If Bush issues pre-emptive pardons, then he is in fact admitting guilt. In that case, the incoming Obama administration cannot prosecute, but some clearing of accounts will be needed to re-establish what is and is not Constitutional.
Why does the incoming Obama administration not want to prosecute? Because prosecution would look petty and vindictive? Perhaps. Because it is more important that changes of power not carry the potential for criminal charges? Possibly. Elections that carry with them the possibility of not only losing but of going to jail if you lose, loads them with too much risk; incumbents would never allow themselves to lose; they would act like Mugabe in Zimbabwe.
On the other hand, I think the incoming administration is faced with a dilemma. The rule of law ought to be re-established, therefore illegal conduct must have the light of day shone upon it. A compromise that would achieve both goals might be not prosecution but a Truth Commission.
I believe that the best solution would be something modeled upon the South African Truth and Reconciliation Commission. Those responsible for the constitutional excesses should be called before it to testify, under oath, to what they did and why. Bush and Cheney would have to be included in this.
Would they face criminal charges? Only President Bush would face them if he pardoned everyone else. However, in order for him to be pardoned by Obama, he would have to come clean on his role.
Why would others testify, if pardoned already? All of them could potentially be tried in other countries, and could also be sued in this one. Perhaps a provision could be written into the commission charter offering limited immunity, to be rescinded if they refused, or lied under oath. Since all are subject to civil suits, the immunity provision would be an important incentive to testify.
If they complied, they'd still be liable to international charges. I'd love to see Cheney on the stand in the Hague, but it probably will never happen. In other words, this would not provide the pay-back that so many on my side want. What it would do, however, would be to re-establish what is legal and constitutional, and what is not; that's much more important than vengeance.
For more where this came from: http:www.roman-empire-america-now.com