I have not bought one of those little clocks that count down the days left in the Bush administration. This is certainly not because I am any less eager than anyone else to see the worst Presidency in our history end. But I fear that this administration's crimes are so extreme that they will not, cannot, let go of power on the appointed day, in the appointed way. The good that January 2009 will bring may not come without much struggle and harm, and, at the end, we may not have a new President.
Under normal circumstances, it must be hard enough for a President to face the prospect of soon being ex-President, of losing all that power and all those perquisites overnight. But this President will face in addition, in January 2009, the prospect of losing to his successor the control of the evidence that could send him to jail.
I will take it for granted that anyone who reads this blog, for anything but oppo research purposes, agrees that this President has committed many serious crimes. Hell, anyone even half-informed, with even half a brain, or a half-way open mind, believes that.
Despite that belief, most of us also believe that, because of the practical difficulties, this President will not be impeached and convicted while in office. And we don't seem to think much about legal consequences for these criminals in office after they have left office. Despite the characterization by the wingnuts of our distaste for this administration as some sort of personal animus, a Bush Derangement Syndrome, I probably speak for the overwhelming majority of us in my monumental lack of concern for the personal fate of this President. It's his policies and their consequences that we hate, and the day he becomes ex-President his policies cease to matter, and so our interest in his fate would naturally tend to cease as well.
But while we may not care if this criminal lives out his days unbothered by anything but what conscience he may, against all outward indications, possess, you can bet that he cares plenty about more tangible sources of retribution. And the minute he becomes ex-President, especially if he is succeeded by someone not sympathetic to him or his policies, the difficulties standing in the way of retribution by the Law all fall away. And that retribution promises to be severe, including vulnerability to capital punishment. And what this President fears, if the fear is that stark, is likely to lead to stark action, and that from a President not known for respecting Constitutional limitations. We do need to concern ourselves with the possible legal fate of this President after he leaves office, if only because we need to understand motivations that press so heavily upon him, in order to be able to anticipate his perhaps desparate actions as January 2009 draws closer.
Consider the difficulties standing in the way of legal retribution on this President before January 2009. While he is President, he enjoys a total immunity from criminal prosecution, and while he controls the US Attorneys and law enforcement agencies, a near-total immunity from even preliminary criminal investigation. The remedy prescribed by our Constitution for that situation of a President apparently guilty of serious ordinary crimes, as well as the much broader "policy" crimes permitted by the broad formula of "high crimes and misdemeanors", is to remove his official immunity by removing him from the office that confers that immunity. But conviction on impeachment requires 2/3 of the Senate, which in turn would require 1/3 of the Republican Senators to vote for conviction even if no Democrats defect to acquittal. The very broadness of the standards for what constitutes an impeachable offense, that they inherently don't just admit, but require, that the gravity of the President's offense be weighed against the gravity of undoing the results of the past Presidential election, would give these Republican Senators more than adequate excuse to vote against any case that doesn't produce, in the Watergate phrase, "smoking gun" evidence of the President's guilt, and guilt of an offense clearly requiring removal from office. Add to this already high hurdle the need, if impeachment is to do any good, to remove the current VP as well as the President, and the hurdle against 16 Republicans voting to convict Bush becomes even higher. These 16 would, in effect, be voting to make Pelosi the next President. Not only would they probably not particularly care for that result, it would, much more importantly, give them much better cover to vote against conviction.
There is no need to be too extreme in pushing this idea that it will be impossible to get 16 Republicans to convict Bush. Even if conviction fails to get enough votes, if the evidence of his guilt reaches a certain level, then impeachment proceedings would put Republican Senators who vote for acquittal on trial. Hell, there's probably at least 16 of them who secretly hate Bush worse than the average reader of this blog, and just need some cover to act on their feelings. But reaching even that level of evidence will be difficult until January 2009, because the President is the custodian of that evidence. The administration has, by two overall means, control over all the evidence of high enough confidence to at least insure significant damage to Republicans who vote acquittal, if not force them to vote to convict. It can plead Executive Privilege to protect just about any evidence of anything its minions have done, and has the even stronger hold of security classification that it can use to strangle access to broad areas of its potential legal liability. Executive Privilege can be fought out in the courts, but that would take so much time to achieve results, especially with the courts these days so lousy with Federalist Society moles, that January 2009 will be upon us before much progress is made by that route.
A Democrat assuming the Presidency in January 2009, or even an insufficiently loyal Republican, would completely turn the situation around. Bush would instantly lose the immunity his former office conferred. He would be touchable by US Attorneys, and these prosecutors would be the new US Attorneys, appointed by his successor, who might order them to touch the ex-President at every opportunity. And the new President will be the one to invoke, or not invoke, Executive Privilege, or the power of security classification, to either conceal or reveal evidence of the guilt of his predecessor.
And no, the power of the Presidential pardon will not be Bush's way out of this problem. There is serious question whether he could give himself any sort of pardon, or pardon anybody against whom no legal proceedings of any kind, not even an investigation, have been initiated. And he certainly can't pardon himself for every crime he has committed. For one thing, the list of specifications would be damning even in its necessarily incomplete state. And he only has to leave one capital crime off his list, one poor forgotten bastard his minions murdered in some dank forgotten cell, and he still faces the death penalty, and all he's achieved with his self-pardon is to convince everyone of his guilt. Even if some sort of blanket self-pardon, by which he pardons himself for every crime imagineable, without listing what crimes he admits having committed, holds up in our courts, giving himself such a pardon would be all the cover that an unsympathetic successor would need for handing him over to the Hague. Leave him to the fate of Milosevich.
Dubya will not go quietly. I would argue that we already know this from the surge. A sane, reasonable, conventional politician, faced with the results of the 2006 election and the ISG report, would have found a way to an at least apparent compromise with war critics. This could have been totally a matter of appearances, since his critics would not have been able, or probably willing even if able, to hold him to specifics of a deal on managing the war that would have kept him even from this surge. He could have committed the same number of troops (we have "surged" even higher in Iraq in the past, just without calling it a surge), and had he not insisted it was a "surge" -- insisted on zigging when the electorate and the ISG had told him to zag -- and instead reached a purely verbal deal with Congressional opponents of the war, they would have bent over backwards to just not even notice anything odd about the 20,000 troops staying later or arriving earlier in Iraq. He wants crisis, he wants bitter criticism. He wants a constitutional crisis. However bad the odds against his winning in such a crisis over the power to direct a war, they have to be better than the odds of winning a criminal trial over just about everything he's done for six years. However bad the consequences of losing in a consitutional crisis, they beat the shit out of prison for life, or the gallows, or electric chair, or however the Federal government executes capital criminals these days.
We need to understand the tight corner that we have this dangerous animal of a President backed into. He will not leave office, except to a hand-picked successor who can be trusted to continue his regime indefinitely, in January 2009. Of course he will try every less disruptive method of hanging on to power short of tanks and troops ringing the WH on what should have been Inauguration Day, 2009. If it came to an outright coup, he might well lose out in any loyalty contest anyway. But there are far less dramatic, and thus less disturbing to the national self-image, means to the same end. The sooner he takes these measures, the better for him, because the less obvious they will be as self-serving means to escape the law. The surge seems designed to provoke war with Iran, and that makes little sense except as a means to attract another 9/11 attack on American civilians. And the public reaction to a second 9/11, facilitated and directed by the provisions of a second, much more comprehensive, Patriot Act, passed in response to this second 9/11, would mean that there would be no need to suspend elections directly and openly. They just have to insure the election of an authoritarian extremist Republican (Gee! Do I need all three of those descriptors, or is everything beyond "Republican" otiose?), wedded to the newly expanded powers of the security state, who will not be willing to discredit the founder of that newly invigorated security state by allowing justice to catch up to him.