Trump would not hesitate anyway! It’s only those pain-in-the-ass advisers Arpaio needs to worry about, all about their no-good “rule of law” this and their stupid-ass “let’s follow the procedure” that!!
IF he wants to try it, I’m fine with it. I know it will wind up in court. And I am with Lawrence Tribe - he can’t do it legally, so he’ll lose.
Same goes for this transgender ban in the military. Headed straight to court, I’ll bet anyone.
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Who knows more about law, anyway? Stupid-ass Laurence Tribe, or the magnificent President of the United States, all 50 of them states, and its territories and dependencies, minor islands included?!!
Tribe isn’t even in government!! (I can go racial in denigrating no-good “spell my name with a queer-bait U!” Tribe too BTW!)
Author is professor of constitutional law at Northwestern University. A pardon would be challenged in court because it would unconstitutional. 45 won’t read this or understand it if he did, but maybe General Kelly should and then relay it to the dunce in chief.
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I imagine it would leave us the other alternative that the founding fathers provided for, it’s somewhere in the 2nd amendment I think.
I was under the impression that the Federal Pardonee had to be incarcerated for five years.
Someone correct me if I’m wrong.
The key phrase there is “I admit this is a novel theory.”
My profession is the only one I know of where people use the word “novel” as a term of derision rather than as a complement (except in patent law).
Whenever you hear a lawyer or, god help you, a judge say a theory is “novel,” it isn’t praise. It’s a droll, eye-rolling put-down that we use to say “professional courtesy and the expected standards of courtroom decorum prevent me from saying what I really think about this ridiculous theory, unsupported as it is, by a shred of precedent.” It’s a way of saying an attorney’s theory is not so crazy as to be sanctionable because it is a reasoned argument that isn’t explicitly contrary to law or precedent, but it’s basically an invitation to the judge to stick his or her neck waaaay out and place it on the appellate chopping block.
So, yes, his theory is reasoned and thus not unreasonable. And unstated, because you can’t really square it with the Constitutional text the way you can with his Fifth Amendment argument, is a potent political argument that the pardon power, if used this way, would neuter the judicial, and potentially even the legislative, branches in a way that would completely set at naught the separation of powers. But I really, really, really do not want to have to count on the current Supreme Court majority (thanks, Jill) to make that novel theory law.
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How do you think the government of California would react to that? It’s essentially already the law in the rural South, using nullification and inaction in place of pardon. But in California? Vermont? I do not want to live through that, but I wouldn’t expect quiet acquiescence.
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When working for Trump being able to “Imagine” is crucial.
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Shop worn but true, I’m not a lawyer, but what I’ve come to learn lately as far as pardons go is this. A pardon is an admission of guilt, and having made that admission the person who is pardoned is then unable to exercise his Fifth Amendment privileges when asked under oath about the presumptive guilt of the pardoner in subsequent legal proceedings. I get the sense it’s not always in the best interests of the one is pardoned to accept the pardon.
Haven’t we already been there and done that? This sounds remarkably like the libretto for Iran-Contra, a passion play in four acts:
I: The legislature prohibits the administration from funding its Latin American death squads. There is great wailing and gnashing of teeth in the administration, presaging the end of Western Civilization.
II: The administration devises a simple workaround for the legislative prohibitions by selling armaments to a hostile power (Iran) in violation of sanctions against such transactions and uses the money to fund the Latin American death squads (the Contras) in violation of the Boland Amendment.
III: The subterfuge is uncovered and again there is a great wailing and gnashing of teeth in the administration. The President does a Sgt Schultz (“I know nothing, nothing”) and accepts all of the responsibility but none of the blame (“mistakes were made”). Indictments are handed up including high ranking officials at State and Defense, reaching as high as the Secretary of Defense. Some are convicted and sentenced. Some convictions are overturned on technicalities. Some are awaiting trial or sentencing.
IV: The new President (George H.W, Bush) pardons the conspirators including those convicted and sentenced as well as those awaiting trial or sentencing, railing against “the criminalization of policy differences” while steadfastly ignoring the criminalization of criminal acts.
Curtain, fade to black.
I think this perfectly exemplifies the scenario you outlined above where the President uses the power of the pardon to render both the legislature and the judiciary impotent. But then this is a matter of morality, not of the law because the law clearly says that the President “shall have power to grant reprieves and pardons for offences against the United States, except in cases of impeachment.”
In order for this “novel” theory to have merit, the Court would first have to overturn Ex parte Garland, 71 U.S. 333 (1866) which has been case law for over 150 years:
The power [of pardon] 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.
I don’t see the present court doing this. They might have if Obama tried something like this, but I don’t see them doing it to thwart a Republican President, even an insane one.
Are posthumous pardons possible?
Imagine whom Trump would rehabilitate with a pardon, if he could.
I think she’s learned the language of CYA and knows that her boss can, and will, contradict anything she says on a tweety whim.
Ford pardoned Robert E. Lee.
Thanks. I thought there was precedent. I guess Trump would start with Ted Bundy, just to make a point.
Theyd better hurry up , Trumpolinis run out of toilet paper .
We shouldn’t be testing these waters, nor needing legal arguments about the pardon power’s extent.
But here we are anyway.