Horsefeathers!

So sayeth the NYTimes:

Attorney General Michael B. Mukasey said Wednesday that he saw no need for President Bush to issue blanket pardons of officials involved in some of the administration’s most controversial counterterrorism policies.

Mr. Mukasey told reporters that there was “absolutely no evidence” that anyone involved in developing the policies “did so for any reason other than to protect the security in the country and in the belief that he or she was doing something lawful.”

The comments appeared aimed at tamping down speculation that Mr. Bush, before leaving the White House next month, might issue pre-emptive pardons to protect counterterrorism officials from legal jeopardy in the face of possible criminal investigations by the new Democratic administration.

Horsefeathers!

I think he is trying to shift the paradigm. Right now, it’s these guys did something wrong and if Bush doesn’t pardon them, then Obama ought to indict them, and if Obama doesn’t indict them, he is a complicit wuss.

If Mukasy’s version gets any traction, Bush does not pardon, Obama does not indict and it all just fades away. Mukasey is demonstrating to Obama that he knows how the game is played.

Mukasey is giving Obama cover. And signaling to Bush not to inflame things with a pardon.

Peterr has more:

Mukasey is definitely up to something . . . but the question is "What?"

Bush is facing the biggest bet of his White House career: do I pardon or not? If he pardons, he insures that the activities of his administration will become the talk of DC for God knows how long, and (if he’s getting good legal advice) he knows that pardons will remove anyone’s ability to plead the Fifth amendment, making efforts to dig into his administration’s dubious activities that much easier. Pardons would be a guarantee that keeps his minions out of prison, but it would likely come at the cost of his own reputation. This bet would be totally out of character for Dubya. "Self-sacrificing" is not a word that comes to mind when I think of him at all.

The alternative for Bush is no better: If he doesn’t pardon folks, he’s betting that Obama will *not* dig too deeply into the past and let bygones be bygones. He’s got some public utterances that Obama’s leaning that way, but Bush has made too many public utterances that have been baldfaced lies to achieve some political end to be able to take Obama’s words at face value — especially with Rahm grinning over Obama’s shoulder. For Bush to place his political reputation in the hands of Obama, by *not* pardoning anyone and trusting in the kindness of this stranger . . . that’s equally out of character.

Mukasey, likewise, is looking at these same two options and thinking about his own tattered reputation and that of his department. If Bush goes the pardon route, every one of those DOJ opinions that gave guidance to DOD, CIA et al. will get dragged out in front of Congress. "OK, the pardons have made it clear that no one is going to jail for what they did, so we can’t be accused of some partisan witch hunt. We just want to know what went on, what advice was given, and whether that comports with our views of the law, our views of the Geneva convention, and our understanding of what we (the Congress) had and had not given sanction to." Pardons, in an odd twist, will put Mukasey in the cross hairs for his lack of apparent concern for what his predecessors had done, and for his unwillingness to come clean with Congress while in office. If the pardons are drafted narrowly, they might even leave Mukasey vulnerable to charges of lying to Congress and obstructing their work. However you look at it, Mukasey is screwed if Bush issues pardons.

The alternative for Mukasey is to gamble on Obama agreeing to "let bygones be bygones." His statements in the NYT make it clear that this is the option he’s hoping for. Indeed, it is certainly possible that Mukasey is worried that Bush looking at these pardons without input from the DOJ, and is moving the discussion into the public realm as a way of reaching 1600 PA Ave. Given the way the Bush White House cuts folks out of decisions and discussions if they are likely to offer disagreeable opinions, this is more than idle speculation.

This is more than moving the baseline. Mukasey’s butt is in a sling, and he knows it. He’s trying to figure how best to get some help as he tries to get out of it.