questions of jurisprudence, argued before the judges before whom his cases--those he has investigated--are brought to trial. If the judges do not accept Garzón arguments, out they go, along with the case. Prevarication doesn't mean falling into error: it means knowing that something is wrong and lying about what one knows.

Now, the problem. No-one is debating the fine legal points of the second and third charges against Garzón. No-one understands them. They have been taken for what they do, politically, not for what they say, legally. Lawyer-client privilege is a serious matter; perhaps the law on that point, and so on the wiretaps, is clear, and Garzón did overstep his remit.

The New York Times, The Financial Times and The Economist all smell a fish. The fish is systemic, the unravelling of Spain's post-Franco political settlement. Garzón is regularly referred to by his defenders as a "progressive judge"; in the foreign press he's a "leftist judge". If you let such qualifiers attach to the judiciary with no qualms, justice is partial, and there is no justice. I am reminded, tangentially, of another prosecutor, Archibald Cox. Fired by Nixon over a disputed point of law, Cox did not go down in history not as Nixon's political enemy. "Whether ours shall be a government of laws and not of men," Cox said after his dismissal, "is now for Congress and ultimately the American people to decide." That's the point: the rule or law can exist above politics. Whether or not this is true not matter so much as the belief that it might be true. If you lose that belief, you cease to believe that the game of politics can be played cleanly. Politics has bled into everything in Spain, nothing is clean, and Garzón is no Cox.