The Three Types (Thus Far) of Trump Mueller Pardons

To date, Trump has pardoned five people who were prosecuted by Mueller. I’m seeing a good deal of misunderstanding about what those pardons mean for any legal proceedings going forward, so I’d like to address some of that.

First, a lot of people say that accepting a pardon is tantamount to accepting guilt, under Burdick v.United States. It’s not. It’s narrower, though importantly goes to questions about whether a witness who has been pardoned has to testify or not. It also says that someone who has been pardoned must inform the court of the fact for it to be valid in any legal proceeding before the court.

That said, claims that Trump flunkies who’ve been pardoned have to testify are also too broad. If the people have any remaining legal exposure (as I’ll explain, Roger Stone and Paul Manafort do), they can still invoke the Fifth. That’s also true if they have state exposure for something like fraud or tax evasion. But in cases where the pardoned crime is only federal, such as Papadopoulos’ lies, it would be easy for prosecutors to immunize him in case he invoked his Fifth Amendment privileges, effectively forcing him to testify on penalty of contempt.

Thus far, Trump has issued three kinds of pardons for people prosecuted by Mueller:

  • Pardons for people with no further known (Mueller) legal exposure
  • Pardons for people with potentially grave further legal exposure
  • Fruit of the poison tree pardon for anything Mueller touched

Alex Van der Zwaan and George Papadopoulos:

Both Van Der Zwaan and Papadopoulos were pardoned for the single False Statements charge against them. Neither is known to have committed another crime. In Papadopoulos’ case, however, things could get dicey on several points. Trump forgave his $9,500 fine, which was the amount Papadopoulos accepted from suspected Israeli spooks. If he asks for that back that may raise questions about his exposure on FARA grounds. In addition, Papadopoulos has already testified before Congress that he called Marc Kasowitz after he was first interviewed by the FBI. If there were a larger prosecution about Trump’s obstruction, he might have been able to plead the Fifth for making that call — except he has already testified to it.

Papadopoulos withheld documents from Congress. With a DOJ that can enforce subpoenas, he might be asked to share those documents, which may require him to testify contrary to his 2018 OGR/HJC testimony.

If DOJ decided to reopen the investigation into a suspected Egyptian bribe to Trump because serving a subpoena on Trump Organization would now be less controversial than it was last summer, then Papadopoulos might be a key witness in that investigation, though since that’s unrelated to his charged false statements, he could still invoke the Fifth if questioned about it.

Roger Stone and Paul Manafort:

Like Van der Zwaan and Papadopoulos, Stone and Manafort were just pardoned for the crimes that they were found or pled guilty to, the money laundering, tax evasion, and FARA crimes in Manafort’s case, and the cover-up crimes in Stone’s case. For both, however, that’s not the full extent of what they were investigated or might be witnesses for.

Before I get there, let me note that multiple sources are claiming that, because Trump included Manafort’s criminal forfeiture in the language of his pardon, he’ll get his ill-gotten gains back. I’m not an expert on this, but I do know that Manafort also civilly forfeited these goods in his plea agreement.

So to attempt to reverse this forfeiture, Manafort would have to spend a great deal of money litigating it, and it’s not at all clear it’d work.

Manafort was also referred for suspected FECA violations involving two PACs that, prosecutors suspected, he got paid through via a kickback system. These cases must be closed, because they were unsealed in the Mueller Report back in September. But Manafort may face more scrutiny on them if DOJ investigates Trump’s other corrupt PACs.

Unless he, too, is pardoned, Konstantin Kilimnik remains under investigation. That’s an area where things might get more interesting for Manafort, because during the period when he was purportedly cooperating, he lied about the fact that he had conspired with Kilimnik. In any case, until the Kilimnik and Oleg Deripaska investigations are closed, Manafort has some exposure.

Things are more complicated still for Stone. There were at least two investigations into Stone — probably on conspiracy and foreign agent crimes — still active in April. If the redactions if Mueller 302s are any indication, Barr shut parts of that investigation down since, which will be of interest on its own right (Congress learned of these ongoing investigations when they got unsealed portions of the Mueller Report that have only recently been made public, and I know there is some interest in learning what those investigations were or are, and that was true even before any discussions about Trump’s abuse of pardons).

In any case, the investigation into a pardon for Julian Assange was active at least as recently as October. Stone has already called on Trump to pardon Assange since his own pardon, potentially a new overt act in a conspiracy. And Trump might well pardon Assange; even pardoning him for the crimes currently charged would be a new overt act in that conspiracy, which would implicate Stone. So even if Barr shut that investigation down, there is already reason to reopen it.

So while Barr may have tried to clean up the remaining criminal exposure against Stone, it’s not clear he could succeed at doing so, much less without creating problems for others going forward.

Mike Flynn:

As I have written, Mike Flynn’s pardon was constructed in a way that attempted to eliminate all criminal exposure that might arise from anything associated with the Mueller investigation for him. In addition to pardoning Flynn for the false statements charge he pled guilty to, it pardons him for lying about being an Agent of Turkey, for being an Agent of Turkey, and for lying to Judge Sullivan.

But it also attempts to pardon Flynn for any crime that might arise out of facts known to Mueller. While, generally, I think the pardon power is very broad, this effectively tried to pardon Flynn for an investigation, not for crimes. Plus, the broadness of the pardon may backfire, insofar as it would strip Flynn of the ability to plead the Fifth more broadly. Even just a retrial of Bijan Kian (unless Trump pardons him and Mike Jr) might force Flynn to commit new crimes, because both telling the truth and lying about his secret relationship with Turkey would be a new crime.

Given his seditious behavior, Flynn might have entirely new criminal exposure by the time Joe Biden is sworn in any case. But the attempt to be expansive with Flynn’s pardon might backfire for him.

Of the five Mueller criminals pardoned so far, only Van der Zwaan is clearly free of danger going forward.

And these five don’t even cover some of the most complex pardon recipients. Any Assange pardon may be the most obviously illegal for Trump (save a self-pardon), because it would involve a quid pro quo entered before he was elected. With Steve Bannon, Trump will need to pardon for another crime, fraud associated with Build the Wall, but if it covers Mueller, it may make it easier for Bannon to repeat what truths he already told to the grand jury. With Rudy Giuliani, Trump will need to pardon for unidentified crimes currently under investigation, but also Rudy’s efforts to broker pardons, which may make the pardon itself more dicey. With Trump’s children (including Jared Kushner), I assume he’ll offer a Nixon type pardon for all crimes committed before the day of pardon. But there may be ways to make them admit to these crimes.

Billy Barr is the best cover-up artist in the history of DOJ. But Trump is attempting to pardon himself out of a dicier situation than Poppy Bush was in Iran-Contra. Plus, even assuming Mueller’s team left everything available for Barr’s discovery, Barr may be hamstrung by the fact that he doesn’t believe in most of the crimes Trump committed, something that could become especially problematic as the full extent of Trump’s dalliance with Russia becomes known going forward. Barr didn’t support some of these pardons, like a hypothetical Assange one. And now, in his absence, Trump has grown increasingly paranoid about Pat Cipollone, who will have to shepherd the rest.

The pardon power is awesome and fairly unlimited. But it’s not yet clear the Mueller pardons will do what Trump hopes they will. With virtually all of them, there are loose strings that, if they get pulled, may undo the immunity Trump has tried to offer.

141 replies
  1. PhoneInducedPinkEye says:

    Any thoughts on the CI aspect of foreign agents/shady influence brokers like Manafort having leverage on a former president of the United States, by virtue of them clamming up about his level of involvement? I’m not sure Trump has the foresight to consider that a broke and free Manafort might be riskier to him than a jailed Manafort.

  2. Desider says:

    And what about Bill Barr testifying? Isn’t he like a piñata of crooked info and incriminating evidence just waiting to be busted open? Who will find the cracks in his silence?
    Plus will Mueller be more forthright testifying or otherwise giving his opinion after the pardon travesty?

    • subtropolis says:

      I suspect that Mueller would be moved less by the pardons — which he almost certainly expected — than by the end of Trump’s term and the departure of Barr. I’ve always assumed that his reticence in Congress was about protecting any future prosecutions, rather than his being a “good Republican”.

      • Troutwaxer says:

        I’m having very happy thoughts about Mueller calling the DOJ on January 22nd and saying, “I’d like to report a case of obstruction of justice.”

      • J R in WV says:

        Having watched Mr Mueller’s (public) testimony before congress, I felt he was having trouble dealing with the information in his own report. I wonder if he has aged out of being able to constructively aid any investigation or trial regarding his own team’s investigations.

  3. Peterr says:

    Nice rundown, Dr. Marcy.

    I share your assessment of Barr as the Pardoner-in-Chief. What I wonder is how many not-yet-signed pardon docs he completed before he left the DOJ, allowing Trump to simply date, sign, and announce them on his own timetable. If Barr did not draft the pardon documents for the not-yet-pardoned folks you talk about here (esp Bannon and Rudy), then his expertise in crafting pardons will be missing just when Trump needs it the most.

    Perhaps Sidney Powell and L. Lin Wood will take over that task.

    • Chris.EL says:

      From popehat Twitter quoting:
      …”Scott Greenfield
      I just realized that Seth Abramson has ~875k followers, and Lin Wood has ~863k followers.” …
      Lin Wood’s Twitter feed 12/25/2020 evening was pretty batty — over numerous lengthy statements/pronouncements; the gang seems to be coming apart at the synapses!
      Bill Barr as a “piñata of crooked info”!

      Priceless mental picture!
      I find myself seething, from time to time, over the big gigantic huge bucks the US Taxpayers are having to spend to protect former president Trump — who is proving himself a traitor! His family have to be protected too! Please make it stop.

      • Desider says:

        Thanks for noticing. After 4 years of whack-a-mole, whack-an-AG (metaphor/mental image only) is much more satisfying. Who better knows where the bodies are buried – along with his over-the- top audition for the position: “I promise to suck your dick at every turn” – following the Big Dick Toilet Seat salesman, dickishness & dick wagging were high on the qual list. Still high for survival in these hyper-politocoes morass

    • TXphysicist says:

      The possibility that DoJ’s new AG, with zero previous prosecutorial experience, could be tasked with writing a series of sweeping pardons for Trump and his family pertaining to crimes they have yet to be charged for… is hilarious. I fully expect another Four Seasons (Landscaping) level of comedy.

  4. John Langston says:

    It’s interesting to understand how each of these pardons are structured and how broad or specific they are related to the respective crimes. No matter how broad the pardon might be, the pardon power can’t be used to obstruct justice, just as it can’t be used for soliciting bribes. That’s pretty clear.

    Dangling pardons for silence was documented in the Mueller Report. By granting pardons, Trump makes himself appear even more guilty and these cases were obvious from the beginning. I have to wonder when a pardon for silence crosses the line to conspiracy where accepting the pardon in and of itself is a crime? Quid, Pro and Quo.

    I leave all those answers to folks much smarter than me. But let’s not forget, the Clintons: Hillary was investigated for years regarding her e-mails and Bill was investigated for pardoning Marc Rich. The former was a silly total waste and a scam, the latter certainly raised questions at the time.

    We are nation under the rule of law. The situation with the Clintons was prologue and shows a clear duty to investigate Trump. Investigating is not a choice, it’s an obligation. There is no exempt political class whether for presidents and presidential candidates.

    • Mart says:

      Marc Rich was convicted for tax fraud and dealing oil while sanctions were on Iran. Repubs are still crying worst ever. Never say anything about Billy Barr and Bush the elder getting all those Iran Contra crooks off. Worst part is we were stuck with most of those Iran Contra crooks making grifting careers as expert opinionators on cable newz.

      • John Langston says:

        I think the Rich pardon came down to a request from Israel during last minute peace negotiations, IIRC. Nevertheless, BC was investigated and cleared.

        You’re totally right about the double standard for republicans vs democrats and you can see where it got us: Trump. A complete criminal using his office for gain. A guy so flawed he cheats and lies about the trivial and the great. Given this, the investigation and prosecution of Trump isn’t a mere option, it’s an obligation. It’s a necessity to maintain the rule of law.

      • Desider says:

        Except I think b the conditions for the Rich pardon were so bad, Marc Rich never accepted it. Hard to think of it as a sweetheart deal.
        “As a condition of the pardon, it was made clear that Rich would drop all procedural defenses against any civil actions brought against him by the United States upon his return there. That condition was consistent with the position that his alleged wrongdoing warranted only civil penalties, not criminal punishment. Rich never returned to the United States.[13]”

        • bmaz says:

          For the 3,192nd time, NOBODY EVER HAS TO ‘ACCEPT A PARDON”.

          Please stop with this bogus old wives tale. It is beyond bogus.

          • Desider says:

            The civil penalties associated with his case seem to have kept him from ever returning to the US w/o getting arrested, but still, he seemed to have a financial ceiling to this wish.. Yes, he was pardoned, but not like Manafort (or at least the attempt to absolve Manafort if civil penalties).. so ok, Marc Penn didn’t need to “accept his pardon”, but to make use of it for the supposed purpose of all that lobbying, to no longer be an exile from the US, the conditions for his pardon turned it into not very useful. I don’t think he cared about his record – he cared about right of return w/o being arrested, but still, there seemed to be a ceiling to what he’d pay for the privilege.

      • timbo says:

        You’d think, right? Wish I could say that the DP will do a great job at cleaning up this mess when Biden takes the reins in January… but past history seems to indicate an inability to actually effectively do more than form a holding pattern until the next hit to the Republic from… whatever the Twisslerings deserve to be called the next time around? Without significant DP aggressive appointments and enforcement, the results will pretty much be a further slide down the mediocrity hole that US seems to revel in more and more on social media and feature heavily in foreign news reports abroad.

  5. Silly but True says:

    Manafort won’t get any dispossessed properties back.

    He will probably get reimbursed from US Treasury Judgement Fund.

    Courts will likely have little interest in duking out against relatively limitless plain Constitutional language “offenses against US.”

    For his trouble Manafort likely will have to go through process of transforming his pardon terms into a judgement for DoJ to act on US Treasury Fund repayments. Before Jan. 20, that may not be much trouble at all, though.

    • bmaz says:

      The financial portion was done concurrently as civil forfeiture. Don’t think he will be getting any fund payments. Nor is a criminal pardon reducible to a civil judgment by anything I know of.

      • Silly but True says:

        I guess my point is this: Manafort committed offense(s) against US and was sanctioned for it in several ways: jail, fine, and restitution.

        POTUS has the power to “grant reprieves and pardons for offenses against the United States” of which zeroing out his monetary damages in addition to jail time can fall in that plain meaning.

        I don’t see anyone rolling back property titles that changed hands. I can see payout in lieu of that as being tolerable.

        I don’t see where pardon is limited to just jail time or effective removal of conviction, but certainly it’ll be interesting to see what Manafort pushed for.

        • bmaz says:

          You are confusing restitution with civil forfeiture, which Manafort stipulated to. And, frankly, even restitution is not so simple either. I will be stunned if Manafort gets anything.

          • Silly but True says:

            That may be but US government only works on debt and revenue.

            Regardless of whether his damages were considered “restitution to IRS” or not, Manafort owed a debt to US.

            That debt has apparently been zeroed out by POTUS?

            At this point it’s just matter of accounting correction on ledger of Treasury’s books. Or perhaps you’re right, and maybe not.

            Fundamentally, I don’t see zeroing out financial penalties as out of bounds of a pardon; anything US imposed is in bounds I think.

              • Silly but True says:

                Manafort’s plea deal $ aren’t only $ in question. There’s $6.2 million payments to IRS in each of DC & VA sentences that were imposed sentences outside of any plea agreement by Manafort.

                To a guy hard on luck, that’s some serious cash that can now potentially be recovered.

                • bmaz says:

                  I’ll tell you what, get back to me when that happens. In the meantime I do not think you understand the complexities of what you are so insistent on.

            • earlofhuntingdon says:

              Except that pardons only reach liability for criminal conduct. They don’t reach civil wrongs or the penalties for them.

              • Silly but true says:

                I would rather observe pardons cover what they cover: “all offenses against the United States,” and not all offenses against the United States are criminal offenses.

                SCOTUS has been eroding Marshall’s opinion on limits of pardons nearly ever since Marshall established it.

                  • timbo says:

                    Does that mean that all Federal fines that are for Federal criminal offenses are forgivable and recoverable under the President’s pardon? Or not? Or just not likely?

                    And, yes, I get that this is all annoying. Yet [lengthy commentary about possible forms of corruption on the Supreme Court deleted to protect the innocent] and thus we see that there might be keen interest in this legal notion of Federal civil forfeitures arising from Federal criminal plea agreements being recoverable by way of a Presidential pardon of the criminal offense(s) that may have given rise to civil forfeiture. Basically, some hacks make it to the Supreme Court not to shore up stead and ethical notions of how the laws and Constitution should be applied but more about how it can be bent to help enrich and empower those who in fact are interested in making the crimes they and their friends commit not be prosecutable, to reduce the possibility of likely prosecution, and to increase the chances of being pardoned and still wealthy if they are, in fact, caught after all. As I said—annoying.

  6. Zinsky says:

    I’m not an attorney just a retired CPA with time on his hands, but I have been following the Mueller investigation and the orchestrated attempt by Trump and his cohort to systematically discredit the Mueller Report, very closely.

    Here are a number of open questions that I have:

    1) What happened to the e-mails that were discovered, where Manafort offered access to Trump or Trump campaign knowledge or assets to Oleg Deripaska and his cronies to resolve a long-standing debt? Link here:

    Why was this not widely publicized? This would seem to be a CI issue, but again, I acknowledge my ignorance up front.

    2). What happpened to the Boyarkin guy who said Manafort was pressured to pay his debts to Deripaska by disclosing American political information? Can we get him to testify that there was clear and direct pressure from Russia on Manafort to disclose American national secrets? Again, not being a constitutional attorney but Manafort’s actions sound suspiciously like “providing aid and comfort to the enemy”, which is the constitutional definition of treason. If so, can we try Paul Manafort for treason?

    Curious minds want to know….

    • emptywheel says:

      When i talk about Manafort being at risk so long as the Kilimnik/Deripaska (for whom Boyarkin worked) investigations are ongoing, that’s what I mean. If USG can prove that all this time Manafort knew Kilimnik or Boyarkin were GRU spies, they can charge him as an agent of RU.

    • BroD says:

      IANAL but my understanding is that “aid and comfort” arguments just don’t apply in the absence of a declaration of war.

      • Chris.EL says:

        not being able to recite the presidential oath of office from memory, a little familiar though, the party taking the oath, swearing to the oath states/affirms/promises/ to preserve protect and defend the Constitution against all enemies, foreign and domestic (said defense could constitute entering into a state of war) and to faithfully execute the **LAWS**.

        Trump’s actions up to and including the pardons — and beyond — amount to obstructing that oath, dereliction of duties of the presidency.

        IMVHO Trump has rendered himself and his presidential powers moot.

        … just a thought …

    • subtropolis says:

      Not treason; espionage. I should think that DoJ would have to have more evidence than what is public for that charge to stick, but it is the right direction, imho.

  7. Thomas says:

    I don’t expect any joy from deposing the pardoned. I would expect all of these guys to either lie or forget in response to any sensitive question.

    • bmaz says:

      That depends entirely on how aggressive a prosecutor wants to get. The way you do it would be to put actual evidence and prior testimony in front of them in a GJ setting and make them respond. It can certainly be done.

    • What Constitution? says:

      Um, what is the point in going online to make excuses for these people by offering the pithy insight that there’s no point in pursuing them because they’re so bad? That’s the reason to do it.

      What’s the difference between Richard Nixon departing the White House and Donald Trump? Richard Nixon, in spite of everything else about him and his administration, had enough integrity to recognize that for the good of the country he needed to go and needed to fade into the woodwork, he didn’t pardon his lieutenants and he didn’t carp from the sidelines, and when Ford pardoned him one could make a case that doing so really did allow the country to try to be introspective but to heal (even if that wasn’t the best medicine). Trump is having none of that. There is no realistic choice but to root out the straightforward illegality — and expose the moral malevolence — of what Trump has done and what he is intent upon continuing to foment publicly. They’ll lie if deposed? Fuck ’em.

      I see that the Big Old Bill — some 5,000 pages — has been flown to Mar-a-lago, the apparent thinking being Trump could sign it there. Does anyone know if they sent a Sharpie with it? Please proof that sucker before enrolling it if, in fact, Trump returns it signed.

      • bmaz says:

        I don’t think anybody has read the thing completely. Certainly Trump has not.

        Also, Merry Christmas, hope all safe and sound over there. Think spring training going to be lame again, but maybe I’ll make it over there in the fall.

      • subtropolis says:

        Where did you get the notion that Thomas was “making excuses” for these assholes, or suggesting that there’s “no point” in pursuing them? It was a fair comment to make, likely intended to elicit informed discussion, which might serve to lessen his pessimism about whether justice will be served.

  8. BobCon says:

    On the issue of Flynn and the Fifth, I’m curious how the details of requiring testimony work in a legal setting.

    I assume Flynn (or Manafort or Stone) could claim that his testimony might still implicate him in some other crime and refuse to comply. Then what?

    Is his attorney required to negotiate an agreement with prosecutors about what he must talk about? How do the details of this get hammered out? Is his attorney required to tell a judge what specifically he is concerned about, such as another set of deals with Turkey or more false statements about his finances?

    • bmaz says:

      Put them in the chair, and if they refuse, move for a contempt finding and argue it to the CJ. This stuff happens all the time, you just don’t hear about it because GJ processes are mostly protected under Rule 6.

      • BobCon says:

        Sorry, CJ means what?

        Does the pardon increase the liklihood that a contempt ruling doesn’t get delayed by higher courts?

          • Ginevra diBenci says:

            I have great respect for Judge Howell. And I’m grateful for this informative, clear post on issues broadcast (and a lot of print) media has been muddying lately. My question: does a contempt citation mean anything anymore? Both Dr. Wheeler and bmaz reference it. The phrase “I’m going to hold you in contempt!”once resonated with the wrath of God, but a Trump crew that shrugs off perjury would seem unperturbed at a contempt of court charge. How can the Court make its contempt palpable to Manafort, Flynn et. alia?

            • BobCon says:

              People definitely get locked up and hit with fines for contempt until they comply, and Bmaz and MW are suggesting that is a meaningful risk under this Chief Judge. The devil is in the details, of course, but I assume it is taken seriously. There is no jury to be swayed, just the judge.

            • Rugger9 says:

              What has been lacking in the last four years is the willingness of DOJ to enforce contempt citations, and FWIW the court can impose their own, IIRC with a meter running (i.e. produce these documents or owe $1000 per day until you do, whatever the going rate is) to encourage compliance. I think Biden’s DOJ will enforce that as well.

              Once 20 JAN 2021 at 12:01 PM rolls around, DJT can’t protect anyone any longer.

  9. Spencer Dawkins says:

    I’m not proud of this, but the idea that Trump pardons Manafort, Stone, and/or Flynn but screws the pooch so badly that one or more of them STILL ends up in jail would balance most of the 2020 trainwreck for me.

    Thank you for the careful and systematic explanation of these pardons.

    • PhoneInducedPinkEye says:

      Yeah they are not going to suddenly start being honest on their taxes in 2021 and beyond. I give it three months before they start criming again.

      • TooLoose LeTruck says:

        You’re both being too generous…

        Given who we’re talking about here, I can imagine that all three will doing something illegal again as soon as they get the opportunity…

        And I doubt it’ll take a year or even three months…

  10. Mulder says:

    So Van der Zwaan gets a pardon for lying to Mueller about his involvement in the sleazy attempt to improve Yanukovych’s reputation and about the timing of communication (including deleted emails) with Gates and Kilimnik.

    Is this a favor to Manafort? Is there more to VdZ’s involvement especially with Kilimnik that creates exposure to Trump or the Russian/Ukraine side of corruption?

      • PhoneInducedPinkEye says:

        There is one lawyer at Nelson Mullins (Gowdy’s firm?) that has worked for Skadden, one possible link. Still weird.

      • Savage Librarian says:

        Van der Zwaan would have also been at Skadden during the time period of this SEC proceeding involving Deutsche Bank, Russia and China. As we also know, Rosemary Vrablic recently took an early retirement from Deutsche Bank. I have no idea whether or not Trey Gowdy has any interest in any of these things. But it seems interesting, nevertheless.

        1. This matter concerns violations of the books and records and internal accounting controls provisions of the Foreign Corrupt Practices Act of 1977 (the “ FCPA” )by Deutsche Bank. Between at least 2006 and 2014, Deutsche Bank provided valuable employment to the relatives of foreign government officials in various parts of the world as a personal benefit to the officials in order to improperly influence them to assist the bank in obtaining or retaining business or other benefits.”–deutsche-bank.pdf

    • subtropolis says:

      My assumption is that T’s motive was to show that he aims to right all of the wrongs of the Russia hoax witch hunt. Not pardoning the small fish VdZ and Papadopoulos would look pretty strange.

      • earlofhuntingdon says:

        Not a valid assumption, except as to the false propaganda elements. As for his pardoning small fry, it’s to distract from the pardons he’s desperate to issue because he thinks they will protect him.

    • readerOfTeaLeaves says:

      If no one changes the text before you get a chance to read, note that he is the son-in-law of German Khan, Russian mogul (telecomm, oil and gas, commercial banking). His academic and social pedigree are worth a quick review.

      A man with a legal background and father-in-law involved with a Russian bank** would have the right ‘skill set’ for laundering money.

      Note also, his work on behalf of Ukrainian interests.
      Which makes the GOP/Trump attempts at impugning Hunter Biden on a setup related to Ukraine weirdly predictable; these asshats always project.

      ** I don’t recall off the top of my head whether this is the same Russian bank whose server was connecting to Trump Tower in 2016.

  11. bg says:

    NPR interviewed Andrew Weissmann the other day WRT the Manafort pardon. He was clear that the pleadings on the ill gotten gains were structured with the pardon dangle in mind. He says no way is PM getting anything back. “But you cannot be pardoned for civil liability, so that’s something that will stand. And there’s no ability for Paul Manafort now to go back and say, you know, I want my money back.”

  12. Matthew Harris says:

    What are the chances that Flynn was/is/will be Investigated by the Department of Defense? As I understand it, as a former military officer, he was breaking rules by accepting payment from foreign nations and not declaring it. Could the DoD still conduct an investigation to strip him of benefits and his retired rank? And, most importantly, make sure he can not work in any type of intelligence-sensitive job ever gain?

    • emptywheel says:

      Slim. There as a DC District opinion saying that retired officers can’t be prosecuted under UMCJ just in the last few months.

    • Stacey says:

      Col. Lawrence Wilkerson was interviewed the other day by someone on the evening line up on MSNBC and said if it were up to him he’d call Flynn back up to active duty, which apparently can be gone for anyone up to a certain old age, and then court martial his ass! IF that’s an option, I’d love to see that done to the pardoned war criminals who although they committed their crimes while private contractors WERE all in the military previously. thus recallable, according to what Wilkerson said.

      I’d love to see those 4 bastards brought to the Hague, IF that were possible here on Earth 1.

      • Fran of the North says:

        The ability to recall members of the U.S. armed services depends upon many factors. Flynn and the contractors are worlds apart, in rank, in service and in options available.

        Assuming the contractors were enlisted and did not reenlist, there is a two year window to recall.

        Members who retired from active duty (20+) years like Flynn can be recalled to active duty.

        • bmaz says:

          Really? That is a bold proclamation! Are you aware of any criminal conduct before the putative retirement?

          No, of course not.

          Are you familiar with the Larrabee decision barely over a month ago in DC District? Clearly you are not. Here is a sample for you: “that a “structural” element of the Uniform Code of Military Justice (UCMJ), in this case a court-martial’s jurisdiction to try a military retiree for conduct that occurred after he retired from active duty, was unequivocally unconstitutional.”

          Would you like to address this subject again? As I said earlier, this bunk is getting seriously tiring.

          Adding, do you think the force of that proposition is “LESS” when there is also a full pardon? If so, where do you come up with this bunk?

          • P J Evans says:

            My understanding is that officers *can* be called back if need be, up to a point. (Some businesses do this, also: they want that knowledge to stay available.) Flynn, though – they likely don’t want him back, even if they could, theoretically, court-martial him. The normal legal system can handle him.

            • bmaz says:

              If the DOD “recalls” Flynn for this asinine bullshit, I will personally go help him fight those charges. Neither you, nor anybody else, can even manufacture facts and charges within the purview of the UCMJ.

              This vendetta is just getting beyond ludicrous. And, my ‘understanding” is that there ought be a tie between his duties as a military member and potential UCMJ jurisdiction. People spewing this seem to think that a retired member is magically criminally liable for expressing First Amendment protected free political speech because they hate him. That is one of the grossest and most ridiculous positions imaginable.

              It is hilarious how some people constantly cry about “the rule of law”, but are happy to throw it out the bathroom window against someone they don’t like. That is the complete antithesis of the rule of law.

              • bmaz says:

                Since nobody seems to have cared that I described a case on point, Larrabee from the pertinent DC District, here is the link to the case. Have referred to it since basically the day it was announced on November 20. I knew of it because a friend, Steve Vladeck, was principle on it.

                I fail to see how anybody could disagree with the reasoning. Just because some former member of the military does something you don’t like, AFTER retiring, does NOT mean he or she can blithely be recalled and prosecuted over conduct wholly outside of any military duties, and wholly occurring after retirement.

                I also fail to comprehend why anybody would think that is a good policy, or one the DOD would champion. Seriously, this is ludicrous land. The “rule of law” should be, and must be, about the law, and not hatred of individual men you do not like.

              • P J Evans says:

                I’m *agreeing* that they won’t bring him back to court-martial him. More trouble than he’s worth to them – which isn’t much, maybe as much as a plugged nickel.

          • Fran of the North says:


            Much respect. Full stop.

            My comment had *nothing* to do with *anything* re the specifics of the Flynn case.

            My comments were designed to address the differences btw the potential to recall to active duty an enlisted person who had completed their service (i.e. “The contractors”) vs. a commissioned officer.

            Thanks for riding herd, but jumping to defense early doesn’t help.

            Best, Fran

        • Rugger9 says:

          I went around and around with this topic during the mandamus fiasco with bmaz. My opinion of Flynn is well documented as probably the worst Army officer since old Benedict himself and a candidate for a yardarm, if I could.

          Unless Flynn is a 5-star (he’s not) retirement means closure similar to the end of an enlistment. Even if an enlisted man got tested before re-upping but the adverse results came after, the end of the prior enlistment closed the book. I actually had a sailor that pulled this scenario off so I wrote a special evaluation to cover the drug test and put it into the service record for all future promotion boards. The DC opinion just reinforces that concept, and FWIW I seriously doubt SCOTUS would overrule given the current makeup and who we are talking about.

          So, unless Flynn did something during active duty time that has not exhausted the statute of limitations the Army will not be able to do anything. However, Flynn’s antics since his pardon certainly can expose him to criminal liability (conspiracy to commit sedition plus tax issues and lying to committees, anyone?) which will put him in jail.

          Let’s also remember that one of the reasons Flynn sought a deal was to shield his son, who is also now exposed for further criminal investigation.

          • bmaz says:

            And I have the same opinion of Flynn as Rugger. I’d yard arm him too, but there is no such path.

            And, serving in the military at some point should not mean you get magically prosecuted by them for life eternal because some people think the civilian justice system was not thorough enough.

  13. Sara McIntire says:

    I would like to read the highlighted things written by Mary Beth Perdue. Clicking on them goes nowhere. Advice? Thanks

  14. Chris.EL says:

    Sharing from Twitter:

    …”Ben Golub
    Dec 24, 2020
    What are the weirdest beliefs you held as a result of immigrating as a child?

    Mine: I came to the US from Ukraine at 7 and, soon after, noticed that you can often see the moon in the daytime, not just at night. For a few years after I thought that was distinctive to America.”…
    This post reminded me of Alexander Vindman (and his TWIN BROTHER — who by the way lost his job for the crime of sharing mom’s womb and identical DNA!!!!!! )

    Hoping the fine immigrant Vindman brothers have their dignity restored — in some appreciative fashion — by Biden/Harris administration!!
    From Nicholas A. Christakis Twitter, …a Vogue model in a bathtub, circa 1945:

    …”Marina Amaral
    Dec 23, 2020
    Vogue model, war correspondent and combat photographer: Elizabeth “Lee” Miller in Hitler’s bathtub, 1945.

    “On the floor are her boots, covered with the filth of Dachau, which she has trodden all over Hitler’s bathroom floor. She is saying she is the victor”, her son said.” … [photo]
    Every time I hear a reference to some FF–IINGG stupid Space Force this or Space Force that my mind says, “FIRST — DON’T WE HAVE TO LEARN HOW TO GET ALONG HERE ON **EARTH** BEFORE WE START SPREADING *THE JOY OF HUMANITY* TO THE COSMOS???”

    –asking for the planet–
    (referencing Apollo 8 Earthrise photo — c. December 24, 1968!!! color) link

  15. lawnboy says:

    Ahem…how’s about a pardon for Meng Wanzhou?
    I mean were working on the “Meng” Dynasty, going into the third year of (really nice) house arrest (she has 2 Vancouver mansions, pick one)! Wish the 2 Mikes had the same comfort.

    If there coming cheap and fast, why not.

    OT: Bmaz, I have an original Vinyl, Leon Russel/Mark Beno from 1972? Lyric in there about thieves in the choir with the long flowing robes.

    Long time fan, great work Dr.W and team, I could use some Rayne, been so dry.
    All the best in 2021.

    • lawnboy says:

      Forgot to add this byline.

      “The Wall Street Journal has quoted unnamed U.S. Justice Department sources about a deal that could see Huawei executive Meng Wanzhou freed from detention in Canada and on her way back to China. ”

  16. Molly Pitcher says:

    VERY OT: I have inside info on the Nashville bomber. The bombing suspect (deceased) is a 63 year old IT guy for my daughter’s realtor. He wanted to go out with as much attention as possible. Left his house to a woman in her 20’s who didn’t know that he had. The conjecture is that he ‘catfished’ her on some site, and she didn’t know how old he was.
    They found notes he had left with his computer saying that he “has 100 character passwords on everything that (they) will never be able to break”. They believe he was working alone, and hoped to take out the AT&T Center next to where he parked.

  17. Mitch Neher says:

    ” . . . any crime that might arise out of facts known to Mueller. . .”

    Can a president pardon a crime in progress?

    Wouldn’t Flynn have to show that Mueller could have known, or otherwise foresee, that Flynn would continue the [pardoned] crime in progress?

    Wouldn’t that make Mueller’s declination decisions equivalent to presidential pardons; thereby usurping the “sole power” the Constitution says the president shall have?

  18. GKJames says:

    “[P]eople say that accepting a pardon is tantamount to accepting guilt, under Burdick v. United States. It’s not. It’s narrower….” Can you elaborate on this? In distinguishing between immunity and pardon (as well as between the acts of offer and acceptance of a pardon), Burdick says that the granting of a pardon “carries an imputation of guilt; acceptance a confession of it”. Why would Flynn’s acceptance of Trump’s pardon not qualify as a confession of guilt to whatever scope the pardon extends?

    • bmaz says:

      First off, Burdict itself does not really say that. The Burdict case was about the ability to refuse a pardon. The language you and everybody else focuses like a laser is absolutely what is called “dicta” by lawyers. It has no force and effect whatsoever because it was not necessary to the actual opinion at issue. That is simply old wives tale level nonsense. Pardons have no formal, legal effect of declaring guilt.

      And, “offenses against the United States” means criminal offenses. Civil matters and judgments, nor impeachment, are not within the power. And, no, Flynn is not getting any money or property back that vested to the government by his forfeiture agreement, that is done and over. Here is a quote from a white paper on this:

      “If, for example, by the judgment a sale of the offender’s property has been had, the purchaser will hold the property notwithstanding the subsequent pardon. And if the proceeds of the sale have been paid to a party to whom the law has assigned them, they cannot be subsequently reached and recovered by the offender. The rights of the parties have become vested, and are as complete as if they were acquired in any other legal way. So, also, if the proceeds have been paid into the treasury, the right to them has so far become vested in the United States that they can only be secured to the former owner of the property through an act of Congress. Moneys once in the treasury can only be withdrawn by an appropriation by law.”

      And that is exactly what was done by Weissmann et all as to reducing it all to civil as well as criminal, and this is exactly why they did so.

      I know people are desperate to do something, anything, to get to Flynn. He is not subject to the UCMJ at this point, and there is no extant conduct while he was serving that is still allegeable. Not happening, and Wilkinson and Powell are wrong to suggest it as a path. All these things you folks relentlessly bandy about are nonsense, it is not happening. And the DOJ will want no part of such attempts to sidestep his pardon. If he commits new crimes, that is different.

      • GKJames says:

        Thanks. Wasn’t aware that, absent a dispositive, on-point ruling one way or the other, dicta were worthless.

        • bmaz says:

          I’d like to add one other thought, I don’t think people should be gung ho to obviate or reduce the pardon/clemency power of a President.

          Has Trump abused it? Sure. But it was designed to provide unfettered discretion to do justice, and effect mercy and compassion. If anything, I’d argue it is underused (by better Presidents). Not to mention, it would really take an amendment to do so, and that is simply not going to happen. Trump will be gone soon enough.

          • GKJames says:

            Agreed. The double-edged sword of the system we have: it provides useful and supple tools, but assumes a quality of individual to use them well. Which is why the pardon power itself isn’t the issue. But also why the claim that the pardon power is “absolute” goes too far. Perverting the course of justice — seen in robust form since 2016 — still merits investigation and, if not prosecution, at least full disclosure.

          • Badger Robert says:

            This is the only statement I have doubts about. Its difficult to see how the framers intended that the President could pardon himself and his co-conspirators when both the English and the Americans had fought wars to limit the monarch’s power.
            On the other hand, its possible that the Constitution was unsuccessful in creating enough parliamentary power and eventually the executive that controlled the army and the prosecutors would take over the budget and control sponsored news.
            It seems to me that an unlimited pardon power would lead to unlimited political criminality, or maybe we are already there.

            • bmaz says:

              Then I suggest you take a good look at Numbers 74 and 69 of the Federalist Papers, which is exactly what they contemplated.

              It is almost kind of sick that people are so worked up over Flynn that they want to throw history, precedence and common sense out the window. Over a simple fucking §1001 charge. This is getting to be nuts. And the desire to throw law, precedent and common sense out the window is getting seriously tiring.

              • Badger Robert says:

                I’ll take that as saying they erred, and created an executive capable of eliminating competition, serving as many terms as he wished, and designating his own successor. The system was too heavily influenced by Roman history without regard to the dangers they were creating.
                But on the other hand, they may have accepted that the President would always be a landed patrician from Virginia.

                • bmaz says:

                  Did you read and understand them? Because your comment here seems to indicate you neither read nor understood them. And you are extrapolating wildly from what I, and they, said.

              • readerOfTeaLeaves says:

                bmaz, with all due respect, you may think that it’s nuts, but I view it as a barometer of the levels of suppressed fury and outrage to the events of the Trump years.

                You are viewing this as an attorney.
                If I view it as social psychology, we are in deep sh!t, and restoring justice is our best way to avoid civil war and chaos.

                After f*cking up a pandemic, Trump is now f*cking up aid to citizens, and withholding vaccine funding to states.

                We have seen depravity upon depravity, and yet there are no consequences?! There are no legal or political consequences for McConnell and the GOP senators who gave Trump a pass on impeachment?!

                I’m concerned that we are seeing the first phase of a descent into mob-rule and warlordism. The best way to stop the downward spiral is justice: investigations, evidence, prosecutions, and sentencing. Because then people would have some belief that order is being restored.

                There are interests, like Trump, like the global mob, for whom civil war is their preferred outcome, so they can finish looting this nation with impunity. Their political acolytes and toadies will happily ‘defund the police’ by refusing aid to state and local governments, and yet the media yappers don’t help people understand that ‘not signing a bill’ actually means these asshats are gutting your local law enforcement.. THAT is ‘nuts’.

                But people are social creatures. Reciprocity and some sense of fairness are wired into the DNA of anyone with a healthy, functioning neurological system.

                When reciprocity and fairness are sullied, insulted, and flagrantly violated, it disrupts people’s sense of order, their sense of security, their faith of anyone or anything they can count on. And for a social species, that is **dangerous**.

                Once you destroy trust, cooperation, and clear communication, all bets are off. It has happened in our lifetimes in Africa, in Lebanon, and in Afghanistan — just for starters.

                People who are not going to spend hours on the finer points of administrative law or criminal code just want some sense of reciprocity. Some sense that there is order in the world. Some justice.

                We need to believe that people who destroy social norms, and who disrupt entire businesses and economies, have to make amends.

                You understand the legalistic inside baseball.
                Many of us do not; we are vulnerable to disinformation, because our knowledge is superficial.

                You may be frustrated at ‘nuttiness’, but I suspect that is an attorney’s, legalistic perpective. In that context, it makes sense — intellectually.

                But to a lot of us whose health, finances, communities, food banks, schools, businesses, and social interactions have been severely impacted by those in the Trump administration, it’s emotional.

                Dismissing our thirst for some sense of order and reciprocity as ‘nuts’ risks giving the upper hand to the forces who prefer mob rule and chaos. We need to create some path that is not ‘nuts’, but that is practical and can actually be achieved.

                We don’t need this because we are ‘nuts’. We need it because we are humans, and humans are social creatures who require justice and reciprocity. It’s a fundamental need of aspect of being fully human.

                • bmaz says:

                  I’m sorry, when talking about criminal prosecution, I think I will stick with actual law, and not some twisted “social psychology” nonsense. The unstoppable desire to extract something from Flynn, law be damned, is beyond sad. Please never again whine about the “rule of law” if this is your position here.

          • Eureka says:

            Yeah Chris Murphy had a rare L on that the other day, calling to abolish the pardon power. It made me rethink his entire scope of judgement, really, that he’d say that.

            Adding: I agree with bmaz’s general point that people seem to be forgetting their values and what they/we (American rule of law) might stand for all to go after these people, horrible as they are.

            Crimes aren’t redressed by more crimes.

      • timbo says:

        Ah. Thanks for that info. This white paper is the current understanding of the Pardon Power as adjudicated by the Supreme Court in the 1800s, mostly around cases arising from Pardons and the Civil War, correct?

        Is there any indication which way Roberts would fall on these earlier opinions? I’m going to assume he’d be against hearing any case that might open this can of worms up… but how many justices on SCOTUS might be interested in redefining the extent of Presidential Pardons when it comes to recouping Federal civil forfeitures coming out of Federal criminal plea agreements for which the individual has received a pardon for the crime(s) that they committed? Without naming names, I can think of at least one who might be interested in broadening the pardon power of the President when it comes to recovering lost assets from civil forfeiture…

  19. joel fisher says:

    Thank-you for the very thoughtful deep dive into the various pardon outcomes. One thought: to the extent that current and ongoing criminal behavior by Trump and the gang continue past the pardons, it would seem there could be unpardoned exposure in the waning moments of the Trump era.

  20. Earthworm says:

    OT: re DJT failure to sign CA appropriations act. if DJT were planning a putsch of some sort, wouldn’t he want govt completely unfunded?

    • Chris.EL says:

      Trump — for all his grandiose speechifying — still appears to me to be a gutless blowhard.

      Reference the March to Hold The Bible!

      Trump had someone else clear the way, had his various “wingmen” (note the military have opted out of this crap), had his daughter carry the Bible in her purse, and the backdrop of the “church” was not a church (it was the rectory — read the sign).

      Trump is a narcissistic coward. He’s stirring all this nonsense with the funding bill to get in the news; to get attention. Still trying to convince himself he has power.

      Maximus: “The time for honoring yourself will soon be at an end.” (Gladiator, Ridley Scott – director, Hans Zimmer – music)

      • readerOfTeaLeaves says:

        I agree with you.
        But then, I remember Trump returning to the WH from Walter Reed Hospital, post-COVID (if that’s what he had), and climbing to the balcony in the evening light, so beautifully lit up.

        And I wonder, where did those Production Values come from? Who was running that show? How did a man so vain select the elegant evening light to stand on that balcony, visibly trying to control his breathing?

        He’s a coward, but who set that scene?
        He’s a coward, but he has handlers who sure know how to put on a show. And that is cause for concern.

        Also, as someone who did not track The Apprentice, nor any reality show, I don’t fully grasp his sense of timing; but he (or his handlers) appear to have an uncanny sixth sense of the dramatic.

        I fervently hope his antics sink McConnell politically. That would make so much of this totally worth it…

  21. posaune says:

    Question for bmaz at 9:42 bmaz:

    I read where the Nashville bomber issued a willed and left two houses to a woman in California (who apparently had no knowledge of the bequest). Assuming this was a federal crime (or a state crime), can the feds (or state police) seize those assets even though he is dead? What are the chances the woman in CA actually gets ownership of the houses?

    • vvv says:

      Not sure where you read that, but the reporting I’ve seen does not mention a will as relevant to those properties, which were conveyed at different times, in 2019 and then in November:
      “Public records show that Warner owned a home on Bakertown Road in Antioch until November 25, 2020, when he signed a quit claim deed giving ownership of the home to a woman.

      Warner had previously deeded his other property on Bakertown Road to the same woman in 2019, according to public records.”

      Absent provable fraud (or some other relevant criminal involvement, I suppose), IMO, it would appear she keeps the property.

      • timbo says:

        The Herald Sun in Australia has been looking into who the woman who got the homes was. She may be a woman from LA who is under 30. She may have worked in a non-profit program that helps folks who are addicts from what little I can gather. I’m not behind their pay wall so I can’t get any more info than that in a cursory look.

      • Rugger9 says:

        If the quitclaim was filed with the Contra Costa County Recorder, the property is beyond the reach of the feds because Warner no longer owns it. “Gifted in life” so to speak.

    • bmaz says:

      Posaune – That is a great question, but lol I have no idea. VVV’s answer is all that can be said at this point. It is interesting though, especially if she did not know. Said woman is going to have the FBI all up in her biz though, so we will eventually find out.

    • stancat says:

      Don’t know if there is a basis for forfeiting a dead terrorist’s assets but the reported details of a quit claim deed indicate the conveyance was probably never complete. Generally, perfecting a conveyance described by a deed has to be “delivered” and “accepted.” If the grantee didn’t know anything about the deed and it was never recorded, then the conveyance probably never happened unless Tenn law contains some exception to the general rule.

  22. pdaly says:

    The late Mary, lawyer and emptywheel contributor, had many important things to say about the law during the Bush years. The links to her posts are currently not loading properly. Here is a bit of Mary’s sharp intellect and wit. I copied them from a file I made a while ago:

    (note to the mods: I never learned how to do the block quotes. Always relied on the embedded tools on the old site. My apologies):

    Mary’s Bybee/Yoo Memo dissection

    “1 – There’s the August 2002 CIA analysis given to the WH indicating that at least 1/2 of the prisoners at GITMO were not, despite Presidential and CIA and DOD representations to the contrary, even combatants of any kind, much less enemy combatants, much less unlawful enemy combatant much less the “worst of the worst” Nothing to indicate that advice to DoD was ever revised in light of this factual finding made available to, at a minimum, CIA, Bellinger, Gonzales, Flanigan and Addington. Very likely Yoo was made aware of this info as well.

    2. Yoo and numerous other lawyers sat silent, despite actual knowledge of evidence to the contrary, when the Abu Ghraib soldiers were scapegoated as being a few bad apples and information for their defense as to Presidential and OLC approvals of similar activities being granted to DoD was withheld.

    3. No one (Yoo, Addington, Flanigan, Gonzales, Ashcroft, Thompson, Comey, etc. etc.) ever seems to
    have put a lit hold on any of the torture evidence and information, in addition to all the disappearing emails in violation of law. Comey and Clement had direct involvement in the Padilla case and allegations in connection with the original material witness warrant about coerced statements from Zubaydah and Binyam Mohamed used in the FBI affidavit tendered to Mukasey (in his role then as judge) and the Moussaoui case was pending and other cases in the pipeline and, as bmaz so often points out, the torture would be relevant evidence in at least the detainees own trials or commissions and yet no lit holds, not even for a detainee with an outstanding indictment.

    4. Despite all the focus by Margolis and Mukasey and other on the immediate 9-11 aftermath as an excuse for the memos, note that despite the passage of many years and despite Sup Ct rulings in Rasul and Hamdi and Hamdan etc. the principals still maintain they were correct in their memos and Yoo blatantly continues to call out the Sup Ct as being incorrect where they have dismantled any of his ideology by ruling.

    5. All of these lawyers, including Yoo, had continuing duties after the hair on fire days immediately after 911 to supplement and correct.

    6. After years of hearing media references to the the CIA intel community referring to the Bybee/Yoo memos as the Golden Shield and as granting immunity, etc. Yoo et al were on reasonable notice that their opinions were being used and relied upon as reliance memos and had a duty to so advise if they were not intended for that purpose. That is one of the primary outs Bybee, Mukasey etc. are taking – that the memos were only intended for use by sophisticated legal users like Rizzo, not for field torturers.

    7. The Comey emails are evidence that at least Comey, Rosenberg, Bradbury and Gonzales (and very likely predecessors such as Ashcroft) knew about other techniques that were being used and not disclosed. In addition to those emails and the knowledge they reveal, numerous sources in articles and books ahve made the allegations of things such as the use of threats to KSMs (still disappared) wife and children in his interrogations and forcible anal drugging with mental states altering drugs, stripping detainees and having women take pictures of them stripped, etc. none of which are mentioned in the memos. Once all of this become public, it cannot be that there was no one, throughout all of CIA and DOJ and DOD and OLC, who had a duty to advise CIA that if such things were taking place, they were not authorized.

    8. I understand the focus is on Yoo, but how, after the domestic and international reaction to the release of the Abu Ghraib pictures, no one at OLC has ever discussed that reaction in context of the “shock the conscience” US law standard is a mystery. There are not many contemporaneous MSM reports on those pictures that do not use the words “shock” or “shocking” or “shocked.” And Bush explained to Jordan that the US reaction to the things shown in the pictures is that they were humiliations of the prisoners and they made us “sick to our stomachs”

    “I told him I was sorry for the humiliation suffered by the Iraqi prisoners and the humiliation suffered by their families,” Bush said. “I assured him that Americans like me didn’t appreciate what we saw, that it made us sick to our stomachs”

    And at the risk of really getting into the weeds, despite all the claims by Mukasey and others that they were just giving “technical” advice and not setting policy, there is the memo from Bybee in advance of Bush’s Padilla EO, where Bybee “recommends” (as opposed to just looking at whether it would be legal) that the DOJ allow the CIC to take a US citizen arrested in the US and currently then in the custody of the District Court in the SD NY and turn that US citizen over to be disappeared by the military (into the kinds of interrogation programs being authorized by OLC).

    Not technical legal advice, but an affirmative recommendation.”

  23. pdaly says:

    Mary’s Take on illegality of Military Commissions (I did not capture the date Mary wrote this):

    “There is an overarching problem with military commissions that is just not “fixable” even with really wonderful rules, regulations and statutory directives.

    Military commissions are NOT military tribunals or vehicles for military law. Military commissions owe their existence to a collapse or failure of both civilian and military law giving rise to such extreme exigencies that military despotism can be substituted for military or civilian law.

    You have civilian law. You have military law. You have commissions where both fail to cover the situations or have collapsed AND you have such exigent circumstances that a military commander over an area must take extra-legal action (action outside both military and civilian law) to establish order.

    There would have been some small argument for a battlefield military commission in the then-failed state of Afghanistan if the US had captured Bin Laden or others.

    There is NO ARGUMENT that can support the use of military commissions at this late date, with respect to people who have not only been shipped to GITMO, but also over whom CIVILIAN COURTS HAVE ASSERTED HABEAS JURISDICTION!

    You cannot claim the kind of failed civilian government justification for commissions that you have in a falling city overrun with chaos and looting etc. setting with respect to detainees at GITMO.

    Yes, that’s an oversimplification, but it gets to some of the heart of the problem. A commission had appeal for the very reason that it is NOT a Geneva conforming tribunal and it is NOT really constrained by any law – civilian OR military. There’s a reason why, until now, there were never any attempts to establish “rules” for military commissions. They owe their very existence to the current and impending exigencies of chaotic implosion.

    To take those held in military custody while our civilian courts are not only open and operating (see Supreme Court case Ex parte Milligan: Ex parte Milligan, 71 U.S. 2 (1866), was a United States Supreme Court case that ruled that the application of military tribunals to citizens when civilian courts are still operating is unconstitutional.), but have affirmatively asserted jurisdiction over those held for habeas purposes, and try to graft rules of some kind onto what has always been born only of chaos – military commissions – is like pinning all kinds chicken parts on a donkey and waiting for the donkey to start laying eggs.”

  24. pdaly says:

    Mary’s take on Reliance Memos:


    “…for legal opinions in general, they need to be based on specific and well defined facts. Those can be presented in the form of a hypothetical, but the advice is then limited to any real circumstance that fits exactly the hypothetical presented. Emphasis on exactly.

    There is another requirement for reliance memos. They can only be relied upon by the person to whom they are given. All the OLC memos went to General Counsel and Department heads or their seconds – none were give to and for the benefit of, for example, CIA field agents in general. Also a big problem for reliance memos.

    There’s also the issue of whether or not the memos themselves, classifed up the wazoo as they were, got cabled or otherwise provided to the torturers – because they would need to be delivered to as well as addressed to the party seeking reliance if they were reliance opinions. I could go on a bit on that, but see the practical issues. I so wish someone would get into those things with a Yoo or a Mukasey or Gonzales when they mention things like that.

    This is something that was not positied in the professional ethics review or worked within its scope, and yet it should have been central. If your opinion was intended so that the “guys and gals” doing the White House’s torture for the White House had some direction and guidance – – – uh, Mr. Yoo, Mr. Ashcroft, etc. how is it that you provided that guidance to them, when you were only issuing opinions to General Counsels? Did you follow up to see how the General Counsels made the information avaialable? Did you expand the scope of your opinions to include field torturers? If your assigment was to give guidance to field torturers, how did you do that? What was your responsiblity and duty and to whom did that responsiblity and duty flow? Was your duty to give a CYA card to a Gen Counsel – or to give a reliance memorandum for a field torturer? How did you fulfill that duty, etc. etc. etc.

    They never get nailed on any of that and never will now.

    Also, when you give a reliance opinion and discover that your facts have failed, you have a duty to revise that opinion. That was not reviewed in the ethics inquiry either – but that duty to correct is there, nonetheless. Especially when you know your opinion is being pulled up and relied upon in connection with numerous judicial proceedings.

    So when you learn, for example, that Zubaydah doesn’t plan operations for Al Qaeda at all, much less as a high value operational target,then what, Mr. Yoo, did you do to correct your prior opinions and advice? When you learned that people were being snatched and subjected to your “not torture IF they are a high value target” advice, what did you do to clarify your advice? When you learned they were being frozen to death at the Salt Pit, what did you do to clarify your advice?

    So much worth asking, so little that is ever asked. And how freaking appalling that so many of these guys end up as professors of some sort. It’s so much like the Catholic Church sending its pedophiles hither and thither to wreak their havoc without every having any consequences, it makes you ill.”

    • bmaz says:

      pdaly – Thank you. I think I can go in and fix the broken links, but it may take some time. So, thank you greatly in the meantime.

      • pdaly says:

        No problem. I thought I had downloaded Mary’s ex Parte Milligan series, but I’ve either misremembered doing so or have mislabeled the file. Looking forward at some point to revisiting. Thanks, bmaz!

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