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AG Mukasey Says No Pardons Necessary:

The NYT reports that Attorney General Michael Mukasey does not believe the Bush Administration needs to consider whether to pardon officials who were involved with the development of interrogation policies.

Mr. Mukasey, whose nomination as attorney general last year was threatened by his refusal to say whether he considered waterboarding to be torture, said the lawyers who authorized the surveillance and interrogation programs had done so in the belief that they were following the law.

"In those circumstances," he said, "there is no occasion to consider prosecution, and there is no occasion to consider pardon."

"If the word goes out to the contrary," he said, "then people are going to get the message, which is that if you come up with an answer that is not considered desirable in the future you might face prosecution, and that creates an incentive not to give an honest answer but to give an answer that may be acceptable in the future. It also creates some incentive in people not to ask in the first place."

BChurch:
So wait. Prosecuting a crime will discourage people from admitting that they broke the law? Gracious!
12.4.2008 11:12am
Sparky:
Maybe it's just me, but I think that whether an answer will be "acceptable in the future" is actually a relevant consideration. Not just whether the answer will be acceptable to a different administration, but definitely whether the answer will stand the test of time.
12.4.2008 11:22am
Psalm91 (mail):
How does he know that the lawyers involved gave "honest answers" and "believed they were following the law"? The published and public accounts Are there third party accounts or analyses to support this conclusion? Certainly Yoo and Addington or Goldsmith may say this publicly now but I am unaware of any account from a non-participant which reaches the same conclusions. In fact, the Y/A position is essentially that under certain (self-defined) circumstances the president is above the law.
12.4.2008 11:45am
Psalm91 (mail):
Correction:

The published and published accounts are otherwise, i.e. Jane Mayer. Are there other accounts to read? Today's irony: GWB says he was "unprepared" for war; certainly Addington and Cheney were not.
12.4.2008 11:47am
Norman Bates (mail):
Psalm91 = Negotibus perambulans in tenebris?
12.4.2008 12:09pm
KilgoreTrout_XL (mail):
Dear Atty. Mukasey:

Thank you, Judge, for clearing up what I naively thought was a much more complicated issue.

Query: Would you mind extending your reasoning, by analogy, to any and all legal malpractice I might feel like committing during the duration of my career? Feel free to lobby Mr. Bush to issue an executive order to that effect on his way out.

I've never really liked proofreading, reading, or developing rational analysis of precedent through legal "research". I could also use the premiums I would no longer need to pay to put one of those fabulous putting machines in my office.

If you could go ahead and do that, that would be great. Thanks.

-Kilgore
12.4.2008 12:23pm
Don de Drain:
If Mukasey is so certain that the attorneys who gave these opinions were not engaging in behavior that they knew violated the law, I am sure that Mukasey won't mind having someone like Patrick Fitzgerald independently confirm what Mukasey believes. In fact, he should welcome such an investigation so that skeptics such as myself will stop whining about this issue. Should I hold my breath waiting for Mukasey to ask Patrick Fitzgerald to look into this? For that matter, should I hold my breath waiting for Obama's AG to look into this?

BTW, if someone understands that the criminal law prohibits certain conduct but believes that the law is unconstitutional, and then they engage in conduct which they understand violates the statutory standards governing criminal liability, that person's belief that the law is unconstitutional is not a valid defense to a criminal prosecution. The only way a conviction can be avoided where there is a knowing violation of a statutory legal duty is if the law is in fact unconstitutional. Testimony as to the defendant's belief of the unconstitutionality of the law is completely irrelevant to the question of guilt.

For an example of how this works in real life, take a look at the Supreme Court's opinion in Cheek v. U.S., 498 US 192, where the Supremes held that a defendant could be acquitted if they believed that their conduct did not violate a known legal duty, even if that belief was objectively unreasonable, but further held that a defendant's belief that the law was unconstitutional was irrelevant for purposes of determining whether the defendant had intentionally violated a known legal duty.

If I had more time, I'd figure out how the ruling in Cheek plays out in the context of the information available to the public on the "torture issue." But I have to get back to work now.
12.4.2008 12:25pm
AnotherMike:

If the word goes out to the contrary," he said, "then people are going to get the message, which is that if you come up with an answer that is not considered desirable in the future you might face prosecution, and that creates an incentive not to give an honest answer but to give an answer that may be acceptable in the future. It also creates some incentive in people not to ask in the first place."


So, if a party to a lawsuit makes a frivolous claim and the other side seeks sanctions, is it an absolute defense against sanctions to say I found a lawyer who said it was okay? Is the chosen lawyer immune from sanctions if he merely says it was his "honest" opinion?
12.4.2008 12:26pm
Steve H:

How does he know that the lawyers involved gave "honest answers" and "believed they were following the law"? The published and public accounts Are there third party accounts or analyses to support this conclusion? Certainly Yoo and Addington or Goldsmith may say this publicly now but I am unaware of any account from a non-participant which reaches the same conclusions. In fact, the Y/A position is essentially that under certain (self-defined) circumstances the president is above the law.


That's my concern. The memos that I have read do not appear to be neutral analyses of the law, but rather advocacy briefs. And the position that undergirds the memos is so extreme (As long as the President says he is acting in national defense, his power is unlimited), that I have a hard time accepting that Yoo and Addington honestly believed they were following the law.
12.4.2008 12:35pm
Oren:
He had a chat with Obama and realizes the new Pres. isn't going to hold grudges (look at Lieberman) even though he'll likely drastically change the underlying policies.
12.4.2008 1:10pm
Psalm91 (mail):
"Norman Bates:

Psalm91 = Negotibus perambulans in tenebris?"

Sorry, but I forgot the Latin I learned in elementary school. Try again in English if you have something useful to communicate. Or perhaps your point is akin to Yoo's secret memos and the contents of Addington's safe; legal opinions which excuse wrongdoing but must be kept classified/or unintelligible so as to protect the non-perpetrators.
12.4.2008 1:13pm
jweaks:
Does not sound much like news... other than the AG's vague opinion about pardon speculations. -jw
12.4.2008 1:18pm
Bored Lawyer:

Query: Would you mind extending your reasoning, by analogy, to any and all legal malpractice I might feel like committing during the duration of my career? Feel free to lobby Mr. Bush to issue an executive order to that effect on his way out.


Legal malpractice is generally not punishable as a criminal offense. It's one thing to require a lawyer who made a careless mistake in giving advise to his client to pay for the damage caused. It's quite another to put him in jail for that.
12.4.2008 1:21pm
Conrad Bibby (mail):
There seem to be two issues here. First, whether Mukasey is mistaken in his evaluation of this particular case. Second, is there something intrinsically wrong in HIS passing judgment on the question vs. having an independent counsel make the call.

As to the independent counsel issue, it appears from my brief perusal of the relevant regulation (28 CFR part 600) that Mukasey still has to make an initial determinationthat a criminal investigation is warranted before turning the matter over to independent counsel. In this case, it appears from his comments that he doesn't consider a criminal investigation to be warranted. Whether that judgment rests on solid factual and legal grounds is of course debatable, but I don't see where anyone else has a say in the matter so long as Mukasey is the AG.

Long story short, the suggestion that Mukasey should refer the matter to independent counsel because OTHER PEOPLE think Y and A should be prosecuted appears to be without legal support. Mukasey is the AG and it's his job to make the call in the first instance, at least based on my reading of the situation.
12.4.2008 1:22pm
KilgoreTrout_XL (mail):
@Bored Lawyer:

Um, yeah, I know. I was kidding.
12.4.2008 1:39pm
cbyler (mail):

that creates an incentive not to give an honest answer but to give an answer that may be acceptable in the future.


Does this strike anyone as particularly comical coming from an administration known to pressure attorneys not to give an honest answer but to give an answer that may be (politically) acceptable in the present?
12.4.2008 1:58pm
Thomas_Holsinger:
Here is a brief quote from my final post in the related thread:
"Obama's decison to keep Secretary of Defense Gates was the tip-off that the whole pardon controversy is a non-starter. Gates had been Director of the CIA in the elder Bush administration. There is no way that he'd have agreed to stay on absent assurances of no such prosecutions. Bush '41 would know this. Ditto for Obama's selection of former Marine Corps Commandant James Jones as his National Security Adviser.

Obama's appointments in this area have clearly signalled that there will be no major changes in national security policy for a while."

12.4.2008 2:31pm
Don de Drain:
Conrad Bibby--

Has Mukasay actually made a formal determination in that regard? Or is he just expressing his personal opinion that there should be no prosecution because it could have "bad" repercussions?

Is there any law that prohibits the AG from asking someone like Fitzgerald to look at that question, without formally appointing a special prosecutor under the regs cited? Does anyone besides me see value in having an independent, non-political appointee look at the matter? If it's been done already, fine. Where's the report? What does it say?
12.4.2008 2:33pm
Allan (mail):
General Mukasey is a mealy-mouthed little weasel. But if he talks the Bush out of granting pardons, so much the better.
12.4.2008 4:15pm
Benjamin Davis (mail):
I have to remember this one for the next crack dealer that goes up on trial. Just say your legal analysis was that crack was not a controlled substance subject to criminal sanction and believed I was following the law. Yeah I can just see that flying with a prosecutor and a jury. I believe they believed that what they wrote was write. It is just that what they wrote authorized torture. They made their bed, let them sleep in it.

But, I have another thought on all this. The pardon discussion now might just be a canard. I can imagine that Bush signed a carefully drafted prospective secret pardon years ago for all the people working on this that would be opened on the last day of his term or in the case of any trial of any of them. I am not aware of a requirement that public notice of pardons has to be given. This occurred to me last night. It would be consistent with the way Cheney and Addington work and Mukasey's resistance to hand over to Obama all the "family jewels" of the Office of Legal Counsel made me wonder whether such a thing my exist somewhere between the White House and the Justice Department. Or, maybe at the CIA.

Best,
Ben
12.4.2008 4:24pm
Psalm91 (mail):
Mr. Davis:

If such a secret pardon exists, it would certainly be in Addington's safe, as that location has been off limits to literally everyone else, is reportedly the whereabouts of some of the as yet undisclosed OLC or other legal memos, and because he is one of the pardonees. Will he attempt and be able to take all of the records with him when he leaves the government?
12.4.2008 4:42pm
Bob from Ohio (mail):
Benjamin Davis and Psalm91:

I hear these pardons are located at Area 51 in Big Foot's personal safe.
12.4.2008 4:49pm
Conrad Bibby (mail):
Don: I have no idea what level of examination on Mukasey's part may have preceded his comments, which appear on the surface to have been fairly informal. I'm merely taking issue with the suggestion that he's obliged to refer the question to an independent counsel in the first instance. It appears to me he must make a determination that a criminal investigation is warranted before he is empowered to appoint such counsel.

I would certainly assume he can consult with anyone he wants, informally, or even appoint/retain counsel to advise him. But he still has to make the decision himself.

Anyway, that's my take.
12.4.2008 6:07pm
Smokey:
Allan:
General Mukasey is a mealy-mouthed little weasel. But if he talks the Bush out of granting pardons, so much the better.
I know what you want, and I think you're going to be disappointed.


[Negotibus perambulans in tenebris = The pestilence that stalks in darkness.

From the 91st Psalm. I think you're being razzed. Or worse.]
12.4.2008 9:19pm
Eli Rabett (www):
Mulkasy has realized that a pardon contains within it an admission that a criminal law was broken. Even for a blanket pardon, those covered must individually accept it. Even though a US pardon exists, this has no validity beyond the US and anyone who accepts the pardon can't leave the US without exposing themselves to prosecution.
12.4.2008 10:22pm
Steve:
Even for a blanket pardon, those covered must individually accept it.

I see this asserted a lot, but is it actually written somewhere? Does the Justice Department routinely go after people on the grounds that "hey, they technically haven't accepted the pardon yet"?
12.5.2008 12:01am
Conrad Bibby (mail):
"Mulkasy has realized that a pardon contains within it an admission that a criminal law was broken. Even for a blanket pardon, those covered must individually accept it. Even though a US pardon exists, this has no validity beyond the US and anyone who accepts the pardon can't leave the US without exposing themselves to prosecution."

I would be very skeptical of these sorts of claims about the implications of a pardon. I specifically don't buy the claim that a pardon would somehow place the recipient in greater legal jeopardy than they would be without the pardon due to the supposed imputation of guilt.

Think about it in practical terms. Suppose Bush pardon's an aide for "any and all crimes he may have committed against the U.S. from 2003 through 2008." The aide then "leaves the US," against the advice indicated in the post quoted above. He gets arrested and charged with committing a crime against humanity. You're telling me that the pardon now operates as an affirmative confession of guilt to the int's war crimes charge? How, exactly? First, the language of the pardon didn't specify any particular crimes. Second, the crime(s) for which he was pardoned only included crimes against the U.S. (which are the only crimes for which a president can issue a pardon). How can it be used affirmatively to establish guilt for a crime under intl law, which the pardon didn't reach in the first place?

The whole notion that the recipient needs to "accept" the pardon and thereby "accept" the guilt appears to be an urban myth. What a 1915 USSC case seems to say is that, if a defendant wants to avoid conviction on the basis of a presidential pardon, he must produce the pardon and introduce it into the proceedings. That's not the same as admitting guilt. Moreover, in the case of a blanket pardon for "any and all crimes X may have committed from 2003-08," what would the defendant be accepting guilt for, EVERY single offense he COULD HAVE committed during the period? It makes no sense.
12.5.2008 8:47am
Crust (mail):
It would be interesting to see some legal analysis as to whether secret pardons would be valid.
12.5.2008 10:43am
Crust (mail):
On pardons and admission of guilt: Ford aide Benton Becker argued -- in the context of the Nixon pardon -- that accepting a pardon is an implicit admission of guilt:
Researching the legal and technical aspects of presidential pardons (see August 30, 1974), Benton Becker, President Ford's lawyer, finds that they only apply to federal crimes, meaning, for example, that Richard Nixon can still be prosecuted for crimes in California arising from his connections to the Ellsberg burglary (see September 9, 1971). It would not affect a Senate impeachment trial, even though the possibility of that happening is increasingly remote. Becker finds two legal references of particular use in his research: the 1915 Supreme Court case of United States v. Burdick, which attempted to answer the fundamental question of the meaning of a presidential pardon; and an 1833 quote from the first Chief Justice of the Supreme Court, John Marshall, who wrote, "A pardon is an act of grace… which exempts the individual on whom it is bestowed from the punishment the law inflicts for a crime he has committed." Becker determines that such an "act of grace" is an implicit admission of guilt. Unlike the proposed conditional amnesty for draft evaders (see August 31, 1974), a pardon will strike convictions from the books and exempt those pardoned from any responsibility for answering for their crimes, but it does not forget (in a legal sense) that those crimes took place. "The pardon is an act of forgiveness," Becker explains. "We are forgiving you—the president, the executive, the king—is forgiving you for what you've done, your illegal act that you've either been convicted of, or that you've been accused of, or that you're being investigated for, or that you're on trial for. And you don't have to accept this—you can refuse this." The Burdick decision convinces Becker that by pardoning Nixon, Ford can stop his imminent prosecution, and undoubted conviction, without having to condone Nixon's crimes. For Nixon to accept a pardon would be, in a legal sense, an admission of criminal wrongdoing.
12.5.2008 10:48am
Crust (mail):
This gives an amusing sense of what Nixon thought of the idea that his accepting a pardon would be an admission of guilt:
When Ford aide Benton Becker tried to explain to Nixon that acceptance of a pardon [225 USPQ 1087] was an admission of guilt, he [471 U.S. 575] felt the President wasn't really listening. Instead, Nixon wanted to talk about the Washington Redskins. And when Becker left, Nixon pressed on him some cuff links and a tiepin "out of my own jewelry box."
12.5.2008 10:54am
Psalm91 (mail):
"Smokey:

[Negotibus perambulans in tenebris = The pestilence that stalks in darkness.

From the 91st Psalm. I think you're being razzed. Or worse.]"

Sorry, but using language few understand defuses the wit of the comment.

Re Mukasey, perhaps he should withhold judgment until the existing and open investigation into these sames issues has been concluded.
12.5.2008 11:12am
Crust (mail):
Apparently, Rep. Nadler intends to introduce a constitutional amendment to limit the pardon power to bar Presidents from pardoning members of their own administration for official acts and possibly to further limit the pardon power in the final months of an administration. Those sound like good ideas to me, though of course constitutional amendments are tough to pass.
12.5.2008 11:27am
Thomas_Holsinger:
Crust, that's a Pay Attention To Me And Please Send Money amendment.
12.5.2008 1:45pm
Eli Rabett (www):
Conrad:
Think about it in practical terms. Suppose Bush pardon's an aide for "any and all crimes he may have committed against the U.S. from 2003 through 2008." The aide then "leaves the US," against the advice indicated in the post quoted above. He gets arrested and charged with committing a crime against humanity. You're telling me that the pardon now operates as an affirmative confession of guilt to the int's war crimes charge? How, exactly? First, the language of the pardon didn't specify any particular crimes. Second, the crime(s) for which he was pardoned only included crimes against the U.S. (which are the only crimes for which a president can issue a pardon). How can it be used affirmatively to establish guilt for a crime under intl law, which the pardon didn't reach in the first place?


So said aide is on trial somewhere else. The prosecutor says: Did you accept this pardon and zuzwang occurs. If he says no, then he is subject to prosecution in the US, if he says yes. .

Congress invites the gal to testify, same scenerio. Now the issue is perjury.
12.5.2008 2:34pm

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