Pardon Prognostications

As the hours wind down (no more days, it is finally mere hours to the end of the Bush era), thoughts of pardons-to-be are on the mind of many, myself included.

To date, the Screw-up-In-Chief has been stingy with pardons. For himself, he refuses to acknowledge error, for others, he declines to offer forgiveness. Although I would expect a few more pardons as he exits the White House, I would be surprised if there were many. He is not a man who has a capacity for mercy or compassion. Josh Gerstein of Politico has a rundown on the possible cases/odds on a few of the more likely ones. 10 cases Bush could review.

The real question is whether Bush will pardon himself and/or issue blanket pardons for those in his Administration who have flouted the rule of law -- for crimes such as torture and wiretapping. I have considered this issue several times, see Begging Your Pardon and Pardon Me!, and have fully expected him to do so as his last official act.

Asking Will Bush Pardon Himself?, Kenneth Roth wonders:

As the clock ticks down the last days of the George W. Bush administration, a long list of people are hoping the president might pardon them for their criminal acts. This year, it is possible the president himself, as well as members of his administration, might be on that list—for authorizing torture. On his way out the door, President Bush might be tempted to protect himself and members of his administration by issuing a broad pardon for any crimes committed in the course of fighting terrorism.

The Constitution allows the president to issue such a blanket, pre-emptive pardon. The only real impediment is the admission of guilt that such a pardon would imply. Attorney General Michael Mukasey said recently that there is no need for a pardon because everyone involved thought they were acting lawfully, and Vice President Dick Cheney has claimed that even his authorization of waterboarding was legal. But the president may issue a broad pardon anyway for fear that the Obama administration would reach different conclusions.

Roth recommends that Bush not pardon himself, since that is a course that has never been done before:

The president should resist the temptation to pardon, because a pardon would flout the principle that even the president is not above the law. No president, not even Richard Nixon facing possible Watergate charges, has ever pardoned himself. President Bush must be dissuaded from that course.

As though that ever mattered for Bush. But see, A Message for President George W. Bush, for the other view.

Charlie Savage of the NYTimes also ponders the question, in Bush Administration Does Not Rule Out "Pre-Emptive" Pardons:

As the administration wrestles with the cascade of petitions, some lawyers and law professors are raising a related question: Will Mr. Bush grant pre-emptive pardons to officials involved in controversial counterterrorism programs?

Such a pardon would reduce the risk that a future administration might undertake a criminal investigation of operatives or policy makers involved in programs that administration lawyers have said were legal but that critics say violated laws regarding torture and surveillance.

Some legal analysts said Mr. Bush might be reluctant to issue such pardons because they could be construed as an implicit admission of guilt. But several members of the conservative legal community in Washington said in interviews that they hoped Mr. Bush would issue such pardons - whether or not anyone made a specific request for one. They said people who carried out the president's orders should not be exposed even to the risk of an investigation and expensive legal bills.

"The president should pre-empt any long-term investigations," said Victoria Toensing, who was a Justice Department counterterrorism official in the Reagan administration. "If we don't protect these people who are proceeding in good faith, no one will ever take chances."

See also, Countdown: Possibility of Blanket Presidential Pardons. On the other hand, the WSJ seems to think that blanket pardons will not be issued. They posit Sweeping Pardons 'Unnecessary':

The White House isn't inclined to grant sweeping pardons for former administration officials involved in harsh interrogations and detentions of terror suspects, according to people familiar with the situation.

Some Republicans have been pushing for President George W. Bush to grant pre-emptive clemency to officials who fear being investigated by Democratic critics. White House officials have countered that such pardons are unnecessary, these people say. The officials point to Justice Department legal opinions that supported the administration's methods of detaining and interrogating terror suspects.

* * * *

Some former Bush administration officials have argued against a blanket pardon for post-9/11 activities, saying it would be tantamount to an admission that the Bush policies weren't legal.

* * * *

Mr. Obama has said he wants quick closure of the detention center at Guantanamo Bay, Cuba, and transition officials have indicated there may be a commission established to study Bush-era terror policies. One criminal investigation is already under way: a Justice Department probe into the destruction of CIA interrogation videotapes.

Attorney General Michael Mukasey, in a speech to a conservative legal group last Thursday, defended past interrogation policies. "Before conducting interrogations, the CIA officials sought the advice of the Department of Justice, and I am aware of no evidence that these DOJ attorneys provided anything other than their best judgment of what the law required," he said.

Mr. Mukasey told members of the Federalist Society that using criminal investigations to examine Bush administration policies would send a harmful message: that officials who "support aggressive counterterrorism policy based on their good faith belief that such a policy is lawful" may one day be prosecuted.

See also, Cheney: No Wrongdoing, No Need for Preemptive Pardons.

Of course, it's easy for them to take that position since Obama has given strong indications that he has no interest in pursuing the Bush bunch for criminal activities. But there may still be other reasons to act. After all, the Bush Administration has been the most secretive ever. The public has no idea what went on behind those closed doors (we don't even know who went in those doors, since the White House Visitors Log was kept secret). So Bush may still want to go the preemptive pardon route as a means of keeping his conduct hidden.

Based upon the flurry of activity that Bush has engaged in in his last days, such as issuing objectionable regulations, planting conservative career employees in government spots, etc., he could care less what the public would think about him. After all, his popularity is already in the "how low can you go, limbo" stage, so what does he have to lose? He can rationalize (to himself & his increasingly small base) that it was necessary to protect those who acted loyally on his behalf in the service of their country.

But what do I know? Interestingly, P.S. Ruckman at Pardon Power notes, Countdown: CYA Time Approaches:

Now, the final days of the Bush administration are here. The storyline is: Bush will grant an unprecedented preemptive blanket turbo pardon of 'war crimes' committed during his administration (and supported by Democratic leaders like Nancy Pelosi, John D. Rockefeller, Bob Graham, etc.). Bush will then pardon the Vice President Dick Cheney. While he is at it, he will then pardon himself. No, no, Bush will resign and then Cheney will pardon Bush. It isn't that this all 'might' happen, or 'could' happen. Oh no. The line is it will 'probably' happen. In fact, the probabilities are so high, none of us should even be surprised when it does happen. I mean, we will act that way, when it happens because righteous indignation plays well to the crowd. But right now, in the calm of reasoned analysis, it is all to be expected. Meanwhile, there are no clemency scholars 'expecting' any of this. No, not even one.

Luckily, either way, we'll have the answer to this in only a day from now. Because that's when George will be gone.