Why Didn't Obama Prosecute the Bush Administration War Criminals?

I hadn't really heard this argument before, but it does have some merit brought to light by Trump's craziness:

No, what concerns me about this story is whether Trump has really thought this through. One of the few political norms that has endured into the 21st century is that new administrations are reluctant to prosecute high-ranking officials from past administrations for bad behavior. During the 2016 presidential campaign Trump promised to prosecute Hillary Clinton for Benghazi but backed down from that promise during the transition. When Barack Obama replaced George W. Bush, he decided not to prosecute any Bush officials for anything related to the torturing of prisoners in the War on Terror. Writing in Slate in 2014, Eric Posner explained why Obama made that decision:

Obama’s best argument for letting matters rest is the principle against criminalizing politics. This is the idea that you don’t try to gain political advantage by prosecuting political opponents — as governments around the world do when authoritarian leaders seek to subvert democratic institutions. Of course, if a Republican senator takes bribes or murders his valet, the government should prosecute him. But those cases involve criminal activity that is unrelated to the public interest. When the president takes actions that he sincerely believes advance national security, and officials throughout the government participate for the same reason, then an effort to punish the behavior — unavoidably, a massive effort that could result in trials of hundreds of people — poses a real risk to democratic governance.

Obama’s problem is that if he can prosecute Republican officeholders for authorizing torture, then the next Republican president can prosecute Obama and his subordinates for the many questionable legal actions of the Obama administration.

The more that Trump says that members of the Obama administration committed high crimes and misdemeanors, the more he will criminalize politics. That kind of rhetoric will no doubt play well with his base, and stoke the partisan fires for a bit longer. Much like Trump’s proposed EPA cuts, however, the long-term effects will be devastating. The ongoing polarization of American politics suggests that the next Democratic president will need to play to his or her base just as much as Trump is doing right now.

Trump’s provocative rhetoric creates a powerful precedent for the next Democratic president to investigate former Trump officials for crimes as well. And given who the president is and how this administration has been run, it seems like a target-rich environment for any decent prosecutor. I’m sure that Trump thinks that, as president, he is above the law. Eventually, however, he’ll be an ex-president. He should remember that before violating more political norms.