Disappointment Watch

| Thu Nov. 13, 2008 10:28 AM EST

DISAPPOINTMENT WATCH... If you're looking for an indication of what the first schism between the Obama Administration and the Democratic Congress will be, consider the question of investigations.

Congressional Democrats are gearing up for a season of post-Bush inquiries (at least that's what they're saying — remember this?), but Obama has indicated in the past that he isn't excited about the possibility. Earlier this year, he told the press that there needs to be a distinction between "really dumb policies and policies that rise to the level of criminal activity." The latter should be investigated, Obama said, but "I would not want my first term consumed by what was perceived on the part of Republicans as a partisan witch hunt, because I think we've got too many problems we've got to solve."

I side with Congress on this. There is enough evidence to suggest that the Bush Administration may have broken the law and violated the Constitution — investigations, with subpoena power, are the only way to know for sure. No one is suggesting that Congress grill Department of Education bureaucrats about the implementation of No Child Left Behind. Democrats on the Hill aim to examine our torture and detention policies, the wiretapping of American citizens, and the improper firing of US Attorneys — areas where legal experts have already suggested the Bush Administration crossed lines.

Don't get your hopes up, though. Presidents in the past have gone easy on their predecessors. President Bush, for example, blocked a 2001 subpoena by Congressional Republicans seeking to investigate the Clinton administration. I fully expect Obama to embrace the amity that exists between presidents and ex-presidents. And even if Obama gives Pelosi and Co. the green light, history suggests that ex-presidents take with them certain lingering powers that allow them to block investigations. The precedent, established by Truman and outlined by the always excellent Charlie Savage, is flimsy. But if there is one president and vice-president who can be counted upon to stretch executive privilege using dubious legal reasoning, it's our departing duo.

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