The Continued “Oh, Trump Will Just Pardon Them” Meme Is Stupid

I have constantly, and still do, think the fear of “pardons” from Trump is overblown.

First off, this thought is almost undoubtedly part of why Mueller has Michael Dreeben on his team. A point noted both here indirectly and numerous other places more directly.

Secondly, a pardon places any potential witness in the very untenable position of having to testify honestly (whether to a Grand Jury or trial jury) or face perjury charges. I really do not think most commentators have thought through this conundrum enough. The second Trump pardons, all 5th Amendment protections as to federal offenses are removed. That would be catnip for Bob Mueller.

Lastly, remember where Mueller started off. Obstruction of justice. Just because any particular act (like a pardon) is putatively “legal” does not mean it cannot be an element in a larger crime.

The brutal reality is far different than the “oh Trump will just pardon them” narrative. Trump cannot wave the magic pardon wand and make it all go away and stop affecting him. But, hey, surely Donald Trump is in better shape than John Dowd’s last huge political criminal defense case.

Bmaz is a rather large saguaro cactus in the Southwestern Sonoran desert. A lover of the Constitution, law, family, sports, food and spirits. As you might imagine, a bit prickly occasionally. Bmaz has attended all three state universities in Arizona, with both undergraduate and graduate degrees from Arizona State University, and with significant post-graduate work (in physics and organic chemistry, go figure) at both the University of Colorado in Boulder and the University of Arizona. Married, with both a lovely child and a giant Sasquatch dog. Bmaz has been a participant on the internet since the early 2000’s, including active participation in the precursor to Emptywheel, The Next Hurrah. Formally joined the Emptywheel blog as an original contributing member at its founding in 2007. Bmaz grew up around politics, education, sports and, most significantly, cars; notably around Formula One racing and Concours de Elegance automobile restoration and showing. Currently lives in the Cactus Patch with his lovely wife and beast of a dog, and practices both criminal and civil trial law.

35 replies
  1. Rugger9 says:

    Well said, and as I recall this is one of the reasons that Scooter Libby’s sentence was commuted, since he was not pardoned by Shrub.  Are there examples where pardons have backfired like this?  It might make it a bit more clear for us lay persons.

    Evan Mecham and the eyebrows of stupid bring back memories when the trouble with the GOP in office was merely incompetence rather than the addition of mean-spirited evil.

    Trump still might try pardons anyway to save his own skin or Ivanka’s and hope he can bluster his way out like any other narcissist.

  2. mjwesley says:

    So you’re saying this week’s ceremony won’t reveal the first in a long line of turkeys to be pardoned by Trump?

  3. Bay State Librul says:

    Good explanation.
    I listened to a dem on the House Intelligence Committee yesterday. I thought he said there are “sealed indictments” already. Was I listening correctly, and if so how long can a sealed indictment last?
    Thanks

  4. Rapier says:

    Who has standing to challenge pardons, besides Muller as SC. (I’m sure “standing” is the wrong term but hope you get my drift.)

  5. James says:

    I’ve been wondering if the pardon power extends to corporations.  If, for example, Manafort is convicted I would assume all of his corporate shell companies would be subject to seizure by the feds.  Could a pardon prevent such a seizure or would he be left with just the spare change in his pocket?

    • Rugger9 says:

      I would expect that the Kaiser tries to do that since this is very similar to his favorite business model to farm out the risks to therefore-expendable companies.  However, as bmaz points out that removes the ability to hide information from further questioning (the 5th amendment would not apply to a company, I would think, since they can’t really be jailed).

      • Evangelista says:

        One:  A pardon applies only to the subject offense.

        Two:  A pardon applies only to the subject pardoned.

        Thus, 5th Amendment immunity deriving from a pardon would only the pardoned person for actions relevant to the pardoned offense alone.  The same offense committed again or elsewhere and similar offenses committed anywhere within a jurisdiction by the pardoned person would be prosecutable without regard for the pardon, which, with its referent subject action, will exist as an encysted event, isolated from the ‘flow’ of law and conduct around it.

        Shell corporations, created to isolate in-shell corporate activities and actions inside the shell would insulate those activites and actions from effects of a pardon.  The same for the same actions as pardoned committed by the same beneficial owner of several corporations in those, or some of those, several contexts, and not included in the prosecution whose successful conclusion was mooted by pardon.

        As for jailing corporations, a ramification of the current U.S.’s Supreme Court adjusting “corporate personhood”, a legal construction intended to permit corporations to own property and act as persons for party (meaning as parties) in legal proceedings, to add ‘color’ of human personhood to corporations, is that the special-purpose fiction opens corporations, and those who create, guide, direct, and dissolve them, to the body of law exisiting for the human person portion of the national population.  This is a known element, and an element known to cause unintended consequences, in almost all judiciary-branch bodies responsible for maintaining law systems.  The ‘almost’ in this statement is included primarily for the current U. S. law maintaining authority proofing itself the exception.  The consequence of adjusting law to fit to whim and parochial case-‘necessity’ is the making ot the law system inane, idiotic, ridiculous, unworkable, and, not least in importance to some of us, lots of fun and hilarious.

        In the case of ‘humanizing’ corporate-personhood for specific benefits, among the unintended consequences is bringing corporations under, for example, the Thirteenth Amendment, which means their directors haven’t legal right to direct them, or coerce them, or those overseeing a corporation’s actions:  The corporate person has to agree to act as it is chartered to.

        There is also the problem of corporate maturity:  A corporate-person progenitor may assume right to direct a corporation of his or her generation for up to 21 years, as progenitors of human persons may those human persons they generate.  But at the age of majority the corporation, like the human, achieves, not having even to assume, person-hood rights in his, her or its own right, including the right to vote, where there exists an existential problem, in that there is no Constitutionally defined percentage for corporate-person sufferage:  Owned persons, today only children, women (at least those of child-bearing age) and prisoners duly convicted for crimes are recognized three-fifths persons for sufferage.  Other human persons are five-fifths persons.  Corporate persons, defined by Supreme Court ambivelification, were not, in that ambivelification, provided participatory definition for sufferage purpose.

        There is also the problem of corporate-person dissolution:  Human persons terminate naturally, wherefore there has been no requirement in human-person applicable law for dossolution-law.  Two results are a substantial bodies of law that criminalize, or assign liability for, active dissolutions of human persons by other persons, human and corporate, or even for potential to (see endangerment and product-liability areas in law), and a strong bias in law against ‘assisted termination’ of human person life.

        With advent of human personhood for corporations, we are facing potentials for challenges and criminal charges when corporate-persons die in manners that may appear to some share-holders, or aggressive district attorneys, perhaps under pressure from local governments dependent on a corporate-person ‘s fiscal contributions to their communities, as “criminal murder” or euthanasia.  Also in cases where evidences of ‘corporate-person abuse’, or ‘neglect’ may seem sufficient to sustain an indictment, or presentation to a grand jury.

        As far as putting corporations into jail, as with human persons, there are, today, a variety of alternatives:  House arrest, community service, removal of Thirteenth Amendment protections in consequence of convictions.  RICO, if you think about it, is virtually made for application to offending corporate persons, along with those human persons, and other corporate persons, with whom a primary offender corporate person, and its director and officer co-conspirators have conspired.

        In a free-market society, such as the current U.S. boast itself, where nationalizations are anathema to the self-promotion, prosecutions of corporate persons resulting in their legal encustodiment by the State, for crimes for which they are duly convicted, can provide a defensible and unassailable alternative able to, without the stigma or stigmata, effect the same result.

        • bmaz says:

          Oh, this is rich. And your experience in criminal law is….what?

          But, hey, thanks for some more run on horse manure occupying column inches of this blog. We do not accept advertising. It is a user supported effort. If you are so desirous of accepting and  utilizing our digital space, you should ante up.

          • Evangelista says:

            bmaz,

            All of the site-enriching alternate-perspective ‘column inches of content I provide here I provide for free.  I do not seek payment of any kind, even in kind, or advertising.  I know for fact that a portion of what I provide, for educational use, here does draw readership to your site, since some of those who read and would not otherwise bother to read, come around making inquiries, breaking and entering, rifling my property and sifting my garbage, querying local enforcement entities and interviewing neighbors and others, pursuing fanciful interests instigated in their imaginations by their readings of column inches I write for you.

            From my experiences with such ones in real, rather than digital, life I suspect that an easiest way to increase your site-revenues, to make me pay, so to speak, will be to increase your abusing of me, in both column inches and vituperation.  Especially if you are creative and clever I am sure they will want to encourage you and will send you money to.  Especially if you make it conditional:  “If I don’t start seeing some reimbursement for my efforts I may start being nice to his dog…”  Give it a try;  see how it works…

            My experience with criminal law goes no further than Certiorari, the Supreme Court having not, yet, anyway, found my arguments amenable to their agendae.

            But criminal law is passé today, isn’t it?  It is so much easier to do everything by commercial law rules, with civil rule procedures and penalties.

            What matters that it is Constitutionally unsupported and, with no legal jurisdiction, even prohibited?

  6. Rugger9 says:

    One other problem with pardons is that they also carry an implication of guilt when accepted (Burdick v. US, 1915) which may expose the person to further litigation (such as Arpaio’s civil suits, current and future) because the admission they did something illegal / wrong means that “it was legal” defense is out and I would guess it’s time to write the check.

    Judge Bolton said as much in her ruling in late October refusing to vacate the conviction.  The NPR article has an embedded copy of her ruling.

    https://www.npr.org/sections/thetwo-way/2017/10/20/558978896/federal-judge-will-not-void-guilty-ruling-on-arpaio-despite-trumps-pardon

  7. lefty665 says:

    How does the “Scooter” ploy play out here? Is it attractive to Trump et al to let Mueller do his darnedest then commute any sentences that result?  Also, what do convictions do to 5th Amendment protections? Once convicted what jeopardy lurks from full and honest testimony? Curious territory we’re in.

     

     

    • somecallmetim says:

      Does Mueller’s approach include getting sufficient sworn testimony from would-be commutees to support going further up the chain if witnesses clam up?

       

      Also, while he brings further federal criminal prosecutorial firepower to the investigation, how does Dreeben’s presence specifically respond to the possibility of pardons?

      • lefty665 says:

        Scooter kept his trap shut and apparently kept Fitzgerald from gathering enough evidence to go up the Chen(ey). That’s why he went for the obstruction charges on Scooter. He used a baseball analogy along the lines of throwing sand in the umpire’s eyes so he could not call balls and strikes. Could Scooter be a role model for the current objects of Mueller’s attentions? Dunno, I’m not a lawyer and don’t pretend to be one on the web. w00f w00f.

        Marcy live blogged that trial and provided better coverage than the “regular” media.

  8. cat herder says:

    But, does he have lawyers smart enough to tell him this? Is he smart enough to listen to them if they do?

  9. K says:

    When perjurer poppa was leaving the white house after lying under oath for almost 6 years about his diaries on Iran/Contra he pardoned all of his fellow traitors ( Cap weinberg etc) on his way out the door to remove any leverage that the independent counsel had to force them to testify and put the perjurer in jail.

    He got away with it.

    No one said boo and the spineless d’s, espiacially the clinton admin., just kept moving on with the sense that if a criminal got away with it for so long and was “important” enough that the laws do not apply to them.

    So now there is a precedent of the president pardoning his fellow conspirators to obstruct justice. That fig leaf and cotorie of partisan hacks sitting on the SCOTUS who’s first, who will obey their political puppet masters and who’se only loyalty, is to protect rethuglican criminals, he will get away with it.

    Only question is will demented donnie have to issue independent pardons or can he get away with a single omnibus pardon for his administration, family and campaign.

    A rethuglican president got away with it once what is to stop another in emulating him?

    • SC says:

      Yes, the Iran-Contra pardons ended investigation/prosecution of serious crimes committed in the White House. Theoretically, we could have learned the truth about Iran-Contra after the pardons but, unless I missed something, that didn’t happen. Walsh issued some strongly worded statements after the Iran-Contra pardons but . . . nothing happened. It worked for Bush, why wouldn’t it work for Trump?

      Pardons now would be catnip to Mueller but if the investigations continue for some time and Trump issues pardons, say, when he announces he’s not going to run again (maybe he’s facing 20% approval ratings), I don’t see why pardons under those conditions wouldn’t stand as good of a chance of being successful as Bush’s Iran-Contra pardons. Sure, everyone pardoned would lose their 5th Amendment protections but who is going to push for answers? If Trump pardoned all and sundry, even people who are probably innocent (at least of the crimes Mueller is chasing) I can’t see those people rushing to tell the truth and I certainly wouldn’t be surprised if Congress and Cillizza and Co. proclaim “We need to look forward!” and the Dems only put up token opposition. What am I missing? Why would Trump pardons under similar conditions not be as successful as the Bush pardons?

      • bmaz says:

        Yeah, this  is a great question. I am not smart enough to know the answer. Things feel different now, but by the same token, pretty sure most people would easily walk away and forget just to be done with it.

      • lefty665 says:

        Walsh wrote a good book “Firewall”. Part of what happened to him was that the IC, NSA in particular, stiffed him. They refused to declassify communications so he could use them. No one was talking and he could not get the evidence he needed. Hence “Firewall”. Congress buried some of the evidence too. Robert Parry uncovered it years later, dusty boxes in committee archives.

        Circumstances are different today, but maybe not enough to change the outcome. It may well be that most Dem outrage is really only about hanging Trump. If that doesn’t happen perhaps they do not care about the issues any more than Bill or Obama did. Look forward, don’t look back indeed.

  10. Evangelista says:

    K,

    The best address to your questions is to be found in the “Affidavit of Daniel P. Sheehan”, and the disposition of the case it was prepared to help forward. “Best address” is used here, rather than “answer”, because there is only evidence, no answers, in the matters of Iran-Contra and the subsequent effects of it, in all is aspects, and its effects, in all areas and at all extensions and through ramifications.

    A good rendition of the Affidavit, with an Introduction, is provided at:
    jfk.hood.edu/Collection/Weisberg Subject Index Files/C Disk/Christic Institute Affidavit Sheehan Daniel P Avirgan Lawsuit/Item 03.pdf

    Three elements that make the Sheehan Affidavit particularly interesting for providing historical perspectives are 1. the legal work CV provided by Sheehan, who was centrally active in a number of high-profile legal actions during the ‘golden age’ of activist activity in adjudicative forums, 2. the disposition of the case (dismissed for being “frivolous”, with extremely punitive sanction imposed), 3. the effect that disposition in that case had on activist adjudicative activities, and 4. the corroborations of the matters presented in that Affidavit and in the “frivolous” lawsuit it was provided in support of, in subsequent inependent revelations and investigations and investigation products.

    The Reagan Era, which Trump today is carrying, and has admitted to desiring to carry, foward, and the Iran-Contra, and subsequent U. S. government and exo-government activities carried out under Reagan in that era, mark a cusp in the history of United States government corruption and international corruption and gangsterism carried on, supported and sponsored by and through the government and government agencies of the United States of America. The cusp marks the end of any effective check or balance against, or on, the corruption. The patently corrupt and corruptly purposed King (Judge King) decision in the Christic Institute lawsuit, and its sustaining by review courts (and the refusal of the Supreme Court to review) mark the end of effective utility of court review process for checking and balancing corruption in, and misuses and abuses of powers by, United States government and government bureaucracy and associated private corporate forces. This was the historic point at which the only resolution for what the United States government had evolved into became the dissolution of that government. The Iran-Contra events and the brazen evocation of corrupt actions to brush away efforts to check and balance was, historically, the “abandon hope moment” for correction of the United States system by the peaceful means inbuilt to correct deviations in the Constitutional forms.

    A good ‘thumbnail’ of the problems corruption simply covered then is provided in the introduction provided for the above referenced pdf:

    “…these Defendants, some of whom have been
    tagged by the press as “contrapreneurs”,
    represent the very epitome of organized crime,
    but on an international stage. They deal
    wholesale in narcotic drugs, illegal weapons
    and violence. Rather than take over local
    businesses or undermine local government, they
    seek to take over whole nations. They do not
    hesitate to murder and destroy anyone or
    anything that gets in their way. By any
    definition, these Defendants, alleged merchants
    of heroin and terrorism, are organized
    criminals on a scale larger-than-life.”

    You can see, looking around today, how they constitute a vanguard for the United States state and deepstate and worldstate forces of today.

  11. k says:

    Ok my question becomes does the historical fact of the Iran/Contra pardons create a de facto legal precedent?

    I am thinking along the lines of common law marriege and”squatters” ( adverse possession?) rights. Where a de facto acceptance of an established reality, be cohabitation or the location of a fence, creates a legal realitie/ precedent?

    I am curious. I am not a lawyer or whatever, but does an action in the “legal” realm, that is more then simple procedural issues, that goes unchallenged for a generation reach a threshold of some legal status such as precedent? or maybe something less.

    • Evangelista says:

      To become legal precedent, in the traditional sense, the Iran Contra pardons would have to have been/be challenged and then approved on review.  They could, as they stand today, be asserted a precedent by a court reaching for a justificatory “precedent”;  which is how they could, at this late date, be challenged.  The precedent would be the circumstances surrounding the use of the pardon provision rather than the pardon provision, which, like the First and Second Amendments, is Constitutionally protected.  The likely questions would be if public servants may use the pardon provision to provide fellow-servants escape from consequences and legal retributions for acts as servants detrimental to the United States and The People (non-servant population [essentially, per the Constitution, the Master-Class population of the Constitutional United States]).  This is the question that should have been raised immediately at the time of the pardon, since servants exonerating fellow-servants for wrong-doing makes the exonerators fellow-wrong-doers and so co-conspirators with the exonerated wrong-doers in actions damaging to the general population ‘class’ they sought positions to serve and oathed themselves to serve.

      The pardon provision in the Constitution has not ever been defined in specifics by the courts, but it is recognizable, for the nature of the document in which it is contained (the Constitution) to not be enshrined there to be used at whim, or in whimsy, or without an accompanying explanation offering legitimization and justification for a use.

      That said, today, in the 21st century Commercial Law constituted United States, “Precedent” has become a means of choice for judiciary to modify, and even create, ‘law’.  Exacerbating the problem of this abuse of ‘precedent’ justifying and justificating is that much of the use has been, and is, exo-Constitutional and non-Constitutional and un-Constitutional, purposed to modifying “the law” of the United States to shape an exo-Constitutional “legal system” to fit to the commercial-law forms and practices those legislating, adjudicating and administering in the commercial-law United States prefer (these forms put the legislators, adjudicators and administrators in the ‘driver’s seat’, relegating the people from owners of the system to owned by the system, from ‘End-User’ beneficiaries the governing are responsible to provide benefits and services to, to subjects who owe obedience to their governors, who have not liberty to do as they choose (within limits defined b y consequences), but responsibility to obey and do only what they are told, licensed to do, or allowed.

      There is a reason that animals like boars and bulls, that can be dangerous when they get restive and incline to go out of control, unless they can be readily and quickly brought back under control, are fitted with nose-rings.  As the current state of the United States demonstrates on grand, if not grandest, scale, there is good reason for nose-rings to be made badges-of-office for legislators, adjudicators and administrators, at all levels of government.  My suggestion is for a hierarchy, small and symbolic ones to begin, being increased in size and functionality as misbehaviors, abusings of powers and authorities, would indicate deserved.  Imagine being able to lead your senator or representative by the nose to read, or re-read, the Constitution.  Just run a rope through his or her ring and lead on to the Library of Congress. or all the way across the United States to your favorite bookstore near home, where his or her constituents could ‘buttonhole’ her or him (just hook a little-finger in the ring and commence to address your issue…

  12. Kathleen says:

    Bmaz “The Continued “Oh Trump Will Just Pardon Them” Meme Is Just Stupid.”  Well there sure are a lot of stupid people out here Bmaz.   “Oh yes” responds Bmaz to himself.    Most people I talk with do believe that is where this whole investigation is leading.  The self appointed elite getting off.  Sure are quite a few examples of this in U.S. history.  Trump pardoning those who he deems deserve to be pardoned and then resigning before being impeached.

    Constitution:  The President “shall have the power to grant reprieve and offenses against the United States, except in cases of impeachment”    Nixon did not grant pardons to Ehrlichmann and Haldeman.  Is this why?

    If the investigation proves PT was obstructing justice etc and they move towards impeachment can Trump pardon anyone?

    The most recent one I can think of is Libby,  Chronologically speaking it would surely seem to matter at what point PT pardoned those being investigated.  Before or after a conviction.  Have read that pardons are not possible in the case of impeachment.  Is that accurate?

     

    • bmaz says:

      “Oh yes” bmaz responds to himself.

      So, you are just making shit up out of thin air like you did in the old days I see. Good to know.

      Also, who is “PT”? And can you tell me more about the Libby case? As I am sure you know, that was not covered here.

      • Kathleen says:

        You did call people who think this way (Trump will pardon those prosecuted and sentenced) “stupid.”       Bmaz “So, you are just making shit up out of thin air like you did in the old days I see.  Good to  know”   I am not known for making things up.  Although I  do ask plenty of questions. I don’t think it is a “stupid” conclusion. Lots of peasants out here believe that is the way it will go.

        Look Bmaz clearly I think you can be terribly arrogant and insulting.   You clearly have your attitude towards me.

        However I bowed to your vast scope and experience which you seem to deserve and asked a few questions about your take on those who believe that Trump would more than likely pardon anyone from his circle who might be prosecuted for obstructing justice.

         

        PT= President Trump

        • bmaz says:

          There is a difference between pardons before conviction and after. For the reasons stated, pardoning before conviction carries with it grave consequences that make it FAR more problematic than people contemplate.

  13. k says:

    “pardoning before conviction carries with it grave consequences that make it FAR more problematic than people contemplate…”

    Seemed to have worked for all of the Iran/Contra criminals not to mention tricky dicks pardon by ford and I seem to have a faint memory of something to keep addled ronnie raygun out of jail for ceimes while Iran/Contra was still being investigated during perjurer poppa’s administration.

    Problematic, perhaps, for you or I but for the connecte it is just so much more paperwork for their legal peons to work out.

    • bmaz says:

      I think those situations are apples to oranges to the current issue, precisely for the reasons stated. I think it would further bolster an obstruction of justice case against Trump himself. We shall see.

  14. k says:

    The assumption that the past and the present are cases of apples and oranges does not explain away the de facto, for lack of a better word, ” historical precedents” within the public and legal realms.

    If there is a mere thread of “legality” that the rethuglican hacks on the SCOTUS, and that demented donnie is filling the judiciary with, can use to justify their support of allowing rethuglicans to get away with criminal activity they will use it to protect their political masters and strangle any arguements they don’t want to hear.

    But at least this discussion has proven that the title of this article was wrong, as even the author admitted in his comment……

    “bmaz
    November 22, 2017 at 2:51 pm 
    Yeah, this  is a great question. I am not smart enough to know the answer. Things feel different now, but by the same token, pretty sure most people would easily walk away and forget just to be done with it.”

    So the idea that this is “stupid” is not so cut a dried.
    I was hoping you were correct but alas, even by your own post’s, you agree it is not.

     

    • bmaz says:

      Eh, I made no such admission whatsoever, and blithely bandying about some “Rethuglican” incantations doesn’t accomplish much. The “oh he will just pardon them” discussion to date is still woefully thin and stupid to date with very few exceptions. Hey, maybe Trump will try it, he is a reactionary and not very bright guy. But it would create a whole new set of problems for him that makes it a pretty dangerous move tactically.

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