The Pardon Scorecard is expanding rapidly, tracking punditry and advocacy against and in support of Bush pardoning crimes he authorized. Happily, the Against column is much longer than the Support column. Sadly, Bush is highly unlikely to give a rat's ass. Even more sadly, most of the statements against such pardons begin by announcing that Bush has every right to make them if he chooses, before proceeding to criticize, condemn, or mock the idea. That opening concession that such pardons would be Constitutional is morally reprehensible and outrageously absurd, but almost universally accepted by the punditocracy.
If our culture ever advances to the point of recognizing how morally reprehensible and outrageously absurd the idea is of allowing a president to authorize crimes and pardon them, the pundit who will sink furthest in the direction of Bush-level disapproval will be the leading champion of letting all torturers go free: Stuart Taylor Jr. who has pushed that position here, here, here, here, and most recently here.
At first Taylor wanted to substitute a "truth commission" for prosecutions, and to block prosecutions with pardons. Now he says he'd be opposed to pardons as long as Obama is committed to not prosecuting (apparently forgetting that Obama may not be president for life and a future president may still be able to get it right). And Taylor is now leaning against a truth commission since he thinks it would traumatize the nation, just like prosecutions only less so. Prosecutions, Taylor says, "would tear apart the country and blow up Obama's hopes of lifting us out of our multiple crises." And he says that an Obama campaign adviser told him that even a "truth commission" would "stir up partisan animosities."
I'm sorry, but doesn't turning the Justice Department into a branch of one party, hiring and firing and prosecuting on the basis of party loyalty, stir up any animosity? Doesn't trashing the bill of rights, launching illegal wars, detaining people without charge and torturing them traumatize anyone? Isn't the absence of the rule of law one of the multiple crises we need to lift ourselves out of?
Taylor argues an additional line just in case anyone might fall for it, even though it would render the rest of this discussion pointless: he claims that we already know beyond reasonable doubt that no "high-level official" in the Bush administration committed any crimes. So why bother prosecuting or investigating? That'd be a strong argument if it weren't complete horseshit. A partial list of U.S. statutory crimes committed by Bush himself, as well as many of his subordinates, has been published here. And, as it happens, following a "legal opinion" that says it's OK to violate the law does not make the violation legal. Rather, it makes the opinionating illegal.
Taylor's latest bloviation on Slate is accompanied by discussion from other commentators who disagree with him, including David Iglesias and Dahlia Lithwick. Iglesias speaks out strongly for the rule of law. Lithwick has done so elsewhere. In this case, however, she seems to maintain that, rather than deterrence of future crimes, our goal is therapy. She thinks it will be hard for the country "to just get over everything from warrantless wiretapping to Abu Ghraib to the U.S. attorney purge to partisan hiring at the Justice Department." Further, she's concerned about repairing "the morale problem at the DOJ." Valid concerns, to be sure, and in some sense this is all about how we feel about our country, but much more important must be the question of whether future "high officials" believe they have to obey laws or not. If it were only our morale that was at issue we could just all try to learn to think like Stuart Taylor Jr.