Is Bush's kindness to Obama really a "get out of jail, free" card?

by Will Bunch | Columnist

Published Nov. 11, 2008, 12:57 p.m. ET

One of the many surprising developments over the last week has been both the speed and extent of the graciousness that President Bush and his team have shown to President-elect Obama, especially considering how long and how hard-fought the 2008 campaign turned out to be, and the Democratic standard bearer's frequent and unusually harsh criticism of the GOP president out on the trail.

On the morning after Obama's victory, Bush could have easily phoned it in and offered up a bland, pro forma congratulation, but instead he went before the cameras in the Rose Garden with highly laudatory praise, saying that American voters had "showed a watching world the vitality of America's democracy and the strides we have made toward a more perfect union."

He didn't stop there. Bush invited Barack and Michelle Obama to the White House ASAP -- the visit that in fact took place yesterday -- for both a humble tour of where the 44th president and his family will live and a substantive discussion of the issues that have boiled over during Bush's watch, especially the ravaged world economy. The images that these meetings produced of a peaceful and cooperative transition have been reassuring to Americans, and to the world.

It's difficult, however, to get any frame of reference for Bush's handling of the transition: The last real time that the White House changed hands from a president of one party to a president of the other party that hadn't defeated him personally, under normal circumstances, was in 1968; it also happened in 2000 but the Florida recount led to a warped and shortened transition.

Sometimes, according to Occam's razor, the simplest explanation is the best one. With his approval rating at or even worse than any president since modern polling began, it's surely possible that Bush is smart enough to see that a gracious transition could be a baby step to restoring his reputation down the road. In that same vein, an early solution to the economic mess under President Obama would mitigate some of the damage to Bush's reputation there.

I believe those factors are present, but we should also not suspend all cynicism in the euphoria of the moment of Obama's election. We should never forget that same president who was so welcoming to Obama is the very same president whose war cabinet authorized torture practices and rendition of terrorism suspects, massively expanded government spying in a web that caught untold American citizens, launched (as just reported this week) secret military strikes around the globe, and through the abuse of signing statements and other unprecedented tactics treated the Constitution, its separation of powers and international law like pieces of crumpled up waste paper. No hailing of Obama's "awesome" victory erases that stain.

And so one of many, many difficult decisions that Obama and his team will faces during his first 100 days in the Oval Office will be this: Should the new president's Justice Department take a more aggressive pose toward investigating this unprecedented White House power grab and some of the toxic symptoms that flowed from that, from waterboarding to the firing of U.S. attorneys for raw political reasons.

I've been following this back-burner issue much more closely than most. That's because his only comments on the subject came back in April, when I had the opportunity to raise the issue with him when he appeared here in Philadelphia before the editorial board of the Daily News. A summary of his answer is that while he seeks to be a forward-looking president, he would likely want his Attorney General to make at least a preliminary inquiry.

Here's a snip of what Obama said then:

So this is an area where I would want to exercise judgment -- I would want to find out directly from my Attorney General -- having pursued, having looked at what's out there right now -- are there possibilities of genuine crimes as opposed to really bad policies. And I think it's important-- one of the things we've got to figure out in our political culture generally is distinguishing between really dumb policies and policies that rise to the level of criminal activity.

A follow-up story published in Salon in August took the story a step farther:

Prosecution of any officials, if it were to occur, would probably not occur during Obama's first term. Instead, we may well see a congressionally empowered commission that would seek testimony from witnesses in search of the truth about what occurred. Though some witnesses might be offered immunity in exchange for testimony, the question of whether anybody would be prosecuted would be deferred to a later date -- meaning Obama's second term, if such is forthcoming.

That being the case, do you honestly think the Bush, Dick Cheney, and Co. are not seriously worried about this possibility? If you don't believe that, you haven't been paying close attention to the full-story of the Bush administration and its steady reach for executive power. In fact, many of the administration's most audacious moves have been accompanied with memos that seem to serve one primary purpose: To shield White House officials and those who carried out their orders in the field from future prosecution.

This is the best-known example, from 2002, pertaining to the use of torture in interrogating suspects:

Lawyers in the Justice Department had written a classified memo, which was extensively reviewed, that gave formal legal authority to government interrogators to use the "enhanced" questioning tactics on suspected terrorist prisoners. The August 2002 memo, signed by then head of the Office of Legal Counsel Jay Bybee, was referred to as the so-called "Golden Shield" for CIA agents, who worried they would be held liable if the harsh interrogations became public.

But other controversial and arguably unlawful policies have been justified with official memos or documents. This week, the New York Times reported on a hitherto secret 2004 order by then-Defense Secretary Donald Rumsfeld that okayed attacks on al-Qaeda sites around the globe:

Bush administration officials have shown a determination to operate under an expansive definition of self-defense that provides a legal rationale for strikes on militant targets in sovereign nations without those countries' consent.

When you combine all these memos, secret orders and signing statements with the Bush administration's long record of seeking to foil investigators from Congress and elsewhere asking for documents, emails and testimony from former White House officials, and it all adds up to one thing: A president and vice president who have long dreaded what a Democratic president might learn, and what he might do with that information, come Jan. 20, 2009.

With this as a backdrop, comes now the sudden Bush charm offensive. Now, there's a debate to be had about whether justice requires that past criminal acts be pursued, even after an administration has yielded its power, or whether the greater good of a forward-looking nation means that violations of the law should be forgiven, as President Gerald Ford decided in 1974 when he pardoned Richard Nixon. Whatever the right solution is, Bush is smart enough to know that he's complicating Obama's decision by seeking to connect with him as an Oval Office teammate so quickly out of the gate. Is the 43rd president's graciousness really his "get-out-of-jail free card," if not for him then for some of his White House underlings?

The more that it looks like Obama and Bush had worked together to solve the economic crisis, the more jarring it might sound to many Americans to learn that a criminal inquiry is underway -- even though the sad facts of the last eight years would seem to justify exactly such a probe, at the minimum. Politics, like war, is ruled by the art of deception. Don't be deceived by everything you heard coming from the Oval Office yesterday, and in the name of justice, let's hope that Obama and whoever he named as attorney general are not fooled, either.