Lame Duck Prosecution: Are Nuclear Pardons in the Works?

President Bush has been curiously absent from the business of the presidency, yet his underlings state unequivocally that he will continue to exert his rights and duties as president until 11:59 a.m. on January 20. Could it be that Bush is busy writing, or should I say, rewriting his (and our) history? After the publishing industry snubbed his memoir, the President reportedly teamed up with his old pal Karl Rove to fluff up the memories. Just like the good old days on the campaign trail, together they will craft a new image, a history of the last eight years as they remember it. In this case, fiction trumps truth with a new spin on I Can't Recall.

If the Bush presidency had been a work of fiction, a presidential pardon would be the perfect ending. By the same token, it would come as no great surprise to learn that David Addington and John Yoo are busily working behind the scenes to craft the ultimate pardon, once again stretching the constitutional powers of the president. Just as Bush and his Administration pushed the legal envelope with torture memos, it certainly looks like he may take the same path in using the pardon power to preemptively exonerate himself and others in his administration. It's the nuclear (or nukulur) option and it apparently is on the table.

While there is much hand-wringing over the expected pardons, the truth is we are in new legal territory when attempting to prosecute a former president and his minions for crimes committed while in office, whether or not Bush issues a nuclear pardon. We have arrived at this point because a neutered Congress has refused to invoke impeachment when it was prudent and appropriate to do so. The Constitution has been ignored not only by the current occupant of the White House but also by Congress whose job is to maintain the balance of powers. Impeachment was and remains the only tool that has the ability to deal incisively with an errant president.

President Bush and members of his administration have committed crimes and Attorney General Mukasey is trying to undermine the currency of the facts by issuing statements to the contrary. That he felt obliged to say anything speaks volumes. In response to Mukasey's comments, Rep. Jerrold Nadler (D-NY-CD8) and Rep. John Conyers (D-MI-CD14) sent him a letter asking for clarification since evidence seems to contradict his statement.

Buried in the letter is this gem: "Our greatest concern, however, is that your statement appears to be pre-judging numerous ongoing investigations." In other words, Mukasey making public statements about ongoing investigations in his own department is not only breath-taking in scope, it may be impeachable. Mukasey surely knows that it is unethical, even if he thinks he, too, is above the law.

Imagine for a minute the outcry had Janet Reno made the following statement during the investigation into the Waco massacre: "There is absolutely no evidence that anybody who rendered a legal opinion, either with respect to [surveillance] the use of firearms or with respect to [interrogation] ATF and FBI policies, did so for any reason other than to protect the security [in the country] of the people involved and in the belief that he or she was doing something lawful."

Surely there would have been demands for her resignation. Yet there is no outcry from either side of the aisle. Not even a whimper except for the Nadler/Conyers letter. The letter, polite and well-argued, asks, "... please [pretty please] explain the basis for your blanket conclusion that all Department actors believed their conduct in counterterrorism matters was lawful."

Neither Nadler nor Conyers are stupid; they have to know that they will get no response. Mukasey is no more inclined to do any 'splaining' than his predecessor Alberto Gonzalez; he isn't being called upon to testify and he doesn't look as lost and helpless -- and guilty.

So the question is why did Nadler and Conyers send this letter? Does it produce a record of noncompliance for later prosecution of the administration? Is there any intention of pursuing prosecution before or after January 20?

Nadler has strongly condemned the idea of preemptive pardons, something incompatible with our democratic foundations. But the Resolution (HR 1531) he has introduced is weaker than lame duck Bush. There are many complicated legal issues involved with pursuing any kind of prosecution of the Bush Administration. Impeachment can still be invoked. It is not about forcing Bush and his cronies from office; it's about accountability and reverting to the rule of law, and keeping fiction out of the history department.