Should the Obama Administration Prosecute Bush Administration Lawbreakers?

President Gerald Ford pardoned Nixon to avoid "prolonged and divisive debate". Many Bush administration officials, up to and including Bush and Cheney themselves, may have committed felonies in the misuse of the powers of their office. Should these potential crimes be prosecuted?

No. It would be a waste of time.

The Obama administration should not. The hope is that the Justice department sets its priorities independent of any administration, and will therefore go after officials if there is reason to, or not if there is not. Obama and his team's role should be limited, as any president should be limited, to not getting in the way of such investigations, and in pardoning or not pardoning on essentially political grounds.

No. It would set a bad precedent in case a Democratic president did something unconstitutional in the future.

4>
There's no chance of that happening. It would upset Republicans very much.

#5: Only sex upsets the Republicans very much.

Other people having sex, to be specific.

Hmm, I tend to think the law should be upheld. If laws were broken, their needs to be prosecution.

And whether the President is a Republican or a Democrat or a member of the Bull Moose party should have no influence on whether or not federal law breakers are prosecuted by the federal justice department. Wouldn't that be a lovely world?

Yes.

What is there to deter anyone from repeating Bush's path? Prosecute and then lower him by his ankles into Baghdad.

I agree with 10 and 3. It is very important to prosecute the crimes committed by members of the Bush administration. This is the job of the justice department, without direction or interference from the rest of the Obama administration. When credible evidence is presented that a crime has been committed, the justice department should investigate. It is extremely important not to exempt the former president. Otherwise it becomes a settled fact that presidents can break the law without consequence.

The US system has a defect, in that the justice department serves at the will of the president. That makes it very difficult to correct scofflaw administrations without impeachment. Ideally, it would be an entirely independent branch of government.

I want to know, where are all those Republicans who marched grimly up to the Senate with impeachment papers, chanting "Rule of Law" because Bill Clinton lied about Monica Lewinsky?

Surely if prosecution is justified when a president lies under oath about a tawdry little sex escapade (something probably 95% of male politicians in D.C. have done at some point in their careers), it should also be justified when the president, vice president, and half the cabinet systematically violate the constitution, clause by clause? But no, see items #6 and #7 above.

Perhaps the Republicans might claim that abuse of power is not a crime, unless one personally benefits. (Of course there is plenty of evidence of corruption in the Bush administration.) I am still expecting Bush to issue a number of preemptive pardons on these grounds. For example, someone who orders or commits torture should be exempted from prosecution, I am sure Bush would argue, if the intent of the torture was to protect the nation.

John Yoo shares this theory. I think it is correctly described as a fascist theory of law. Nobody likes the term fascist, because it is waved around a lot, but I think in this case it is correctly applied.

So, there are two questions here. One is whether the Bush administration should be prosecuted for crimes. On that, I think we can all agree--if they committed crimes, they should be prosecuted. It is a separate issue whether there are any such crimes and what they are. There are a lot of people asserting crimes that, in similar circumstances a number of years ago, were executive privilege. The criminalization of politics is as bad as the politicization of criminal prosecution. To take an example, Bush's decision to go to war with Iraq should not be subject to criminal justice, however bad the war turned out. Even if you assert that Bush lied, one has to think about the precedent it sets. Did Roosevelt lie about American foreign policy during the run-up to WWII? Absolutely. At some point things are not, to use a Woo-ian phrase, justiceable.

Bush's authorization of torture, domestic spying, and violations of the posse comitatus act may all be prosecutable. Another candidate offense is the systematic destruction of government records. Cheney probably perjured himself when he testified before congress that he had no financial interest in Halliburton. Then we have the systematic politicization of the justice department, which is probably a violation of the Hatch act. This might apply to Gonzales and possibly Rove, but perhaps not Bush himself. Then we have all those freeloaders in the interior department that were getting sex and other favors from energy company representatives from whom they were supposed to be collecting royalties. Also, there was the use of government money as payola to "journalists" so that they would write favorable stories.

We also have a number of cases where Bush and the Bush administration violated clear provisions of laws passed by congress, attempting to negate them with signing statements. I don't know whether those are prosecutable ... but if not, laws should be passed to rectify this, as the president should not be able to countermand the law of the land with a signing statement.

There were also many no bid contracts handed out to cronies who made political contributions, without any oversight to see that work of any value was performed. The quid pro quo might be difficult to show ... but then again, some of this stuff was pretty blatant. Also, I think there are laws against no bid contracts in many situations.

The problem is that addressing Bush's violations, while important, is not urgent. And right now, urgent needs to take top billing.

That being said, I am of the slippery slope theorists--the ones who believe that overlooking this or that can only lead to bad or even worse. Like jmcgarve said in #11, the justice department should handle this, if only to make sure that it doesn't become a partisan issue. It would be difficult to for Obama to do his job objectively, for example, without being labeled as merely an enemy of the GOP.

Also, on the topic of pardons: I think there should be a law that any pardons issued by a lame duck president should be decided/made public PRIOR to a national election. That way the president's decisions could be taken into account by voters and by the candidates. Imagine Tom Brokaw saying "Mr. McCain, President Bush has announced that he'll issue a pardon for Scooter Libby. Do you agree with that decision?" Wouldn't that make such pardons a lot more accountable than they are now?

We also have a number of cases where Bush and the Bush administration violated clear provisions of laws passed by congress, attempting to negate them with signing statements. I don't know whether those are prosecutable ... but if not, laws should be passed to rectify this, as the president should not be able to countermand the law of the land with a signing statement.

This is exactly what I mean. Where were you eight years ago? Were you intent on making sure Clinton went to jail for his signing statements? Examine yourself there. Does it bother you if Clinton, believing that a provision is in part trespassing on his executive powers and duties, but not wanting to be responsible for killing the whole bill makes it known that, although he signed the bill that does not imply he agrees that all provisions get the separation of powers right? Yes? No? That's what signing statements are.

Sure, Bush did more of them. And Clinton did more than Bush before him. It's a growing trend, and an issue of Constitutional law and interpretation, not an issue that is to be solved making politicians you hate wear striped clothing.

It depends on the sort of 'illegality' one thinks Bush et al. have been involved in. If, for example, you think Bush et al. are guilty of 'war crimes,' wouldn't the ICC be the proper venue (not the American criminal justice system)?

I don't see Obama or his Attorney General spending significant time on the illegalities of Bush, Cheney, and Rumsfeld (Alberto Gonzales, as lower hanging fruit, is another matter). I would like to see a thorough investigation of the billions of dollars that are no longer accounted for in our Iraq satrapy.

I would prefer to just forget about Bush though. Let him just go away to write his book on his "important decisions" in happy crayola colors.
http://www.guardian.co.uk/world/cartoon/2009/jan/14/tony-blair-george-bush
http://www.guardian.co.uk/commentisfree/2009/jan/14/al-gore-democrats-us-news

The United States is not a signatory to the ICC, so the point is moot.

Beautiful. Another item for Obama's 'to do' list.

>17 timspalding: Signing statements need to be ended, no matter which president does them. The appropriate arbiter of the separation of powers is the court, not the president. If the president thinks that aspects of the law are contrary to constitutional separation of powers, he should file suit. Perhaps a judge will grant a stay, and perhaps not, but the law should stand until the stay is granted or the courts overturn it.

Bush took this to an absurd extreme. In the case of the posse comitatus act, the signing statement was issued for a law that had been on the books many years. Moreover, in some cases, Bush said that the separation of powers insulated him from even saying whether his administration was complying with the law or not.

If signing statements have the force of law -- you might as well send the congress home.

Agreed. If the president, any president, doesn't like what is in a bill he can veto it and tell Congress why. Do you know anyone who thinks Clinton's signing statements were ok but Bush's weren't? The difference was that no one reported Clinton's so we never heard about them.

When the President disagrees with a bill or a provision of a bill he has a Constitutional remedy in the veto power. If the President believes Congress is trampling on his powers he has the Solicitor General to go before the SC with the issue. The FF showed considerable wisdom in requiring the combatants to use clubs rather than scalpels in these instances. Giving the Executive the power to modify bills after they are passed tramples on the Congress, the Law making branch. If the President has a scalpel available to use on legislation, he becomes, in effect, the legislature. He has an all or nothing tool.

Signing statements are at the least illegal, and most likely un-Constitutional. In dealing with the process of a bill becoming law the Constitution speaks in good, clear, easy to understand, non-legalese that the President can sign it, veto it, or do nothing. It mentions not one whit about an executive right to pare away portions of it. Yes, Tim, this applies to every executive that serves, whether Democrat, Republican, or what. Bill Clinton's signing statements are just as un-Constitutional as George Bush's or Thomas Jefferson's. Remember, part of the purpose of our form of government is to make it difficult to enact law without agreement between those who make the laws and those charged with enforcing the law.

As far as prosecuting BushCo, Obama can instruct his Justice Department to investigate wrong-doing and have it done at a low level until something actionable turns up. I really don't have a dog in this fight, however, there are two things I think should happen: we should investigate all aspects of BushCo in order to learn what was done in our name and by whom and correct the problems, second, I would really like to see Karl Rove spend a considerable portion of his future busting rocks outside of Leavenworth, Ks.

>22 jjwilson61:

No, only right-wing people heard about those. What you hear is in part conditioned by where you are.

Look, I think signing statements have gotten out of hand, but they illustrate an interesting constitutional problem and question.

You object to Bush's use of them--a very wide use. But let's take the other side for a second--the limit case on the other side. Let's imagine that the Congress passed a budget--a very needed budget. The country was at war and in trouble. The President could not in good conscience veto it. Children would starve; kittens would fall into water, etc. This bill contains the following provision:

"The President of the United States shall move his troops from Baghdad to Basra, divide the fourth division into two smaller divisions and appoint the following people as generals."

Now, this would *clearly* violate the Constitution. The President is the commander in chief. That means he gets to decide at least tactical questions, and questions of staffing.

In such a case, what is the President to do? I would argue the right thing is to sign the bill but to issue a signing statement to the effect that the president does not cede his rights as commander in chief.

The right thing to do would be to sign the bill and make a very public announcement that he will not be following the unconstitutional parts of the bill and immediately send it over to the Supreme Court asking for an immediate review. Signing statements are usually very quiet affairs and if the President is making the decision not to follow the will of Congress he should do so very loudly so everyone knows what is at stake.

Well, signing statements ARE such a public pronouncement, and the Supreme Court does not generally review cases before a real action has taken places--you can't just ask the court to open on some open issue of Constitutional law.

I think it's a very interesting issue just what are the limits of the President's power in wartime. The issue was not perhaps as important when the war was happening far away and involving only foreigners and they were soldiers.

But the Supreme Court does make exceptions and would likely give serious consideration to doing so if the President asked. I think the reason that President's haven't done this is that they are afraid that the Court may disagree with them.