[A note from Roger: July 26, 2004 – I sent the following to Ed awhile back, and I’m not sure now that I even intended it for direct posting to his blog. Re-reading it after he posted it yesterday, I found myself getting red-faced over the multitude of errors, awkward sentences, leaps in logic, and didactic tone. With Ed’s permission, I’ve made quite a few significant revisions. Some for style, and some more substantive: to more clearly and smoothly state my case. I also have changed the ill-advised sense of certainty that Bush will issue pardons before leaving office. Clearly, I can’t know that such will happen. I can merely speculate that it might happen, and then – if it does – what a good Democratic response might be.]

Let us suppose that Shrub loses. God, I sure hope he loses – the numbers largely look and feel good right now. And, ideally, he loses in an unprecedented landslide, taking with him scores of nitwit rightwingers from House and Senate.

But of course, you and I know that THAT is not likely in store. But let's assume that he does lose, convincingly enough that even the craven criminality of Karl Rove and the Neocons can't cook up any way to successfully suspend the constitution in order to permanently ensconce themselves in the WH.

Is it possible that we’ll then see presidential pardons rolling out, aimed at preemptively protecting Bush Administration officials from criminal charges for their behavior while in office?

See, the Bushites have a problem. They've engaged in a horrific orgy of criminal behavior. They know it just as we know it. They’ve violated the constitution, our international treaty agreements (which, supposedly, have the same power and force as federal law), and almost certainly any number of federal laws. BUT they've been very very good about hiding misdeeds, stonewalling investigations, burying problems, wishing away evil deeds, and generally stalling stalling stalling. We can assume, I'm sure, that they've also been shredding documents as fast as possible, keeping as small a paper trail as possible ... and will only redouble such efforts starting the day after the election.

But I cannot imagine they'll believe in their hearts that that is enough. So I am wondering if we won't see something like this: an echo of Gerald Ford's famous pardon of “Richard Nixon for all offenses against the United States which he ... has committed or may have committed or taken part in ...." during his tenure in the White House. Bush could issue a blanket pardon to Cheney and other Executive branch staff all the way down "for any offenses that were committed or might have been committed" during their occupation of our government.

What should the Democratic and Kerry response be?

I'm not a lawyer or constitutional expert, so I can't even begin to offer up any sort of answer with real authority to it. But I can use common sense, and my common sense is that IF Bush were to try something like this, Kerry should keep quiet -- say nothing, shrug his shoulders, issue a few platitudes and comments about having bigger issues to deal with, etc. .... and then the day he walks into office, have his new Attorney General announce that the new Administration considers the "pardons" to have been fatally flawed procedurally, and therefore null and void.

I remember Ford’s pardon of Nixon in September 1974. It enraged me and a lot of other liberals and leftists who felt that justice was being denied. It was not so much that I wanted to see Nixon in prison – although that prospect didn’t exactly bother me – but that I wanted to see a full accounting of what had really happened. With the pardon, our nation was forever denied that.

I don’t recall that there was ever any legal challenge raised to Ford’s decision. According to journalist Daniel Schorr, Alexander Haig had (a week before Nixon’s resignation) given Ford a legal memo arguing that the president had authority to grant pardons at any time, even before any criminal action had been initiated. At his first presidential news conference, Ford refused to discuss the possibility of a Nixon pardon because “there have been no charges made, there had been no action by any jury.” But even special prosecutor Leon Jaworski told Ford that a pardon could be issued prior to legal action.

So ... there were several opinions to the effect that a presidential pardon could be issued prior to indictments or convictions. But I don’t know that this creative reading of the constitution has ever been court-tested. It seems to me very likely that a plausible case could be made that pardons, like criminal and civil cases, cannot be obtained until the issue is “ripe.” You can’t pardon someone who’s not yet been charged with a crime, much less convicted.

In other words, the Kerry Administration could simply assert that Ford was wrong, and mis-used the power of the pardon; and such mis-use is not going to happen again.

I’m inclined to think, actually, that this would be a positively good thing for reasons beyond bringing Bush Administration officials to justice. It struck me at the time, and continues to do so, that Ford’s preemptive pardon set a very dangerous precedent. In Nixon’s case, it’s true that we all had a fairly decent understanding of the kinds of criminal acts that had gone on. It’s also true that – as a practical matter – Nixon had already been discredited. On the other hand, we’ll never really know for sure ALL of the crimes that occurred during his time in the White House because once the pardon came out, all meaningful investigation stopped.

The power of the pardon is a great power indeed, and used correctly both a deeply humane thing and a terrific cudgel for the ultimate purposes of justice. Used wrongly, however, and it can become as much a tool of tyranny and evil as any other weapon. As a general principle, I’d say it should only be used after conviction – criminal or administrative – has been obtained. It should never be used to allow criminals – most specifically, people who’ve abused the powers of high office – to retain their credibility, by being able to claim they’d never been convicted of anything. (I do think it was appropriately used by Bill Clinton for Susan McDougal, who was being hounded by Ken Starr and had spent time in prison based on specious accusations of "contempt of court." I'll leave it to the legal types to figure out how to repudiate Ford's use of the pardon without forever putting cases like McDougal's beyond reach).

Simply based on what we have seen publicly, I take it as a matter of faith that the Bush Administration has committed any number of extraordinarily severe criminal acts while in office. From Cheney’s energy task force, and the sweetheart contracts for Halliburton, to misuse of various federal agencies to advance GOP and White House political aims, there is almost certainly a steaming, yeasty underside to this administration that would curl the eyelids of any patriotic American – Republican or Democrat – willing to look.

Kerry, the former prosecutor, may be particularly disinclined to look away. And until the Supreme Court says otherwise (perfectly possible given the nakedly-partisan inclinations of some on that body), I think the Kerry Administration will be on entirely legitimate ground insisting on a more narrow reading of the power of the pardon.

This brings me to another idea, different but related.

Just exactly how generous and decent should Democrats be toward the GOP and the rightwing from now on?

I believe that we need to begin playing a much tougher game than we have in the past. It should be measured, we should be prepared to go back to the “old rules” whenever we’re dealing with a Republican or a conservative who has him or herself been disinclined to step over any lines ... but in dealing with the rightwing hate machine that now operates in America, if we don’t get a lot tougher in the way we fight, we can anticipate them never backing down.

We don't need to bend the law, or engage in the kinds of ethical (but not necessarily legal) violations that the GOP has been routinely engaging in ... but we need to be a bit mean, and very much willing to go for the jugular. That means targeting the money boys and the "Big Ideas" boys and key players who’ve made the rightwing hate machine what it is today. This would go well beyond actual members of the Bush Administration and whatever legal violations they’ve committed.

An example of what I mean might be Richard Mellon Scaife, the rightwing extremist who has been such a generous donor and master planner for so much of the hate that has come from conservatives in the past decade. Were Kerry leaving it up to me, I'd announce within a month or two of the new administration that we would be launching a full-bore criminal investigation into the death of Steve Kangas, the early liberal blogger (and former Army intelligence officer) who allegedly committed suicide in the men's room in the hallway outside Scaife's private offices in Pittsburgh.

Done right, this could make Scaife’s life a living hell for years and years ... kind of what he tried to do to Bill Clinton, actually, only this time with much better evidence. The circumstances of Kangas’s death stink to high heaven, and insofar as I’m concerned there was never a genuinely competent investigation into it. Scaife has enormous influence in Pittsburgh, and doubtless has deep connections with the local political establishment, including the police. What little we DO know about the investigation suggests it was, at best, desultory and pro forma, and never in any serious way questioned whether or not foul play was involved. Yes, it's been something like six years. But there's no statute of limitations on murder, and there is just way too much stuff in that tragic death not to warrant a first class investigation.

I freely admit to the dark wish here: that it could just make Scaife's life really nasty for at least awhile. Of course, if investigators really didn't find squat on their initial efforts, I guess they'd just have to walk away from it. But my gut instinct tells me that even if Scaife truly had nothing to do with it, nonetheless there are so many unanswered questions – and so much pointing at him as a plausible suspect – that any truly competent and thorough investigation would almost certainly shred his life in many unpleasant ways. It couldn't happen to a nicer guy.

Do other rightwingers offer similarly flagrant invitations for investigation or political action?

I don’t know. But to be certain here, I don't just mean criminal investigations. Why -- to cite some other examples -- shouldn't Kerry go after the Murdoch empire with an absolute intent of dismembering it if possible? Why shouldn't they go after a restoration of the Fairness Doctrine, and then use it with steely resolution against Fox and ALL of the rightwing media bastions? Why shouldn't they initiate antitrust actions against the media giants that have so assiduously promoted the rightwing worldview? Why should rightwing religious broadcasters have so much control over so much of the nation's television signal capacity? Why are we giving ANY of these cretins free passes?

I won't fault Kerry and my fellow Democrats for not doing what is politically impossible, nor would I fault them for using caution in picking their targets carefully and not over-reaching. But I will fault them for simply not having the courage to fight back. If the rightwingers have over-reached more than a few times, they can also legitimately argue that by reaching farther than anyone would have expected they've been able to grab more than anyone would have believed. Time for us to do the same.

[While I'm all for breaking the back of the right, I'm not as certain as Roger that a full court press is the way to go about it. I think it's as important to discredit them as it is to remove their power (and, in fact, discrediting them would do wonders toward emasculating them), and that can be more easily done, I think, through a more subtle campaign.

I'm all but convinced that if Kerry can create a de facto coalition between the Democrats and moderate Republicans, he can get an awful lot done during his tenure, even if his party doesn't actually control both houses of Congress, and in this way defang and render powerless (or, at least, less powerful) the right-wing leadership of the GOP which all but absolutely controls things now. With that done, then forays farther afield, such as after Scaife and Coors and the other "philanthropical" backers of the right-wing revolution, might have more chance of succeeding, since their power base will no longer be able to provide them with cover.

As far as getting "mean" goes, I agree, but only as long as the meanness is contained to the back rooms -- let that break out and become the public face of the Democrats or the Kerry administration, and we're doomed. Remember, George Bush succeeded -- in the limited sense that he did -- by convincing people that he was a "compassionate conservative." If President Kerry starts becoming seen as a "hard-ass liberal," that's not going to bode well for a second term, or for Edwards in 2012. -- Ed]

[Roger’s reply to Ed’s comments: Ed and I differ on this quite a bit. I don’t think that merely beating someone politically “discredits” them. Maybe if it happens (re: 1932) following the greatest financial panic and depression in history, and the victory comes in the form of a massive landslide, then – yes – you could say that your opponents have been discredited in a fashion.

But we aren’t going to be getting any landslides in this election, not if the current opinion polls are to be believed. And simply out-maneuvering the rightwingers in Congress isn’t going to do one thing on earth to dampen their single-minded commitment to gaining absolute one-party power over the nation. If anything, it might just energize them and their followers to a new level of fury and hate. Remember: a lot of the hate we see today came from the 1964 election, when Goldwater’s crushing defeat simply stirred the far right to greater passion and activity.

Forming a coalition with moderate Republicans that allows you to "get things done" is all fine and good, but Kerry will have to do it while the rightwing is engaged in an orgy of attacks replete with lies, distortions, and repulsive, craven tactics. It happened to Clinton, and it will happen again. NOTHING will slow them down ... except a COUNTER-OFFENSIVE. If you don't do that, then no matter how effective Kerry is, he will be much LESS effective -- and accomplish only a fraction what he should have -- because of the vast array of assaults that will be coming from every side.

To think that merely defeating the extreme right politically -- by triangulating around them, by scrounging up a few more votes than they have, by doing ANYTHING other than smashing them to pulp -- is simply wrong. They won't go away, they won't be quiet, they won't give up any power within the GOP or on the right generally, and they won't change their worldview or their craven willingness to use the sleaziest of tactics. THEY NEED TO BE DISCREDITED IN A WAY THEY CAN'T PRETEND AWAY, and in a manner the public won't fail to notice.

This is why I truly believe that if you want ANY real breathing room, we must shift from defense to offense. We must do things to put them off their balance, and then do more things to keep them off their balance. You can't manufacture stuff, of course. Coors, for example, might be enraging ... but is there any reason on earth to think that Peter Coors (or any part of the Coors family) has done anything illegal recently? Fishing expeditions and witch hunts just aren't in the cards for us.

But my point is that where there IS some prima facie evidence of something not being right -- the possible murder of Steve Kangas again being a prime example -- then we should be quick, VERY quick, about seizing it. Have we, for example, ever really used the Trotskyite history of the Neocons against them? Most well-read liberals and leftists are aware that the Neocons come from a virulently un-American intellectual tradition. We know that they really DO have much more in common with Communistic or Fascistic extremism than any kind of traditional American conservatism. Why hasn’t this been used?

Simply put, we should be using these things. We should be ruthless about it. We should be ruthless about seeking out and then using whatever else we can to discredit not only the rightwingers as individuals, but the entire ideology of extremist hate that they embrace. Above all, we have got to stop being on the defensive – and particularly stop thinking that some political victory in Congress on this, that or another issue would ever constitute an effective “discrediting” of these rightwing dogmatists]

Update: I have more comments on this topic here.