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Fri Dec 4, 2020, 11:35 AM

It might not be so simple for Trump to pardon his children and Giuliani

Good article on the presidential pardon power in the Washington Post. While both Nixon and Reagan administration officials were given blanket pardon, neither was challenged in court. There is good reason to believe the Supreme Court might no allow Trump blanket pardons if they are challenged in court.

"...based on the Framersí original understanding of the pardon authority, the better reading is that, while the pardon power grants the president expansive authority, that power is not unlimited. Most importantly, the Framers would have understood that pardons must be issued for specific crimes. They were not intended to be broad grants of immunity, get-out-of-jail-free cards bestowed by presidential grace.

In the case of his family and personal lawyer, such a list might prove embarrassing to the president ó and edifying to the public. In this way, specificity raises the political costs of issuing such pardons. It also reduces the pardonís effectiveness. Should a relevant offense be left off the list, the pardonís recipient would be vulnerable to prosecution.

The Supreme Court has never ruled on the specificity requirement, and the question of the validity of any blanket pardon by Trump would come up only if a federal prosecutor seeks to indict a pardon recipient who raises the pardon as a barrier to prosecution.
But if the issue were to arise, there is a significant possibility that a court, dominated by self-identified originalists, would invalidate the use of blanket pardons. This possibility should make Trump pause before offering such pardons to friends and family. But it also leaves him in a bind. Should he attempt to specify each and every federal crime committed by his children or lawyer? Or is that a gift too costly even for Trump to consider?"

https://www.washingtonpost.com/opinions/2020/12/03/trump-blanket-pardons-children-giuliani-law/

14 replies, 1010 views

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Arrow 14 replies Author Time Post
Reply It might not be so simple for Trump to pardon his children and Giuliani (Original post)
Nitram Dec 2020 OP
Miguelito Loveless Dec 2020 #1
cbdo2007 Dec 2020 #2
Miguelito Loveless Dec 2020 #7
cbdo2007 Dec 2020 #8
Miguelito Loveless Dec 2020 #11
fescuerescue Dec 2020 #9
L.Pharmstrong Dec 2020 #3
Mike 03 Dec 2020 #5
L.Pharmstrong Dec 2020 #6
Nitram Dec 2020 #14
Mike 03 Dec 2020 #4
Major Nikon Dec 2020 #10
dalton99a Dec 2020 #12
bluestarone Dec 2020 #13

Response to Nitram (Original post)

Fri Dec 4, 2020, 12:23 PM

1. But who would challenge?

Somehow I don't see the Dems under the current leadership challenging the pardons. Would LOVE to be wrong.

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Response to Miguelito Loveless (Reply #1)

Fri Dec 4, 2020, 12:26 PM

2. This would go through the court system, and wouldn't have anything to do with the Dems.

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Response to cbdo2007 (Reply #2)

Fri Dec 4, 2020, 03:45 PM

7. Someone has to try and prosecute

in order to start the process. If the Dem leaders refuse to prosecute, nothing goes through the courts.

Then we get "Time to look forward, not back."

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Response to Miguelito Loveless (Reply #7)

Fri Dec 4, 2020, 05:58 PM

8. Lol "Dems" do not prosecute. The AG or FBI can prosecute and have nothing to do with "Dems".

Pelosi isn't sitting there with a big list of things to prosecute for. That's not how it works.

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Response to cbdo2007 (Reply #8)

Fri Dec 4, 2020, 08:38 PM

11. W, Cheney, Rice, Rumsfeld, et al

were NOT prosecuted. So, yes, Dem leadership has to be willing.

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Response to Miguelito Loveless (Reply #7)

Fri Dec 4, 2020, 06:07 PM

9. I was going to say

Dems Leaders can't do. Just prosecutors.

Now a prosecuter who also happened to be a Dem leader could.

But that's risking both.

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Response to Nitram (Original post)

Fri Dec 4, 2020, 12:28 PM

3. A pardon can be challenged

 

only if the pardon recipient is charged with a federal crime. They then could move to dismiss the charges on the ground that they have been pardoned. This would be the case if Trump attempts to pardon himself, or if he pardons others.

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Response to L.Pharmstrong (Reply #3)

Fri Dec 4, 2020, 12:38 PM

5. This needs to be tested in court.

Yes, most good attorneys attempt to have charges dismissed against their clients, for all sorts of reasons.

Many authorities on the Constitution disagree that a President can, in essence, serve as the judge and jury of his own conduct by granting himself a pardon, or abusing the privilege of granting pardons if it clearly conflicts with his sworn oath to "take Care that the Laws be faithfully executed."

So one of the questions at issue is, When does granting a pardon become obstruction of justice? And that, frankly, is only one of a number of questions at issue.

Another important issue is, What is the intended meaning of "granting"?

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Response to Mike 03 (Reply #5)

Fri Dec 4, 2020, 01:22 PM

6. Courts don't issue advisory opinions.

 

There needs to be an actual case or controversy under Article III, Section 2 of the Constitution before a federal court can exercise jurisdiction. In other words, there has to be an actual dispute between parties before a claim is justiciable, and a claim cannot be hypothetical.

Putting aside what we feel about the legality of Trumpís threatened pardons, the fact is that any challenge would remain unripe and unjusticiable until federal charges are actually asserted against a person who has received a Presidential pardon.

There are a number of arguments that can be raised in a challenge to Presidential Pardon power. But as a legal matter, they cannot be raised until there is an actual case or controversy. This is just the long-standing law. It is my hope that the Biden DOJ does bring charges against Trump and his pardon power can be tested. I personally believe that Presidential pardon power is far too expansive.

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Response to L.Pharmstrong (Reply #3)

Sat Dec 5, 2020, 01:32 PM

14. L.Phramstong, as the article explains, presidentail pardons only apply to federal crimes.

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Response to Nitram (Original post)

Fri Dec 4, 2020, 12:30 PM

4. Very interesting.

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Response to Nitram (Original post)

Fri Dec 4, 2020, 06:39 PM

10. ...

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Response to Major Nikon (Reply #10)

Fri Dec 4, 2020, 08:39 PM

12. +1

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Response to Major Nikon (Reply #10)

Fri Dec 4, 2020, 08:42 PM

13. YEA no kidding!!

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