Laurence Tribe just explained on Lawrence O'Donnell why Trump could not self-pardon.

[LaMouffette]

Tribe's reasoning was that it would violate the next article that says the president must faithfully execute the laws. He added that if presidents knew they were able to self-pardon, then they would come into office knowing they could get away with anything, since a self-pardon made them essentially above the law.

That was reassuring, until I remembered that it doesn't matter if Trump can't self-pardon because he can just resign and have Mike Pence pardon him instead.

Which made me wonder: How on God's green earth is it Constitutional, then, for a vice president to be able to pardon the president for whom he served? Isn't that almost exactly the same as the president doing a self-pardon?

And why, after Ford pardoned Nixon, didn't Congress pass a law to ensure that a vice president could not pardon a criminal president ever again?

I guess this explains why Roger Stone has that stupid-ass tattoo of Nixon on his back. At least something makes sense.

Goodnight, DUers!

[TwilightZone]

1. He's not going to resign.

I'm not sure why people ever thought otherwise. He won't even admit that he lost, but he's going to resign?

Nope, not happening.

Plus, there's a report that Pence wouldn't pardon Trump and his family even if he did resign, though the source is Don Winslow, who has a rather spotty track record.

[pat_k]

2. The logic is sound, but untested.

From the NY Times
https://www.nytimes.com/2020/12/02/us/politics/trump-pardons.html

May a president pardon himself?

This is unclear. There is no definitive answer because no president has ever tried to pardon himself and then faced prosecution anyway. As a result, there has never been a case that gave the Supreme Court a chance to resolve the question. In the absence of any controlling precedent, legal thinkers are divided about the matter.

Those who think a president can pardon himself point out that the relevant text in the Constitution is broadly written and contains no explicit exception precluding a self-dealing use or abuse of that power. Because the founders did make an explicit exception for cases of impeachment, they argued, that implies they did not intend there to be any other exceptions.

But other legal thinkers have come up with theories for why the Supreme Court might nevertheless reject a purported self-pardon if it ever came up. For example, some scholars have argued that the founders’ use of the word “grant” should be interpreted as meaning one person giving something to another, so a president cannot grant a pardon to himself.

In August 1974, four days before Nixon resigned, Mary C. Lawton, then the acting head of the Justice Department’s Office of Legal Counsel, issued a terse legal opinion stating that “it would seem” that he could not pardon himself “under the fundamental rule that no one may be a judge in his own case.” But she did not explain what transformed that principle into an unwritten legal limit on the power the Constitution bestows on presidents.

And on the topic of corruption-tainted pardons.

Would a corruption-tainted pardon count?

Probably. The Constitution does not create any explicit exception that invalidates pardons that were granted under dubious circumstances — like if a president took money in exchange, or was buying the silence of a witness to his own wrongdoing. Grants of clemency are widely understood to be irrevocable.

Still, a president who grants a pardon under corrupt circumstances could open himself up to prosecution for acts like bribery or obstruction of justice after he leaves office. Even Attorney General William P. Barr, who embraces a maximalist ideology of executive power, testified during his confirmation hearing that if a president pardoned someone in exchange for a promise not to incriminate him, “that would be a crime.”

[LaMouffette]

8. Thank you for this!

I especially liked this part:

Still, a president who grants a pardon under corrupt circumstances could open himself up to prosecution for acts like bribery or obstruction of justice after he leaves office.

Except, wouldn't a blanket pardon absolve him from any bribery or obstruction of justice committed while he was still in office?

[pwb]

12. A crime or conviction is needed for a pardon.

No such thing as a blanket pardon. Trump thinks that but not many others do. I pardon all republicans for every crime they may or have committed. It does not work that way.

[StarfishSaver]

15. There is indeed a blanket pardon and yes, it actually does work that way

A person can be pardoned for any crimes they may have committed and there is no requirement that they have been charged or convicted.

[pwb]

16. Come on?

Saying it doesn't make it so.

[StarfishSaver]

17. My saying it doesn't make it so. But the Supreme Court saying it DOES make it so

The Supreme Court has ruled that the pardon power applies every crime known to law and "may be exercised at any time after its commission," including before a person is charged or convicted.

That's pretty clear.

[pwb]

18. O K give me an example of a blanket pardon?

Nothing is clear.

[StarfishSaver]

19. Ford's pardon of Nixon is an example

Now, THEREFORE, I, GERALD R. FORD, President of the United States, pursuant to the pardon power conferred upon me by Article II, Section 2, of the Constitution, have granted and by these presents do grant a full, free, and absolute pardon unto Richard Nixon for all offenses against the United States which he, Richard Nixon, has committed or may have committed or taken part in during the period from January 20, 1969 through August 9, 1974.

[pwb]

20. So Presidents can be criminals for four years doing whatever they want

then pardon themselves or be pardoned by the next criminal President. What a country that would be? No there needs to be a crime or conviction. We will have to disagree on this. I see you feel this way on other posts too so I will read replies from all. I will not give Trump any cover.

[StarfishSaver]

21. I don't believe the Constitution permits a president to pardon himself

But, yes, a president can be a criminal for four years and get pardoned by his successor. However, that applies to anyone, whether they are president or not since anyone can be pardoned by a president.

[PRETZEL]

23. I do have a question though,

and I'm not so sure I totally agree with your first sentence. While I agree that if Trump does resign, Pence issues a pardon, doesn't that put Pence in a precarious position of possibly obstructing justice in granting a pardon that essentially violates the law, if indeed Pence knowingly issued that pardon for crimes Trump committed while in office?

[StarfishSaver]

24. Yes, it could.

It wouldn't invalidate the pardon, but if there's evidence of a quid pro quo or that his intent was to obstruct justice, he could be charged with bribery or obstruction of justice.

But obstruction would be virtually impossible to prove since most pardons of guilty people are in some form an obstruction of justice - which isn't always a bad thing given that mercy and justice aren't always compatible.

[PRETZEL]

25. Thanks,

I'm not an attorney, but why would the pardon not be invalidated? If the issuance of the pardon is in and of itself a criminal act, why would the act then stand?

[StarfishSaver]

27. Because the president has absolute power to pardon

Which means he can do it for any reason at all. The pardon would stand but if he committed a crime in doing it - by offering it in exchange for something of value - the pardon would still be valid.

Mind you, it's arguable that the exchange would be void, but under the law, once a pardon is granted, it cannot be rescinded. It's also nearly impossible to prove that there was no other reason for the granting of the pardon. Even if there was bribery involved, as long as there was SOME other reason the president granted the pardon - and it would be difficult to challenge him of he said there was since it's wholly subjective - I don't think any court would invalidate the pardon. But both parties would be subject to criminal prosecution for bribery.

[PRETZEL]

28. Fair enough, thanks

I think the point you make in your second paragraph is really important.

There seems to be a lot of talk surrounding the concept of the "blanket" pardon and if that conflicts with (and I'm not totally sure about this) the specificity language in whether a blanket pardon is allowed. When you mentioned as long some other reason then that may very well address that issue.

Thanks for the insight.

[PoindexterOglethorpe]

3. When Ford pardoned Nixon,

he, Ford, was President.

[LaMouffette]

9. Yup, that's what I meant! Thanks. I should have written that it should not be possible . . .

for a vice president who becomes president due to a president resigning to then pardon that president. After all, they could very well be in cahoots!

[UTUSN]

4. K&R

[Buckeyeblue]

5. I don't think the argument against self-pardoning is all that strong

First, the constitution doesn't address self-pardon but is pretty clear that the president has the authority to pardon.

If the SC was going to find that the president didn't have that authority, what constitutional law argument would they make?

The arguments against self-pardon being touted by the constitutional law experts do not seem especially strong to me.

[panader0]

6. Tribe made the point that if a POTUS could self-pardon,

that he or she could literally murder anyone or commit any crime he wished.
Obviously, that was not the intent in the Constitution.

[Buckeyeblue]

7. I agree with that sentiment. But is that a legal argument?

[StarfishSaver]

11. Yes. It's a Constitutional interpretation, which the Supreme Court us empowered to do

The Court has to determine what the words of the Constitution mean and when it's not clear, they look to the intention of the drafters and, if that's not evident, common sense.

It is a strong legal argument that the power to "grant" pardons applies to the power to pardon other people, not oneself. Moreover, all evidence related to the drafting of Article II points to a desire to balance the powers if government and not allow a president to have unlimited powers. Allowing a president to absolve himself of criminal liability would give him unfettered power that throws the balance of power completely out the window. It would render impeachment meaningless and make him a king.

[Buckeyeblue]

13. But the constitution addresses that the power to pardon does not apply to impeachment

And since the only way to remove a president is through impeachment, there doesn't seem to be anything preventing the president from pardoning himself.

But I agree that this would be something the SC would have to interpret.

[StarfishSaver]

14. The Constitution simply says a president cannot use the pardon power to stop an impeachment

But if a president can pardon himself, impeachment has virtually no value.

[FBaggins]

26. Not a great example

What murder would be only a federal offense?

[StarfishSaver]

29. Cops murdering unarmed black men

I'm being facetious - partly. In reality, too often the only chance a police officer has of being charged with, much less convicted of, killing innocent an innocent black person is when the federal government steps in and charges them with federal civil rights violations.

[StarfishSaver]

10. There's a difference between a self-pardon and resigning so the VP can pardon

Last edited Fri Dec 4, 2020, 08:29 PM - Edit history (1)

Also, Congress can't pass a law limiting a president's power to grant a pardon to anyone, even a former president, since that power is rooted in the Constitution.

[Azathoth]

22. That's not a particularly strong argument. I'd go with an equal protection claim

The victims of crime -- be they individuals, groups, or the United States itself -- are entitled to equal protection under the law. Granting the president complete immunity from the law to commit any crime he wishes, at his discretion, creates a sovereign who exists above the constitution and necessarily denies equal protection to those victims of his crimes.