In his press conference earlier this week, President Bush declared flatly that he would not discuss the issue of pardons, which may be a sign that he's considering issuing a lot of pardons, a few pardons, or hardly any at all. While no one knows for sure what Bush will do, America should be prepared for a whole lot of last-minute pardons from the White House.
If so, who will get blanket pardons? It could be a crowded slate, beginning with everyone involved in the torture program (unlikely, though possibly Vice President Cheney and other policy makers), many of the principals in the US attorneys scandal ( including Karl Rove , again unlikely) not to mention assorted other wrongdoers like Scooter Libby (very likely), Mike Milken, and a host of other less-known figures, convicted or otherwise.
In early December, Attorney General Mukasey said that he saw "absolutely no evidence" that anyone involved in developing the torture programs "did so for any reason other than to protect the security in the country and in the belief that he or she was doing something lawful." Mukasey concluded that "In those circumstances, there is no occasion to consider prosecution, and there is no occasion to consider pardon." The other potential pardonees -- those involved in the US attorneys scandals, for example -- certainly won't be able to make the national security argument, but still may benefit from a Bush grant of clemency.
It is safe to say that the Obama administration -- and probably a large segment of the American public -- doesn't want to be bothered with Congressional and criminal investigations into the wrongdoing of the Bush years. Most people are hoping that Bush and Cheney will simply disappear into their respective caves, never to darken the national scene again. The argument is that we are facing enough grave and pressing challenges without looking back into the dismal record of the Bush years.
However, it is also true that the best way prevent future fiascos is to learn from past mistakes. Truth and reconciliation commissions have been effective tools in many countries to confront the sins of the past, and may even help to wash them away. House Judiciary Chair John Conyers has proposed a version of this -- the National Commission on Presidential War Powers and Civil Liberties. While America may not be ready for that particular vehicle, it would be wrong for an outgoing President who presided over disastrous -- and arguably criminal -- enterprises like the torture program to unilaterally slam the door on all future investigations into that conduct. The American people, their Congress and their courts should decide what is the best way to treat conduct that may have violated our laws and Constitution. In this case, George Bush should not be the decider.
It is quite possible that a batch of midnight pardons next Monday could cast a pall over the historic inauguration of Barack Obama, stealing the limelight with last-minute controversy. That is why it is important that not only the incoming Obama administration, but also the Congress and the media, be prepared to manage a firestorm over pardons on Inauguration Day. While it may be unlikely that George Bush decides on wholesale pardons, it is vital that he not rain on Obama's celebration, or at least that any lightning bolts from the disgraced, departing President not go unanswered.