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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Ineffable Boiling Frog of Trump Scandal

In the last several days, two outlets have tried — but (in my opinion) failed — to communicate the sheer scale of the President’s corruption. Today, that bastion of warmed over conventional wisdom, Axios, deemed Trump’s Russian conspiracy “the biggest political scandal in American history.”

They miss most of the key details (and treat Trump’s contacts with Russian officials as the crime, when that’s not by itself one). Even in a piece invoking the Teapot Dome Scandal, they don’t seem to see the outlines of a quid pro quo bribe, Tower and dirt for sanctions relief. There’s no mention of Paul Manafort at all, much less one describing how he shared polling data in a meeting where he also discussed sanctions relief.

And I don’t think the Mueller investigation really has delivered one of the biggest counterintelligence cases in history (which may be a mis-citation of this Garrett Graff article).

More remarkably, the Axios founders don’t seem to be able to get their arms around where this scandal ends, in part because some of the other stuff Trump has done — monetizing the Presidency via other foreign powers or various properties — are separate from the Russian part of Trump’s scandals.

Tuesday, Greg Sargent attempted a different approach, cataloging all the things that Republicans in Congress think should not be investigated by Congress. He came up with this list:

  • Materials relating to any foreign government payments to Trump’s businesses, which might constitute violations of the Constitution’s emoluments clause.
  • Materials that might shed light on Trump’s negotiations over the duration of a real estate project in Moscow, which Trump concealed from the voters even as the GOP primaries were underway.
  • Materials that might show whether Trump’s lawyers had a hand in rewriting former lawyer Michael Cohen’s testimony to Congress falsifying the timeline of those negotiations.
  • Materials that might illuminate more detail about Trump’s numerous efforts to obstruct the FBI/Mueller investigation.
  • Materials that would shed more light on the criminal hush-money scheme that Cohen carried out, allegedly at Trump’s direction, and on Trump’s reimbursement of those payments.

This list is based on the HJC list of document requests, and so is limited to people who’ve already (publicly) been asked for documents. But even there, it doesn’t capture why some of these things matter — again, including the appearance of a quid quo pro bribe trading the Trump Tower for sanctions relief. Nor does it incorporate the full scope of kinds of crimes listed here. This list doesn’t include the range of lies told, not just by Cohen but by Roger Stone and Don Jr and others, nor does it consider the import of Cambridge Analytica and Manafort sharing polling data with the Russians.

And, of course, because Sargent works backwards from the HJC list, he doesn’t include issues already being investigated by other committees, such as how Trump’s ICE keeps losing immigrant children, or why he forced aides to give his daughter and her husband security clearances that they clearly weren’t suited for.

I raise this not to criticize, but instead to observe that we’re at a point where journalists are struggling to communicate the full scale of Trump’s corruption, even just that corruption tied exclusively to the Russian investigation. That’s partly been a result of his media approach, treating each day as a new opportunity to replace yesterday’s spectacle with a new one. It’s partly because of the boiling frog effect: we’ve had piecemeal disclosures over two years, and few journalists have taken stock along the way to see what the actual court evidentiary record amounts to. And even there, we often forget to add in the truly breathtaking corruption of Administration aides like Scott Pruitt or Ryan Zinke, or of current Secretary of Commerce Wilbur Ross.

I’ve been thinking about this a lot of late — I don’t pretend to be able to get my brain around anything beyond the Russian investigation, to the extent even that is doable. It seems that we need to start trying to quantify this not in terms of names or actions but instead in terms of harm to the nation.

Just as one example, even the judges in the Russian investigation have — across the board — seen Trump’s flunkies to be selling out the interest of the United States, perhaps for Trump personally, perhaps for self-dealing, perhaps for foreign associates. Whatever crimes (or not) Trump committed, because he and his flunkies refuse to put the interest of the country first, it has consequences for Americans, including the constituents of members of Congress who want to ignore all this corruption.

We’ve been boiling frogs for several years here. But it’s time to take stock on the bottom line effect that Trump’s corruption has had on the country, and holding Republican enablers accountable for that damage.

All the News Fit to Treat Badly

This screenshot depicts U.S. news media’s gross failure.

There have been numerous stories this week about the Trump cabinet which received slapdash coverage. All of them are scandals and should have resulted in the firing or resignation of two, possibly three cabinet members.

And yet the public is deluged with and seeking more information about a celebrity’s personal screw-up resulting in prosecution — a story which has no real impact on their personal lives. The public doesn’t appear to know how very badly Trump’s cabinet members are treating the public’s trust, or the risk posed by turning a blind eye to these cabinet members’ bad faith and corruption as nearly all of them are in the line of presidential succession.

In short, the public isn’t being informed about real news.

If the public is asking about a celebrity, leave it to celebrity gossip sites to answer. The public needs reporting about these failing cabinet members, and they need to know these stories are far more important than celebrity buzz, affecting the country’s ability to function normally. If the public isn’t asking about these cabinet members, it may be a sign that the media is failing them and/or the trend data may be manipulated.

~ ~ ~

How much do you or your family members and friends know about Wilbur Ross’s repeated lies about his personal holdings? The Office of Government Ethics refused to certify his most recent financial disclosure statement because he didn’t sell stocks that he said he’d sold. This has been going on since he became Commerce Secretary. His work in that role has been dismal as it is, not to mention his questionable relationship to a bank in Cyprus. But to lie and lie repeatedly to the government about his personal finances? There’s no excuse for his not knowing what assets he’s holding because he has to file a tax return reflecting ownership, earnings and subsequent profits and losses.

There’s also no excuse for news media to treat Ross’s lies as if they are perfectly normal for the person who is eighth in line of presidential succession and responsible for fostering, promoting, and developing the foreign and domestic commerce of the largest economy in the world. News outlets should be asking the White House every damned day why Ross hasn’t been booted out the door.

~ ~ ~

How much do you or your family members and friends know about former federal prosecutor and current Labor Secretary Alexander Acosta’s role in the ridiculously light sentence human trafficker Jeffrey Epstein received? Or Acosta’s role in violating the Crime Victims’ Rights Act, directly affecting at least 30 of Epstein’s victims?

News media paid a little more attention to this case because the crimes underlying it were of prurient interest. But they have already forgotten justice for the victims, blowing off Acosta’s continued employment in a role overseeing workplaces where human trafficking may occur. Acosta is right behind Ross in the presidential succession lineup. News media should likewise ask why Acosta still has a job as Labor Secretary right after they ask about Ross’s continued employment.

~ ~ ~

How much do you or your family members and friends know about former Interior Secretary Ryan Zinke’s alleged lies to federal investigators regarding disapproval of Native American casinos? This wasn’t the only probe Interior Department Office of Inspector General had been looking into; it’s the one which has been referred to a grand jury. What other damage may Zinke have done while he was at Interior? What continues under acting Interior Secretary?

Zinke had been two slots ahead of Ross in the presidential succession lineup. At least Zinke is no longer with the administration, unlike Ross and Acosta, or Betsy DeVos.

~ ~ ~

A staffer for Education Secretary DeVos attempted to obstruct investigation into DeVos’ restoration of approval for a college accreditor by trying to remove the acting inspector general looking into the re-approval. It’d be nice to know if DeVos instructed her deputy secretary Mitchell Zais to remove Sandra Bruce because was continuing her investigation, or if Zais tried this on his own. This is yet another cabinet-level scandal the public doesn’t know enough about compared to a celebrity story.

DeVos has been a threat to public education since her approval hearing when she suggested guns were needed in the classroom to protect against bears. She’s a threat to more than education as 13th in line of succession for the presidency, too, given there are open slots for Secretaries of Defense and Interior. College students struggling with tuition debt and students who’ve participated in active shooter drills would love to know why DeVos still has a job. They ought to know someone is asking every day.

~ ~ ~

And Secretary of Transportation Elaine Chao couldn’t let these four cabinet secretaries have all the fun. She may have been improperly coordinating with our glorious Senate Majority Leader Mitchell McConnell — also her spouse — to ensure their home state Kentucky received a lion’s share of transportation projects.

Fortunately Chao is not in the line of presidential succession because she is foreign born.

Fortunately, her spouse McConnell isn’t in the succession lineup at all.

Unfortunately, these were just a handful of stories which should have ranked higher in the mind of the public and the media’s effort.

This is an open thread.