Myrtle Beach, SC
The fastest way to understand what this package is comes from reading who is not on it.
Jack Smith is not on it. The special counsel who indicted the incoming president twice, who was named more often than anyone else in two years of retribution talk, who resigned on January 10 — he received nothing. The former Attorney General received nothing. Lisa Monaco received nothing. The fifty-one former intelligence officials who signed the 2020 letter about the laptop, whose names had been on every list of expected recipients for weeks, received nothing. Within days the new president stripped their clearances instead.
I work in marketing and the first thing you learn about a list is that the omissions tell you more than the entries. If this were a wrap of the official class — the intelligence apparatus, the Justice Department, the people who ran the prosecutions — those are precisely the names you would expect to find, and they are precisely the names that are absent.
What is on the list is narrower and stranger. Anthony Fauci. Mark Milley. A congressional committee, its staff, and the police officers who testified in front of it. Then five relatives.
So “closing the file before the next Department can open it” is close but not quite right as a description, and I would rather get the description right than keep a phrase.
The file that was closed is not the government’s file. It is a set of individuals the incoming president had named out loud. That is why a retired general whose exposure is a troop withdrawal sits next to an infectious-disease administrator, and why both sit next to a Capitol Police officer who was beaten in a tunnel and later described it under oath.
Now, does that look like mercy? No, and I do not think anyone is seriously arguing it does, including the man who signed it. His statement said these people had been subjected to ongoing threats and intimidation for faithfully discharging their duties, and that the pardons should not be mistaken as an acknowledgment that anyone had done anything wrong. That is not the vocabulary of mercy. Mercy concedes a wrong and forgives it.
It is the vocabulary of protection, and the protection is aimed at a threatened prosecution rather than at an existing one.
My objection is unchanged by any of that and it is simpler than the one this Forum started with. Protection of this kind buys certainty at the cost of vindication. Nobody covered by the morning proclamation will ever be cleared, because clearing requires a proceeding and the proceeding is what was cancelled. Fauci will not be exonerated. Milley will not be exonerated. They have an unconditional pardon and a departing president’s assurance, which is worth what that assurance is worth and nothing more.
And there is one nameable question inside the package that had a factual answer available. A senator referred Fauci’s congressional testimony about gain-of-function funding to the Justice Department, alleging false statements. That is a specific allegation about specific words with a live limitations period, and it is now permanently unresolvable in either direction.
Closing the file, then — but a much smaller file than the phrase suggests, and one whose contents were selected by the incoming administration rather than the outgoing one.
Novi, MI
A plant does not forgive a supervisor for a defect nobody has inspected. It retires the inspection. That is the right frame and I want to apply it accurately, because the scope claim our side has been making is larger than the paperwork supports and it will not survive contact with anyone who checks.
Here is the full extent of the official coverage. Anthony Fauci. Mark Milley. The members and staff of the House Select Committee on January 6. The Capitol Police and Metropolitan Police officers who testified before that committee.
That is the list. It is not a class of officials. It is roughly two dozen people plus a committee staff.
Now the omissions, and they are the finding.
Jack Smith received no pardon. He resigned on January 10 and left with no coverage of any kind, despite being the single most frequently named target in two years of public retribution talk. Merrick Garland received nothing. Lisa Monaco received nothing. Nobody at the Justice Department received anything. The fifty-one former intelligence officials who signed the October 2020 letter — the group most widely predicted to be covered, the subject of open speculation for weeks — received nothing at all. The new administration revoked their clearances within days of taking office.
In quality terms, that is a rejection pattern that does not match the hypothesis. If the hypothesis is that a departing administration wrapped its official apparatus against a hostile successor, the apparatus is missing from the sample. The prosecutors, the department leadership, and the intelligence signatories are all absent, and they are the highest-exposure items on any list a person would have drawn in advance.
So what explains the sample that was taken?
Two things, I think, and neither is a class wrap. The first is proximity to the January 6 investigation, which accounts for the committee, its staff, and the officers. The second is having been named personally and repeatedly by the incoming president, which accounts for Fauci and Milley and also for everyone in the first category.
There is a third possibility worth putting on the record because it is unflattering to the theory and I have seen no answer to it. Some of the people not covered may have declined. Reporting at the time indicated the committee members debated it among themselves for months before issuing a joint statement, and that Milley had made his own decision about whether he wanted it. If coverage was offered and refused in some cases, then the package is not a wrap at all. It is a set of individual decisions by individual people about their own exposure, coordinated by a White House that offered the instrument.
I do not know that this happened across the board and I am not going to assert it. I am going to say that the class-wrap description assumes a top-down operation and the available reporting describes something closer to a menu.
Where the objection holds, and holds firmly, is on the nature of the instrument rather than its breadth.
Preemptive coverage of an official for the discharge of official duties, before any charge, is not mercy in any sense the word ordinarily carries. It is the retirement of an inspection. A quality system that pre-clears a supervisor because it expects the next auditor to be hostile has not protected the supervisor. It has removed the only mechanism capable of establishing whether the parts were good, and it has removed it permanently and in both directions.
That is the finding I would file. Not a class wrap — a targeted retirement of inspection for roughly two dozen named people, most of whom had been named first by the incoming president. The scope is smaller than we have been saying. The problem with the instrument is exactly what we have been saying.
Orange County, CA
Orange County can tell a commuted sentence from a severance agreement, and this package is closer to the second. What I want to establish first is what the severance actually covers, because there is a limitation on these instruments that nobody in this discussion has mentioned and it materially changes the exposure analysis.
A presidential pardon reaches federal offenses only. It does nothing whatsoever about state charges.
That matters here more than it usually does. The incoming administration’s retribution talk was not exclusively federal — there was open discussion of encouraging state-level action, and the people on this list have exposure in more than one jurisdiction the way anyone does. Whatever these proclamations bought, they did not buy immunity. They bought immunity from one sovereign.
I work in finance and this is the sort of thing an underwriter checks before pricing a policy. A release that covers one of several potential claimants is not full protection, and describing it as though it were overstates both the benefit to the recipients and the harm to the public. Fauci, Milley, and the committee members remain exposed to every state prosecutor in the country, to congressional subpoena, to civil suit, and to the ordinary machinery of public inquiry. What they are protected against is a federal indictment.
That is a narrower product than the phrase “closing the file” implies, and I would say so plainly.
The coverage is also narrower in scope than we have been describing. The Justice Department got nothing. The special counsel got nothing. The fifty-one intelligence signatories got nothing, and were instead among the first people the new administration acted against. If this were a portfolio hedge across the official class, the largest positions are unhedged.
So the accurate description is a targeted release, federal only, for roughly two dozen named individuals selected largely by reference to who the incoming president had threatened.
Now the analysis, which does not change.
The question asks whether this looks like mercy. It does not, and the grantor did not claim it did. Mercy presupposes an offense; his statement says there was none. What the instrument does is retire a category of proceedings before they exist, and the cost of retiring them falls on the public rather than on the recipients.
Here is the cost stated precisely. In finance we distinguish between eliminating a risk and eliminating the ability to measure it. A pardon of uncharged conduct does the second. It does not establish that the conduct was lawful, it does not establish that it was unlawful, and it forecloses any process that could have established either. The position is not closed out. It is marked unobservable, permanently.
For most of these recipients that may not matter much, because the allegations against them were never more than announcements. For at least one it matters a great deal. There was a referral to the Justice Department regarding what Fauci told Congress about gain-of-function funding — a specific claim about specific testimony, with a limitations period that was still running. That was a question with an answer, and the answer is now permanently unavailable, which serves neither the man’s critics nor the man himself.
That is the institutional harm and it is separable from any view about whether the threatened prosecutions were legitimate. Even a bad-faith prosecution produces a record when it fails. A pardon produces no record at all.
Not mercy. A federal-only release, narrower than advertised, purchased with the public’s ability to know anything.
Bismarck, ND
Mercy names a wrong that happened. This names people who might be charged with something nobody has stated. Those are different instruments and I want to say which one this is after I get the facts right, because our side has been describing a bigger package than exists.
The official half is Fauci, Milley, the January 6 committee members and staff, and the officers who testified. That is all of it. The special counsel got nothing. The Attorney General got nothing. The fifty-one intelligence signatories got nothing and lost their clearances instead. So this is not a wrap of the official class, and calling it one hands the other side an easy correction.
Now the test I run on all of these.
Departing Republican administration. Incoming Democrat who has spent two years naming Republican officials he intends to prosecute. On the last morning the outgoing president issues full and unconditional pardons to his surgeon general, his outgoing Joint Chiefs chairman, a House committee that investigated the other party, and the officers who testified before it. No offense named. A statement attached saying nobody did anything wrong.
Would I accept it? I would accept that the threat was genuine, since it would have been broadcast for two years. I would still say the instrument is wrong, and for the same reason I say it here: a preemptive pardon is not a defense against a bad prosecution. It is the cancellation of the only proceeding capable of proving the prosecution was bad.
Same answer both directions. That is the whole value of running the test.
In compliance work we distinguish a waiver from a closure. A waiver forgives a documented finding. A closure ends the examination without a finding, and closures are the thing every regulator is trained to scrutinize, because a closure with no finding is indistinguishable from a finding that was never made.
These are closures. Every one of them. And the closure is permanent in a way that no examination result ever is — a bad finding can be appealed, a good one can be revisited on new evidence, and a closure with no finding can never be reopened by anyone.
What I would have wanted instead is the thing this system does not have, and its absence is the actual scandal. There is no intermediate remedy. A departing president who genuinely believes his successor will bring bad-faith cases against named officials has exactly two options: do nothing, or immunize permanently. He cannot refer the conduct to an independent reviewer. He cannot require a published charging standard. He cannot obtain an advance determination from anybody.
A control system whose only settings are off and permanent is not a control system, and when you build one you should expect the permanent setting to get used on the last morning.
Not mercy. A closure with no finding, on a narrower list than advertised, produced by a system with nothing in between.
Clermont, FL
If the ride has thrown somebody, a refund is mercy. If nobody has inspected the ride, a refund is closing the park. That distinction still holds and I want to apply it to the one entry on this list where an inspection was genuinely available.
Most of the official coverage here involves people against whom no specific allegation had ever been made. Milley’s exposure was the Afghanistan withdrawal and things he had said about the incoming president — political grievances, not identified crimes. The committee members’ exposure was having run a congressional investigation. The police officers who testified had no exposure at all that anyone has ever articulated, which is why their inclusion tells you what the package was actually responding to.
Fauci is the exception, and I think it is worth spending a whole answer on because it is the strongest case our side has and it does not need any theory attached to it.
There was a specific, nameable allegation. A senator referred his congressional testimony to the Justice Department, alleging false statements about whether the National Institutes of Health had funded gain-of-function research through a subgrant. Whatever one thinks of the politics, that is not an announcement of intent to persecute. It is a claim about particular words spoken on a particular date under oath, and it has a yes-or-no answer that a grand jury could have examined. The limitations period was still running.
That question is now closed forever, and closed by an instrument issued by the same administration the official served.
I consult with small businesses and this is the thing owners get wrong most often. When a real complaint and a nuisance complaint arrive together, the temptation is to dispose of both at once, because the nuisance one is exhausting and the real one is inconvenient. Owners who do that discover the same thing every time: they have not settled the real complaint, they have made it permanent. Everyone who believed it still believes it, and now there is no process left that could have changed anyone’s mind.
That is what happened to Fauci. He is not vindicated. He is unexaminable, which in public life is a considerably worse position and one he will occupy for the rest of his life.
So my answer to the question is that this does not look like mercy in any respect. Mercy requires that somebody name the wrong being forgiven, and the accompanying statement explicitly denies there was one. What it looks like is a park closed to inspectors — with the qualification that the park was closed because the inspector arriving on Monday had announced he would write violations regardless of what he found.
That qualification is real and I will not pretend otherwise. It also does not change what a closed gate is.
Closing the file. Not the whole official file, which turns out to be much smaller than we have been saying, but the one nameable question inside it, which is the one that mattered.
Jacksonville, FL
Ports know the difference between a waived fine on a cited cargo and a letter saying the next inspector may not open a container. What I want to work through is why one particular container is on this manifest, because it is the entry that explains the whole document.
The Capitol Police and Metropolitan Police officers who testified before the January 6 committee were pardoned.
Sit with that. Those men were assaulted at the Capitol. Several were injured. They testified about what happened to them. There has never been an allegation of any kind against any of them, by anyone, at any time. No referral, no investigation, no theory. Nothing.
And they were included in a full and unconditional preemptive pardon on the last morning of an administration.
If you are looking for the organizing principle of this package, it is there, and it is not concealment. You cannot conceal anything by pardoning an assault victim who testified truthfully. What you can do is signal that you expect the criminal law to be turned on witnesses.
That is the manifest entry that determines how I read the rest of the cargo. The document is not a records-suppression instrument. It is a statement, in legal form, that a departing president believed the incoming Justice Department would prosecute people for testifying — and acted on that belief with the only tool he had.
Now, this Forum has spent two years arguing that the previous administration’s prosecutions of the incoming president were lawfare. I have made that argument myself, at length, in a dozen essays. I am not withdrawing it. But intellectual honesty requires noticing that the January 20 package is what it looks like when the other side reaches the same conclusion about the same institution, and acts on it first.
Both sides now believe the Justice Department will be weaponized by whoever holds it. One side spent three years saying so. The other side just spent its last morning insuring against it. Those are not competing claims about the world. They are the same claim, made by both parties, eleven weeks apart.
So does this look like mercy? No, and nobody has claimed it does. Does it look like closing the file? Yes, with two corrections to how our side has been describing the file.
The first correction is scope. The prosecutors are not covered. Jack Smith received nothing. The Justice Department received nothing. The fifty-one intelligence signatories received nothing and were stripped of their clearances within days. If the object were an official class wrap, those are the containers you would seal first and they were left on the dock.
The second correction is reach. A federal pardon does not touch state charges, congressional subpoenas, civil suits, or the ordinary machinery of public inquiry. What these people bought is protection from one sovereign’s criminal process. That is significant and it is not the same as disappearing.
What remains, and what I would put at the top of the manifest, is the permanence. Every one of these people has traded the possibility of being publicly cleared for the certainty of never being charged. Milley said as much in his own statement — he did not want to spend his remaining years fighting, or put his family through the expense. That is a rational trade for a seventy-year-old man and a terrible trade for a country, because the country is the party that loses the record.
Not mercy. A settlement with the public as the paying party, on a narrower manifest than we have been claiming.
Las Vegas, NV
Mercy tears up a marker on a hand that was played. A letter telling the next pit boss he may not look at a player is a different document, and everybody in this building knows the difference.
The thing I keep coming back to on this package is that one of the recipients explained himself, in writing, on the day, and almost nobody has quoted him.
Mark Milley said he was grateful, and then said this: after forty-three years in uniform he did not wish to spend whatever time the Lord grants him fighting those who might seek retribution for perceived slights, and he did not want to put his family, his friends, and the people he served with through the resulting distraction, expense, and anxiety.
Read that as an operations man and it is not the statement of somebody hiding something. It is the statement of somebody who has priced a fight and decided not to take it. I have watched people make that calculation across a table more times than I can count, and the ones who make it are usually not the ones with something to conceal. They are the ones who have looked at three years and a lawyer’s retainer and their wife’s health and decided the win is not worth what it costs.
I say that because our side has been describing this package as a cover, and the most senior recipient published a different explanation on the day and it hangs together.
Here is where I still land, though.
A casino would never let a player settle a dispute by having the house declare in advance that no dispute occurred. The reason is not fairness to the player. It is that the record is the only thing that makes any future ruling credible. Once you start disposing of complaints by declaring them nonexistent, every subsequent ruling gets read as another disposal.
That is the cost here and it falls on the institution rather than on Milley. He got what he needed. The country got a permanent blank where a proceeding would have been, and it got it in a form that cannot be filled in later by anyone.
And I would note what was not covered, because the class-wrap version of this argument is wrong on the facts. The prosecutors got nothing. The department leadership got nothing. The fifty-one signatories on the laptop letter got nothing at all and had their clearances pulled instead. That is not a house sweeping the floor. That is a house covering a specific handful of names that the incoming manager had called out.
So the answer is closing the file, on a smaller file than advertised, for reasons at least one recipient stated openly and credibly. Not mercy. Mercy names the hand.
Knoxville, TN
Mercy is a finished case. Wrapping officials before anybody has asked a question is closing the file. That is my answer and the interesting part is why the system offered no third option.
I work in public works and the thing I would flag here is a missing control tier.
Consider the actual problem in front of a departing president in January. His successor has spent two years publicly promising to prosecute named individuals. Several of those individuals are career officials whose conduct consisted of doing their jobs. There is no allegation against most of them, only an announcement of intent.
What tools exist? He can do nothing, and let people spend their savings and their health being proven right over three or four years. Or he can issue an unconditional pardon that ends the exposure permanently and forecloses any determination in either direction.
That is it. Two settings. Nothing between them.
In engineering that is a specification failure, not an ethics failure, and it is the part of this that will still matter in twenty years. Every other high-consequence system in American government has intermediate tiers. A contractor facing default gets notice, a cure period, liquidated damages, and only then termination. A regulated utility gets a finding, an order, a compliance schedule. The criminal exposure of a departing administration’s officials has none of that.
What an intermediate tier would look like is not hard to sketch. An independent reviewer appointed by both incoming and outgoing administrations, with authority to certify whether a proposed investigation rests on articulable predicate. A statutory requirement that the Justice Department publish a charging standard for prosecutions of former officials of the prior administration. A referral mechanism by which a departing president can put conduct in front of a body that will actually examine it, rather than choosing between abandonment and immunization.
None of those touches the pardon clause. All of them would have given a president in January something to do other than sign.
The reason this matters more than the individual proclamations is that the next departing president inherits the same two settings. He will not inherit Biden’s reasons or Trump’s threats. He will inherit a document establishing that the permanent setting is available and has been used, and a political environment in which his own supporters will regard not using it as negligence.
So: not mercy, and closing the file, and — the part I would put in the record for whoever reads this in ten years — an entirely predictable output of a system built with no middle.
