Will He or Won’t He? The Investigation Question

If it is true that sitting presidents set the political boundaries for future ones, then the recent hand-off of executive power was truly a gift for Barack Obama. When, in modern presidential politics, has a president been provided with so much room to operate? Not only has he enormous public support, his party’s majority in the two houses of Congress, and a huge, urgent financial crisis affording him opportunity for inventive solutions, but most important, he has the George W. Bush administration preceding him. Having Bush brandish executive power over the Constitution like a swinging ax, the boundaries of what is politically acceptable have been pushed so far that, for Obama, it is like playing football on a field the size of Texas.

Within in the context of the last eight years, Obama has been given free reign over an almost full gamut of the political spectrum to execute his ideas. As such, the combination of revulsion toward Bush, and excitement for Obama, causes each conservative move he makes to be acceptable, and any restoration of common sense to be celebrated as progressive.

And this was apparent from the day of the inauguration onward. In his speech, Obama managed set a conservative tone without hardly a whisper of reaction from most progressive commentators. In invoking the Bible to “set aside childish things” (implying collective responsibility for the financial crisis), and adamantly stating that we will not apologize for our way of life, Obama was able to successfully plant conservative memes because they were wrapped in massive progressive celebration. The fact that both The Daily Show and Bill Kristol picked up on this is highly illustrative.

However, the lesson of context is more instructive when considering Obama’s first actions as president. While his executive orders, such as the closure of Guantanamo, the order for the CIA to follow the Army Field Manual for interrogation, and limitations of government secrecy are welcome, are they cause for progressive celebration? A sigh of relief, yes, but the shoots of a progressive agenda? I’m afraid not. After watching Bush spend eight years bending the Constitution to near snapping point, Obama is merely attempting to restore the document to some recognizable form. And more notable, these were the easy moves. In fact, he had to issue these orders. The public outrage over state encroachment of civil liberties had been swelling to bursting point, and was subsequently channeled into the Obama campaign. He had the mandate and the political will to do so, not to mention the founding ideals of the nation on his side. Really, all he has done has been to put back in place what Bush had removed, while at the same time, continuing militarily, very much, in the same vein as his predecessor: bombing Waziristan and killing 14 people. Because the reversals of Bush policy have been rapid, the ones that stayed the same went almost unnoticed.

The great irony of the Bush legacy, though, is that by conducting his office so disastrously, and, by extension, handing Obama so much political breathing space, it is clear that Obama feels he cannot hold Bush accountable, lest that breathing space disappear. The choice between massive political capital and following the Constitution is a very real one, and one with very high stakes. In attempting to bring the former administration to justice, it is very likely, given the tone set by current congressional Republicans, Obama’s agenda would shrink to zero by potentially instigating a political civil war — memories from the nineties, obviously fresh in Obama’s mind. If Obama finds it difficult now, twisting Republican arms in Congress, imagine his options after he attempts to try Bush and Cheney for high crimes and misdemeanors. Then there’s also a massive economic crisis to address, not to mention his own party’s complicity in the waterboarding program, making it not merely difficult to start an investigation, but nigh on impossible.

To prosecute members of the previous administration would be like lighting a match to a partisan war, causing the mechanisms of Congress to jam up, just when we need it to function as efficiently as possible.

It is clear that Obama regards his options less as a balancing act and more mutually exclusive; a choice between principle and pragmatism. And as you would expect, the choice is not without precedent. There is the much-cited example of Lincoln’s magnanimity toward the South before and after the Civil War, but there is also the more appropriate parallel of the Jefferson presidency. After winning the presidency in 1800, Jefferson struck a remarkably conciliatory tone, when he said at his inaugural address that “every difference of opinion is not a difference of principle.” And this, too, was after an incredibly brutal, partisan election, where it followed an administration that severely curtailed both civil liberties and the freedom of the press. Jefferson prosecuted no one for these infractions of the Constitution, including previous president John Adams. In order for him to keep the union together — a very real concern during the nascent United States — Jefferson had to reach out to northern Federalists. For an avid student of history such as Obama, it would seem he seeks to emulate this pragmatic, albeit contradictory, approach to crisis.

It is easy to imagine the president thinking of how he would best like to be remembered: the man who attempted to bring executive malfeasance to justice, or the man who wrested America from an economic free fall. It is clear which one is most politically viable. And given how difficult it would be to investigate Bush, fixing the biggest economic crisis since the Great Depression would be easier.

The problem remains though, what to do to prevent future abuse of the executive office? And this is one area where progressives can press Obama to demonstrate some progressive mettle.

Speaker of the House Nancy Pelosi famously took impeachment off the table due to her own complicity in the CIA torture program and, unfortunately, impeachment was the only opportunity to hold Bush to account. However, if the Obama administration were to propose a framework where the requirements to hold impeachment hearings would be made easier — specifically, more definitive — it would do much to prevent politicians like Pelosi from fudging the issue, and presidents (and vice presidents) from abusing their office. Though this would probably require a constitutional amendment, it would be the only way of protecting the state from future executive abuse. As it currently stands, the definition of crimes tried by impeachment is woefully ill-defined to be effective and consistent:

The President, Vice President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.

As then-House Minority Leader Gerald Ford said in 1970, “An impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history.”

By providing clear definitions of the offenses punishable by impeachment, Obama could demonstrate a willingness to address the crimes of the previous administration without having to sacrifice too much goodwill.

For all the celebrations of Obama’s restoring of civil liberties, it is clear that violations of those liberties must not happen again, and this is where the progressive fight to hold those in power accountable should be aimed.