No Associated Press content was harmed in the writing of this post
Unfortunately, it is pretty well accepted that the appropriate remedy for most of the administration’s suspected wrongdoing is about to become unavailable. Much of the work will likely be done by the president himself - it seems almost impossible that he will refrain from prodigally granting pardons on his way out the door. There appears to be much to pardon and he has shown a great fondness for that kind of sweeping, unilateral action (and look for Bill Clinton’s notorious pardons at the end of his term - the same ones that caused Republicans to call for reform of the very pardon process - to be cited now as appropriate precedent).
Lawbreaking by the president will still be possible as long as the statute of limitations has not expired; there are a couple of scenarios where prosecution could happen. The first would be a transparency initiative early in the next administration. If president-elect Obama decides to repudiate the White House’s mania for secrecy and begins his term with an open-records policy as a gesture of goodwill and governmental renewal towards the public then we could see some scandalous revelations come to light. It could easily generate enough outrage to demand action quickly. Another possibility is for the greatly diminished Republican party to look for redemption by repudiating its worst characteristics under this president - chief among them a blind obedience they have called loyalty. They may decide that going after him tooth and nail in the time he has left might show some spark of independence and get the message out to the general population that they no longer put party first. I think Obama’s native political caution makes the former unlikely (no need to poison the well of bipartisanship and unity, as the conventional wisdom in D.C. will likely characterize it) and the Republican rump will not be in a mood to confess its sins quite so quickly or easily. It will take a while out of power to make that necessity clear.
Even if criminal prosecution were likely it would not be as Constitutionally satisfying as impeachment. The vague standard of “high crimes and misdemeanors” means that a simple violation of the criminal code may not be sufficient to bring articles of impeachment, and actions that are not violations of any law may be. The use of intelligence could be the best such example. In The Way of the World Ron Suskind describes the White House ordering the CIA to fabricate a letter from Saddam Hussein’s intelligence chief Tahir Jalil Habbush. He writes that the possible attempt to use the CIA to influence domestic opinion “pertains to the White House’s knowingly misusing an arm of government, the sort of thing generally taken up in impeachment hearings.” While even the CIA acknowledges (via) that influencing domestic opinion is illegal, that is not what Suskind considers impeachable about it. It is the misuse of an arm of government, something probably not specifically outlawed anywhere.
The misuse with the intent of steering debate has seemingly been widespread. The most notorious example was the forged documents about Iraq’s alleged attempt to buy uranium from Niger. The United States was in the process of pushing for war on claims of Iraq’s active weapons of mass destruction program (and, we were assured, its soon-to-be operational nuclear program). Vincent Cannistraro, Ronald Reagan’s Director of Intelligence Programs for the National Security Council, later claimed (via) “The documents were fabricated by supporters of the policy in the United States. The policy being that you had to invade Iraq in order to get rid of Saddam Hussein, and you had to do it soon to avoid the catastrophe that would be produced by Saddam Hussein’s use of alleged weapons of mass destruction.” So the documents were forged by the CIA and turn up in Italy - no attempt to influence domestic opinion, right? But somehow its claims quickly showed up in the State of the Union address, where it most definitely did.
The Pentagon has already tried to set up one propaganda outlet for the Arab world and is now attempting (via) to set up another specifically for Iraq. But items originating in other countries wing their way back to America almost immediately via the Internet. Just because politically useful news or propaganda originates with a foreign source in a foreign land does not mean it is intended solely - or primarily - for foreign consumption. That it appears to be still happening, and in fact seems to have been used less than a week ago in an attempt to influence the election, is reason enough to demand immediate action. We need a decision, while this president is still serving, on the propriety of his actions. It must not be left as an academic exercise.