After Old Scandals

From comments, James objects to my advocacy for pardon-plus-commission, and points to Watergate and Iran-Contra.  He asks:

What is your assessment of the Watergate and Iran-Contra pardons? You apparently don't think they have been as damaging in the long term as I do. Just let bygones be bygones? What kind of effect does that have in the long term? I ask sincerely.

Others chimed in with similar concerns.  I'll run through a bit of history, and then try to answer the question.  But to be clear: I do not think that pardon-plus commission is the same as "let bygones be bygones."  

The only Watergate pardon was Nixon himself.  Lots of people went to jail -- the president's chief of staff, his political director (wasn't his title, but...), his chief domestic adviser, the WH counsel, and quite a few other people.  Of those who clearly committed crimes in Watergate, the only ones to really re-enter politics were Liddy, as a right-wing yakker; Chuck Colson, who seems to have become a behind-the-scenes adviser to conservative groups in addition to his prison ministry work; and John Dean, who writes books that foolish liberals buy.  Well, Nixon also wrote a ton of books and did talk to Republican leaders, eventually, behind the scenes.  Of other Nixon-era figures who went on to careers with the GOP, most were either fully uninvolved with any of the Watergate stuff (Pat Buchanan and David Gergen, for example, were totally clean of anything as far as I know).  I suppose the exceptions are Fred Malik (not a criminal in Watergate; he counted the Jews at the IRS at Nixon's request, then became a GOP power player); Henry Kissinger (probably not involved in Watergate, but involved in illegal tapping, and of course he's been accused of a wide variety of international misbehavior); and Al Haig (on the periphery of various things, and may have tried to cut a pardon deal for Nixon with Ford).  I find it very, very difficult to believe that any high-level White House or executive branch staff could look at Watergate and believe that criminal activity wasn't risky; the only one who really came out ahead was Liddy, and a lot of careers, as well as reputations, were ruined.

Iran-Contra was a lot different.  On Iran-Contra, IIRC, there were something like five pardons, with the big one being Cap Weinberger.  I'll look it up because I can't spell Weinberger...oops, sorry, six pardons.  The pardons happened Christmas 1992, six years after the scandal.  As far as I know, the only one of the six to re-enter politics was Elliot Abrams (who had copped a misdemeanor plea), who served in some capacity during the G.W. Bush administration.  Ollie North was not pardoned, and IIRC he was convicted but the conviction was overturned; he re-entered politics as a failed Senate candidate and then as a yakker.  Same thing with Admiral John Poindexter: convicted, conviction overturned, and returned to government during the G.W. Bush administration.  As far as I know, no one else directly involved in Iran-Contra (as opposed to general Central American policy) has played any part in politics since 1986.  I doubt that Abrams, North, and Poindexter believe Iran-Contra helped their careers, but it's a lot better case than it was for the Watergate felons.

That's the history; now to think about it a little.  I can see arguments either way on Ford's pardon of Nixon, but on balance I think it was the right thing to do.  Thirty-five years on, I don't think Nixon's reputation is any better than it would have been had he been put on trial, convicted, and jailed.  Probably more to the point, I don't think that the crimes that Nixon and his people committed would have been any more or less rejected had Nixon been jailed.  Especially since Nixon would only have been indicted for the cover-up, and not the original crimes -- and the one thing that I think it too bad is that people mistakenly believe that a lesson of Watergate is that the cover-up is the problem. (Nixon probably committed felonies before the break-in, but as I said we don't know that for a fact.  However, Haldeman, Ehrlichman, Mitchell, Magruder, and Colson (among others) all had committed felonies before the break-in, and while it's vaguely possible that Nixon could have survived in office had all of them turned themselves in on June 18, 1972 and confessed to everything they had done, it seems rather unlikely to me).  As far as an example, it is possible that future presidents may have taken comfort in the Nixon pardon, but hard to believe that anyone in the presidential or executive branches (or on campaign staff) did so, since everyone but the president spent time in prison.

Iran-Contra is a much more difficult question.  I have a lot less sympathy for the Iran-Contra pardons, although I don't think it's entirely unreasonable to believe that the independent counsel in that case (Lawrence Walsh) was...I don't want to say out of control, but I've never really been convinced that it was a great idea to be moving to a trial of Cap Weinberger over six years and what would have been two presidencies after Iran-Contra.  Obviously, in the case of Iran-Contra, the various public investigations were long over with by the time of the pardons, and whatever George H.W. Bush intended, they were taken as vindication, with most Republicans believing that Walsh and the Democrats had criminalized policy differences (which, in my view, was absolutely not true).  On the whole, I tend to agree with commenter James and other commenters that the Iran-Contra aftermath (which consisted of a presidential commission, followed by a Congressional investigation, followed by a never-ending independent counsel operation, followed by pardons by the president who had been involved in the scandal in the first place) was awful.  While on balance I think those who were caught up in the legal consequences of Iran-Contra probably did feel that they had suffered, they also wound up feeling that they were unfairly stigmatized -- and Republicans generally agreed.  The consequences, mild as they were, probably did serve as a deterrent for future illegal activity, but a very mild one at best. 

I think it's awfully hard, however, to argue that pardons were the key step.  The entire process broke down.  Looking back, I don't know what would have been better.  But I do think that one of the lessons for those who believe that torture should be met by prosecutions and prison time is just how difficult that might be, just in practical terms.  If the goal, as commenters argue, is to deter future misdeeds, then lengthy prosecutions with uncertain results are unlikely to do the trick, or at least so I believe.  Moreover, and this is one of the things I've argued several times before, the shared legal jeopardy across an administration makes everyone a lot less likely to cooperate with investigations. After all, Cap Weinberger wasn't at the heart of Iran-Contra, but he wound up in trouble years later.  The truth is that prosecutions for torture might get to the people most responsible -- or might wind up ignoring them, if they were good at covering themselves, and put people tangential to the problem into prison.  Or perhaps low-level operatives pay the price, and the people who actually set the policy go free.  That's the long-term prognosis for prosecutions.  And, given the previous example, there's every possibility that the next Republican president would pardon anyone who does get convicted.

That's certainly not what I am advocating in the present case.  I guess what I think is that another drawn-out legal process, like the one from 1987-1992, is likely to get the same results; Republicans will feel persecuted for partisan reasons, or at least claim that they feel that way, and between that and real legal jeopardy for so many people, they will rally around the torturers.  Which will mean (and has meant) endorsing torture ever less grudgingly.  Basically, I think that the goals of reviving the consensus against torture and of devising good procedures for dealing with terrorists are not compatible with the goal of prosecuting people.  I understand those who believe that there's a moral imperative involved in seeking justice for those who committed evil acts.  I can't really argue against that.  All I can do is to say that politics involves trade-offs, and in this case, if I'm right, satisfying the moral imperative will involve real costs that those who oppose torture, in my opinion, should be reluctant to accept.

As I've said, all of this would be especially true if George W. Bush himself would cooperate by accepting a pardon, admitting to what happened, and denouncing torture.  With him (and certainly Powell, and probably Rice if Bush was in, and with those three probably quite a few others) on board, Cheney and his gang would really be isolated.  A subsequent truth commission, with legal jeopardy no longer an issue and partisanship at least somewhat subdued, could then, I believe, have a chance to work.  The people who carried out the policies, and with any luck at least some of those who initiated the policies, might tell the truth freely.  They might explain exactly what happened, that it was torture, that it didn't actually "work" in terms of getting information (assuming that's the case, which I think is most likely), and that it was the wrong thing to do and un-American.  Obviously, I could be wrong about that...but I think that there are a lot of people involved who think of themselves as honorable, who got caught up in things that they never expected and were not prepared for, and who probably are not very proud of what they did. 

Maybe I'm wrong; maybe everyone involved, from Bush on down, really thinks that torture was something to be proud of.  As far as I can tell, Dick Cheney does.  But I'm willing to bet that I'm right.

The other cost would have to be that Obama would talk about how Bush started off with the best of intentions, and how overreaction in wartime is a sad but consistent theme in American history, and so Bush is just like Wilson and FDR.  I realize that's a very tough pill for liberals to swallow, but I just don't see an alternative that has any better chance of preventing a fully Cheneyized future Republican party, which will, we know, sooner or later wind up back in the White House.  Oh, and by the way, pardon would not preclude impeachment and conviction of federal judges (I think it would protect people from being disbarred).  However, it wouldn't protect them from losing their jobs or their reputations, which could certainly happen if an honest, open commission puts people in the spotlight.

I guess, all things said, that I'd turn the original question back around: I do think that the aftermath of Iran-Contra went wrong, and I think that something extraordinary should be done so that the aftermath of torture doesn't go wrong.  Prosecution, however, isn't something new -- it's exactly what people tried to do in 1987.  It didn't work then, and in my view it's even less likely to work now.  Pardon -- from a Democrat who opposed the policy, not from a Republican who was involved in it, and before prosecutions, not after years of legal fights -- would be extraordinary.  If handled right, and with a little luck, I think it could work.  And, again, I just don't know of a viable alternative.