Alexander Sammon addressed the issue of Presidential legal accountability in the context of the implications of the "Look Forward, Not Backward policy of impunity for crimes committed during the Bush-Cheney Administration that the Obama-Biden Administration decided to pursue in Biden Must Bring an End to the Bush EraThe American Prospect 07/21/2020
Many Democrats, for some reason, have spent the past 12 years forgetting the actual impact of the Bush presidency. One of the least popular presidents in history at the time of his departure, mastermind of the war in Iraq, the financial crisis, Hurricane Katrina, and more, Bush’s approval rating among all Americans sunk as low as 25 percent, which still somehow seems high. Fast forward not even a decade, however, and a majority of Democrats now say they view him favorably.
Joe Biden was elected alongside Barack Obama with a powerful mandate to undo the abominable handiwork of the Bush administration. But Obama and Biden did nothing of the sort. They insisted on looking forward, and prosecuted no one involved in crimes of finance or war. They pledged to close Guantanamo Bay, but didn’t. Looking forward, it turned out, meant letting many of Bush’s great sores continue to fester. [my emphasis]
We either have now or we are close to having a de facto situation when Republican Presidents and their officials who break the law enjoy impunity for those crimes because they will prevent the Justice Department from prosecuting them, or have the Republican President pardon them or commute their sentences, which is what we've seen under Trump these last four years.
Meanwhile, the Republicans are willing to use the machinery of justice to pursue crassly political prosecutions against Democrats. And even blackmail foreign governments like that of Ukraine to manufacture evidence for that purpose. The latter is what got Trump impeached, making him only the third President to be impeached.
Sammon was very right when he wrote earlier this year, "So if Joe Biden is going to take Trump’s place, he’s not merely going to need to undo the pernicious impact of Trumpism, he’s also going to need to undo the legacy of George W. Bush."
But doing that is not compatible with a sentimental and unrealistic pursuit of Bipartisanship:
Biden’s pitch to voters around the country is that he’ll undo the shameful acts of his Republican predecessor. But because he and Obama failed to accomplish exactly that during his first sojourn in the West Wing, a second trip will require him to do double duty. If Trumpism is going to be overhauled, Biden is going to have to be willing to tear down Bushism, too. That may not align nicely with Biden’s warm embrace of Republicans ready to abandon Trump, but it’s the job he was elected to do in 2008, and it will still be before him if he’s elected in 2020. [my emphasis]
The campaign from the Democratic side for giving Trump and his collaborators immunity for any and all crimes they may have committed during Trump's Presidency is now under way. The trial balloons for giving Trump and his co´-conspirators a free pass on crimes committed in office has begun:
The law applies to the President of the United States. He is subject to impeachment by the House and conviction by the Senate in order to be removed from office. But the law still applies to the President and to all members of his Administration.
Gerald Ford set a terrible precedent when he issued a blanket pardon to Richard Nixon when Nixon resigned and Ford became President, giving Nixon immunity from prosecution for bad acts committed in office. Bad acts for which numerous senior Nixon officials were convicted and even did prison time. Old Man Bush - George H.W. Bush, the "moderate" Republican - pardoned a variety of defendants in the Iran-Contra crimes, thus ending the Independent Prosecutor's pursuit of charges against them. And, not incidentally, blocking legal inquiries that could have been directly embarrassing for him personally. The Cheney-Bush Administration authorized criminal torture and crassly flouted the law in other ways: Obama became President and declared he wanted to "look forward, not backward," so even those crimes by senior officials were not prosecuted.
These are seriously bad precedents. They flout the rule of law. It's just plain wrong to give government officials impunity for serious crimes.
It's also a real sign of weakness on the part of the Biden team and the Democratic Party that the Biden team is floating this idea while the Republicans led by Trump are trying to nullify the results of the Presidential election. The Republicans can only take this as a sign of weakness on the part of Biden and the Democrats, because it really is a gesture of weakness.
I want to parse the two NBC stories linked above a bit more. Michael Conway - not to be confused with NeverTrumper George Conway, husband of Kellyanne Conway - is not part of the Biden campaign or transition team, so far as I know.
He argues that Biden should pardon Trump, although he notes, "Biden's initial instinct was to oppose granting Trump a pardon. He actually foreclosed this option by pledging last May that, if elected, he would not pardon Trump." (my emphasis) Whether that "instinct" was simply political positioning to keep Democratic base voters who may not have been enthusiastic for him on board, the position he took was the right one. It's actually a clear statement of how the Justice Department is supposed to work in making independently decisions on investigations and prosecutions based on evidence and without political inference.
The pledge from the presumptive Democratic presidential nominee came during a virtual town hall on MSNBC, when Biden was asked by a voter whether he would be willing to commit “to not pulling a President Ford” and pardoning Trump “under the pretense of healing the nation.”
“Absolutely, yes. I commit,” Biden responded, adding: “It’s hands-off completely. Look, the attorney general of the United States is not the president’s lawyer. It’s the people’s lawyer.”
A possible pardon of Trump by Biden would represent the second such exoneration of a former president by his successor in modern American history. President Gerald Ford famously pardoned Richard Nixon in 1974 after Nixon resigned from the presidency amid the Watergate scandal, facing the imminent threat of impeachment and removal from office. ...
Biden [lamented] how “we never saw anything like the prostitution of [the presidency] like we see it today,” and arguing that “what’s going on is an absolute travesty. A travesty of justice.”
“It is not something the president is entitled to do, to direct either a prosecution and/or decide to drop a case,” he said. “That is not the president’s role, responsibility. And it’s a dereliction of his duty.”
Michael Conway: a pardon of Trump would be a "healing" gesture with the added political advantage (to Republicans) that the Democratic base would hate it
Conway's argument basically comes down to saying Biden should pardon Trump because Conway just thinks that would be a nice thing to do. He makes the argument that the President should act like a national pastor, who presumably shouldn't do anything about evidence he might have of serious crimes by a previous pastor:
It may seem fair and emotionally fulfilling to treat Trump as he so often threatened to treat his own political opponents. But Biden made the case that he, and the country, ought to be better than that. As unsatisfying as a pardon would sit with many of us, this tough decision would be one good way to begin the healing Biden offered.
Healing? It would mainly be a signal to the Democratic base that Biden and the Democratic establishment weren't at all serious when they talked about Trump being a deadly danger to democracy. And it would be a sign to Congressional Republicans like Mitch McConnell that Biden has no intention of fighting seriously for his own positions. And a signal to the QAnon-ized Republican based that they can demonize Biden in the way they will do regardless of a pardon or not, but emboldened by the knowledge that Biden is weak in opposing rabid Republican foes.
And Conway even says explicitly, citing the example of Jerry Ford's pardon of Nixon, that it would hurt Biden politically with his own base. "Biden’s pardon of Trump would be even more courageous than Ford’s action — though, like Ford, pardoning his predecessor will subject Biden to intense, scathing criticism."
But the NeverTrump Republican pundits on MSNBC' Morning Joe would praise him for it, so there's that...
Because the Beltway Pod Pundits think that The One True Thing David Frum Ever Said is the way that things should be: "while Republican politicians fear their base, Democratic pols hate theirs"; (Gibbs on the LeftFrumForum 08/10/2010)
Conway also invokes this argument, which I'm sure we'll hear a lot in the immediate future:
Democrats already know what the mirror image of that looks like. When Trump called for the jailing of his political opponents, he was justly condemned as promoting a vendetta characteristic of a banana republic. Despite the efforts of Trump’s Justice Department, no basis was found to prosecute his political rivals. Trump tried anyway; Biden can, and perhaps should, be better than that.
The answer to this is the one given by Biden himself in May. We have a Justice Department set up with rules, laws, and procedures as internal safeguards to pursue prosecutions on a legal and non-partisan basis. According to Biden's own correct statement on the matter, it would be a dereliction of duty by the President to interfere with that process. Even a Presidential pardon should come only after that process has run its course.
Looking Forward, Not Backward - by letting Republican officials get away with serious crimes in office
The NBC story on the trial-balloon leaks from the Biden campaign does include a restatement, of sorts, of Biden's May position. The story reflects different viewpoints because, well, it's a trial-balloon story to test public and press reaction. The lede is this:
President-elect Joe Biden has privately told advisers that he doesn't want his presidency to be consumed by investigations of his predecessor, according to five people familiar with the discussions, despite pressure from some Democrats who want inquiries into President Donald Trump, his policies and members of his administration.
Biden has raised concerns that investigations would further divide a country he is trying to unite and risk making every day of his presidency about Trump, said the sources, who spoke on background to offer details of private conversations.
They said he has specifically told advisers that he is wary of federal tax investigations of Trump or of challenging any orders Trump may issue granting immunity to members of his staff before he leaves office. One adviser said Biden has made it clear that he "just wants to move on."
Another Biden adviser said, "He's going to be more oriented toward fixing the problems and moving forward than prosecuting them."
Politics is politics. And if Biden allows this statement to stand without his publicly rejecting it in some way, he will be sending a signal to his new Attorney General that he doesn't want crimes committed by the Trump Administration prosecuted. And that's a bad and wrong signal to send for both rule-of-law and political reasons. Maybe not a technical dereliction of duty, but uncomfortably close.
Still, we need to keep our eyes on the ball, which is the independence of the Justice Department investigation and prosecution process from partisan political influence.
After the introductory paragraphs signaling that we want to give the scoundrels and crooks a free pass from prosecution, later paragraphs qualify the message:
"His overarching view is that we need to move the country forward," an adviser said. "But the most important thing on this is that he will not interfere with his Justice Department and not politicize his Justice Department." ...
Biden wants his Justice Department to function independently from the White House, aides said, and Biden isn't going to tell federal law enforcement officials whom or what to investigate or not to investigate. ...
Biden's team is also reluctant to send any signal to Trump administration officials that the Justice Department wouldn't look into their actions, given that there are still nine weeks until the inauguration, another person briefed about the discussions said.
"While they're not looking for broad criminal indictments, they do want to make sure that people don't think there are no ramifications for any of their actions between now and the new presidency," this person said. [my emphasis]
Not exactly a ringing endorsement of the equal rule of law. But it's right, as far as it goes.
That report also explains the uncomfortable complication that, you know, the law is the law:
But it will be difficult for Biden to avoid the issue altogether, given the expected calls for investigations into an array of issues involving Trump — from his administration's child separation policy to his taxes, possible conflicts of interest and potential violations of campaign finance law. The issue could set Biden on a collision course with some of his own supporters, who are eager for a wholesale examination of the Trump presidency.
"There's also a strong school of thought that believes the law's the law," a Biden adviser said, describing the internal debate.
"A strong school of thought." (?!?) By the way, "child separation policy" is a euphemism designed to make a systematic and sadistic policy of kidnapping refugee children from their parents, including literally taking newborn babies from their mothers.
But by presenting this as some kind of fifty-fifty option, Biden's team is definitely reminding us that establishment Democrats have a strong preference to give Republican officials impunity for crimes committed in office, an attitude that is radically different for the Republican Party's strong and loudly expressed preference for "lock her up"-type arbitrary, partisan use of criminal law and their contempt for the equal rule of law:
Still, multiple aides said, Biden is generally not inclined to see his Justice Department investigate Trump.
One of the reasons he has given aides is that he believes investigations would alienate the more than 73 million Americans who voted for Trump, the people familiar with the discussions said. Some Democrats, however, have said Biden should be prioritizing the concerns of his supporters, not those of his detractors.
This is a really sad example of the lazy and often irresponsible way the corporate press treats important matters of public policy as "horse-race" partisan narratives in a Both Sides Do It framing. Biden should be prioritizing fair and honest enforcement of the law. Whether his opponents or supporters support it is really secondary to his duty as President to see that the Justice Department enforces the law fairly.
The two main sides in this argument, which are not at all symmetric in their approach, look like this. One side is composed of Republicans and their corporate Democratic enablers who want Republican officials to be able to act in disregard of the law and suffer no legal consequences for doing so. The other is the side of Democrats, with maybe a few straggling NeverTrump Republicans joining in, who say just what Biden himself clearly said in May: "It is not something the president is entitled to do, to direct either a prosecution and/or decide to drop a case. That is not the president’s role, responsibility. And it’s a dereliction of his duty.”
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 think that you are right, if crimes have been committed, they should be investigated. ... Now, if I found out that there were high officials who knowingly, consciously broke existing laws, engaged in coverups 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.
This is one of the things that made Obama an attractive candidate to progressives in 2008 and made a lot of people think he was a progressive himself.
And just like other times when he is campaigning or fundraising, he can be eloquent and on point on major issues of concern to ordinary people, including Big Picture issues like democracy and the rule of law, which he was addressing there. If there had been substantive investigations and prosecutions of the torture crimes and various other serious lawbreaking during the Cheney-Bush Administration, the Bush crime gang could not have gone about their criminal enterprise in the way they have.
But from all appearances, he didn't mean a word of it. He was committed to impunity for lawbreakers of the Cheney-Bush government.
This story is an excellent example of a serious problem, not only for Obama himself as a President but also for the Democratic Party more generally: their acceptance of Presidential impunity for criminal actions and the larger circle of immunity that flows from that. Obama Voices Concerns For Dropping Charges Against Gen. Flynn In Private Call MSNBC 05/09/2020:
Obama's own Administration was remarkably free of corruption based on what has come to light. And that should be a model for other Presidents to follow.
But one of Obama's most consequential Presidential legacies is this: David Johnston and Charlie Savage, Obama Reluctant to Look Into Bush ProgramsNew York Times 01/11/2020, Bush's criminal torture programs in particular are referred to here:
In the clearest indication so far of his thinking on the issue, Mr. Obama said on the ABC News program “This Week With George Stephanopoulos” that there should be prosecutions if “somebody has blatantly broken the law” but that his legal team was still evaluating interrogation and detention issues and would examine “past practices.”
Mr. Obama added that he also had “a belief that we need to look forward as opposed to looking backwards.”
“And part of my job,” he continued, “is to make sure that, for example, at the C.I.A., you’ve got extraordinarily talented people who are working very hard to keep Americans safe. I don’t want them to suddenly feel like they’ve got spend their all their time looking over their shoulders.”
The Bush administration has authorized interrogation tactics like waterboarding that critics sayskirted federal laws and international treaties, and domestic wiretapping without warrants. But the details of those programs have never been made public, and administration officials have said their actions were legal under a president’s wartime powers. [my italics and bolding]
The only thing Dick Cheney couldn't give his Unitary Executive experiment under the Bush Administration was a subsequent Democratic administration that granted de facto immunity from prosecution for serious crimes committed by Bush-Cheney officials. Barack Obama and his Attorney General Eric Holder from 2009-2015 gave him that. The same was true of his successor under Obma, Loretta Lynch.
This wouldn't have to have been a "political" investigation and prosecution. There are a variety of laws and organizational structures intended to prevent politicized prosecutions. The case of Michael Flynn which has been prominently in the news the last week was one in which a former Trump Administration official was investigated, prosecuted, and convicted by the Justice Department under the Trump Administration.
Eric Holder could have directed such investigations to be done in the regular Justice Department structure. He could have recused himself from decisions on such prosecutions to minimize the effect of inevitable Republican accusations that the investigations were partisan. He could have established a Special Prosecutor like Robert Mueller's investigation on Russian election interference. Obama could have asked Congress, which had Democratic majorities in both Houses in 2009. to establish and Independent Prosecutor, although the reckless and irresponsible Ken Starr tarnished that idea badly. He really did run a crassly partisan investigation.
But regardless of the particular organizational approach used, the Obama Administration had the most serious kind of responsibility to investigate and prosecute crimes committed in the torture program and the deliberate deceptions the Bush-Cheney government engaged in to persuade Congress to approve the invasion of Iraq based on phony claims made to Congress in knowing bad faith.
Instead, Obama adopted a policy of de facto impunity under the slogan of looking forward not backwards. Which, of course, is not the standard applied to crimes not committed by CEOs or senior government officials.
That was a real failure. Trump as President would have been corrupt and otherwise criminal. Because that's who he is and what the Republican Party is now. But it would not have been so easy if crimes during the Cheney-Bush Administration had been professional investigated and prosecuted.
Trump is now suggesting that his Administration will concoct some kind of completely bogus charges on which to prosecute Obama himself. So his generosity to officials of the preceding Republican Administration is apparently not reciprocated by the subsequent one. The result: Republicans think they are free to break the law in their official positions, including ginning up phony charges against Democrats.
