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January 19, 2009: The One-Day Cheney Presidency, and the Planned Pardon

Outing Valerie Plame may be yesterday's news, but the consequences of losing a counterintelligence operation in the middle east because of Dick Cheney's pique may be significant for a long time to come.
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Speaking to a Democratic party gathering in Seattle, Hillary Clinton voiced a sentiment we all have felt, paraphrased as follows: "I fear that we only know a small bit of the mess we will actually find on January 20, 2009".

If a Democrat is elected President, this crowd will not allow themselves to be vulnerable to criminal prosecutions. This does not stop at senior officials because they know that their juniors will break under the pressure of possible jail terms. Moreover, they can maintain loyalty at the expense of integrity for the remainder of the term by assuring those who remain steadfast that they will be pardoned.

You can bet that White House lawyers have been examining the President's pardon power, in preparation for a Democrat winning the White House in November 2008. Can a President pardon himself? Can the President pardon a class of people without naming them specifically? Does accepting a pardon imply admission of guilt, as Gerald Ford said when he pardoned Nixon? Can they pardon someone for future acts that "arise from" the activities for which they are pardoned, e.g., refusing to testify about them or lying under oath when they do?

When the White House lawyers are asked for an opinion to justify actions the White House wants to do, they do not try to find what the law is, but rather how it might be interpreted to give the Administration the argument that they were behaving according to the law. If they do not get the opinion they want, this White House goes to other lawyers until they can find someone who will sanction their actions. The Administration official then explains that they were acting according to the law, and thus did not knowingly or intentionally violate the law. Usually, that provides legal protection. It is the modern equivalent of the "I was just obeying orders" excuse offered at Nuremburg. Rest assured that, sitting in the giant safes in the Vice President's office, marked "TATS" (treat as top-secret, their invented classification to keep all documents secret), is a legal opinion concluding that the Vice-President is not part of the executive branch, just in case they have to justify his non-compliance with executive branch rules. Although the nation thought the claim absurd and an instant invention when it was asserted, you can bet that it had been thoroughly researched.

In the the pardon situation, however, the priorities are reversed. The White House lawyers need to interpret the law narrowly so that a pardon cannot be challenged; otherwise, the pardon does not provide protection against indictment, and thus testimony. [Lest you think that their testimony will then be compelled because, under the pardon, they cannot self-incriminate, think again. They will claim executive privilege, and the fight will rage in the courts, most of whom they appointed, for years].

I believe that the White House lawyers will conclude that a President probably cannot pardon himself, and that pardons with specific names are more sustainable than those describing a class. I doubt these people care whether it is considered an admission of guilt. They may conclude that the purpose of the pardon power extends to any act, whether committed by the time of the pardon or not, that arises from the activities that were pardoned, but I do not think they will rely upon this thin reed.

Here, then, is what we can surmise will happen on January 19, 2009. President Bush will issue a broad pardon to Dick Cheney. Because Bush does not really like pardons---since his whole life has been one big pardon, that he has worked hard psychologically to deny, pardoning others only makes his own denials more difficult to sustain to himself---it will suit him to leave the rest of the dirty work to Dick Cheney.

Bush will then resign, Cheney will become President, and issue a broad pardon to George W. Bush, private citizen, and to scores of named officials that have worked for them, and to classes of people defined by their relationship to the Administration. Scooter's commutation of sentence will be converted to a full pardon, that was the deal.

All, of course, will be done in the name of national security. With the Democrats now in power, you see, the national security is now precarious, and they have to do everything they can to prevent the terrorists from knowing what they have done.

And, they are betting that the country will forget, just like it forgot about the 2000 Florida election fraud and re-elected the pretender, just like it forgot about the Vice President's outing of Valerie Plame that provided aid-and-comfort to enemies of the United States, just like it forgot about Bush's commutation of Libby's sentence so he would not be a witness against Cheney on that matter, just like it forgot about their paying columnists to write positive articles, just like it is now forgetting, with 52% agreeing that we should bomb Iran, how it lied us into war in Iraq.

We are busy, news cycles are rapid so they have to get on to something else, and we are easily distracted by Britney Spears' next crisis. While the Republicans in opposition are relentless, the Democrats "make their point" and do not keep up the drumbeat. Outing Valerie Plame may be yesterday's news, but the consequences of losing a counterintelligence operation in the middle east because of Dick Cheney's pique may be significant for a long time to come. Do you really think they want it known, by their own public testimony, that they could have had a deal with Iran?

Osama bin Laden said that our society was so open that we were very vulnerable to attack. The Bushies took bin Laden's lesson and launched an all-out assault on our democratic institutions, betting that they could use the system to undermine it.

They have. And, they may get away with it. And, who to blame--them, or ourselves?

"First they came for the Communists, but I was not a Communist, so I did not speak out. Then they came for the Socialists and the trade unionists, but I was neither, so I did not speak out. Then they came for the Jews, but I was not a Jew, so I did not speak out. And when they came for me, there was no one left to speak out for me." - Martin Niemoeller.

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