Would Obama consider a criminal investigation of the Bush gang?

Recent revelations that the president and his top cabinet members “discussed and approved” specific interrogation techniques, including torture, has renewed speculation about possible criminal activities in the Bush White House. Highlighting the president’s admission about personally approving the discussions, the Washington Post’s Dan Froomkin noted, “If you consider what the government did to be torture, which is a crime according to U.S. and international law, Bush’s statement shifts his role from being an accessory after the fact to being part of a conspiracy to commit.”

Of course, even a preliminary investigation is a fantasy, at least as long as Bush is office. It’s impossible to imagine Attorney General Michael Mukasey mulling over whether the president, vice president, and top cabinet members should be subjected to a criminal probe.

But what about Bush’s successor? Eight years ago, Pat Buchanan used to joke that, if elected, his first act after having been sworn in would be to turn to Bill Clinton and say, “Mr. President, you’re under arrest.” It’s unlikely either of the remaining Democratic presidential candidates would make a similar pledge, though Will Bunch, referencing the torture revelations, spoke to Barack Obama about the idea of prosecuting Bush administration officials for possible crimes. Obama said:

“What I would want to do is to have my Justice Department and my Attorney General immediately review the information that’s already there and to find out are there inquiries that need to be pursued. I can’t prejudge that because we don’t have access to all the material right now. I think that you are right, if crimes have been committed, they should be investigated. You’re also right that I would not want my first term consumed by what was perceived on the part of Republicans as a partisan witch hunt because I think we’ve got too many problems we’ve got to solve.

“So this is an area where I would want to exercise judgment — I would want to find out directly from my Attorney General — having pursued, having looked at what’s out there right now — are there possibilities of genuine crimes as opposed to really bad policies. And I think it’s important– one of the things we’ve got to figure out in our political culture generally is distinguishing between really dumb policies and policies that rise to the level of criminal activity. You know, I often get questions about impeachment at town hall meetings and I’ve said that is not something I think would be fruitful to pursue because I think that impeachment is something that should be reserved for exceptional circumstances. Now, if I found out that there were high officials who knowingly, consciously broke existing laws, engaged in cover-ups of those crimes with knowledge forefront, then I think a basic principle of our Constitution is nobody above the law — and I think that’s roughly how I would look at it.”

Interesting. As far as I know, this is the first such comment from Obama or Clinton on the subject.

It’s not quite the reaction I expected from Obama. One of his rhetorical staples is his desire to “turn the page.” He frequently emphasizes reconciliation and moving beyond tit-for-tat partisanship. I suspect Obama, if elected, would be anxious to get started on advancing an ambitious policy agenda, especially in his first two years, when he’s likely to have strong Democratic majorities in both chambers of Congress. Obama would probably want to overcome Republican obstructionism by reaching out to the GOP, or at least the portions of it that he thinks he could win over.

The notion that he’d say, “Before we turn the page, I’d like my Justice Department to start investigating my predecessor’s criminal activities,” seems a little far-fetched.

Not that I wouldn’t love to see it, of course, just that it never struck me as likely.

But Obama’s comments to Bunch were, in this sense, encouraging. I’m not sure how willing he’d be to follow up on this, but as a basic legal principle — “nobody is above the law” — Obama’s sentiment is the right one.

Digby makes a compelling case for skepticism.

I’m glad he has agreed to have his Attorney General look into the matter. But setting the bar that high — that they had to “knowingly and consciously” violate the law — means that there will be no investigation and they will probably be exonerated. The Yoo memos were written for that very reason, after all. (Powell is already using the excuse that they were operating under official DOJ legal findings.)

I don’t think it’s useful to mention the difference between lawbreaking and “really dumb policies” in the context of torture. Torture is clearly not a dumb policy, it’s an illegal and immoral policy. And at this point there’s really no doubt that the Principals sat around the white house discussing how to torture prisoners. Regardless of whether they can excuse their behavior because some authoritarian hack in the Justice Department told them it was ok — it was not ok.

Perhaps Gibson can delve into this a bit more with him as well and get him to clarify his position a bit. I don’t think we can afford to care if the Republicans perceive pursuit of these issues as a partisan witch hunt. This is really, really bad stuff. They escalated so hugely this time that they’ve actually created a national security crisis and made this country less safe as a result of their actions. This regime must be repudiated in no uncertain terms.

Maybe this is a subject the candidates can explore in a little more detail. It may not be as sexy to reporters as “bitter” voters in small towns, but it has the benefit of significance.

Recent revelations that the president and his top cabinet members “discussed and approved” specific interrogation techniques, including torture, has renewed speculation about possible criminal activities in the Bush White House.

This story will get no attention. Bush already admitted to blatantly violating the fouth amendment and the Corporate Media pretty much ignored that one too. His AG completely politicized the justice department, and got the same amount of Corporate Media attention (until those pesky kids at TPM showed up).

There are far more interesting things to talk about than criminals in the whitehouse.

  • I think I could feel the beginnings of flop sweat on some of Bush’s cronies. I hope that Obama (assuming that he wins the General Election) will follow through in a judicial manner (which means that many of these guys will be looking at trials.)

    Obviously this makes him more of a target now. Judging by what Hils has not done, the Powers that Be would rather have her in office than Obama. I suspect the US will get bidniz as usual (no breaking of US constitutional law or Human Rights violations here, tralalalala.)

  • The puzzle-piece that everyone’s overlooking here—and I think it’s a pretty important piece of the puzzle, if not the most important piece—is that “turning the page” does not mean that the page cannot be “turned back.” If Obama’s presidency wants to make fixing the problems in America the front-burner issue, with the intent being to re-visit the criminalities of the Bu$h administration once the repairs are underway, then so much the better.

    Besides—coming out now with a “hang the bastards” rhetoric would only serve to fuel the rabid hatreds of the Right’s noise machine all the more. You do not tell your enemy that you intent to wipe him from the map before you have the ability to do so….

  • The biggest impediment to moving forward is the refusal of people to ever admit they were this wrong about Bush. It’s a campaign issue that will make otherwise reasonable people very defensive. I think Obama is right to hedge. Just don’t take it off the table!!!

  • I have never understood why the Bush administration can get away with obvious violations of the law. I know the current justice department won’t prosecute but we will get a real AG in early 2009 and the statute of limitations will still be open on the ‘crimes’ committed by Cheney and others.

  • Granting everyone involved a wholesale pardon would be the least of the Bush Crime Family’s crimes. There’s nothing Obama (or Hillary Gollum Clinton) can do about it. Move on.

  • The real irony here is that the blind eye of the current DoJ lackeys will wind up hurting many in this administration in the long term.

    If they had actually investigated, charged, and tried some of these thugs before now, then Bush could pardon them Libby-style sometime over the last week of December 2008. But if it’s Obama’s AG (Edwards?) coming after them, they’ll have no hope for a pardon or commutation.

  • Mr. Let’s All Be Friends cannot credibly go after the Bush administration after having made so many heartwarming speeches about unity and coming together. That, and his history as a druggie criminal, which may be the usual state of affairs on Chicago’s South Side but doesn’t fly well with the rural working-class voters he cannot relate to, will put Mr. Blow in an awkward position when he pretends to be a law-respecting president. He should have thought of this before, but you can never tell young people anything, and you really can’t tell a man anything. Senator Clinton has not created any expectations that she will ever get along with anyone, so she is the best choice for taking on the Bush malefactors.

  • i probably should have paid more attention in civics class.

    can a president pardon someone before they’ve been charged with a crime, or convicted of a crime?

  • can a president pardon someone before they’ve been charged with a crime, or convicted of a crime?

    Yes. The president can pardon anyone at any time, except in the case of that person having been impeached. He cannot pardon in a civil case, however.

    I think it’s unlikely that many of these people will be left for President Obama to go after. I suspect that this December we’ll be treated to a list of pardons so long that we won’t even recognize half the names on it. Many won’t even have been caught yet.

  • can a president pardon someone before they’ve been charged with a crime, or convicted of a crime?

    On second thought, maybe they can. Ford pardoned Nixon for whatever vague involvement he had in Watergate — no criminal charges had been filed, unless the articles of impeachment counted.

  • No, had Nixon been impeached (the articles had gotten out of committee but had not yet been voted on by the entire House), Ford could not have pardoned him.

  • It may be that this administration’s desire to avoid just such investigations will encourage them to destroy enough evidence to preclude counterproductive prosecutions, but still leave enough to make their culpability plain, and allowing our imaginations to fill in the blanks. In the final analysis, this may be the best of both worlds.

  • thanks for the info. how about some of them being tried for international crimes? i assume presidential pardons would not apply in this case? if so, that will probably be our only hope…….

  • That’s some sterling analysis there, IFP.

    Listen. You’re lady can’t win without Florida2000-style electoral somersaults. Is that really what you want?

  • Perhaps Obama is sending a message to that portion of the democratic base that either consciously or subconsciously wants some measure of revenge, and for that reason have been leaning toward Hillary as the candidate most likely to exact that revenge on Bush/Cheney & Co.? I still can’t shake the belief that a fairly substantial number of dems are really out for their pound of flesh as well as a major change in policy. I hope this topic gets a good amount of play in the next week because I think it will help Obama’s cause in PA.

  • The greater question here—a Constitutional question, no less—is whether a pardon is valid if it is issued by a President who is part-and-parcel of the crimes being pardoned. It may well be that those “wholesale pardons” become null and void. It also poses a question as to whether a pardon issued by a US head of state can be deemed invalid in an international court. remember—a good many of those “pardons” will be connectible, in one way or another, to war crimes and crimes against humanity. If the US is to regain the high ground on the world stage, it must be prepared to employ the Bu$h regime’s practice of “rendition” to its fullest extent.

    Why do you think they want to keep their private militia Blackwater involved in federal security programs?

  • just bill: That’s the big hope, that one of them will try to take a Roman holiday and get nabbed. Or Bush could get extradited to the Hague as he travels to his new Paraguayan paradise.

    Seriously, many of them will never be able to (confidently) leave the U.S. again because they will be wanted internationally for war crimes–and yes, presidential pardons won’t help ’em there.

  • Ed, raises an interesting point about a preemptive pardon. Certainly, that could be done and would make my following point moot.

    If it is not done then the best way for Obama to proceed in investigating the potential crimes of his predecessor would be to either appoint a Republican with no ties to BushCo. to the AG position or as an independent prosecutor. This would help to mitigate charges of partisanship.

    Of course, it might be very difficult to find a Republican whose integrity is still in tact after eight years of BushCo’s corrupting influence on the party.

  • The greater question here—a Constitutional question, no less—is whether a pardon is valid if it is issued by a President who is part-and-parcel of the crimes being pardoned.

    Hmmmm. The Constitutional passage on executive pardoning power would not seem to indicate that presidential criminality precludes him or her pardoning others for the same crimes. Really, the only limitation spelled out is that the prez may not pardon in case of impeachment–his or her own, or someone else’s.

    As for international courts, individuals there would be tried under international law, not U.S. law, so the question of an existing U.S. pardon would be irrelevant–that is, it wouldn’t have to be deemed invalid by an international court in order for that court to have separate jurisdiction over the individual in question.

  • Obama says he hasn’t pursued impeachment because he thinks “that impeachment is something that should be reserved for exceptional circumstances. ”

    He’s putting the bar too high. If circumstances were to get any more “exceptional,” the President would start claiming the right to stay in office despite being voted out or impeached.

    The sad part is that once Obama gets elected, suddenly the impeachment bar will be so low that the Democratic congress will find it necessary to summon outrage when Obama is caught lying to the American people about sneaking a cigarette.

  • Here’s one more thing worthy of investigation: Cheney’s uber secret energy executives meeting in early 2001. No records of the meeting have ever been released. No one outside a select group of oil execs attended. And since the meeting, Oil prices have gone from roughly $20 per barrel to $112 per barrel.

    Let’s fucking investigate that.

    Love,
    A bitter man

  • Here’s what I’d love to see. Obama appoint a smart, honest, honorable, aggressive AG. Then have him tap a special prosecutor for each big scandal that Bush has spawned. Spiegelman (sp?), The fired attorney scandal, Blackwater, War contractors, Torture (tape destruction, memo, etc), just go down “Hugh’s list of Bush scandals” (great website, by the way) . I think investigating and prosecuting each of these will allow some closure, give pause to anyone who wants to try again, and get enough on the record to make it clear to history, even if they never get punished for it, who was responsible for these debacles. I’m sure the investigation would stall at a certain point up the food chain, but not before a big, red, arrow pointing right up to the top is drawn…

  • Nothing to prevent DoJ from making a thorough investigation. Calling all the pricnipals to testify should be very entertaining. Their pardons will negate any perceived need to claim the 5th and won’t cover the certain perjury intended to cover their sorry asses.

  • And I think it’s important– one of the things we’ve got to figure out in our political culture generally is distinguishing between really dumb policies and policies that rise to the level of criminal activity. You know, I often get questions about impeachment at town hall meetings and I’ve said that is not something I think would be fruitful to pursue because I think that impeachment is something that should be reserved for exceptional circumstances. Now, if I found out that there were high officials who knowingly, consciously broke existing laws, engaged in cover-ups of those crimes with knowledge forefront, then I think a basic principle of our Constitution is nobody above the law — and I think that’s roughly how I would look at it.”

    As someone who would personallty like to see Bush, Cheney, et al, dangling from lamp posts in front of the White House while the bodies rot off the ropes, the truth is what Obama says here is the best we can hope for in the situation.

    There’s a reason why Truth & Reconciliation Commissions have become the norm when a criminal regime like Bushco is replaced by a return to law. The alternative is civil war. The real kind, with bullets flying. The last 8 years have demonstrated just how fragile the rule of law is, and how easy it is for the Right to thumb their collective nose at such a “quaint” concept. This country is polarized enough that I would not say such an event as putting these scum on trial would not be the “tipping point” for a descent into domestic combat. And in such an event, I am not at all certain our side would prevail. This would be a civil war much more like that of Spain – and even that of Lebanon – than what happened here 147 years ago.

    The truth is, national war criminals only ever face accountability when the nation they ran is defeated, and they are handed over to the victors.

    And the bottom line is that Ed Stephan (#6) is right. Unfortunately.


  • DanP: The biggest impediment to moving forward is the refusal of people to ever admit they were this wrong about Bush.

    Bingo. There is a collective denial going on in this country of staggering proportions.

  • Chopin said:
    Nothing to prevent DoJ from making a thorough investigation. Calling all the pricnipals to testify should be very entertaining. Their pardons will negate any perceived need to claim the 5th and won’t cover the certain perjury intended to cover their sorry asses.

    There will be a great big impediment. When the Democrats take office in 2009 there will be no records left. Every single executive branch computer will be missing its hard drive. Every file cabinet will be empty and huge bins of shredded paper will be found behind every office building. The servers for the white house and every cabinet department will have experienced “unexpected power surges” that wiped all the data. It will be like Whoville after the Grinch visited.

    I suppose the Democrats could request a Federal Court to issue a restraining order. But Bush & Co. would probably ignore it and Bush would simply pardon everyone involved in on his way out the door.

    But I hope I don’t sound bitter.

  • The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any subject relating to the Duties of their respective Offices, and he shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.

    The Constitution does not state whether or not those Offenses are past or future. It looks like the ultimate Get-Out-Of -Jail card, even for him. Once a president has finished office, he cannot be impeached.

  • I disagree strongly.
    I think Obama is reluctant to mention this because it could really fire up the Bush machine at election time. Talk about donations rolling in at the speed of light. There are way too many heavy hitters with way too much to lose for Obama to run his mouth about accountability for the current administration.

    If Obama swears to uphold the Constitution and doesn’t, he is not better then the lot we currently have. There is no word, but treason will do, to describe the damage done to this country and to the world. If we don’t have enough respect for ourselves as a nation to hold lawbreakers accountable, then we have nothing, the American system of equality/justice is dead and I doubt it could ever be revived.

    Have we really come to the point in out Nation were war criminals and crooks go free so we don’t look too partisan ? There is only one party that holds this view, there is only one party that can fix broken America, there is only one party that history will ultimately judge as neglectfully enabling war criminals and crooks to never answer for the crimes they have committed.

    Obama can skate through like it’s not him so long as he get an AG that will put investigation of Bush at a #1 priority. Or he could do the world a favor and stick them all on a one way plane to the Hague and let the world figure out what to do with them. It ain’t that hard.

    If he can’t do that, he does not deserve a single vote. We will never heal so long as our rapist is living free, we need justice, we as D’s should demand it. This compromise business has got to stop, we are 7 months from an election that should result in Democratic Party domination and the Republicans in Congress are still fighting dirty. I am not saying go dirty, but forceful just might stop the non-sense we are letting happen.

  • Who is going to pardon President Bush?

    Do you think that President CHENEY will pardon former President Bush early on the morning of January 20?

  • Scott W @ 30. makes my point about the substantial number of dems wanting revenge, even if not for revenge sake, but for making it less likely we get raped again. I think Obama was talking to that part of the base and wisely so at this critical juncture. So I obviously disagree with his first point that Obama should hold his tongue on this issue and believe the contrary is true. He needs to win the dem nomination and soon. The “heavy hitters” will come after him in the fall no matter what he says.

  • The entire Bush team including Condi Rice should be behind bars for crimes against humanity.

  • ArkyTex.
    It’s not about revenge. Don’t put words in my mouth.
    You may seek revenge but I just want some justice. Give Americans/Iraqis/the World their day in court and see how it plays out.

  • I think Obama’s response was excellent, and befitting of a constitutional law professor. We need investigations, and we really really need to re-establish the rule of law, but as much as I’d like to see Bush and Cheney rotting in jail somewhere starting several years ago, there’s a limit on how much we want to stir this pot until Bush is out of office and a democrat is firmly in charge. Then if we discover all manner of outrageous stuff, we can decide where to go from there.

    (I expect I’ll be disappointed in how little investigation and prosecution Obama wants to do, but it’s heartening just to hear a leading politician say something positive about getting us back on track. Personally, if we can’t turn Bush et al. over to The Hague, I’d be thrilled to keep hauling their sorry asses in to one governmental hearing after another until they go broke from legal fees and die of old age. And if we do ever get Bush hauled before a judge, I promise to do my best to view the trial with optimism and pride, rather than bitterness. )

  • Obama, or anyone else in the position of President, must have his people aggressively pursue obvious violations of law I would even include pursuit of the truth about the 59,750 list of so-called felons prevented from voting in Florida in 2000. 40,000 at least of that list of black and Hispanic voters were qualified, which means (since Gore received 93% of the black vote), that Gore deserved ending up with a plurality of at least 36,000 votes in Florida, and we never would have experienced the horror under George W. Bush these past 8 years. Just think, according to UNICEF, which has been in IRAQ for nearly 25 years, we have killed between 650,000 and 900,000 Iraqi Civilians; in addition to the 40,000 and counting of our own servicemen and women who have been killed and maimed, in addition to another quarter of a million veterans suffering psychologically and mentally. Those happened because Bush wanted to fight his “hobby” War which had nothing to do with 9/11, and should never have been authorized.
    I am mystified as to why we are giving Clinton, McCain, Daschle, and all the others who didn’t even read the Senate Intelligence Reports questioning the rationale for War, which caused Senator Byrd and 20 others to refuse to give that permission.
    I don’t think we should ever go to war without a Declaration of War from the Senate. That’s what the Constitution calls for. If those Senators had refused to give permission, they might have had time and asked the question: “How can a 3rd rate power with no Navy, no Air Force, and no ICBM’s, even if they have Weapons of Mass Destruction, ever be a threat to the mightiest power on earth?”
    They might have asked “Why do we want to take out the only Power in the Middle East that is an enemy of Iran?”
    They might have asked, “Since we know that most of the terrorists involved in 9/11 were from Saudi Arabia, as was their funding, why should we go to war with Iraq, which had nothing to do with 9/11?”
    They might have asked, “Why would you try to establish a Democracy in that part of the world when you know 60% of the population are Shiite, the religion of Iran.” Eventually, Iraq, because of that population makeup, will inevitably become a Theocracy like Iran. It doen’t matter if the Surge works or not, it doesn’t matter if we stay there for 50 years or come home next month, that is what the result will be. The woman Dr who has become part of the 3 to 4 million Iraqis who have left the country, said before she left: “The much-vaunted New Constitution has set women’s rights back in Iraq 200 years.” Iran has endorsed the new Constitution, because it will lead inevitably to a Theocracy.
    So this is what all of the blood and suffering, all of the $Trillions wasted, has come to. Forget all of the verbiage about “staying the course”. Forget all of the Republican warnings about what will happen if we surrender. Regardless of what we do, this will be the result.
    If there is any way out, I have faith that Obama, appealing to all nations in the Gulf area, is our best bet to finding that way.
    They allowed Bush to play on the flowering patriotism of the American people, and with his bellicose arrogance, stampede the Senate into invading Iraq, which apparently had been a long-held ambition of the President.
    I still don’t think Clinton should be getting the free pass on this issue that she has been given. When Obama made his speech against the War, it was in the midst of the same patriotic fervor in Illinois, and he didn’t know when he made the speech, whether or not it might cost him his political future. He made the speech anyway, because he knew it was right. I passionately support his bid to turn this nation and this world around, and I’m not black – I’m a white retired Pastor, who also wish I could be a worshiper at Trinity UCC in Chicago. If ever there was a war that should have been renounced from the pulpits of America, this is one, and for the most part, the pulpits of Christian America have been thunderously silent. I applaud the prophetic preaching of Rev Wright as he sought to speak Truth to Power!

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