A lot of ink was spilled by many writers, myself included, who were convinced that President Bush would pardon key members of his administration before he left office. We were certain he would protect Cheney, Rove, Rumsfeld, Gonzales and others who were important architects of his expansion of executive power. As January 19th approached we beat the war drums ever more loudly, hoping to keep the issue in the public's eye. We believed that by publicizing the issue Bush wouldn't be able to hide in the shadows and sign pardons without public notice.
And then on January 20th Barack Obama was inaugurated as our 44th president. We took a collective breath and relaxed. Apparently Bush really didn't believe in granting pardons.
Michael Isikoff reported for Newsweek that while many of us were fomenting about Bush preemptively pardoning at-risk members of his administration, he and his lawyer Fred Fielding (White House Counsel) were concocting one last expansion of executive privilege. Four days before he left office, Mr. Bush authorized Fielding to write letters to Harriet Miers and Karl Rove giving them "absolute immunity" from Congressional inquiry and prosecution. Preemptively. In perpetuity. Absolute and irrevocable.
The letters set the stage for what is likely to be a highly contentious legal and political battle over an unresolved issue: whether a former president can assert "executive privilege" -- and therefore prevent his aides from testifying before Congress -- even after his term has expired.
These letters were delivered before Congress or any prosecutor had initiated action against Miers and Rove. Clearly Bush sought to inoculate Rove and Miers from all attempts to prosecute them for their actions during his administration. Only when John Conyers (Chairman, House Judiciary Committee) subpoenaed Mr. Rove did the letters come to light. Waving his letter in the air, Karl Rove refused to appear before the committee.
In December while Bush was giving a round-robin of legacy interviews proclaiming his two terms as successes, Vice President Dick Cheney was taking his own victory lap. In two of those interviews he said something interesting: I authorized the CIA's use of torture and I did it because my boss wanted me to. The Vice President had pointed a smoking gun right at Bush's heart. Cheney was clearly prodding Bush to issue pardons to protect his underlings AND to protect himself.
Every protective measure by Bush is self-protective. If Karl Rove and Harriet Miers don't testify under oath, then they can't reveal what Bush agreed to and authorized. How many more such letters did Bush have Fielding write?
With so much public attention focused on whether Bush would pardon his associates, the ex-president did an end-run around the issue. Ultimately, his claim to broad powers of executive privilege may be overturned in the courts. But how long will that take? And at what expense? Clearly Bush hopes that by making inquiries so difficult, he will dissuade Congress and prosecutors from even trying to look into the dark recesses of his administration's activities.
Back home in Texas, surely Bush is having a good chuckle right now. He punk'd us again!