Trump’s Pardon Jenga, Starting with the Julian Assange Building Block

I was going to wait to address Trump’s likely use of his power of clemency in the days ahead until it was clear he was going to leave without a fight and I will return to it once that’s clear. But there have already been a slew of pieces on the likely upcoming pardons:

None of them mentions Julian Assange (though Graff does consider the possibility of a Snowden pardon, which I consider related, not least for the terms on which Glenn Greenwald is pitching a package deal as a way for Trump to damage the Deep State).

I would argue that unless a piece considers an Assange pardon, it cannot capture the complexity facing Trump as he tries to negotiate a way to use pardons (and other clemency) to eliminate his legal exposure itself.

I’m not saying Trump’s decision on whether to give Assange a pardon is his hardest decision. But it may be one a few that could bring any hope of protecting himself falling down.

Trump has talked about pardons, generally, covering a number of crimes in which he himself (or a family member) is implicated:

  • Asking DHS officials to violate the law in order to build the wall
  • Working with the National Enquirer to capture and kill damaging stories during the 2016 election
  • Dodging impeachment
  • Steve Bannon’s Build the Wall grift (which likely implicates Jr)

There are others whom Trump would give a pardon because they’re loyal criminals, like Ryan Zinke or Commerce Officials and others who’ve lied in court. There are hybrid cases; in addition to Bannon, Erik Prince has legal exposure both for his own lies that protected Trump, but also for his efforts to sell mercenary services to hostile foreign governments. And Rudy Giuliani has committed his own crimes as well as possible crimes to protect the President. With the possible exception of Rudy (who still might claim attorney client privilege to refuse to testify about Trump), those pardons create challenges, but they’re highly likely (unless Trump made some pardons contingent on remaining in power).

Then there’s the Mueller Report. In 2019 testimony to HPSCI, Michael Cohen credibly described Jay Sekulow considering mass “pre-pardons” in the summer of 2017 in an attempt to make the Russian investigation go away. But the Mueller Report itself only obviously talks about five pardons:

  • An extensive discussion of the reasons why pardons for Mike Flynn, Paul Manafort, and Roger Stone would amount to obstruction (a sentiment with which Billy Barr once agreed)
  • A discussion of Robert Costello’s efforts to broker silence from Cohen in exchange for a pardon and almost certainly a still-redacted referral of Costello for the same; Costello is currently Rudy Giuliani’s attorney
  • A question about discussions of a Julian Assange pardon, even while the report did not mention or obscured the tie with underlying evidence proving such an effort occurred, possibly as a part of a quid pro quo to optimize the WikiLeaks releases

There are difficulties — albeit surmountable ones — for pardons of Flynn and Manafort, not least because Billy Barr has found other ways for Trump to keep them out of jail (so far), even while issuing a DOJ ruling that his prior pardon dangles are not obstruction. Costello is someone who has no privilege directly with Trump and so might implicate him personally in trading pardons for silence if Trump himself is not pardoned.

But Stone (and quite possibly Don Jr) is indelibly tied to an Assange pardon.

It’s possible something might make this easier between now and January 20. If British Judge Vanessa Baraister rules on January 4, 2021 in favor of Julian Assange’s Lauri Love gambit, arguing that American prisons are not humane for those on the autism spectrum, then there’s a decent chance he’ll beat extradition. If not, his chances are slim. And even if he beats extradition the UK could choose to prosecute him on Official Secrets Act charges tied to Vault 7.

That presents Trump limited choices. He could pardon just Stone (and Don Jr, who will undoubtedly get a broad pardon in any case). But then both could be coerced to testify against Assange under threat of contempt or perjury from a Biden DOJ.

He could pardon all three, including a broad pardon (including Vault 7) for Assange. But if he did that, it could complete the conspiracy, a quid pro quo tied to Russian interference in 2016. That would make a Pence pardon of Trump much more politically costly; it would likewise make a Trump self-pardon much more toxic for even a very partisan SCOTUS to rubber stamp.

But if he doesn’t pardon Assange, he risks pissing of those who helped him in 2016, with whatever repercussions that would have for Trump Organization funding going forward. To sum up:

  • Pardoning just Stone and Jr would expose them to coercion to testify against Assange and maybe others
  • Pardoning all three would make Trump’s own pardons much less defensible to those who would have to ensure he himself got immunity
  • Pardoning Assange at all would complete the conspiracy Mueller never charged
  • Not pardoning Assange might risk ire from Russia

I’m not saying he can’t find a way out of this dilemma. But it is one of the reasons why Trump’s pardon gambit is far more complex than others are accounting for.

61 replies
  1. earlofhuntingdon says:

    I assume this language – “as he tries to negotiate a way to use pardons (and other clemency) to eliminate his legal exposure itself” – really refers to whomever is actually doing that work.

    Someone who can track the people and permutations, who is aware of the trade-offs between pardons and commutations, the legal exposure the clemency itself might create and defenses to it, and the shrinking time line available to do any of these things. Someone with high-level experience doing it successfully. Bill Barr, perhaps?

    • Molly Pitcher says:

      I am looking forward to an in depth analysis of Barr at some point. I know that he is a man in the thralls of his Catholic faith, but his behavior as AG seems to fly in the face of his carefully crafted skullduggery in previous administrations.

      Why has he chosen to throw himself on the pyre of the Trump Presidency ? Has he ascertained that the End Times are his responsibility to enable at this precise moment. ?

      I want to understand his motivations because he seems to be working against his self-curated place in history thus far.

        • Norskeflamthrower says:

          Thanks for diggin’ this up. Of course it doesn’t surprise any of us who were around during the Nixon coup attempt and have been following the dots of people and issues like presidential immunity right up to this moment. The line is straight between the Nixon coup through both Bushes and right up to the moment. The structure of this rolling coup and the powers that contracted for it go back at least to the last two years of the Truman administration.

    • emptywheel says:

      And Pat Cipollone.

      In a way, Billy Barr has already done his part by alleviating the pressure from Manafort and Flynn. Though he really fucked up the Flynn effort, too.

      • earlofhuntingdon says:

        I don’t recall that Barr stopped with stonewalling Walsh at the end of the Bush Sr. administration. He argued for an expansive list of pardons, beyond what Bush Sr. contemplated. But he was a different client.

        Perhaps Cipollone and Barr will double team, on the premise that they’re protecting the GOP and, more broadly, their authoritarian objectives. Cipollone was Barr’s assistant at the end of Bush Sr.’s administration, which means they’ve been together on this same merry-go-round before.

        • emptywheel says:

          All good points. Though Barr is also delusional now, which makes it less clear he’ll assess the risks correctly this time.

        • punaise says:

          Minor quibble of little import from a minimally knowledgeable armchair linguist: cippolino (plural cippolini) means small onion in Italian – ino being the diminutive suffix. The “ono” suffix (plural one) is the opposite (augmentative): large, big, grand or similar.

  2. scribe says:

    Nice work.

    But, with the exception of dangling a pardon in a quid pro quo to the subordinate government official (or non-governmental actor) in order to get them to do something illegal – as appears to have been offered to high officials in the Corps of Engineers in order to get them to build the wall* – the caselaw to date says the Presidential pardon power is absolute and unreviewable. At least in judicial terms. In political terms, that’s another story. It’s addressable, and should be addressed, by impeachment.

    The problem is, of course, is severalfold. In the first place, changing the pardon power would require a constitutional amendment. Given the percentages necessary to effect an amendment that ain’t gonna happen. Second, there will be an epidemic of bothsiderism that will raise heat and no light. More to the point, since the only effect would be to bar the impeached person from public office, zeroing out Trump’s chances of returning in ’24 (like the noisy leaks he will) will mean the Democrats would have zeroed out their biggest GOTV bogeyman. The law of unintended consequences, politicians’ corollary: politicians, by acting, often get exactly the result opposite to that which they want. And, finally, since we cannot predict the future, we cannot know which Democrat might want to have a self-pardon (or a henchman pardon) available in the future. We’ve had a lot of bad precedents set the last couple decades, but none of the political leadership in either party seems really inclined to (a) stop setting them or (b) stop using the ones already set.

    Getting down to cases, or at least Assange’s, people tend to forget he was an absolute darling of the Left and Progressives when Wikileaks dumped the Collateral Murder video (which is at the heart of the US extradition case) and the Chelsea Manning cable dump (also at the heart of the extradition case). Wikileaks was seen as striking a blow for Freedom and Truth, insofar as the info-dumps were seen as hurting the Republicans because of actions during the then-recently out of power Republican administration. And then in the subsequent years came the trial of Bradley/Chelsea Manning (shrieks of woe at the evil government for hurting this poor, weak defender of the Free Press), incarceration (heart-wrenching tales of woe from inside), pardon campaigns for Manning (supported on this site), Obama commuting Manning’s sentence (lauded here), and so on. It was only after Assange and Wikileaks were perceived as dumping information harmful to Democrats – in particular HRC’s campaign – that he and his organization were shown to have been Satan all along. People can go on at length about him being in the pocket of Russia, being a nasty rapey person and all the rest, and his organization, too. But the reality of the situation is that neither Assange nor his organization were deemed evil in this neighborhood of the internet until such time as they were assessed to have hurt Hillary.

    Tough. In case you haven’t noticed, international politics are a rough neighborhood, as is trying to get elected President. Just ask John Edwards, whose prosecution went forward under Obama (through a holdover Republican US attorney who Obama did not replace) more because his populist message resonated and displeased the Wall Street people Obama was beholden to than for its legal merit. Or the way Obama and Rahm (and Greg Craig) stuck it to Blago (admittedly a wickedly easy hanging beach ball) when he didn’t put Valerie Jarrett in the Senate. Some people will take help where they can find it and that’s what Trump did.

    Does that make any of it “right”? No. But “right” counts for next to nothing in the pursuit of power.

    *By oath, officers are obliged to obey the lawful orders of their superiors. In normal practice, the word “lawful” is so much surplusage for two reasons. First, the scope of what is “lawful” is governmental operations is so broad it’s pretty hard to find a spot where an order is not “lawful”. Second, the vast majority of superiors are cognizant of and obey the boundaries of what’s “lawful”. There are means subordinates learn by which they can question a superior’s order and its lawfulness in such a manner that is both tactful and not insubordinate, but that’s a topic about which chapters or even books can be written and it’s not really germane here.

    Getting to the main point of my digression here, if you have to be offered a pardon to carry out a specific order, effectively if not actually as a quid pro quo, then by definition a subordinate can conclude it is, in truth, not a lawful order.

    • bmaz says:

      “Getting down to cases, or at least Assange’s, people tend to forget he was an absolute darling of the Left and Progressives when Wikileaks dumped the Collateral Murder video (which is at the heart of the US extradition case) and the Chelsea Manning cable dump (also at the heart of the extradition case).”

      Yeah, not sure that was the case in any regard, much less here at this blog. And that goes for Manning too. Let’s not rewrite history.

      • Eureka says:

        It’s funny, the only people I knew (of) who were into WL back (before) then were Libertarian-Tea Party types (who were also enamored of Corsi et al.’s early scheme-scams). So if scribe’s attribution as to the left is less hyperbole at the fringes or for an earlier part of WL’s life, I’d call WL an origo for this particular historic cycle — a forging of the horseshoe* we see today, with the wet work on American democracy (and standing, and entailments) starting earlier than is perhaps widely accepted.

        Sure, there’s all sorts of reasons why different people may be attracted to certain ideas or structures (and come together) by happenstance. But WL has never existed outside ecosystems of advocacy by various writers in online communities, not all of them honest actors. The Internet is basically open source transnational crime syndicate, too.

        But then again I never trusted WL as a righteous project.

        *I really don’t like this horseshoe model much, as it hides a breaking-and-remaking of American (~ +Western) bivalence into the near-unbreachable variant we enjoy so much today. But lacking time, will reuse it.

    • emptywheel says:

      Collateral Murder not only isn’t the heart of the extradition case, it’s not charged. Lots of people who don’t know the case like to conflate that with what was charged though.

      • AndTheSlithyToves says:

        “Lots of people who don’t know the case like to conflate that with what was charged though.”
        ….and/or facilitate the numerous ongoing disinformation campaigns and general gaslighting of the American populace.

    • emptywheel says:

      Also: What changed is the evidence — and that’s backed by a slew of public documents. I argued DURING the election that the case that WikILeaks worked for Putin was weak–though there was the case of damning Syrian files being removed before WikiLeaks release of “all” the files.

      Since then I’ve learned of two earlier instances of Russian involvement. I’ve got a dramatically different understanding of what went into the events leading up to Snowden’s theft. I’ve got other questions about how later releases work together. I’ve got a source who is NOT the government talking about Joshua Schulte’s outreach to Russia.

      This is just me, without subpoena power. We know that subpoena power wasn’t used as aggressively as it could be against Assange prior to the election. What changed is that OTHER people Assange was conspiring with became targets, which made his actions more clear. It didn’t help him that he remained in touch with Schulte long after Schulte became the target of that investigation.

      Admittedly, I know more about this than virtually anyone outside of the actual targets (though many others will corroborate pieces of the Russian evidence, including those prosecuted for it). So while it is true the opinion of WikiLeaks changed, it is also true that — at least here! — that’s because new evidence became available.

      • funny says:

        Funny, that the actual content of the leaks never became much of a topic anymore.
        E.g. the DNC being an arm of Clinton, conspiring against Sanders. Wasserman Schultz resigning, and instantly being hired by Clinton, and the democratic party in court arguing that they don’t owe anyone a fair process.
        And yes, Scribe is absolutely correct in the hypocrisy assessment department.

        [Please use a more differentiated username when you comment next as we have several community members whose names include the word “funny.” Thanks. /~Rayne]

        • N.E. Brigand says:

          My recollection is that the August 2016 leaks revealed that DNC staffers were unhappy about Sanders’s campaign (he was, after all, not a Democrat), but not that they took any serious steps to prevent him from winning the nomination. And lots of Democrats already wanted Debbie Wasserman Schultz to step down, so the leaks, mild as they were, provided enough leverage to push her out.

        • graham firchlis says:

          Wasserman-Schultz was doing her job, and DNC staff were exactly correct. Allowing Sanders in was a disaster, and sacking her was an act of cowardice. If only the DNC and RNC had both excluded outsiders, a President Trump could never have happened.

        • Rayne says:

          1 – Wasserman-Schultz fucked up. The hacking of DNC server was on her watch as did the breach of the voter database allowing Sanders’ campaign (not a Dem as you note) access to Clinton’s data. I don’t want to elaborate on this. It’s just so fucking obvious.

          2 – Game it out: why do you think Sanders was allowed near the DNC? What would have happened if the Democratic Party told a senator who reliably caucused with them to piss off, especially one who sat outside the party the way Angus King does? Come on.

        • emptywheel says:

          Having done some reporting on the Sanders access, it’s not that simple, and the claim of an earlier breach that went in the opposite direction is also true. Given what came afterwards I suspect there’s more there, but that will probably never get fully aired bc it’s a political party.

        • graham firchlis says:

          1. Do you have evidence that Wasserman-Schultz was directly responsible for IT security? I thought not. Makes as much sense as blaming a homeowner for a B&E burglary. Victim-shaming, tsk tsk tsk. No elaboration required, true, it is plainly obvious, her firing was as much a knee-jerk ritual beheading as what was done to Shirley Sherrod, and as repulsive. A good person wronged.

          2. I have imagined. The Senate in 2016 was 54R, 44D, 2I. Sanders’ vote was meaningless. If the Dems were as bare-knuckled as the Left wants them to be instead of relentlessly nice, Sanders would have had a woodshed moment and gone home to reflect on his re-election chances. Dems want Sanders’ vote, true, but he wants committee assignments and his share of federal largess. What could he do? Caucus with the Republicans? Sit off by himself, lonely as a cloud? Try a third party move, blatantly insuring a Republican win? Come on yourself.

        • bmaz says:

          1) DWS was, and remains, complete dogshit. She deserved to be let go, in fact, it was quite long overdue.

          2) Sanders already is a third party, he is a registered Independent. And, yes, people that caucus with the Dems so long and so completely deserve committee assignments and a voice. He has one, get over it.

        • Rayne says:

          1 – The single most valuable asset the DNC has is its database (one might say the only asset it has is the database); the chair is ultimately responsible for it including security. Who was the boss? Responsibility stops at their desk. Period.

          It’s not like the entire world hadn’t already seen multiple attempts by Russia to fuck with US data assets. They’d broken into both the White House and the Pentagon in 2015 using spearfishing in both cases. Anybody in charge of an organization built on data should have known they’d be a target for the same kind of attack and then some.

          2 – Jesus, you really don’t know how this works at all. In 2008-2010 every single Dem senators’ vote mattered along with Dem-caucusing Independents to attain a filibuster-breaking supermajority. Lieberman, who became an “Independent Democrat” in 2006, held maximum power at that time because a single vote could tank key legislation like ACA if he didn’t vote with the Dems and the GOP filibustered. The supermajority ended in February 2010 with Scott Brown’s election — Dems had just over a year to get ACA passed. The Democratic Party pays its debts and this one came due, and at the greatest expense to Clinton because the bulk of DNC’s funds were raised by her.

        • emptywheel says:

          Even pretending your assessment of what the DNC files showed was correct, or your inclusion of a legal case that is totally independent of the DNC releases as if it was linked, do you see you’ve called stolen documents “leaks”?
          And, perhaps you’d like to address what I just wrote, which shows scribe is not correct about hypocrisy?

      • Savage Librarian says:

        Speaking of evidence, I caught up on some homework I should have done before. Taking what I learned and mixing in some tips you have given us in the past, my mind now finally accepts that “Mystery Name Ending in R” and Phil aren’t the same person.

        It seems obvious now. And I know you told us that they weren’t the same person. But going through the steps helped. I still don’t know who these two people are, but now I can separate them conceptually. So, this leads me to wonder if Phil might be in line for a pardon, too. Or maybe that’s too far in the weeds.

    • Peterr says:

      First, the scope of what is “lawful” is governmental operations is so broad it’s pretty hard to find a spot where an order is not “lawful”. Second, the vast majority of superiors are cognizant of and obey the boundaries of what’s “lawful”.

      First, if anyone could find a spot where an order is not lawful, it’s Trump. He himself recognized that an order to build the wall using funds that Congress appropriated to other tasks is illegal. That’s why he dangled pardons in front of the DHS folks: to get them to do what the law clearly prohibits.

      Second, as you well know, Trump does not give a damn about boundaries. To borrow from Leona Helmsley, only the little people respect boundaries.

    • Mitch Neher says:

      scribe wrote “. . . if you have to be offered a pardon to carry out a specific order . . . then by definition a subordinate can conclude it is, in truth, not a lawful order.”

      Boy am I confused: Exactly when was Julian Assange a “subordinate” of Trump? Before Trump was POTUS–right? I mean . . . Why would Assange ever think that he had to follow Trump’s orders??

      I’m never going to catch up with the rest of youz-all.

      • scribe says:

        I was not talking about Assange as a subordinate of Trump.

        Rather, and I set my digression off to the side for this reason, I was speaking about how Trump tried to get US government officials to get moving on building the Wall in the face of legal obstacles. To be clear, he told them to get on with it and not to worry about the legalities because he would pardon them. Though perhaps not in those exact words, the offer of a pardon to get a subordinate to perform an act (of dubious legality) makes it eminently clear the order is an “unlawful order”.

        One should also be clear that for something to constitute an “order”, it does not have to be phrased, superior to subordinate, as “I order you to [do something]”. Rather, statements such as “I wish …”, “I desire …”, “We need for you to …”. The higher in rank the order-giver, the more likely it is phrased more subtly.

  3. BobCon says:

    I’m curious if he doesn’t blow off all or a lot of the pardons that don’t address his pressing legal needs,

    In part, a raft of pardons would carry the implication he is rushing to get them done before he leaves, which is an admission of defeat he doesn’t want to think about.

    Also, handing out pardons to flunkies takes away leverage for his fantasy of running in 2024. He likes running on promises more than achievement, and martyrs to his cause give him more juice than people he has rewarded.

    Also, he’s just cruel, and he gets a kick out of people on trial, even his own.

    • earlofhuntingdon says:

      As constipated as he is about most things, Trump is likely to take a more open view about what clemency helps him avoid his own legal troubles.

      He’s also a two-dimensional reactionary. He will respond to whatever Bill Barr approaches him with. By now, Barr understands the sorts of appeals Trump will respond well to, and which of them will most help Barr and Trump.

    • emptywheel says:

      I do suspect he’ll withhold some pardons bc people didn’t do enough to save him–assuming, again, he ever leaves office.

      • graham firchlis says:

        To be clear, at noon on January 20, 2021 the Office of the Presidency leaves him. Trump has no say in the matter.

        • TimH says:

          Is there a mechanism for that? A law that explicitly states that he is no longer POTUS (and another is) at that point?

      • scribe says:

        ICYMI, his idea of loyalty only runs one way. To the extent there are any pardons they won’t reach out far from him and his immediate family, if they reach out at all.

  4. d4v1d says:

    Jenga requires thought and consideration. Trump will do whatever generates maximum outrage, and push over the entire tower.

  5. earlofhuntingdon says:

    If the group story from CNN involved reporting, it wasn’t much. A ten second Internet search would have told them that Bush Sr.’s Iran-Contra pardons included more than the one they mention: former SecDef Caspar Weinberger. That’s negligent reporting because it omits important context.

    Shortly before he left office, Bush Sr. pardoned six senior former government officials, who were deeply involved in the Iran-Contra scandal, which also implicated both Ronald Reagan and Bush Sr himself.

    In addition to Weinberger, Bush pardoned Elliott Abrams, former assistant secretary of state; Robert C. McFarlane, former national security adviser, and former CIA officials Clair E. George, Alan D. Fiers and Duane Clarridge. All were in President Ronald Reagan’s Administration.

    Of those three CIA officers, Clair George was deputy director of operations – the CIA’s head spook. Alan Fiers was chief of the Central American Task Force. Duane Clarridge was chief of the Latin American Division.

    Bill Barr crafted that list of pardons with surgical precision. It would also have been useful had CNN reported reactions to a few of those earlier controversial pardons. Lawrence Walsh’s, for example:

    In an angry statement, the Iran-Contra independent counsel, Lawrence E. Walsh, accused [George H.W.] Bush of “misconduct” and declared that the pardon was part of the cover-up that “has continued for more than six years.”

    • N.E. Brigand says:

      Abrams joined the Trump administration last year, and I seem to remember that McFarlane made some appearances on the edges of the Trump campaign.

  6. PeterS says:

    “But if he doesn’t pardon Assange, he risks pissing of those who helped him in 2016”. Pissing off? But I’m happy to go with pissing on :)

  7. graham firchlis says:

    If Judge Baraister rules against extradition based on Assange’s claimed Autism Spectrum defense, it will be a travesty of justice. Lauri Lovett by all reports has serious socialization impairments, but not so serious as to avoid imprisonment in the UK where he still faces major charges.

    Assange is socially awkward, but so are many of us. Growing up we were “weird” then formally Aspergers, and now some degree of Autism. (In my old age I am most often called “eccentric” which I quite enjoy.) But it would be wrong to let me off of any criminal behavior.

    I don’t see the Brits charging Assange, which they could have already done and IMHO should have. But they don’t want any more of the circus or the expense. Instead they tried first to turf him off to the Swedes until that went sideways, and now want to dump him on the US. If that fails I expect he’ll be quickly expelled to Australia, where he will face another US extradition attempt.

    If he evades it all, for the rest of his life every IC in the world will be crawling all over him including his own. He won’t know whom to trust, and the smallest misstep will land him in the dock.

    Bit off more than he could chew, did Mr. Assange, and it will stick in his craw forever.

    • emptywheel says:

      Yeah, my comment abt the Aspergers is not a comment on the merit. It’s a comment on the most likely vehicle for success, and one that, if Bariaster rules in his favor, might stick.

      The UK could still charge Assange on an Official Secrets charge with respect to Vault 7, if they wanted. But you are correct that they would prefer to be done with him.

      WRT his not knowing who to trust — I think that’s where he was in 2016, honestly, and has just bolloxed things since. Everyone I know who is close to Assange has a scapegoat for the admittedly malicious stuff he got involved with. Funny thing is, they all have different scapegoats. Which is telling by itself.

      • Chetnolian says:

        Don’t anyone hold their breath on Assange. Judge Baraitser’s judgement, whatever it is, will for sure be appealed.

        Meanwhile we await an English High Court judgement on whether reckless driver Anne Sacoolas really had diplomatic immunity. The arguments that she did not are really quite good. Now bmaz has told me several times there is no connection and of course technically he is right.

        But the centre of the UK Government is falling apart since the defenestration of Dominic Cummings, Boris’s fixer and the UK’s equivalent to Steve Bannon. The Conservative Party is in disarray over both Covid and Brexit. Whatever the outcome on the Brexit negotiations it is too late to avoid serious disruption in our ports from the beginning of 2021. Our Home Secretary Priti Patel (who is in charge of extraditions) is skating on thin ice for several reasons. And the popular media has really got behind the family of Harry Dunn, who was killed by Mrs Sacoolas.

        Boris is really going to need the popular media support next year or he will be looking at the exit door from No 10 Downing Street.

        So no matter how guilty Assange may be, the prospect of him being extradited to the US while the US keeps hold of Mrs Sacoolas are vanishingly small.

        In a world where all is dependent on the correct interpretation of law that would be nonsense, but of course that is not the case. Ask Bill Barr.

        • emptywheel says:

          Thanks. That’s a helpful summary.

          And yes, I realize this is going to be in appeals for years. I’m just saying that Assange’s most successful bid on its own right is the Lauri Love play (or at least that’s what people close to it tell me), but that’s the one area where Baraister’s ruling could make or break things.

        • bmaz says:

          Frankly, I don’t care if Sacoolis is extradited. My point about them being different is that, unlike Assange, she at least has a colorable claim of diplo immunity, Assange does not.

        • graham firchlis says:

          After exhaustive hearings and deliberate consideration, is it really likely the High Court will reverse Baraister whatever her ruling? Doubtful. Assange isn’t a UK citizen, or even a resident alien. His case holds no inherent diplomatic complexity. What public interest point of law would justify Supreme Court involvement? Once Baraister rules, the High Court could move quickly.

          Johnson’s government wants this mess done and dusted, asap. His political troubles are indeed mounting as you say, and deservedly so. He desperately needs the good will of the US to prop up a teetering economy, far more than support from the dwindling Assange cult. Good riddance to bad cess, tempest in a teapot quickly buried under the tidal wave of bad news ahead.

  8. Rugger9 says:

    OT but somewhat related due to the shortcuts taken by DJT to do his worst: it seems Unlawful Chad’s policies are getting shot down because of the illegal nature of his appointment. In this case it’s DACA but I wonder what kind of exposure Mr. Wolf has for those injured in his PDX assaults (plus the summary execution there). Drum notes this is the fifth judge to reject Wolf’s authority, and apparently the WH is trying to get Wolf approved by the Senate to close this gap.

    It’s also been noted that last-minute rulemaking is being done to hamper the Biden administration, but just like DJT did in his first few months to go after Obama’s policies, Biden can undo rules that don’t make sense because of the timeliness (something like six months IIRC).

    • Chris.EL says:

      Marcy and all that have commented on this thread: you folks are awesome and beyond brilliant; thank goodness we have such smart people “on our side”!!
      …”WH is trying to get Wolf approved by the Senate to close this gap.” …

      Does that mean that acts he participated in (while NOT approved) are OK?

      Thanks again for all your analysis and reporting!

      • earlofhuntingdon says:

        Acts Wolf took while not a properly confirmed appointee are void. Senate confirmation alone would not cure them. Wolf could not just say I affirm whatever I did earlier and be done with it.

        After being duly confirmed, Wolf would have to repeat the acts he wants to be valid. Their validity would commence from that time, which might leave gaps, some of which Wolf may not have time to cure before January 20th, when I assume Biden will terminate him.

        This disdain for process is something we talked about shortly after Trump took office. Many of Trump’s appointees are no better at it than Trump. That’s a problem for Trump and an opportunity for Biden, if his people pay attention to it.

        Imagine then, if you will, how many gaps there are in the organization of Trump’s 500+ subsidiaries. Letitia James and Cy Vance should have a field day with those.

        • Rugger9 says:

          Indeed, he would but there is no way retroactive rulemaking can be allowed by a court since IMHO it would fail against the ex post facto clause of the US Constitution (which refers to Congress, but rules are I think functionally similar, brought into being to implement laws) which I think means Unlawful Chad isn’t protected that way either.

          So, how exposed is “Acting” director Wolf to liability as a result of his policies? This would also apply it seems to the recent changes at DoD and NSA which also bypassed the required succession process.

      • P J Evans says:

        I think they’re trying to get him confirmed so he can re-issue the orders that the courts have said are illegal.

    • Marinela says:

      The concern I have, is when Biden administration tries to name it’s administration positions.
      The senate, if controlled by Mitch M. is going to reject/obstruct Biden’s nominations.
      Was reading he may be forced to use Acting positions.
      If so, could Biden similar issues with his nominees, if acting, being considered not legal?
      I assume Acting situation is different from Chad W. being instated illegal.

  9. earlofhuntingdon says:

    The execrable Ken Starr was on a Faux Noise program Sunday morning with Lawrence Tribe. Starr was defending the GOP’s baseless court challenges – which courts have uniformly rejected – because millions of voters feel “disenfranchised.” Starr compared those cases to Bush v. Gore.

    Tribe destroyed the comparison with Bush v. Gore. He should also have destroyed Starr’s use of “disenfranchised.” Elections inescapably have winners and losers. Losing an election is not losing your right to vote. GOP voters might be confused about that basic fact because Trump has been selling that lie for months, and Ken Starr still is.

    • Rugger9 says:

      Starr has always been a hack, a liar and a liability wherever he has been in charge (i.e. Baylor’s scandals). Even the success of the impeachment of Bill Clinton failed to take down the presidency (and IIRC made Clinton more popular).

      Speaking of noisome hacks, apparently Megyn Kelly has slithered out to get another 15 minutes of fame pushing her sadness over her connecting being white with necessarily being labeled a racist. That label might apply to you, Megyn.

      • Ginevra diBenci says:

        Amen. Starr, with his cherub-pink smiling face and soft vocal tones, is a venomous asp in disguise. Worse, he bequeathed us his progeny in the form of Brett Kavanaugh, who carries on a somewhat more ragey and inebriated version of the Starr brand on SCOTUS.

  10. Rugger9 says:

    AG Barr will get his pardon on 19 JAN 2021, I think, along with Chad, Wilbur, Betsy, Ben, Wheeler, etc., et al. There is too much work to do beforehand.

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