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A case of relevance tonight...

 
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ArtBest23



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PostPosted: 07/20/17 9:45 pm    ::: A case of relevance tonight... Reply Reply with quote

In light of the news that Trump is asking about the legal niceties of pardoning his whole family and himself, I provide for your reading enjoyment Burdick v. United States, 236 U.S. 79 (1915). The Supreme Court reaffirmed that a presidential pardon to be effective must be accepted by the pardoned person (and may be rejected) and that acceptance of the pardon is an admission of guilt to the pardoned offense. (Note that some Dems tried to argue that Burdick is for some reason no longer good law when they were trying to get Obama to pardon Hillary, but I think that was mostly wishful thinking.)
https://supreme.justia.com/cases/federal/us/236/79/case.html


justintyme



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PostPosted: 07/20/17 10:14 pm    ::: Reply Reply with quote

There is also the Aug. 5, 1974 OLC memo which states that due to the fundamental rule that no one can be a judge in his own case, a president cannot pardon himself.

https://www.justice.gov/file/20856/download

Also of note, anyone he pardoned could then be compelled to testify without being allowed to take the 5th...



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ArtBest23



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PostPosted: 07/20/17 11:47 pm    ::: Reply Reply with quote

justintyme wrote:
There is also the Aug. 5, 1974 OLC memo which states that due to the fundamental rule that no one can be a judge in his own case, a president cannot pardon himself.

https://www.justice.gov/file/20856/download

Also of note, anyone he pardoned could then be compelled to testify without being allowed to take the 5th...


There is considerable debate and no precedent on the question of whether a president can pardon himself. It's a close call. I suspect it would end up in the Supreme Ct. I've read arguments both ways and have no idea how it would come out.

By the way, a law professor Brian Kalt has written some decent articles on the issue.

And because there remains the theoretical risk of a state prosecution, the individuals might retain their right not to testify, although their ability to define the risk of prosecution would certainly become more limited.


jammerbirdi



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PostPosted: 07/21/17 1:55 am    ::: Reply Reply with quote

If I would have known that six months in President Donald Trump would already be considering the need to pardon himself... I would have voted for the guy without hesitation.


justintyme



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PostPosted: 07/21/17 9:34 am    ::: Reply Reply with quote

ArtBest23 wrote:

By the way, a law professor Brian Kalt has written some decent articles on the issue.


He was on CNN discussing all of this; I watched the whole thing because I recognized his name from here. It was really interesting.



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ArtBest23



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PostPosted: 07/21/17 10:29 am    ::: Reply Reply with quote

justintyme wrote:
ArtBest23 wrote:

By the way, a law professor Brian Kalt has written some decent articles on the issue.


He was on CNN discussing all of this; I watched the whole thing because I recognized his name from here. It was really interesting.


What did he say. I missed that.

He generally writes that it's very close, could go either way, but he thinks "no, he can't pardon himself" is the better answer. He thinks it's close enough that Trump might try, and that a prosecutor would likely proceed notwithstanding the pardon, forcing the courts to decide.


justintyme



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PostPosted: 07/21/17 12:00 pm    ::: Reply Reply with quote

ArtBest23 wrote:
justintyme wrote:
ArtBest23 wrote:

By the way, a law professor Brian Kalt has written some decent articles on the issue.


He was on CNN discussing all of this; I watched the whole thing because I recognized his name from here. It was really interesting.


What did he say. I missed that.

He generally writes that it's very close, could go either way, but he thinks "no, he can't pardon himself" is the better answer. He thinks it's close enough that Trump might try, and that a prosecutor would likely proceed notwithstanding the pardon, forcing the courts to decide.

That was a lot of what he said, and he explained the background, how Nixon considered it and that Nixon's lawyer told him he could do it. But he said Nixon was much more concerned with his long term legacy and knew how it would look for him to do that for himself.

He also broke down the major points for and against the idea:

In support of a president being able to do it is the fact that the Constitution never says they can't. It details out this major power, but never limits it in such a way. This lack, he says, is a powerful argument in the president's favor, and might be convincing to some in SCOTUS.

He then detailed out two arguements against, which as you noted he feels are just a little stronger and he feels might edge out in the minds of SCOTUS. One of these is what I noted earlier in the 1974 OLC memo: that there is a long standing legal doctrine that is at the root of our legal system that says one cannot be the judge of one's own case. And that allowing a person to pardon themself would fly in the face of this.

The second, he said, is the nature of the word "pardon". He said that by definition it was something you do, or provide, to another person. He stated that it comes from the same root as "to donate"' and that just as it is nonsensical for someone to donate something to themself, so too would it be to pardon themself.

While he didn't say it outright, I took this line of thinking to be his argument against the earlier point he brought up in support of the president doing this. That the Constitution wouldn't explicitly state that the president couldn't do this because the term itself, as it was understood at that time by both the drafters and the public at large, would have precluded it. That argument might likely be convincing to the originalists and the textualists on the court.



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justintyme



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PostPosted: 07/21/17 2:16 pm    ::: Reply Reply with quote

This isn't the interview I saw, but it covers the same things he said in it, plus a little more depth.

I think the big thing is what he says at the end. It seems all sorts of dumb for a president to actually do it, even if they can, as it basically forces them to admit to an impeachable offense, and might be, in and of itself--a criminal act (obstruction of justice).

http://www.cnn.com/2017/07/21/politics/trump-pardon-authority/index.html



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pilight



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PostPosted: 07/21/17 2:48 pm    ::: Reply Reply with quote

justintyme wrote:
This isn't the interview I saw, but it covers the same things he said in it, plus a little more depth.

I think the big thing is what he says at the end. It seems all sorts of dumb for a president to actually do it, even if they can, as it basically forces them to admit to an impeachable offense, and might be, in and of itself--a criminal act (obstruction of justice).

http://www.cnn.com/2017/07/21/politics/trump-pardon-authority/index.html


The pardon would only prevent criminal prosecution. It would not stop congress from being able to impeach him.



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PUmatty



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PostPosted: 07/21/17 3:30 pm    ::: Reply Reply with quote

pilight wrote:
justintyme wrote:
This isn't the interview I saw, but it covers the same things he said in it, plus a little more depth.

I think the big thing is what he says at the end. It seems all sorts of dumb for a president to actually do it, even if they can, as it basically forces them to admit to an impeachable offense, and might be, in and of itself--a criminal act (obstruction of justice).

http://www.cnn.com/2017/07/21/politics/trump-pardon-authority/index.html


The pardon would only prevent criminal prosecution. It would not stop congress from being able to impeach him.


It would, I think, make it more likely that they would. Because a pardon carries an admission of guilt.


justintyme



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PostPosted: 07/21/17 3:31 pm    ::: Reply Reply with quote

pilight wrote:
justintyme wrote:
This isn't the interview I saw, but it covers the same things he said in it, plus a little more depth.

I think the big thing is what he says at the end. It seems all sorts of dumb for a president to actually do it, even if they can, as it basically forces them to admit to an impeachable offense, and might be, in and of itself--a criminal act (obstruction of justice).

http://www.cnn.com/2017/07/21/politics/trump-pardon-authority/index.html


The pardon would only prevent criminal prosecution. It would not stop congress from being able to impeach him.

Correct. It would actually make it more likely to be impeached, since as Art pointed out, to accept a pardon he would be legally accepting criminal wrongdoing.



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hyperetic



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PostPosted: 07/22/17 2:38 am    ::: Reply Reply with quote

I know this is possibly an ignorant question but I will ask it anyway. Should there be enough findings to go forth with charges of collusion in the election against #45, would that be enough to make his election null and void? (Probably not but I can dream, can't I?)
justintyme



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PostPosted: 07/22/17 10:05 am    ::: Reply Reply with quote

hyperetic wrote:
I know this is possibly an ignorant question but I will ask it anyway. Should there be enough findings to go forth with charges of collusion in the election against #45, would that be enough to make his election null and void? (Probably not but I can dream, can't I?)

There is no mechanism to be able to do that. Once someone is sworn in, they are president. There are mechanisms (impeachment) to remove the president and the vice president, but it would then follow the order of sucesssion as detailed in the Constitution and the Presidential Succession Act of 1947.

Now if there were outright fraud that was discovered (like actual hacking of voting machines) it could create an interesting constitutional question and perhaps the presidency could be returned to the person who actually won based on the votes, but even that would likely require SCOTUS to rule.

But for collusion or other offenses where the person did actually get the votes required it would likely end up the Speaker of the House who was president (if it was determined the vice president was also involved).



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pilight



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PostPosted: 07/22/17 10:09 am    ::: Reply Reply with quote

justintyme wrote:
Now if there were outright fraud that was discovered (like actual hacking of voting machines) it could create an interesting constitutional question and perhaps the presidency could be returned to the person who actually won based on the votes, but even that would likely require SCOTUS to rule.


The voting machines are irrelevant. It only matters who the electors voted for, which was Trump. Congress certified the election back on January 6th.



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justintyme



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PostPosted: 07/22/17 10:48 am    ::: Reply Reply with quote

pilight wrote:
justintyme wrote:
Now if there were outright fraud that was discovered (like actual hacking of voting machines) it could create an interesting constitutional question and perhaps the presidency could be returned to the person who actually won based on the votes, but even that would likely require SCOTUS to rule.


The voting machines are irrelevant. It only matters who the electors voted for, which was Trump. Congress certified the election back on January 6th.

Yes. As I said, there are no direct mechanisms to remedy this. Once someone is president, they are president.

That said, there would be an interesting legal case (but far from certain of the result being any different) under those sorts of circumstances. Because of laws in many states binding electors to the results of the popular vote in their state, it is possible in the case of clear fraud that they (or the actual winner of the vote) could sue. And because laws regarding fraud typically prevent the criminal from profiting from their criminal act, there is a chance that the courts could intervene on their behalf. Ultimately, this would be a constitutional crisis that requires a SCOTUS decision.



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