Adam—Good chilly morning to you. For whatever they’re worth, I thought I might share my knee-jerk thoughts on President Biden’s last-minute pardons of Dr. Anthony Fauci, Gen. Mark Milley, and the J6 Committee Members. Here goes:
1. It’s a bad look. A pardon is defined as an act that officially nullifies punishment or other legal consequences of a crime. Thus, to pardon a man presupposes that he’s vulnerable to a nonfrivolous criminal prosecution. President Biden’s pardons imply that all of these pardonees violated criminal statutes (or at least that the case can be made).
2. Advocates for the pardonees will say that these pardons are meant to preempt politically motivated prosecutions. Perhaps. But that argument can easily boomerang. It tacitly admits that DOJ and state prosecutors can indict and prosecute a proverbial ham sandwich—and just maybe, that’s what happened to President Trump.
3. Legally speaking, these pardons won’t necessarily get anyone off the hook. First, as other producers have astutely observed, the pardonees can no longer invoke their Fifth Amendment protections against self-incrimination for the pardoned conduct. They can now be forced to testify, which could implicate many other people. Second, suppose a pardonee testifies falsely, destroys documents, or gives false information to law-enforcement personnel. That conduct would give rise to brand-new “procedural” crimes such as perjury, false statements, or obstruction of justice. Plus, anyone else who participated in that conduct will become an accomplice and would be subject to squeezing.
(I realize that some might say that a pardonee can just lie about everything and walk away. Sure, it’s possible, but it’s very unlikely. Any investigator or prosecutor will tell you that, by the time they start interrogating or cross-examining a witness, they already know the answers and already have the proof. They’re also asking the same questions of multiple people at the same time—and untruthful answers rarely match up. By that point, the questions are basically just honesty tests that the subject had better answer truthfully.)
4. The military retains jurisdiction over Gen. Milley. Even with the pardon, DoD could take administrative action against him—for example, reducing his retirement pay or changing the character of his discharge from honorable to something less. This is highly unlikely, but it’s a cudgel that investigators can use against him—especially if he commits a procedural or other unpardoned crime. Again, he’s not totally off the hook.
Haha, either word works when you’re dealing with me. 😂
One quick clarification about the interesting (but unlikely) Gen. Milley scenario. Normally, the military can go after retired personnel both criminally and administratively. Here, the criminal route isn’t available because of the pardon. But a pardon doesn’t preclude _administrative_ action.
Indeed, military members who’ve gone through trial _and been acquitted_ can still be kicked out administratively, possibly with diminished benefits and/or a less favorable discharge classification of “general” or “under other than honorable conditions.” The military does that all the time. While unlikely, this same thing can happen to retirees.
I just wanted to make clear that the pardon applies only to criminal actions, not administrative actions. (And again, it doesn’t apply to future crimes such as perjury, obstruction, false statements, etc.) Again, it’s unlikely, but I’d bet Gen. Milley is thinking about it. Meanwhile, the M5M won’t even acknowledge it.
Oh, one more thing! This is more political than legal, but if the pardon-supporters out there argue too loudly that these pardons were necessary to avoid political persecution, that might give Trump the green light to immediately pardon everyone who is currently on the hook due to the same thing. It’d be risky—usually you’d wait till the end of a term—but they’d be opening the door.