Saturday, December 27, 2008

Pardon me?

(In which sweeping generalizations about character cause me to make a political prediction)

Megan McCardle writes:

Can we hold off excusing Clinton's egregious pardons on the grounds of Bush's pardoning all of his subordinates for horrible crimes until Bush, y'know, actually pardons some subordinates for horrible crimes?
Which leads me to wonder if perhaps she misread the post in question. But sure enough:
I wonder if the media will point out the comparative significance of the use (and abuse) of the power of the pardon in the context of Holder's hearings and the pardons that Bush will inevitably hand down to his inner circle.

I think the likelihood of Bush pardoning his inner circle is exceedingly low for a number of reasons: Bush's idealism and optimism, Obama's thoughtful rationality, and because it will create a wedge between Obama and the far left.

Bush seems to be a pretty principled guy - he decides what the right thing is then, everything else be damned, he goes for it. It's not conservative principle, and I disagree with what he's decided are the "right" things to pursue, but I have no doubt that he sincerely believes he's doing the right thing. (The extreme range of disagreement on this point is the most obvious dividing line between the mainstream Democrats and far-left netroots). But pardoning his inner circle will seem like an admission by Bush that he knows his administration has been in the wrong morally and legally (instead of just politically) throughout. That Bush would "inevitably" issue pardons would make sense for leftists whose worldview envisions Bush and Cheney as cynical cigar-toting fatcats laughing as they waterboard their subordinates. It doesn't seem that inevitable to those who think that Bush sincerely believes that he's doing the right thing, however misguided he seems to be at times. And I don't think Bush would want to give satisfaction or credence to those who've screamed the whole time that he's been acting with criminal intent.

Bush also seems to be an idealist and an optimist (see, "We'll be greeted as liberators"). I don't think he actually thinks that there will actually be any criminal prosecutions of members of his administration. I think he's expecting Obama not to play politics on this one. Obama, for all his shortcomings, is a pretty thoughtful guy. He's also a lawyer and law professor. I'm certain that he's spent huge portions of his adult life thinking about the theory of government: why it exists, what it should do, how it can be improved. Not just the policy, but the very nature and purpose, and how the structure of government itself helps to facilitate or impede its effects. And he's got to know, as Bush does, that the strength of the United States is its flexibility. Left-leaning "Living Constitutionalists" like Obama probably have an easier time wrapping their minds around the idea that the people should always be able to have a say to change the effects and the structure of government. After all, the Constitution, they tell us, is not a suicide pact. Obama knows better than to try to enact his agenda and then set it in stone. For one thing, he won't be able to accomplish everything he wants to and will need room for future "progress." The single greatest feature of the United States government is the free election. There is no flexibility in government without an orderly transition of power. There's no more need for the guillotine and attendant rivers of blood in the streets when you can vote a revolution every four years. But you're going to lose the "orderly" part of the transition when you raise the stakes of losing for the deposed party. Even though politicians are generally crooks, the increasing tendency to criminalize political conduct is concerning. Jailing your political opponents when they fall out of power is for banana republics. The United States is or ought to be better than that. It's a half-step removed from killing the sons of the conquered king. It's tribal. It's animalistic. It's an impulse we should resist. I think Obama will. I'm positive that it's something he's thought about quite a bit. And Obama hasn't ever, as far as I've been able to tell, made any representations about wanting to prosecute Bush officials. I don't know why Bush would expect him to. Without prosecution, there is no need for a pardon.

Finally, and this may be the most significant, refusing to pardon administration officials will cause Obama to stay closer to the political center and not to stray to the far left. Obama's already started to indicate that he's not going to marginalize the right. (See, Rick Warren). The far-leftists are screaming for the heads of Dick Cheney and John Yoo. I don't think Obama will want to prosecute for the reasons above and because I don't think he wants to get mired in the muck of the last eight years. Why would the "Change" president want to spend his political capital on fruitless prosecutions when he's got an extremely ambitious domestic agenda to enact? But by letting the far left scream about prosecutions, as I've no doubt they'll continue to do, Bush can help drive a wedge between Obama and the far left. Risky? Maybe, but it's not like Obama actually owes anything to the far left. Their support has been so enthusiastic and so unconditional that he hasn't had to make any promises or concessions for their support. If Bush takes the prosecutions off the table by issuing pardons, maybe he'll pave the way for a less fraught relationship between Obama and the leftists. Let them keep screaming for something they'll never get, and the far left will only marginalize itself.

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