Bunker: Trump’s Exposure in the Insurrection Makes PardonPalooza More Complicated

There have been numerous accounts of Trump’s desperate days since he incited a coup attempt. Most, including this CNN version, describe how — on the advice of (among others) White House Counsel Pat Cipollone — Trump recorded and released a very heavily edited video from a script written for him in an attempt to stave off removal proceedings.

His daughter Ivanka Trump, White House counsel Pat Cipollone, chief of staff Mark Meadows and others told Trump there was a real chance he would be removed from office — whether by his own Cabinet or lawmakers — if he did not more forcefully denounce the actions of his supporters who attacked the US Capitol the day before.

Trump did not initially want to issue a video decrying the loyalists whose actions he largely supported — and whom he said he “loved” a day earlier — but he told aides to prepare a speech and then he would decide.

Once he read over the brief script they had prepared, Trump agreed to record it Thursday evening — a relief to the senior staff, though concerns lingered he could backtrack during his final days in office given his actual position has remained unchanged: that he lost the election unfairly.

This WaPo version describes him holing up with really unsavory characters, including white supremacist Stephen Miller and John McEntee, who previously had been forcibly removed from his position at the White House because of gambling problems.

Trump spent Wednesday afternoon and evening cocooned at the White House and listening only to a small coterie of loyal aides — including Meadows, Deputy Chief of Staff Dan Scavino, personnel director Johnny McEntee and policy adviser Stephen Miller. McEnany also spent time with the president. Jared Kushner, the president’s son-in-law and senior adviser, was described as disengaged.

CNN also reports that’s he’s still planning on pardonpalooza covering at least his kids

And a raft of pardons, including potentially for himself and his family, are expected in the coming days.

According to this Bloomberg piece, he’s considering pardoning his bunker mates, Meadows, Miller, and McEntee, along with Kimberly Guilfoyle, none of whom had any obvious legal exposure before the last several weeks.

The biggest question facing his legal team may be whether the president has the authority to pardon himself, as he has discussed in recent weeks with top aides, according to the people familiar with his conversations. Trump has previously claimed the power, though it’s a matter of legal dispute and has never before been attempted by a president.

A self-pardon could also prove a major political liability and hamstring another presidential bid, with opponents sure to suggest the self-pardon amounted to an admission that he thought he might be prosecuted for breaking the law.

Preemptive pardons are under discussion for top White House officials who have not been charged with crimes, including Chief of Staff Mark Meadows, senior adviser Stephen Miller, personnel chief John McEntee, and social media director Dan Scavino.

The president’s eldest daughter, Ivanka Trump, her husband, Jared Kushner, who both hold White House positions, are also under consideration, the people said. Trump’s personal lawyer Rudy Giuliani has also discussed the issue of a pardon with the president.

Preemptive pardons are also under consideration for other members of the president’s family, as well as friends and allies. For instance, Trump has floated a preemptive pardon for Kimberly Guilfoyle, the former Fox News host who is dating his eldest son, Donald Trump Jr.

The president wants the preemptive pardons to shield recipients from prosecutions for any federal crimes committed before the pardons were issued.

It notes that White House Counsel Pat Cipollone is “vetting” the pardons, with some concern that they create more exposure for obstruction of justice.

Trump’s list is currently being vetted by lawyers who are concerned that pardons could create new allegations of obstruction of justice for members of the administration. The process is being managed in part by White House Counsel Pat Cipollone.

Except, CNN also reports that Pat Cipollone is considering resigning.

Trump’s role in (at a minimum) inciting an insurrection the other day may make his effort to pardon himself and his associates out of legal trouble more difficult.

Start with a self-pardon. Before the insurrection, Cipollone might have advised Trump he might as well try it. He literally has nothing to lose, since he’s unlikely to trust Pence with a pardon at this point, so even if the self-pardon doesn’t work, he would be no worse off. Except, as a number of people have suggested, a self-pardon makes it far more likely DOJ will test the concept and prosecute him (though I think he’s done enough to be charged anyway). And because Trump’s exposure now includes insurrection, the conservative majority on SCOTUS might find the self-pardon particularly offensive. In addition, because Clarence Thomas’ wife Ginni was cheering on the terrorists, DOJ might — fairly — ask Thomas to recuse.

Then there’s Rudy. He was always going to be pardoned, because he knows where the bodies are buried and Trump believes (mistakenly) that Rudy has served his interests loyally. Except, to a far greater extent than before November, a Rudy pardon frees him to testify about crimes that Trump committed for which Rudy does not have attorney-client privilege, such as coordinating with coup plotters. This is exacerbated by the byzantine legal structure behind the fraudulent Trump lawsuits, where there was never any clarity about who was representing Trump and who was not. Once upon a time, Trump might have been able to pardon Rudy without increasing his own legal exposure. That’s probably not true anymore.

Then there’s Cipollone himself, a formidable lawyer who wants to get the fuck out of dodge. Cipollone, briefly, got Trump to see reason in making that video. Then as soon as Trump got his Twitter account he sent more messages riling up his terrorists. That suggests Cipollone recognized that Trump had real exposure in the insurgency, and took measures to limit them. Then Trump ignored his advice. All while asking Cipollone to help him pardon his co-conspirators.

While Cipollone has limited Executive Privilege with Trump (one breached in case of crime), under Clinton precedent he doesn’t have attorney-client privilege with Trump. That makes it likely that no matter what happens, he’ll be sitting for lengthy sessions with prosecutors in months ahead, just as Don McGahn also did.

When this whole Transition process started, Trump had Cipollone and Bill Barr — the latter the best cover-up artist in recent US history — around to help him out of his legal troubles. Now, his post-election antics have drove both of them away.

Once upon a time, Trump might well have been able to pardon himself out of a good deal of the criminal exposure he already faced. That’s far less likely now.

Update: Just in the last hour, Ginni Thomas made her Facebook account unavailable.

171 replies
  1. P J Evans says:

    The video of them intently watching the insurrection on the wide-screen isn’t going to help. (Nor is Guilfoyle, that idjit, dancing for the camera guy.)

      • The Limper says:

        I was talking to a couple of co-workers last night – there has to be video of Trump during the assault. I did read that Ben Sasse said Trump was confused because people around him were not excited when they started pushing hard against the police.

        • Glenn says:

          No. You don’t have to guess. You can see the screens on the TVs Trump and Ivanka are looking at during the clip. Just watch it. Its from the rally. There are pictures of the stage setup and so forth. Don’t spread lies. Leave that to them.

      • P J Evans says:

        descriptions I saw weren’t saying that. Okay.
        I am Not At All Happy with any of this lot. They all need to be out, now.

        I’d like to see them exiled to Epstein’s private island…without boat or air service. Airdrop supplies to them.

        I read that Trmp is upset because the insurrectionists on his TV looked like thugs, and he thought that was demeaning him. I guess he thought they’d wear suits and ties and politely ask for entry.

        • alfredlordbleep says:

          Too much like Napoleon in exile. (But with company)
          Trump’s been more a petty tyrant in a Big Office.

  2. Steve says:

    I’ve read about potential federal crimes committed by everyone from Trump on down but I have yet to hear anyone mention felony murder, i.e., a death occurring during the commission of a felony. Does this crime exist under federal law? Does DC have the equivalent of state laws that might apply?

    [Welcome back to emptywheel. Please use a more differentiated username when you comment next as we have several community members named “Steve” or a variant. Your last comment was made under the username “SteveB.” Thanks. /~Rayne]

      • Marc in Denver says:

        Rayne, I think SteveB meant that all or many of the people involved in breaking into the Capital might face liability for murder, similar to if a person dies from a heart attack during a bank robbery, or the guard accidentally shoots a bank customer during the same.

        • Chris.EL says:

          now the co-conspirators can invoke the Q motto!

          Conga line!!

          This way!!

          All the way to JAIL, you nice folks.

        • Rayne says:

          They don’t appear to be charging them that way. I can’t find the Twitter account I’m looking for but someone has been posting the individual charging documents online and I don’t recall any charges for murder.


        • vvv says:

          I am not a criminal law atty, and not a DC atty, but it strikes me that this statement in the article may be incorrect:
          ““The Felony Murder Rule applies only when a specified violent crime (e.g., robbery) occurs and the principal or an accomplice commits a murder. Today, a police officer—presumably in self-defense—shot the victim. The Rule does not apply,” Law&Crime Network legal analyst and former federal prosecutor Gene Rossi explains.”

          I do not think that “the principal or an accomplice commits a murder” is necessary, only that the death occur during the commission of the listed felony, at least in IL (where I am and why I thought of this); it is known as “the proximate cause theory”. I just googled and *Fleming v. United States*, No. 14-CF-1074 01-30-2020 seems to indicate that the theory applies in DC.

          That said, under the DC statute, “murder, kidnapping” and much less likely “espionage” seem like the only possible foundational felonies that would be being committed nearby and at the time of her death, but that will take a lot more evidence than we’ve seen thus far.

          Gotta wonder if any of the be-masked asses with flexi-cuffs were in the immediate area …

          Now will a real criminal law atty please disabuse/abuse me of/for this? ;-D

        • vvv says:

          I need to add that I made the ASSumption that charges would be under DC law, as opposed to Federal law. I cannot find any google source addressing the proximate cause theory re the Federal Felony Murder Rule.

        • vvv says:

          A little more time on the google machine:
          18 U.S. Code § 1111 is the fed rule; not helpful on its face;
          18 U.S.C. § 844(i) (1988) (f) (3) deals with explosives but allows for “as a result of such conduct directly or proximately causes”

        • Steve says:

          Correct. Felony murder might apply if, during a burglary, the homeowner confronts the buglars, has a heart attack and dies. All burglary participants can be charged.

    • Rob Lewis says:

      This looks like yet another instance of Trump’s Depraved Indifference to human life, resulting in death, which is 2nd-degree murder in some states, including New York. Of course his pandemic non-response is a spectacular example.

  3. joel fisher says:

    I’ve been reading with interest EW’s discussion of pardons and the 5th Amendment. It’s much more complicated than it looks and I’ve given up trying, but two features of the that landscape are clear: no more pardons after 1/20 and plenty of ongoing criminal activity. They just can’t stop themselves. Take Roger Stone; seems to me he needs another pardon for his participation in Wednesday’s goings on. And, I’m sorry it’s off topic, but is anyone else concerned that Trump’s announced absence from the inauguration means the proud boys, 1000s of whom just walked free–with the cooperation of the DC Police–from their crimes, are free to wreck violent havoc on 1/21? I wish Biden would get himself inaugurated privately.

    • bmaz says:

      Pardons vis a vis any 5th Amendment protection and testimony is incredibly complex. Been trying to tell people that for a while, and why I have spent little to no time on trying to sort it out. Depends on a lot of moving parts, and will be likely different for each pardon. We shall see sooner or later.

      • Raven Eye says:

        Glad you said that. Every time I try to think about the mechanics of putting a case together in that situation, my brain fogs. Then I wonder “What would bmaz say?”

        Asked and answered.

    • Mitch Neher says:

      Hyper-technically speaking [far-fetched alert], the only thing preventing Trump from pardoning any or all of the rioters who stormed The Capitol is the practical need for those rioters to come forward and name themselves in order to accept and receive their personalized pardons from Trump–before they receive transactional immunity from the D.C. U.S. Attorney in exchange for testimony against Trump.

      [Otherwise there would be no way to prevent the dread, Antifa, false-flag fiends from unjustly laying claim to those same pardons from Trump.]

      • cavenewt says:

        “the only thing preventing Trump from pardoning any or all of the rioters who stormed The Capitol is the practical need for those rioters to come forward and name themselves…”

        What about Carter’s blanket pardon of Vietnam draft dodgers? I don’t believe that required identification.

        • pasha says:

          as i recall, carter didn’t grant a blanket pardon. those who went to other countries had to self-identify. the, there were terms and conditions, and some sort of obligations on the pardonee’s part. if you didn’t meet the conditions, you didn’t get the pardon

        • e.a.f. says:

          as I recall, those who left the U.S.A. had to return to the U.S.A. and “report” to where they had left from. Know of two men who left the U.S.A. to avoid the draft and went on to live good and productive lives in Canada along with a whole lot of others I didn’t know.

      • timbo says:

        No. There can be blanket pardons that do not name specific people. This was already decided when the folks who fled the draft were pardon after the end of our war in Viet Nam.

        • timbo says:

          And, I assume, if any such person was asked “Did you flee to Canada to avoid the draft?” in legal pertinent deposition would not be able to assert a 5th Amendment right to not answer the question.

    • Barb says:

      Trump announcing he was not going to attend the inauguration was more like a rallying cry for his mob to wreak havoc on inauguration day (since he won’t be there!) I too think there should be no public event held for inauguration, sad as that is. It should be held on video/zoom from an undisclosed location. No point in giving the insurrectionists another event to attempt yet a second coup.

  4. Jenny says:

    The Man Who Saw Yesterday’s Coup Attempt Coming Is Only Surprised It Wasn’t Much Worse

    Arieh Kovler knew. “On January 6, armed Trumpist militias will be rallying in DC, at Trump’s orders,” he wrote on Twitter on December 21st. “It’s highly likely that they’ll try to storm the Capitol after it certifies Joe Biden’s win. I don’t think this has sunk in yet.”

      • bmaz says:

        Lol, no, it really is not beyond a reasonable doubt. Not in the least. It would be nearly impossible to get a criminal conviction on. Frankly, I don’t think it even meets DOJ charging standards.

        • chuck says:

          Was in reference to the insurrectionists live streaming their revolution and calling it as such. Colbert had a choice example available on YT…roughly…
          Press: What happened to you?
          Lady: (in tears) They sprayed me with mace!!
          Press: Why?
          Lady: I got about a foot in the capital and they sprayed me.
          Press: who are you?
          Lady: Linda from Knoxville! They aren’t supposed to treat us like this here!!
          Press: Why were you here?
          Lady: For the Revolution!

          With the follow on being, Trump told us to be here. Those ones are fairly straightforward.

  5. Nehoa says:

    Can the Washington D.C. authorities issue an arrest warrant for Trump and Giuliani for incitement to riot/violence (not sure how to describe properly)? If they could do that quickly, that would be fun. Bought popcorn from Costco.

  6. Knox Bronson says:

    I’m curious (and forgive me if this has been discussed elsewhere): in the execution of a crime, i.e., a bank robbery or the invasion of the Capitol Building, are all participants culpable (or chargeable) in the event of a fatality? If so, would this extend as far as Trump, Stone, Miller, Cruz, et al?

    • Chris.EL says:

      IANAL — looks to be more than one crime, more than two participants.

      Could it be a conspiracy?

      Could it be, *swallowing hard* … a rico … trying not to lose faith in the law here … :-\

    • PieIsDamnGood says:

      I think it’s called Felony Murder https://en.wikipedia.org/wiki/Felony_murder_rule
      “In most jurisdictions, to qualify as an underlying offense for a felony murder charge, the underlying offense must present a foreseeable danger to life, and the link between the offense and the death must not be too remote. For example, if the recipient of a forged check has a fatal allergic reaction to the ink, most courts will not hold the forger guilty of murder, as the cause of death is too remote from the criminal act.

      There are two schools of thought concerning whose actions can cause the defendant to be guilty of felony murder. Jurisdictions that hold to the agency theory admit only deaths caused by the agents of the crime. Jurisdictions that use the proximate cause theory include any death, even if caused by a bystander or the police, provided that it meets one of several proximate cause tests to determine if the chain of events between the offence and the death was short enough to have legally caused the death.”

      I have no idea what Federal standards are, assuming those apply in DC. Obviously not a lawyer since I’m quoting wikipedia…

      • bmaz says:

        The felony murder rule does exist as to federal crimes, but it is a lot less common than in state jurisdictions.

        • Chris.EL says:

          not a lawyer … seems to my thinking the concept of acting together: i.e. forming the credo, coming together, making a plan, executing the plan, acting together, fatal event/events happening are SOUND ELEMENTS in a criminal conspiracy.

          ELEMENTS that must be delineated and proven in a court of law or allocated to via plea agreement.
          Doesn’t that make sense; doesn’t that hold water?
          Have to say, the entire concept of a self pardon (to me) is the BIGGEST, STUPIDEST, theory to be bandied about since injecting bleach.

          The founders of these United States, above all, wanted a system of government as far removed from a monarchy or theocracy as they could design and implement!

          The image of a king attempting to knight himself, I think, forms the proper image of such an attempt.

          But that’s my perception/theory…

  7. Worried says:

    Can a person be pardoned from supporting an insurrection, i.e. Rudy Giuliani?

    Can the president legally be charged with inciting an insurrection?

  8. CD54 says:

    Is it possible that accepting a pardon from Trump is an act in furtherance of a continuing conspiracy?

    The pardon itself seems plainly that. But what about the other side of the transaction?

  9. 200Toros says:

    Putin’s puppets modus operandi is to ALWAYS, always out-do himself, proving to everyone that he can always go lower. So that is my fear, what will he do next, if he is not removed, to top this blatant act of domestic terrorism? What will he do to top this? This is his “hold my beer” moment…

  10. ducktree says:

    Cipollone left his “formidable lawyer” bona fides at the double doors of the House of Representatives when he made his entrance into and formicated all over the House floor on behalf of the King Mole Rat.

    • Spencer Dawkins says:

      I apologize for the mental image, but if we’re talking rodents, he’s the King NAKED Mole Rat. And seriously, the skin is the same on Trump …

  11. madwand says:

    MSNBC reporting that DOJ will not charge anyone talking on the podium to the rioters, that presumably includes Trump Guiliani, and Stone. It will have to wait till after January 20 it seems.

  12. BobCon says:

    If he is involved in a conspiracy now that keeps running well past Inauguration Day, does a self-pardon block pre-Inauguration evidence from being considered? (Assuming a self-pardon is upheld, of course).

    Or does the participation in a conspiracy after he is out of office put everything beforehand back into play?

  13. Peterr says:

    According to this Bloomberg piece, he’s considering pardoning his bunker mates, Meadows, Miller, and McEntee, along with Kimberly Guilfoyle, none of whom had any obvious legal exposure before the last several weeks.

    I have a hunch that Miller has been talking with the Proud Boys and other white nationalist groups on the side for the last four years, which may expose him to legal liability in a whole host of ways.

    I also have a hunch that the way in which he pushed the Kids in Cages policy may open him to legal danger as well. I can easily see him saying “Just lock them up – don’t worry about the conditions” and “Just do it and do it now – screw the paperwork.” The former was found to be inhumane by the courts, though no one has (yet) been held to account for these conditions. The latter led directly to hundreds of kids becoming legal orphans. By taking these kids into federal custody, the US government assumed the responsibility of caring for them which includes being ready to return them to their parents. Once an honest DOJ is in place, I expect that there will be serious investigations of who was responsible for this officially sanctioned child abuse – and I expect Stephen Miller’s name to be at the top of the list.

    He has much to answer for.

    • BobCon says:

      It’s easy to see them violating laws around classified or confidential materials too, and I wouldn’t be surprised if some of the White House lawyers periodically passed out memos making it clear what they were doing was illegal. There was a fair amount of buzz about Kushner being warned about using unofficial means of communicating, and I have to believe similar warnings went out about what information could be shared.

      I really hope the Biden Administration is ready to find out how bad this stuff was, end clearances, and prosecute if violations occurred. These creeps won’t suddenly start following the law. I am guessing part of the slow walk on transition assistance is related to hurting the Biden staff’s ability to act on day one.

      • dude says:

        Assuming the present DOJ is not going after the rally speakers, can a Biden DOJ charge the speakers on the podium of Trump rally?

        • bmaz says:

          If they are fools that don’t care about actual DOJ charging standards in the USAM and want to get humiliated, sure.

    • Bruce Olsen says:

      Only if the ‘paper’ trail still exists… though destroying the records would be another crime

      • Peterr says:

        The trail might not be at the WH, but at DHS, ICE, and elsewhere. Miller could even have been careful and not ever put anything in writing, but if he wants to issue an order, someone somewhere had to receive it and act on it. Somewhere there have to be CYA memos/emails saying “I disagree with this, but the White House/Stephen Miller has ordered us to . . . ”

        If he did this in writing, Miller could conceivable delete messages on his end, but someone received those messages, and that would be beyond his reach.

        • Bruce Olsen says:

          “What about a magnet?”
          — Jesse Pinkman

          You’re correct–assuming the rules are followed, but shadow IT systems (like laptops) wouldn’t be backed up at all. Alternatively, with so-called “portable” software, which runs from a flash drive without needing installation, one could wire an additional, private layer of encryption/decryption into the software itself, without leaving a trace after its use. The backed-up version couldn’t be read except with the software on the flash drive. Another CloudFlare-like scheme might be created (if the Executive branch patched its own systems).

          Whether Trump’s “team” could maintain that kind of OpSec is, ummm, open to question.

    • Spencer Dawkins says:

      I’m also remembering press reports that Trump has been interjecting offers of pardons to lots of people, many of whom were surprised because they didn’t think they needed one.

      Insert Oprah gif here, of course.

      • harold hecuba says:

        Yeah, I don’t think Trump fully understands what a pardon is. He may liken it to Monopoly’s “Get out of jail FREE” card, giving it to whomever he wants so they can use it next time they get picked up for shoplifting or molesting children.

  14. Rapier says:

    I voiced a low mordant sigh when I read that “There is deep anger in Trump world at how Trump treated VP Pence. One described as “unconscionable.”

    Note that the unconscionable didn’t include an action plan by Trump’s allies which allowed for the possibility of holding Mike hostage and perhaps executing him along with Pelosi and Schumer. Listen, I vote team D but I am no big fan of those two, much less Mike, but I think execution is out of bounds. Unconscionable I’ll leave up to you.

      • PhoneInducedPinkEye says:

        He can’t preach directly to them anymore now that he is permabanned. That is a relief. Leave them disillusioned.

        He has also gotten 4 sockpuppets banned including his digital director and @TeamTrump, oh my god this is hilarious. He is in the white house spending his time trying to sockpuppet and getting banned.

        • klynn says:

          My teen son did essentially a stand-up comedy routine of this last night for our family. He ended his moment of comedy with, “There’s our tragic comedy America.”

      • cavenewt says:

        ‘Cassandra Fairbanks, a prominent MAGA activist, tweeted: “[He] tells angry people to march to the capitol [and then] proceeds to throw his supporters under the bus.”’

        1. It never ceases to amaze me that Trump followers still have not figured out he does this to everybody.
        2. I *am* surprised that they aren’t trying to create an out for him, for instance by claiming that it’s some sort of hostage video.

        • Ginevra diBenci says:

          They *are* trying to create an out for him, cavenewt. If you read the comment sections on Epoch Times (and I don’t necessarily recommend doing that unless you must for research purposes or you’re really curious), you will see the majority of his rabid supporters trying to shout down the few who are starting to peel off (those saying “He betrayed us”). The majority argument remains “He had to do it,” backed with “trust the plan” (QAnon) and still an insistence that the rioters were “antifaBLM,” despite all evidence otherwise.

  15. John Langston says:

    If this does go into legal clarification, as I said before, I’d like to know where the line is drawn between Pardon and Obstruction?

    Does the pardon count if the recipient is conspiring to obstruct? I don’t think it does anymore than bribing for pardon. I guess the only difference is that the recipient of the pardon is briber and is the original guilty person, whereas it’s just the opposite for obstructor who is granting the pardon. I’m not sure why that would matter.

    You’d think with all the crooked politicians in the this country that this would’ve been largely determined but it seems unclear. Common sense tells me they’re criminally liable. Period.

    • joel fisher says:

      Depending on the wording, yes. Might be a crime for Trump to issue the pardon, but the recipient is off the hook for the pardoned behavior. But, and with this crew it’s a huge “but”, the person with the pardon–Roger Stone, say–has to stop committing crimes as the new ones are perfectly prosecutable. I’m starting to think the whole “validity of pardons” issue will be rendered moot by ongoing criminal behavior. That’s what criminals do: they commit crimes; they can’t stop themselves.

      • John Langston says:

        Since it’s a conspiracy, I don’t think the recipient of the pardon is off the hook either. It’s still a quid pro quo. Certainly the situation is the reverse of bribe for pardon it’s just that the crime of conspiracy and obstruction originates with granor rather than recipient.

        Since both parties were conspiring, I think the pardon is invalid and used for dishonest purpose and granting the pardon is-in-and-of itself a crime to obstruct justice.

        I’ll leave it for lawyers to take away common sense here.

    • John Langston says:

      As we learn more about the insurrection, the absurdity of the notion that pardons are universal applicable to every recipient is clearly evident.

      We can all agree that bribing for a pardon is a crime. And the pardon is invalid. I posit that same holds true for a President giving a pardon as means of obstruction: that pardon is illegal and invalid in-and-of-itself and carries no protection to the recipient

      My notion is validated given the insurrection. There are discussions that Trump might pardon those actors that invaded, terrorized and murdered at the Capitol. This is absurd on its face. This is tantamount of using the pardon powers to implement and commit crimes; the only valid conclusion is that those pardons are invalid. That’s equivalent to the President ordering murders to his opponents and then pardoning the murderers; no, those those killers can’t get away with murder.

      The pardon power cannot be used as means to commit and cover up crimes where the grantor is involved. There is no other logical conclusion. Both the grantor and recipient should not escape legal jeopardy for corrupt pardon itself and the underlying crimes.

      • bmaz says:

        No, bribing for a pardon may, or may not, make the pardon invalid. The better thought is that it does not. It may or may not constitute a secondary crime, but the pardon power is plenary. So, no, “we cannot all agree” necessarily.

        There is nothing this simplistic. And as to blanket pardons, you may want to delve into the Civil War pardons by Lincoln and Johnson, the draft dodger pardons by Ford and, maybe, the Whiskey Rebellion pardons by Washington (though that is slightly different as to specificity).

        • John Langston says:

          I think you’re wrong given my example that the grantor could hire assassins and the assassins would get away free with a pardon. The pardon power can’t be interpreted to allow for ongoing crimes. It can’t be a quid pro quo for the pardon or the underlying crimes. The intent for granting Pardons was for some type of mercy or reconciliation, not to be used as means for commiting crimes.

          In that context, the underlying crimes as well as the unlawful pardon are both still crimes. Otherwise, the courts will dig a hole that they won’t get of.

          We’ll see. I’m sure we’ll have the opportunity. Of course Roberts will throw as much shade as possible.

        • bmaz says:

          No, you are wrong. Again, for the hundredth time, the pardon power is plenary. If crime occurs after a pardon, that can be charged. But it does not magically negate the pardon. Yes, it is that simple.

        • bmaz says:

          No, Berger is correct. I had not seen that before, thanks for the link. The question likely is whether or not the pardonee commits another conspiratorial overt act after the pardon. If not, then not sure there is any extended exposure. With this group, that question may get answered.

  16. PeterS says:

    I see no mention of Barr on the list of possible pardonees, presumably because his egregious behaviour did not obviously include federal crimes(?). My guess is he wouldn’t have resigned without a pardon if he thought he needed one, and for sure he knows more about the law than I do.

    • I Never Lie and am Always Right says:

      If there is a pardon of Barr by Trump, likely it was already issued privately in conjunction with Barr’s resignation. Barr’s leverage to seek a pardon was at its highest prior to his resignation. Barr would not want it to be known that he received a pardon, if he received one. If I was betting, and I don’t bet, I would bet that Barr has not received a pardon and will not receive one before Trump is out.

      • PeterS says:

        I don’t think there’s a pardon either, but that’s largely because I’ve never been clear which of Barr’s dishonorable actions people thought would realistically be charged as a federal crime.

  17. Worried says:

    Our discussion of Presidential Pardons reminds me of my school days when we studied the Middle Ages and Papal Indulgences.

    These pardons are morphing from the original concept and being abused similarly.

    • P J Evans says:

      One of my favorite graffiti, seen under a freeway overpass:

      (I took a pic and sent it to my medieval-history professor. Literate graffiti isn’t usual.)

        • P J Evans says:

          East Pasadena – Rosemead under the 210, back around 1990. I probably still have a copy of the pic.

        • Fran of the North says:

          Inside Baseball: The Very Short Story

          Catholicism was the predominant form of Christianity in the middle ages. A German Catholic priest noticed that the church leadership spent as much time selling forgiveness for past sins as they did in God’s work.

          As he thought about it, he realized that it was unseemly and counter to the core principles of Christianity. He decided to protest by nailing his analysis to the door of the church.

          The selling of forgiveness was termed Indulgences,

          That protest was the start of the Protestant offshoot of Christianity,

          That priest’s name was Martin Luther. His followers came to call that branch of Christianity ‘Lutheran’.

  18. Eureka says:

    I’m old enough to remember Comey of Impeccable Timing telling us that Trump should not be prosecuted for anything, moments before the insurrection (while Trump was inciting it, in fact).

    Where’s he been the last few days (NO, I do not want to know! We are not prepared for any more disaster to befall us coincident with his public emergence upon Having an Idea on How Things Should Go).

      • Eureka says:

        Well, _we_ the general public have sense. I would love to have been the fly on his superego as smug knowing and rejection of feedback turned to doubt (does he ever have that — of himself, I mean. He’s got too much of the Peircean kind) over that period of hours.

        Fine, I peeked his twitter: he’s got a paean to Romney the night of the 6th (with replies turned off).

        But her emails… ** gestures all around **

    • timbo says:

      Perhaps the Comey era is over. If he’d only had the spine to clean house at FBI and investigate vigorously ‘SDNY leakers’ (“allegedly”), maybe none of these past four years would have happened at all.

  19. Bo Bo says:

    Mark my words, just like that hopey changey guy, we will be told that it is imperative to look forward and not backward. Anytime that childish and BS analogy is used, you are being spoon fed propaganda.

    • Rayne says:

      Kind of a difference between the first Black president and the rest of the system operating under white supremacy. The Black guy’s rationale was very, very different; imagine how much earlier we would have faced insurrection and sedition had he decided to chase down the wrongs of the previous administration.

      Check your privilege.

    • MB says:

      Hakeem Jefferies used that very phrase the other day, and it was pathetic to hear! But that was before the bastille was stormed. Everything’s changed now.

      • dude says:

        My wife was startled when I shouted at Jeffries on tv when I heard him say that. “Don’t say that F..kin shit dammit!”…cussing to that effect.

        I have no doubt he chose his words very purposively and precisely. And so did I.

    • cavenewt says:

      “look forward and not backward”

      Isn’t that the main reason Ford wasn’t reelected, because he pardoned Nixon?

      All I can think is that it’s a euphemism for “I don’t want to do that because it will be politically inconvenient.” Well, maybe we can make it more politically inconvenient for them *not* to do it.

      I for one, hope they do whatever it takes, no matter how long it takes, to bring these people to justice. How can they not realize it’s just encouraging people to do worse the next time around? Not to mention pissing off the populace and destroying faith in American justice, which is already on the ropes.

  20. Molly Pitcher says:

    Apple gave Parler 24 hours to moderate it’s content or it would be gone….as of right now, Parler is gone from the Google play store.

    This is why: https://www.nbcnews.com/politics/congress/right-wing-extremists-vow-return-washington-joe-biden-s-inauguration-n1253546

    In that story, A Parler poster who is being tracked by the Anti-Defamation League talks about returning January 19. They say that January 6 was planned on Parler, Telegram chat rooms and the platform TheDonald.win.

    The article is extensive and references the growing concern by law enforcement as they track Accelerationists, “some of the most violent and extreme in the white supremacist movement who believe there is an impending race war.”

    This is an important and sobering read.

    • MB says:

      Accelerationists? Is that an official term now? If the GOP splits in 2, the never-Trumpers can keep the “Republican” name but the Trumpist wing should be called the Accelerationst party as in: Donald Trump (A), Ted Cruz (A-TX), Josh Hawley (A-MO), etc.

    • John Paul Jones says:

      “Accelerationist” is a term I first ran into in Roger Zelazny’s Lord of Light. This is a science fantasy novel about a group of earth colonists who have taken over a distant planet. One group of them has used technological means to give themselves immortality and virtually god-like powers so as to rule the planet and keep the descendants of the others subjugated by limiting their access to any technology. The “Accelerationists” are those among the “gods” who wish to speed up the development of technology so as to challenge the oppressors. It’s actually a great novel, but you can see how the supremacists calling themselves Accelerationists plays into their own fantasies about being oppressed and resisting it. In this reading, the “gods” would be coeval with the “deep state,” or something like that. The climax of the novel, if I am remembering it correctly (since I lost my copy long ago), one of them, is an Armageddon type battle where the gods end up getting destroyed.


        • John Paul Jones says:

          Deus Irae? Really? I was not even consciously aware of that one, but I used the same damn title for a story of my own. S**t, so to speak.

          Zelazny was a great writer, not always good at endings, but beautiful sentences, and just wild imaginary worlds. My fave is still the Amber first series; second series is okay, but not quite as strong, I thought.

        • P J Evans says:

          I’ve read “Lord of Light”. Be warned – it’s a fun setup for a truly horrible pun.

          Just read “The Hands of the Emperor” (by Victoria Goddard) – that’s the name of a position in the court – and it’s good. Not violent. Building a better world after some mostly-undescribed catastrophe.

  21. I Never Lie and am Always Right says:

    With people traveling to DC from all around the country, state level charges, including conspiracy charges, are not out of the question. They should be investigated and, where warranted, pursued, in case Trump issues pardons.

    Even if Trump issues pardons, it might be possible to challenge the legal validity of certain pardons as being issued pursuant to a conspiracy to obstruct justice or as part of an obstruction of justice itself. This should be done carefully, and only if the case for treating the pardon in this manner is clearly supported by evidence. Overreaching on this issue would be a huge mistake.

    Off topic, but I read something about Ginni Thomas’s Facebook page disappearing. It would be wonderful if people could continuously publicize the crazy crap that she spouts. Continuously keep her words and deeds in the spotlight, a la “Benghazi”, to put pressure on Justice Thomas to step down.

    • P J Evans says:

      I wonder if the airlines and hotels can be alerted to non-government people who are going to DC for the second time in two weeks. They should have passenger lists – and on twitter I read there was one flight where they got rowdy and the crew threatened to land in KC and offload them.

    • Kokuanani says:

      When ex-Senator John Danforth today said the worst mistake he ever made was supporting Josh Hawley for Senator, I was amazed that he’d forgotten his sterling work in promoting Clarence Thomas for the SC. Perhaps he wants all of us to forget as well.

    • Molly Pitcher says:

      I am going to stick my neck out here and say to you, this is neither the time nor the place for this comment.

  22. Molly Pitcher says:

    I LOVE PopeHat.

    Regarding what Trump is going to do now without Twitter:

    Waiting for series of Trump thoughts filtered through Eric, which will be like trying to figure out what Pol Pot is saying by hearing the interpretive barks of a labradoodle

    • AndTheSlithyToves says:

      Wondering if Lara is at the RNC retreat this weekend and discussing her run for office in 2022!

    • Chris.EL says:

      I love popehat too.

      When I saw that tweet I was going to ask if anyone spoke labradoodle.

      PH also asked if he would get extra points for having a cat in his zoom court background. There is a Christmas kitten on the laptop…

  23. Peter Carlsen says:

    Does a pardon have a monetary value. Is it a gift and as such you have to declare it on your taxes. I know an odd angle.

    • I Never Lie and am Always Right says:

      My opinion after many years of arm wrestling with the Tax Man/Woman. Receipt of a pardon is Not taxable income. Granting a pardon is Not making a gift for gift tax purposes. Warning to RWNJs who receive pardons and who may stumble on this: this is not legal advice. Take your hard earned grifting $$ and pay your own damn attorney to get a real answer.

  24. P J Evans says:

    I read that if impeachment goes to the Senate, if it’s after Biden is sworn in, they don’t have to have the full trial on the floor, because they’re not impeaching a sitting president; it can be done in committee and a recommendation sent to the floor to be voted on, thus saving floor time for confirmations and other votes that are necessary at the start of an administration.
    I don’t know if this is true, though.

      • vvv says:

        “While McDaniel ran with the support of the president, she also pledged to RNC members during her reelection campaign that she would be neutral in her leadership.”

        So there’s that.

        IMO, if you want to see the Repub Party fall off a mountain-high cliff, this is a step toward that result.

        Maybe a leap.

    • Pragmatic Progressive says:

      This is essentially true because the Constitution only mandates that the Chief Justice preside over a trial in the Senate to convict a sitting President.

      Further reading on the subject here: https://constitution.congress.gov/browse/essay/artI-S3-C6-1-1/ALDE_00000036/

      Justice Alito’s dissent in the case where the House sought Trump’s tax records laid out an argument that the Constitution dictates a 3 step process of 1-Impeachment, 2-Senate Removal/Disqualification, and then 3- Criminal Procedure. So, there is that.

      I can’t imagine the 50/50 Senate would actually conduct a proceeding to only disqualify Trump from seeking future office based on what is publicly known at this point.

      However, there are a whole bunch of conceivable scenarios where a post-POTUS Trump could be convicted by the Senate specifically to disqualify him from future office and pave the way for criminal charges.

      Seditious Conspiracy?
      Conspiracy to Defraud?

      On one hand, he did just say that his “incredible journey is just beginning.” On the other hand, maybe he will wake up tomorrow and decide he should be more like Hillary and fully accept the loss.

      Who knows?

      • John Paul Jones says:

        But surely disqualification is the point. I doubt there are many Republicans, even moral cretins like Hawley, who really want Trump in the primaries in 2023. If McConnell follows through with his game plan to not even take up the matter until the 19th or 20th, it’s quite likely the Democrats will be able to get a two thirds majority, especially if a number of Republican senators simply stay away.

      • skua says:

        “… conduct a proceeding to only disqualify Trump from seeking future office …”
        An impeachment, conviction and barring of Trump now would have effects far beyond only “disqualify Trump from seeking future office”.

        It would demonstrate that Congress is in fact still prepared to act decisively against a sitting POTUS who has acted contrary to the nation’s good.
        It would brand Trump’s Presidency as a failure ending in conviction and embarring.
        It would isolate, identify and associate with failure those Congress members who continue to follow the Trumpist path.
        It would be clear to future Trump-like characters that insurrection was met with disabling retribution and is not worth the risk.

        You can probably think of more benefits that would accrue.

        • Pragmatic Progressive says:

          I agree with you 100% skua- it would accomplish everything you say and more.

          There’s one problem though- Congress is not in fact prepared to take decisive action against Trump. Make no mistake- Pence had enough cabinet members to invoke the 25th on Wednesday, but (for whatever reason) he stood down. Not only that, Secretary Chao (McConnell’s wife) was the very first cabinet member to jump ship.

          There is nothing stopping the House from beginning by censuring Trump’s conduct and forcing a vote on that first. At least that way, everyone would know if 67 votes could be secured to eventually accomplish all of the laudable goals you enumerated.

        • skua says:

          You could be right about Congress not being prepared to impeach, convict and bar.
          The downside of that approach is that the list of benefits above would be flipped into a list of lost opportunities and a gray-zone 100 miles wide for the next Trump-like POTUS to test out and game.
          It seem possible that Pence didn’t go 25th for political or legal reasons, and that enough R Senators would want to be seen as anti-Trump and so vote to get Trump convicted and barred.

          And even if there are not enough R Senators who will vote to convict, making that fact obvious to electors is valuable to the Democrats.

        • Montana Voter says:

          I would have to think that the issue with the 25th Amendment process is that the Trump loyalists are demanding that Pence immediately pardon Trump for everything he might be charged with and a commitment that Pence also pardon everyone connected with Trump’s tyranny.
          I would have to believe that “the scales fell from Pences eyes” when Trump sent his mob to hang him. Pence is holding the high card in this situation. I think a few of these folks might be regretting their abuse of him in the past.
          We need to know what deals are being made. No honor amongst thieves certainly applies here.

      • P J Evans says:

        It’s come out that he called a Georgia state employee who was investigating voting fraud. Before Christmas. That’s more incriminating than calling Raffensperger, because he shouldn’t have even known the person’s name.

  25. Eureka says:

    Elly Belle, notably not a woman 🔮: “Aside from many things it’s important to say, it’s urgent we explicitly name that Nazis sieged the Capitol, which many have failed to do thus far. I spoke to Jewish organizers like @mynameisjro and @EgSophie and wrote about this and more for @Refinery29. [link]”

    “Something @EgSophie pointed out is that one reason people are not explicitly naming that Nazis were part of the insurrection is that we would also have to acknowledge that there are Nazis and fascists in Congress already, helping to run the country – EXTREMELY important and true.”

  26. Bruce Olsen says:

    If Ukraine has applicable anti-extortion laws, and President Zelensky decided to press charges, do you think Biden would be happy to extradite Trump?

    Asking for a friend.

  27. Stew says:

    How is Trump not an enemy of the state?

    Kristallnacht reenacted by a lunatic still sitting in the oval office

    It cannot be overstated the threat Trump poses to the continuity of humankind

  28. Molly Pitcher says:


    I finally found this on an Australian news site, it is also on Bloomberg, but behind a firewall. I had heard about it and wanted to find a more reputable source than Rawstory.

    Rosanne Boyland, 34, the woman who was trampled to death in DC on Wednesday, was carrying the Gadsen flag, the “Don’t Tread On Me” flag. I wish I was joking.

  29. Eureka says:

    The real deplatforming has begun:

    Thread & replies:

    Dave Lee: “There hasn’t been any Trump emails for more than 48 hours. Almost unheard of — he sent 33 in the first six days of Jan; 2,500+ last year. (h/t @TrumpEmail) At least one of the services the team used, @CampaignMonitor, has suspended Trump’s access, the company confirmed.”
    8:57 PM · Jan 8, 2021

    zedster kicked it off:

    zedster: “@TrumpEmail @GossiTheDog Here is the tweet that started this [QTs himself from the 7th]”
    11:10 PM · Jan 8, 2021

  30. missinggeorgecarlin says:

    Sorry for going off-topic, but let’s say you had a friend who had lost all hope for this fading Republic and wanted to move to a foreign country. Any suggestions?! Asking for a friend…

  31. Eureka says:

    “Law and Order”

    Brendan Keefe: “Republican AGs group sent robocalls urging march to the Capitol [NBC NEWS link]”

    Gal explains motivation: ~ They’re taking our stuff”. What stuff? (White power, a commenter notes):

    “Texas real estate broker, Jenna Ryan, took a private jet to join Trump supporters at the DC rally and said the deadly MAGA riot with ‘working class people’ was the ‘best day of my life’ [videos; thread]”

    • Eureka says:

      The theme of 2nd ^ and > = “this is what we are dealing with”: folks finding this to be flippant fun to which they are entitled. Their privilege was confirmed:

      Michael Holmes: “Elizabeth wasn’t happy with her treatment at the revolution. [video]”

      [these latter two items go with Rayne’s post —–> pretend I put them there instead]

      • P J Evans says:

        My feeling is “Too effing bad – you haven’t met real working-class people because they can’t afford to take the time to come to these, especially when it involves travelling a thousand miles or more.”

      • harpie says:

        The Rule of Law Defense Fund (RLDF), a 501(c)(4) arm of the Republican Attorneys General Association (RAGA), helped organize the protest preceding the deadly attack on the U.S. Capitol that took place on January 6, 2021. […]

        RLDF’s role in organizing the protests, which turned into a violent mob attack inside the Capitol, is ironic given its 2020 election campaign warning of “lawless liberal mobs” burning down buildings and committing violence. The campaign, dubbed “Lawless Liberals”, came in the aftermath of the largely peaceful protests following the murder of George Floyd by police and the shooting of Jacob Blake.

        “The Republican Attorneys General Association (RAGA)’s five-month Lawless Liberals video campaign repeatedly warned Americans about the dangerous reality of lawless liberals run amok in cities across the country,” RAGA said in a statement. […]

    • harpie says:

      There’s a comment in moderation with an excerpt from the above article.
      Here, via nycsouthpaw, is more:

      1:42 AM · Jan 9, 2021
      The Attorney General of the state of Alabama was deeply involved in organizing the insurrection. [LINK]

      Attorney General Steve Marshall has not yet publicly addressed his role leading the dark-money group. […]

      Marshall leads the Republican Attorneys General Association’s dark-money nonprofit Rule of Law Defense Fund, which is listed as a participating organization for the March to Save America on the march’s website, as are the groups Stop the Steal, Tea Party Patriots and Turning Point Action.

      The website is now down, but archived versions show RLDF as a participating group.

      “I am honored to lead RAGA’s policy branch, the Rule of Law Defense Fund, and bring conservative attorneys general together in promotion of federalism, freedom, and the rule of law,” Marshall said in a Nov. 1 statement to RAGA. […]

    • harpie says:

      REMEMBER this? [from DECEMBER]
      9:56 PM · Dec 9, 2020

      President Trump is hosting a private lunch w/ Republican state attorneys general tmrw to “discuss issues important to their citizens and the country” according to White House. The guest list includes several AGs backing a SCOTUS brief challenging election results:

      A WH official said the AGs are in town for a pre-planned meeting, and that this luncheon was planned around that meeting several weeks ago.

      • harpie says:

        3:22 PM · Dec 9, 2020

        The attorneys general of the following states just asked the Supreme Court to nullify millions of legal votes:
        Alabama // Arkansas // // Florida // Indiana // Kansas // Louisiana // Mississippi // Missouri // Montana // Nebraska // North Dakota // Oklahoma // South Carolina // South Dakota // Tennessee // Utah // West Virginia
        It’s not clear whether the 17 GOP state attorneys general who asked SCOTUS to throw out millions of votes realize that they are backing a lawsuit designed as pardon-bait for Texas’ AG, who is under FBI investigation, not a legitimate legal challenge. [LINK] […]

        • harpie says:

          More from the MJS thread, after explaining about connection with FedSoc Society:

          […] On another note: The GOP attorneys general asking SCOTUS to nullify millions of legal votes are members of RAGA (@RepublicanAGs). Here are the group’s top donors in the first three quarters of 2020. [LINK][…]

          Judicial Crisis Network, ADELSON, KOCH, etc.

  32. Molly Pitcher says:

    Harpie and Eureka,

    I want to thank you for all that you do. I am consistently blown away by what you find and post here. You make me more informed.

    • AndTheSlithyToves says:

      I second that emotion about Harpie and Eureka, Molly! They’re like a human tsunami tag-team running Reconnaissance Ops for the EmptyWheel SWAT headquarters once an article breaks.

  33. Badger Robert says:

    Even William Barr speculated that pardoning people who committed illegal acts in a conspiracy with the President granting the pardon might not be safe. The pardons would be part of the conspiracy. Which implies that no attorney will be willing to write the pardons. No attorney who wants to return to his/her career wants to be exposed to the accusation that they obstructed justice.
    Andre Johnson was not a secessionist. Pres. Ford was not in favor of draft obstruction. They were not granting pardons to their political allies.
    Everyone who entered the capital under the circumstances that existed on Wednesday is in serious trouble. Even a pardon might not help them that much.
    People who remained outside are more valuable as informants. The prior example is Grant and Akerman breaking the klan in SC.
    Guiliani and Don Jr. had not duty to address the crowd and were not cloaked in immunity. Pardon or no pardon, they are exposed. Trump probably cannot be convicted of inciting the inserrection, but he was undoubtedly a co-conspirator.

      • bmaz says:

        LOL Kirschner seems like a decent chap, but this is hyperbolic bullshit. Sure Trumps, plural, will still be part of the greater investigation of the riot. But Kirschner is doing the mirror opposite (the enantiomer for those with some science background!) of what he accuses the DOJ of doing. He is making conclusions out of his ass.

        Again, what Kirschner is saying is hyperbole. We shall see where the invention goes and what it turns up. But, as of now, there already exists a LOT of factual background and information, and it still probably does not yet meet DOJ charging standards as stated in the USAM. Key elements of specific intent and imminence remain a serious roadblock to any potential for criminal conviction under a reasonable doubt standard. We shall see what the larger investigation produces in this regard, but, as of now, the report of current DOJ thought is correct.

        I should also note that, Kirschner makes a living spewing this stuff. Did you note the adds that pop up in his YouTube diatribes? He monetizes his opinion on YouTube, his books and on MSNBC. That does not make him a bad guy, or necessarily wrong, not in the least. But be very wary that he has “burst any bubble”. Convicting Trump for incitement/insurrection (not to mention extortion on the Georgia SoS call) will be FAR harder than people are telling you.

        And, yes, it is extremely hard to see Pence making a 25th Amendment move. The cabinet, such as it may currently be, is so hollowed out as to confirmed members, may not even be willing to go there for a ten day stretch. Heck, would it even be viable at this point?

  34. CatinMA says:

    I would be grateful if one of you would explain the impact of the “except in cases of impeachment” clause of the Article II pardon power on the scope of potential presidential pardons, assuming Trump is impeached for inciting the insurrection. It sounds like he couldn’t pardon himself for that, but how about pardoning other people who were participants or co-conspirators in that crime? And does this limitation only apply to crimes specifically cited in the impeachment article(s), or is it broader?

    • timbo says:

      Impeachment convictions cannot be reversed by the President basically, nor can an impeachment investigation or trial be prevented by the President by way of pardons.

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