Will We Ever Learn the Truth?

By Dan Froomkin
Special to washingtonpost.com
Thursday, November 13, 2008; 12:39 PM

Will we ever find out what President Bush really did in our name?

There's so much we still don't know -- about torture, warrantless wiretapping, and the politicization of the Justice Department, just for starters.

Once Bush leaves office, will there be congressional investigations? Criminal investigations? Bipartisan commission investigations? Will President Obama make public all the relevant records? Will ex-president Bush still try to assert executive privilege? Will it work?

Charlie Savage explores some of these questions in today's New York Times. In 1953, Congress established "a precedent suggesting that former presidents wield lingering powers to keep matters from their administration secret," he writes.

"Now, as Congressional Democrats prepare to move forward with investigations of the Bush administration, they wonder whether that claim may be invoked again. . . .

"Topics of open investigations include the harsh interrogation of detainees, the prosecution of former Gov. Don Siegelman of Alabama, secret legal memorandums from the Justice Department's Office of Legal Counsel and the role of the former White House aides Karl Rove and Harriet E. Miers in the firing of federal prosecutors. . . .

"[I]nvestigators hope that the Obama administration will open the filing cabinets and withdraw assertions of executive privilege that Bush officials have invoked to keep from testifying."

But, as Savage notes, it is not clear "how a President Barack Obama will handle such requests. Legal specialists said the pressure to investigate the Bush years would raise tough political and legal questions.

"Because every president eventually leaves office, incoming chief executives have an incentive to quash investigations into their predecessor's tenure. Mr. Bush used executive privilege for the first time in 2001, to block a subpoena by Congressional Republicans investigating the Clinton administration."

And even "if Mr. Obama decides to release information about his predecessor's tenure, Mr. Bush could try to invoke executive privilege by filing a lawsuit, said Peter Shane, a law professor at Ohio State University.

"In that case, an injunction would most likely be sought ordering the Obama administration not to release the Bush administration's papers or enjoining Mr. Bush's former aides from testifying. The dispute would probably go to the Supreme Court, Mr. Shane said."

Carrie Johnson writes in The Washington Post that Obama advisors charged with overhauling the Justice Department don't quite know where to begin, though "[t]opping the list of concerns is the Office of Legal Counsel, a once-obscure operation whose advice guides some of the government's most sensitive and controversial policies, from domestic wiretapping to the appropriateness of handing out public funding to religious groups.

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