That’s why I say that as a matter of fact, the usurpation argument is likely to fail. But not as a matter of law. To assert that Trump is intentionally and excessively trespassing upon the authority of the court lays down an important marker and in effect puts the courts on judicial notice of this risk. That may well prove significant when Trump starts pardoning, or thinking of pardoning, his cronies down the road.
Not to you, but to the law.
You didn’t read Ex parte Garland, did you?
Here, let me help you with the important bit:
The Constitution provides that the President “shall have power to grant reprieves and pardons for offences against the United States, except in cases of impeachment.”
The power thus conferred is unlimited, with the exception stated. It extends to every offence known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken or during their pendency or after conviction and judgment. This power of the President is not subject to legislative control. Congress can neither limit the effect of his pardon nor exclude from its exercise any class of offenders. The benign prerogative of mercy reposed in him cannot be fettered by any legislative restrictions. [emphasis added]
EX PARTE GARLAND. | Supreme Court | US Law | LII / Legal Information Institute
Well, that’s pretty much what George H.W. Bush did when he pardoned the Iran-Contra conspirators. Except he wasn’t pardoning people for defying court orders, but for defying the laws of the United States at a level that almost reached to treason. Meanwhile, he was bleating about the “criminalization of policy differences” when what was actually involved was the criminalization of criminal acts.
It is precisely because of the rule of law that this situation obtains. What you want is to change the law.
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No, I’m quite aware of Ex p. Garland, but you’ll see from the very extract of the judgment that you cite that it refers to the power of ‘benign prerogative of mercy’ and not to a malign attempt to systematically nullify the rule of law. Big and highly relevant difference, especially in a case where it is being argued (rather optimistically, as I’ve said) that Arpaio’s pardon was precisely not actuated by benign considerations of mercy.
The “benign prerogative of mercy” is, like truth and beauty, in the eye of the beholder. To Trump, his pardon of Arpaio is an exercise of the benign prerogative of mercy while to you and me it is a sleazy and corrupt abuse of power. In either case, it’s not for the courts to decide. One’s view of the law is invariably colored by whose ox is being gored.
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Agreed. But its uncharted territory which makes Constitutional Law nerds drool.
Arpaio, Roy Moore, Trump - I’ll do what I want and the U.S. Constitution be damned.
This is only the beginning. It will only get worse from here.
2016 was the most important election of our time, but arguably 2018 will be even more important. 2016 we can learn from, and see how social media, Russian meddling, a populist liar, and a perfect storm of tribalism, sexism, stupidity and reality show media atmosphere could combine to elect the most incompetent, hateful, immoral, and corrupt man in the history of the U.S. Presidency.
But if there isn’t a sufficient response in 2018 to his lies, his terrible policy, his warmongering, his debasement of the office of the President, and most importantly his crimes and corruption, then we will have learned nothing and we deserve to see our democracy erode away.
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Yep. You got it.
I’d have to guess that this would be constitutionally possible; we and the so-called liberal media (SCLM) have to work to make it politically impossible and that’s going to be a much bigger challenge than it should be, given that most of the SCLM refuses to learn that their ‘both-siderism’ and false equivalencies are largely what got us to this point.
IANAL. But, it seems to me that a “pardon” issued before all the legal mumbo-jumbo is executed, actually denies due process. Mostly, I think many hold the idea that “due process” can only be applied favorably to the perp. but in my view, the prior assertion of a pardon denies the public due process.
It is unusual, in this case, but, would not any defensive moves on, say, Arpaio’s legal team, be completely changed if they knew the outcome of the trial? At what point would this maneuver guarantee a logical judicial ruling? What would change if “discovery” is denied?
No more so then a defendant pleading guilty from the start. What due process could the State (or public as you called it) demand? The defendant is pleading guilty and being found guilty.
Sure, they wouldn’t be any point in defense. The defendant is pleading guilty the moment he accepts the pardon. A pardon doesn’t make the charges go away, or the guilty plea disappear. It only removes the penalties being applied to the defendant (or criminal, to be more exact, since the moment he accepts the pardon, he is no longer assumed innocent).
However, in this case, Arapaio actually went to court, and had a defense, and lost. The pardon came down before sentencing, but he has already been convicted. And that conviction stands on his record. The Presidential pardon powers do not require a conviction though, or even an indictment. It only requires that the specific crime have already been committed. (In other words, a President can’t pardon someone for crimes they will commit in the future…like say, perjury, when they are forced to testify on matters related to the crime for which they were pardoned. Like who else was involved).