Oops! They Pissed Off Judge Walker Before He Finalizes Immunity

I just finished reading Vaughn Walker’s opinion explaining that the government will have to give him the document that–the lawyers for al Haramain claim–shows they were wiretapped without a warrant under Bush’s illegal wiretap program, so he can determine whether it really does show what the lawyers claim it shows. If it does, you see, then someone will finally be able to sue Bush and his cronies for violating FISA.

If you don’t have time to read the entire opinion, I recommend you pick it up around page 16–where Walker includes a short summary of how the al Haramain lawyers proved they were surveilled under the illegal program–and then go to page 21–where Walker starts getting really cranky with the government. 

Defendants simply continue to insist that § 1806(f) discovery may not be used to litigate the issue of standing; rather, they argue, plaintiffs have failed to establish their “Article III standing” and their case must now be dismissed. But defendants’ contention that plaintiffs must prove more than they have in order to avail themselves of section 1806(f) conflicts with the express primary purpose of in camera review under § 1806(f): “to determine whether the surveillance of the aggrieved person was lawfully authorized and conducted.” § 1806(f).

In reply, plaintiffs call attention to the circular nature of the government’s position on their motion:

Do defendants mean to assert their theory of unfettered presidential power over matters of national security —— the very theory plaintiffs seek to challenge in this case —— as a basis for disregarding this court’s FISA preemption ruling and defying the current access proceedings under section 1806(f)? So it seems.

So it seems to the court also.

It appears from defendants’ response to plaintiffs’ motion that defendants believe they can prevent the court from taking any action under 1806(f) by simply declining to act.

But the statute is more logically susceptible to another, plainer reading: the occurrence of the action by the Attorney General described in the clause beginning with “if” makes mandatory on the district court (as signaled by the verb “shall”) the in camera/ex parte review provided for in the rest of the sentence. The non-occurrence of the Attorney General’s action does not necessarily stop the process in its tracks as defendants seem to contend. Rather, a more plausible reading is that it leaves the court free to order discovery of the materials or information sought by the “aggrieved person” in whatever manner it deems consistent with section 1806(f)’s text and purpose.

Walker calls BushCo’s lawyers on their bogus claims and throws in a "shall" to whip them around the head. And then he gets snarky.

I don’t think you’re really supposed to incite your judge to snark.

And the significance of Walker’s crankiness extends beyond the al-Haramain case.

Walker has given the government short deadlines for responding to this order. He has required they hand over the document in question–the one that will probably show that the government did spy on the al Haramain lawyers without a warrant–in the next two weeks. If you look at your calendar, you’ll see that’s just one day before BushCo leave office and Obama takes over (though, with their stall tactic on Eric Holder, it will be before Obama’s got an Attorney General ready to take this over). Walker is also requiring the government to give the lawyers in this case Top Secret SCI clearance in crazy fast time (by mid-February) so they can continue to litigate this case. 

But it’s the first deadline–January 19–that I’m really interested in. Remember, Vaughn Walker has more than just this FISA mess on his plate. He is also–as we speak–deliberating on EFF’s suit to prevent the awarding of retroactive immunity to the telecoms for their role in the illegal wiretap program. In fact, last we heard from him, Walker was wondering why he shouldn’t wait until the new President comes in, to see whether that President’s Attorney General is really so sure that the retroactive immunity for constitutional violations was as legal as Michael Mukasey claims it to have been. BushCo, of course, insisted that it’s unheard of for a new Attorney General to reverse what the prior Administration’s Attorney General has said.

"We are going to have new attorney general," Walker interjected in Tuesday morning’s hearing in a San Francisco courthouse. "Why shouldn’t the court wait to see what the new attorney general will do?"

[snip]

"The Department of Justice rarely, if ever, declines to defend the constitutionality of a statute," Nichols said. "It’s very, very unlikely for a future DOJ to decline to defend the constitutionality of this statute."

Mukasey has made his representations on this issue–both about the constitutionality of retroactive immunity, and about the legality of the underlying program–based on his typical crap about Yoo’s OLC opinions.

But he’s also about to hand over a document to Walker that proves that there are aggrieved parties that can sue the government for violating FISA. He’s about to hand over a document that will demonstrate clearly that Bush broke the law.

It’s going to be a lot harder for Walker to find retroactive immunity legal (not least because he’s contemplating the same issues of separation of powers that has him so riled up here), and it’ll be a lot harder for Mukasey’s successor to continue to affirm the program itself was legal, if Walker is in the process of affirming that Bush broke the law. 

bmaz has said–rightly–that BushCo is likely to appeal Walker’s decision. But I suspect Walker is going to be reluctant to decide on immunity before he gets that document.

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  1. obsessed says:

    Sorry to start the thread off topic, but I just realized that Bush still hasn’t pardoned Rove, Cheney or any of the other big players. Is it actually possible that he won’t?

    • bmaz says:

      Not off topic at all really. I don’t know that the mass pardons have ever been quite as likely as many people were convinced. but this ruling sure adds to whatever chance there was of it happening.

      • randiego says:

        Pardons are a sort of last resort for these clowns, no? Not something they do until, say a Scooter gets convicted of something?

        The clock is running out, but prosecutions sure don’t seem to be on anyone’s agenda?

    • lizard says:

      The pressure on the pardons must be getting VERY intense. I have been saying for a very long time that I think Bush will have to issue blanket pardons, but lately it look as if he might be resisting. This isn’t going to hinge on law, or on strategy or on politics, it will hinge on just one thing: George W. Bush’s ego. The larger the scope of the pardon he issues, the more tarnished his legacy becomes, and he knows it. He is thinking a lot about his legacy, hence all the press face-time lately. I now think he actually might not issue large, sweeping pardons. We might actually see some accountability, because of this man’s ego.

    • billybugs says:

      You don’t pardon someone who has not yet been convicted of a crime.
      As far as I know,none of these guys have been charged with a crime.

      It’s not likely that any of these assholes will ever see the inside of a courtroom!!

      • lizard says:

        The Executive Chimp may pardon anybody at any time for anything. No indictment, no suspicion, no allegation is necessary before the pardon can issue. The pardon does not need to be “accepted” (except possibly if the pardon is offered post-adjudication) and no action AT ALL must be taken by the person pardoned.

        • billybugs says:

          So why bother with all this ,if these folks are basically above the law?
          Just pardon anyone that can implicate you and you’re all set!!!

          • lizard says:

            Because pardoning large numbers of your own folks pretty much says, loudly, “Yup, we broke the law. Fuck Justice” Which is NOT how Chimpo George wants to be remembered. I don’t think his ego will take much of it.

      • ThreadTheorist says:

        “You don’t pardon someone who has not yet been convicted of a crime.” No, a president may pre-emptively pardon. The obvious case in point is Ford’s pardon of Nixon, which may have been a condition of getting Nixon to resign. Next obvious case is George H.W. Bush’s pardon of his Iran-Contra co-conspirators. There is a well-established precedent for Republican presidents pardoning their cronies to save their own skins.

        • billybugs says:

          I can understand now ,why these jokers never had much regard for the laws!
          What a friggin joke!!

          Do pardons affect the ability to bring a civil suit against them?

          • lizard says:

            NO, pardons do not prevent civil litigation. And that thought gives me a HUGE smile when I think about the potential liability if the wiretapping cases. Beggar the bastards.

  2. FormerFed says:

    Damn!!

    “Walker is also requiring the government to give the lawyers in this case Top Secret SCI clearance in crazy fast time (by mid-February) so they can continue to litigate this case.”

    Not in my lifetime can anyone get an SCI clearance in 6 weeks!!!!!!!!!!!!!!

    WOW, the Judge must be annoyed. Not a very smart thing for your side to do.

    Good luck, you asshole Govt lawyers. (and this is from old FF, whose life experience bias is normally towards the Govt side)

    • bmaz says:

      I have seen this coming for a while now, but was too chickenshit to say so. You could really see Walker starting to blow his fuse internally many months ago, but it really became clear when he set the procedure by which this opinion resulted as opposed to really dismissing the case.

    • LabDancer says:

      The first time I was cleared, for well short of what’s being ordered here, it took over a month. From there, it still took 5 months more to get to at least one stage BELOW this level, and all that time was spent in federal service.

      So clearly I left out 3 more applications from the list I projected on the last thread – [j], [k] and [l] – and you can add in some guest appearances from HQ – at the very least one obvious in-court filibuster, and, I would be far from surprised at an ATTEMPTED off-the-record reach-out.

        • Hmmm says:

          Hell, let’s just hope Judge Walker doesn’t get volunteered to take an actual bullet! This case is the keystone now.

          • LabDancer says:

            Of course, I didn’t mean the judge, and of course, you’re not saying I did. But your comment provides a good point of departure: at this point, even such a thing as that wouldn’t change the current status and direction of this case.

            At the risk of seeming pedantic, what’s going on here is, for just about any other case, pretty pedestrian: The plaintiffs want the court to order the defendants to provide a form of pre-trial disclosure, or discovery – which here, since at least part of the plaintiff’s rights to sue and pursue their claim is limited by a statute, will comprise [a] the fruits of wiretaps – or not; the government isn’t saying; [b] the court order[s] which the government will claim granted it the right to wiretap – or none; the government isn’t saying; and [c] certain documents from the US AG which might assert a national security interest which the government might stand on to claim it overrides the plaintiffs’ rights to sue – or none: the government isn’t saying, at least not with useful, reliable or really any precision.

            Having caught up to Ms E Wheel, at least insofar as having read through Judge Walker’s order, the record – –

            consisting of:

            [1] his ruling in mid-2008 [appeal from which, as the Plaintiffs argued and Judge Walker notes at this point would be “untimely”,
            plus
            [2] the rational inference available to be drawn – – from the public record about the organization, the evidence in written correspondence on government letterhead, what the Plaintiffs’ side claims they talked about with the organizations top guy on the phone when the top guy was in Saudi – including in particular the mention of a person close to bin Laden and the implication that in context the top guy himself might be proximate to at least that person, and the seizure of the organization’s accounts by the US government – – i.e. that at least some of the overseas conversations the two Plaintiff lawyers had with the top guy were intercepted on behalf of the US government,
            plus
            [3] the DoJ arguing with heads in sand, refusing to acknowledge the effect of Judge Walker’s earlier ruling – –

            demands an order with the components this one has.

            The rest is timing, over which appeal courts are supposed to defer heavily to the judge who made the order, so long as the details of the timing are rationally connected to the components, don’t fly in the face of plain common sense, and are not patently irrational or unreasonable.

            In other words, at this point any other judge who came in to replace Judge Walker would just pick up where Judge Walker left off – and the government is in no better [or worse] position than it was with Judge Walker.

            So: what happens, on the fateful day when Judge Yogi Walker [or some other hungry bear] finally gets the government’s pic-a-nic basket back to his cave, and there’s nothing in the basket?

            Oooo…bad things…frankly unimaginably bad.

            More likely, what will be in there:

            [a] some wiretap fruits that are very likely to be ridiculously redacted – not just as to their scope, but conceptually these are fruits said and written by the plaintiffs, or at least a big chunk are, and how dumb does it seem to try to hide by redaction what these plaintiffs have to know they said and wrote? Dumber than the defending lawyers’ approach to this motion? Not sure it could be;

            [b] a court order, or more than one – or none; I’m betting “none”, or the government is not just playing dumb, it’s dumber than dirt – – but it wouldn’t shock me to learn the government had thrown in a lot of procedural crap having to do with it’s internal procedure and some eye-blurring, mind-numbing generalities and threatdowns on the technical wizardry; and

            [c] something in a certification, along with a big fat glosy PR production, essentially comprised of arguments, hearsay, more submissions and some highly contrived fuzzification of the sort of crapola that Bush and Cheney and Hayden and McConnell have been spewing for years now on how all this saves lives.

            • emptywheel says:

              Well, and note the absolute specificity of the calls the plaintiffs describe.

              I’m guessing there’s a reason they focused on that period–and not earlier, when they or al Haramain were almost certainly already being tapped. I would bet some change that those calls are precisely what they saw in that document.

              Remember, they weren’t allowed to use that document. But they’ve essentially replicated it, so that when Walker reviews the document, he’ll find precisely what they have asserted to be true.

        • NMvoiceofreason says:

          That’s a pretty damn heavy bullet. Two million felonies between 2002 and 2008 (FISA 50 USC 1809) at 5 to 10 years per pop. Although I can’t really say seeing the Dark Lord Cheney sentenced to ten million years bothers me any.

      • FormerFed says:

        EW, I’ve seen a temporary TS given in a matter of a few months, but only in very extraordinary circumstances. I’ve never seen an SCI issued without a full BI (background investigation) and that takes a lot of interviewing of family, friends, neighbors, employers, etc. over your entire life.

        Of course there may be somebody with a big enough magic wand that could shorten all this, but I’ve never seen it done.

  3. manys says:

    Nothing needing pardons is likely to happen in the next two weeks, and at any rate the big P is always in Bush’s back pocket. A flood of pardons the day before the President leaves office is common.

  4. scribe says:

    Ahhh – EW, you note from the oral argument a while back:

    “The Department of Justice rarely, if ever, declines to defend the constitutionality of a statute,” Nichols said. “It’s very, very unlikely for a future DOJ to decline to defend the constitutionality of this statute.”

    Well, if any of you had gone and read any of the law review articles Profesor Johnsen wrote, you’d see a particular rejoinder to that statement. I’m thinking particularly of the one from last spring in the Boston U. Law Review called “What’s a President to do…”. In it, she discussed what’s a president to do when he’s signing a bill into law, knowing that part of it is either blatantly unconsitutional, or does not comport with his notion of what he thinks is constitutional.

    Her response: not what Bushie did. You don’t ignore it, or act contrary to it. You can, though, decline to defend it.

    Which, she notes, was done at least once when she was in OLC during the Clinton administration.

    So, just like in so many other places in their arguments, the sophists at DoJ arguing this case to Walker were whistling past the graveyard and trying to elide that theyir argument had no support – or was directly contrary to hstory – when they said “of course the new AG will defend the law.”

    You really should go read Johnsen’s stuff.

  5. nomolos says:

    If Walker rules that the wire taps were illegal and that bushie knew/authorized/whatever surely he cannot pardon anyone that could lead to him? Or do I have the pardon rules wrong.

    • lizard says:

      You do have the pardon rules wrong, but only because there don’t seem to be ANY pardon rules at all, other than that a pardon cannot issue in “cases of impeachment”. What “cases of impeachment’ actually means has not, to my knowledge, been litigated, so remains in the sort of nebulous and extremely wide area called “unsettled”.

      The executive can certainly pardon anybody who might implicate him before or after that person has done so. He might not WANT to, because said pardon would render that person beyond punishment, thus denying that person the right to invoke the 5th amendment. This is one of the reasons widely accepted that George didn’t give Libby a pardon (yet), because had he done so, Libby would have been forced to testify before congress or in other venues without the shield of the 5th.

    • NMvoiceofreason says:

      Currently, the pardon power of the President in the Constitution is without limit. Old legal principles however, say that for him to benefit from illegal conduct, conduct he ordered or merely approved, makes the actions taken under color of law suspect. The Rule of Law says you cannot use illegal conduct to do what you cannot do legally. Can he do it? Sure. Can someone sue over it? Sure. Will the Supreme Court of the Republican Party decide in favor of the Rule of Law? Doubtless they will not, for the same reasons it has long been held that immunity, once given, cannot be retracted absent some violation of the original terms on which it was given. No terms, no violation, no withdrawal.

      • lizard says:

        one minor correction: the pardon power is limited, but only by the phrase “except in cases of impeachment”, which itself is an untested (as far as I know) limitation.

        • cinnamonape says:

          Much of what relares to the pardon power of the President has not been litigated.For example, Ford’s power to pardon Nixon for unspecified crimes while in office was never litigated (although I believe that a Minnesota College professor tried, and the case was dropped because he didn’t have standing). I don’t believe that the pardons of Weinberger and others were ever litigated either.

          Probably “blanket pardons” of some type are allowed as these were within the certain intent of the Founders in granting the power…in particular to exhibit mercy to former military rivals (i.e. Tories). The first general pardoned were issued to individuals up for charges in the Shay’s and Whiskey rebellions. While these were for convictions and specified crimes, the general assumption was that anyone else convicted or indicted would eventually be pardoned by a future President. Lincoln also granted a “General pardon” to Confederate soldiers (although this was opposed by Congress, particularly for political and military leaders). Again, these individuals were charged with Treason, although most were not tried or convicted. I’m not sure if they had individually performed acts of atrocity if the pardon would have held. It would be interesting to research this issue.

          One can count on one hand cases where pardons were extended to members of ones own Administration. And one can seek forever for a case where an executive or ruler of a European nation ever sought to pardon themselves.

          And I sort of hope that Bush doesn’t believe that Obama can’t prosecute these cases because his plate is too full. That might be based on the fact that Dubya was a underachieving elitist and really never believed that any of those people that got better grades than him did so because they worked harder, were smarter, and could not screw-off like he did.

          And Obama might pull one little trick out of his bag…he could create a board to grant pardons for little fish if the told all (under the threat of perjury). A “Truth and Reconciliation Commission”. That way he could focus on prosecuting the real instigators of the mess.

          • lizard says:

            And the president who did pardon members of his own administration? What was his name, hmm. George Bush! (didn’t Grant do that, too?)This seems to me to be yet another reason Junior WON’T issue those blanket pardons. He has a really seriously weird Freudian competition going on with the old man, and the pardoning of Cap Weinberger and the Reagan crowd left a bad taste, I think Chimpo George tells himself he is better than that.

          • Knut says:

            And Obama might pull one little trick out of his bag…he could create a board to grant pardons for little fish if the told all (under the threat of perjury). A “Truth and Reconciliation Commission”. That way he could focus on prosecuting the real instigators of the mess.

            Oh, I do so like your mind.

  6. jdmckay says:

    From your 12/13/08 deliberating link…

    Mukasey’s refusal to turn over the OLC opinions looks like it may cause the same kind of delay. The first report of the delay on OLC opinions–based on a December 3 Mukasey press conference–pointed specifically to the inauguration as the day when they might be turned over.

    But the Justice Department’s new leaders may not gain access to the Bush administration’s most sensitive legal opinions until after the January inauguration, Mukasey told reporters in what could be his final news conference.

    And the same report included an interesting paragraph tying Mukasey’s refusal to “provide guidance” to Holder to early approaches on the terrorist program.

    Mukasey said he has yet to meet Eric H. Holder Jr., the former federal prosecutor nominated Monday by Obama to take the nation’s top law enforcement job. Yesterday, Mukasey refused a request to provide advice to his likely successor, instead pointing out that the department had changed in orientation since the terrorist attacks seven years ago.

    In the context, this seems to tie to those opinions, which after all reflect the department’s “orientation” during the early days after 9/11.

    I’m not a lawyer and generally have read these litany of Mukasey/Gonalez/DOJ obfuscations, for some years now, as a lurker… trying to get best handle possible from discussions both here and on good legal blogs.

    Aside from what seems self-evident to me… eg: that Mukasey has sold his sole to obscure the obvious, the one thing I haven’t read here (I don’t think, has EW suggested as much?) is given trends of these guys, what reasonable expectations are there that docs in question will actually exist when BO takes office?

    The WH emails… gone. RNC server records of same… gone. Visual recording of torture… gone. Little or no consequence to any of this that I can see.

    Given my finger-in-the-wind non-legal sense of things, I almost take it as a given that whole bunch of these docs/records/NSA intercepts (etc etc) are going to go poof!. I also assume BO’s DOJ people will have to decide if being hamstrung w/duties putting this jig-saw back together can succeed, particularly in already unfolding MSM environment that will be charactarizing such efforts as “politically motivated”, “anti-American” and such.

    I’m just sitting here wondering, how can BushCo’s DOJ possibly provide Walker’s court w/discovery docs which explicitly divulge the deliberate FISA violations which BushCo has denied through so many political incidents? I almost get the feeling that to do so would be followed by gov’s lead lawyers pulling out a pistol and blowing their brains out.

    Looking more and more like, whether DOJ or DOD (torture), that a-few-bad-apples is turning out to be a barrel of rotten fruit.

  7. klynn says:

    I don’t think you’re really supposed to incite your judge to snark.

    And the significance of Walker’s crankiness extends beyond the al-Haramain case.

    In a sense, it’s clear, Walker knows what he has in hand…in historical proportions.

    Any more delays will piss Walker off. So, will there be any orders to remain in the US beginning January 19th?

    • puravida says:

      IANAL so I don’t pretend to fully comprehend all of this (cue unfrozen caveman lawyer shtick) but it seems like the Court is putting together an infallible legal argument with no chance of being overturned on appeal.

      Contrast that with Yoo, Gonzo, Addington, etc. who just seemed to make shit up as they went, and then fed it to Bush who was only too happy to eat it up. Interesting how that shit ain’t sticking to the wall now.

  8. Palli says:

    As an artist, I have the visual narrative of a game of tug of war… a long hefty hemp rope, fire hoses and dirty, sloppy mud.

    There are many people straining on both sides. Some people on one side are getting less interested in the game and the muddy play- each individual is wondering if they could just let go and walk: “would they be missed… could they slip off totally out of the picture?” The few new people who join them soon find the game is work and not nearly as much fun as cheering and hooting from the sidelines, so many leave soon to again watch from the sidelines.

    The other side is determined and their persistence, grunts, small gains and camaraderie are encouraging more people to join their side. Some of the new people have fresh knowledge about the qualities of the rope and the terrain and are maneuvering the struggle over to drier ground. The newcomers to this side are there because of the staunch, unfailing commitment of those first tired people in the front and the same insitence that “the game must be won”. Everyone is strengthened with new hope, energy, and renewed respect for their companions. People who were afraid to play but were watching, wringing their hands the whole time, come join. There are now more people than rope and first players are spelled for a short time but will come running back to be part of the last big finish.

    Suddenly the few remaining players on the other side simply let go, turn and walk away, defiant in defeat. Murmurs can be heard as they meet their supporters as together they plot how to slice the rope deeper before the next game.

    The victorious can revel in the exhusted joy of the moment but then they must get up, clap each other on the back and clean up the mess. Hopefully they will stay in touch so a team can be brought together quickly for the next inevitable tug of war.

  9. nomolos says:

    Thank you much for the pardon clarifications. I do wonder what damage it will do to his legacy if he pardons the entire DOJ and his entire administration /s*

  10. perris says:

    bmaz has said–rightly–that BushCo is likely to appeal Walker’s decision. But I suspect Walker is going to be reluctant to decide on immunity before he gets that document.

    that is of course unless walker doesn’t make his decision until after bush leaves office

    then bush has no standing deciding what the justice dept does or does not do with regard to this appeal

    man, if this is what obama had in mind when he asked the dems to approve retroactive immunity, this will be on incredible presidency

    my heart begins yearn

    • puravida says:

      “man, if this is what obama had in mind when he asked the dems to approve retroactive immunity, this will be on incredible presidency”

      Wow, I just got a tingle down my spine.

  11. perris says:

    Which is NOT how Chimpo George wants to be remembered. I don’t think his ego will take much of it.

    I believe someone had a post on this here at the emptywheel’s house, the fact that if bush does not pardon anyone and obama does nothing about it that fact legitimizes everything bush did

    it’s a big gamble and I doubt bush would take that gamble without some kind of inurance from the administration that they can count on this kind of inaction

  12. lizard says:

    Quite right. If Bush does NOT issue large blanket pardons in the area of torture and wiretapping, it is throwing a huge gauntlet at Obama, basically saying to him “You can spend your presidency doing all these wonderful hope-based things, or you can prosecute the (literally) thousands of crimes I have committed” and betting that Obama believes that he can’t do both. I can see Chimpo George doing that. But I cant see ANYBODY around him wanting to bet their freedom and future on Obama NOT being a (vindictive prick/believer in the rule of law)

  13. rwcole says:

    These fuckers can just flat out ignore the judge- they’ve done it before. They get a govt. lawyer to write a piece of paper sayin that they don’t have to and then say “Gee Whiz- what can I say judge- I can’t comply”.

    Remains to be seen how an Obama administration will deal with these cases, and once there is ONE- there will be MORE.

  14. rwcole says:

    What are chances of expanding this into a class action representing all the John and Jane Does who were fucked by their govt.- then let discovery take it’s course..

    Any lawyers here at the moment?

  15. rwcole says:

    A civil suit conducted in open court,could unleash a fire storm of sentiment for criminal prosecution. The perps know it.

  16. cinnamonape says:

    Two more points about “pardons”. They can’t be applied in civil suits…only in cases of criminal acts under FEDERAL LAW. Thus civil litigation, State prosecutions, or International prosecutions are still open grounds.

    Even if there was the broadest possible scope to absolving individuals for any crime, stated or unstated, conviction or not, general or individual, and self-serving….it would still not prevent impeachment. And impeachment can be applied to the holding of any future office or receiving any emoulment,” profit, trust or honor from the United States”. That would allow someone who is protected from criminal prosecution to be barred from a) serving in the United States government evermore; b) receiving a Federal Grant or Contract; c) lobbying (a position of trust); d) working for a Federal contractor (a position of trust); e) using titles or regalia of office (e.g. President of the United States, the Great Seal); f) having office space or staff; g) being provided with Secret Service protection; h) receiving any papers, documents; or items that are technically the property of the Office they held; i) no Federal pension or health care benefits; j) loss of ‘franking privileges; k) loss of the powers to control Presidential or VP papers accorded former P-USA/VP-USA under Executive Order; l) no opportunity to receive Federal licenses (e.g. FCC b’cast license, or even 3rd Class radiotelegraph licenses.

    I could probably think up a bunch more (would they have the right to defer reporting their Federal income taxes, for example…that requires “trust”).

    • perris says:

      Thus civil litigation, State prosecutions, or International prosecutions are still open grounds.

      I did not know this, great news to be sure, however will a state have the nerve, there is the question

    • perris says:

      or receiving any emoulment,” profit, trust or honor from the United States”. That would allow someone who is protected from criminal prosecution to be barred from

      you have given me ample cause for celebration;

      a) serving in the United States government evermore;

      north needs to be impeached

      b) receiving a Federal Grant or Contract; c) lobbying (a position of trust); d) working for a Federal contractor (a position of trust); e) using titles or regalia of office (e.g. President of the United States, the Great Seal); f) having office space or staff; g

      bush needs to be impeached

      being provided with Secret Service protection;

      cheney needs to be impeached

      h) receiving any papers, documents; or items that are technically the property of the Office they held; i)

      if I didn’t say it before I’ll say it now, cheney needs to be impeached

      no Federal pension or health care benefits; j) loss of ‘franking privileges; k) loss of the powers to control Presidential or VP papers accorded former P-USA/VP-USA under Executive Order; l) no opportunity to receive Federal licenses (e.g. FCC b’cast license, or even 3rd Class radiotelegraph licenses.

      they all need to be impeached for these reasons and a belated impeachment will be fine with me, any justice is better then no justice but if theses things you itemized can be made so that would be excellant indeed

    • lizard says:

      Unfortunately, pardons that are issued preemptively (In this instance, I mean pardons that are issued before indictments) would tend to stop prosecutions OR impeachments before they begin. An officeholder who cannot be convicted of a crime is VERY unlikely to be impeached. And I don’t think a person can be impeached unless they hold a current office to which impeachment may be applied, which, in less than three weeks, they won’t. So I fail to see how that list applies, except moving forward, as deterrence (which tends to be undercut by the fact that we didn’t impeach any of the bastards while we could.)

      • bmaz says:

        Not perfectly clear, but the best view is that an officeholder can be impeached after leaving office; the remedy is to remove the latent benefits attendant to having held the office.

        • lizard says:

          Wouldn’t THAT be nice. I want to get them with RICO, but impeachments to prevent future officeholding and civil actions reducing them to penury would be just lovely.

        • cinnamonape says:

          Actually there is historical precedent for impeachment after an individual leaves office. Again that occurred under the Grant Administration. Grant’s Secretary of War, William Belknap, was facing impeachment for selling the privilege of establishing trading posts on American Indian reservations. Rather than face the impeachment he simply….”resigned”. Under the same theory that he was free from impeachment if he was not a CURRENT officeholder.

          The HouseJudiciary Committee decided to issue Bills of Impeachment in any case after resolving that the Constitution also intended the effects of impeachment to be “prospective” (not merely the present, but any future office or emoulment) and the House as a whole concurred. Thus they voted to send the Bills to the Senate. Here too the issue was debated. Some argued that Belknap had already resigned, and, in addition, would be at the mercy of the courts for any criminal action. They felt that the trial was thus purely symbolic and political theater with no real impact. Others, Grant partisans, were concerned that it would taint the Administration with scandal. Although the vote was close the Senate also voted that they had the legal right and responsibility to impeach Belknap.

          The trial was held, and again the same arguments I listed above were presented to oppose Belknap’s CONVICTION by impeachment. “Let the courts handle this!”, “He’s suffered enough”, “This looks bad for Grant”, “He’s quit, and now faces criminal charges…what we could do is so minor compared to THAT.”

          In the end Belknap was acquitted in the impeachment trial. It took about three Senators to shift from the group that supported impeachment (processually) to the “no conviction” camp.

          So, it’s on the record that Congress holds that impeachment can take place even after an individual leaves office…EVEN IF they face prosecution in the courts.

          Now, as I see it, any sort of pardon would kick up the importance of IMPEACHMENT, simply because it would allow pardoned individuals not only to escape punishment…but to potentially inflict their corruption onto the American public again.

        • cinnamonape says:

          Actually there is historical precedent for impeachment after an individual leaves office. Again that occurred under the Grant

        • cinnamonape says:

          Actually there is historical precedent for impeachment after an individual leaves office. Again that occurred under the Grant Administration. Grant’s Secretary of War, William Belknap, was facing impeachment for selling the privilege of establishing trading posts on American Indian reservations. Rather than face the impeachment he simply….”resigned”. Under the same theory that he was free from impeachment if he was not a CURRENT officeholder.

          The HouseJudiciary Committee decided to issue Bills of Impeachment in any case after resolving that the Constitution also intended the effects of impeachment to be “prospective” (not merely the present, but any future office or emoulment) and the House as a whole concurred. Thus they voted to send the Bills to the Senate. Here too the issue was debated. Some argued that Belknap had already resigned, and, in addition, would be at the mercy of the courts for any criminal action. They felt that the trial was thus purely symbolic and political theater with no real impact. Others, Grant partisans, were concerned that it would taint the Administration with scandal. Although the vote was close the Senate also voted that they had the legal right and responsibility to impeach Belknap.

          The trial was held, and again the same arguments I listed above were presented to oppose Belknap’s CONVICTION by impeachment. “Let the courts handle this!”, “He’s suffered enough”, “This looks bad for Grant”, “He’s quit, and now faces criminal charges…what we could do is so minor compared to THAT.”

          William W. Belknap
          NY Times “Belknap Faces Impeachment Trial”

          In the end Belknap was acquitted in the impeachment trial. It took about three Senators to shift from the group that supported impeachment (processually) to the “no conviction” camp.

          So, it’s on the record that Congress holds that impeachment can take place even after an individual leaves office…EVEN IF they face prosecution in the courts.

          Now, as I see it, any sort of pardon would kick up the importance of IMPEACHMENT, simply because it would allow pardoned individuals not only to escape punishment…but to potentially inflict their corruption onto the American public again.

  17. lizard says:

    I also think (but am not sure, looking now) that a federal pardon would, in fact, preempt a state prosecution on the specific grounds or for the specific crime pardoned.

  18. cinnamonape says:

    The Grant situation is interesting since, despite the tales, he never actually pardoned his Personal Secretary (i.e. Chief of Staff) Orville Babcock. Babcock had been involved in the “Whisky Scandal”, where distillers siphoned off a Federal tax and gave kickbacks to corrupt officials in the IRS for ignoring the failure to pay. Babcock and the Director of the IRS were in collusion on this. Grant had a close personal friendship with Babcock, who had served under him during the war, and apparently truly couldn’t believe his aides involvement. What he did was to disrupt the prosecution to such a degree that it was nearly impossible to finger Babcock through confessions of those promised “amnesty”. Furthermore, he submitted himself to 5 hours of personal testimony regarding his lack of knowledge of anything that might point to flaws in Babcock’s character, or any evidence that he was involved.

    Ultimately Babcock was acquitted by the jury, despite very strong physical and testimonial evidence of his involvement. Babcock was later indicted for evidence tampering…in an effort to implicate a reformer who had attacked Babcock in the scandal. Babcock was acquitted a second time, lthough there was evidence of jury-rigging. Grant allowed Babcock to stay for a time as his Secretary, but eventually sent him from the limelight as Superintendent of Lighthouses. He died in a drowning while his boat capsized during an inspection.

  19. cinnamonape says:

    Sorry about the internet “f*rts”…

    I’ve been talking about this possibility of “postresignation” or post-incumbency” impeachment for about two years now. It was the one way forward when I saw that a) Nancy P. wasn’t going to put any food on the table because she had so much else to do (hah-hah); b) the Republicans would simply filibuster everything to death; and c) things, even if they got started, would likely carry over into the next term.

    I’d like to say that people got some of their ideas about this from my postings (strongly defending the option) here on this site…but I suspect that there were other folks (real lawyers) who were thinking about this.

    Here’s a recent article from http://www.commondreams.org/views06/1215-25.htm ">John Dean on “Post-Incumbency” Impeachment

    And guess who were raising the Belknap issue before this? In fact there are many Republicans (possibly even Limbaugh) who supported the impeachment of Clinton after he left office due to the Marc Rich pardon. A bit of sweet irony there.
    Arlen Specter: “It’s legal to impeach Clinton over Rich Pardon”