Without wishing to minimize the bad acts committed by members of the Bush Administration, the need to prevent recurrence, or even the instinct to seek a bit of revenge for the Clinton impeachment, I just can't get on board with this mindset:
Worst of all, Obama (in response to Stephanopoulos' asking him about the number one highest-voted question on Change.gov, first submitted by Bob Fertik) all but said that he does not want to pursue prosecutions for high-level lawbreakers in the Bush administration, twice repeating the standard Beltway mantra that "we need to look forward as opposed to looking backwards" and "my instinct is for us to focus on how do we make sure that moving forward we are doing the right thing." Obama didn't categorically rule out prosecutions -- he paid passing lip service to the pretty idea that "nobody is above the law," implied Eric Holder would have some role in making these decisions, and said "we're going to be looking at past practices" -- but he clearly intended to convey his emphatic view that he opposes "past-looking" investigations. In the U.S., high political officials aren't investigated, let alone held accountable, for lawbreaking, and that is rather clearly something Obama has no intention of changingNow I'll grant that there are circumstances when we should look backwards and criminally prosecute bad actors from an outgoing administration, and I'll concede that it's difficult to articulate the circumstances under which that is or is not appropriate, but here's one small measure: If the sins aren't sufficient to trigger impeachment by a Congress controlled by the opposition party, that alone raises a serious question not only about whether they are so serious as to trigger criminal investigation and prosecution, but also whether the opposition party shares culpability for having failed to act sooner.
An after-the-fact appointment of a special counsel, whose job is essentially to dig for criminal acts and prosecute those who committed crimes, not only can be easily spun as "revenge for the Clinton impeachment", but sets a precedent that could haunt any outgoing administration, no matter how squeaky clean. Didn't Ken Starr teach us, no matter where you start out, if you keep expanding the scope of your investigation you will eventually find some opportunity to accuse somebody (rightly or wrongly) of crimes, coerce witnesses, set perjury traps... create a great deal of pain and disruption for the nation and its governance and, at the end of the day, quite possibly accomplish nothing meaningful?
Another problem is that when you create a sideshow of the type proposed, it can take everybody's energy and attention away from the very real issues we must address, while looking forward. Thanks in no small part to Bush, this nation has a lot of very serious problems that need to be quickly addressed. The investigation and prosecution of a host of officials of the outgoing administration has the potential not only to interfere with the new administration's focus, it could polarize the nation, and make the Dems seem as small, petty, obsessed, biased and vindictive as Ken Starr looked to them when he finally released his report.
If Justice Department officials are aware of crimes, they can consider whether or not to prosecute them. There are issues that the new Congress should investigate, and it's possible that crimes will be uncovered there as well. We don't need to look away from the past. But despite the temptation and opportunity, and a mile of muck to dig through, I don't think it's necessary or wise to start appointing special prosecutors to ferret out people and acts to prosecute. Even if it doesn't end up looking as counter-productive as Ken Starr's investigation run amok.