General Discussion
Related: Editorials & Other Articles, Issue Forums, Alliance Forums, Region ForumsCan a President pardon someone who is a subject or target in the same case as the President?
In other words, if both are subjects or targets in a criminal case, can a President use his pardon power?
If he were to try such an act, should it be appealed to a higher Court? Or is that not possible?
Trump may be thinking of pardoning Michael Cohen, his attorney who is a target in a criminal case, and whose home, office, and hotel were recently raided by the FBI.
How long to we get to the point where the president might say, "Yeah, I'm guilty but I'm going to pardon myself"? Is our justice system so weak that it would entertain such an insane idea?
sarah FAILIN
(2,857 posts)Trump can only pardon Federal.
kentuck
(112,310 posts)Do we know what the state charges are?
Loki Liesmith
(4,602 posts)To share evidence and coordinate charges.
kentuck
(112,310 posts)Perhaps someone can enlighten us on that?
Loki Liesmith
(4,602 posts)And state tax crimes are different than federal tax crimes. Its not the same money
Shrike47
(6,913 posts)In other words, if state or city cops find your marijuana grow in a state where growing marijuana is illegal, you can be charged in both state and federal court for growing the same marijuana.
Usually the state OR the Feds prosecute you, for efficiency, but they dont have to defer. They can both get you for the same act if its criminal under both state and federal law.
kentuck
(112,310 posts)That one could not be tried for the same charge in NY state law, if already charged by Federal law?
PoliticAverse
(26,366 posts)for racketeering and tax evasion cases.
marylandblue
(12,344 posts)He is under investigation by the US Attorney for the Southern District of NY, that's part of DOJ.
sarah FAILIN
(2,857 posts)I thought that was a state person.
avebury
(11,034 posts)The NY AG wants a law passed to prohibit Presidential pardons from impeding the State of NY from charging state level crimes where it could be determined that double jeopardy would be involved with the issuance of a Presidential pardon.
RandySF
(66,828 posts)kentuck
(112,310 posts)He was an "unindicted co-conspirator". I wonder if it would have made a difference if he had been "indicted"?
Squinch
(52,128 posts)accomplice in Nixon's crime?
I'd like to know too.
hlthe2b
(105,114 posts)on any Federal (not state) charges.
marylandblue
(12,344 posts)But Trump is stupid, and he has telegraphed his intent. If he does it for the purpose of obstruction of justice, it might be invalid. No court has ever ruled on such a thing. But nobody has ever admitted to obstruction of justice in a tweet before, either.
grantcart
(53,061 posts)What if the President hired someone to kill a mistress and was caught and received a presidential pardon?
The court would, I am guessing, surmise that the power to pardon was meant to provide an element of mercy not to enable crime.
We won't know until it happens.
marylandblue
(12,344 posts)And that's what courts have found so far. If the President hired a hit man, I'd imagine he might be able to pardon the hit man, but would still be subject to prosecution himself. Assuming he can't pardon himself, which has also never come up, but would seem to be illogical.
grantcart
(53,061 posts)distribute power in such a way as to make unlimited power impossible so the reference isn't relatable.
The question is when there is a right or privilege in the constitution can it be held in such a way so that it is absolute and the answer to that question has been no.
The one right in the constitution that is the least ambiguous is the first amendment and through the years numerous exceptions have been made to it. Hence Justices Jackson and Goldberg using the phrase "The Constitution is not a suicide pact" writing for majority opinions.
It hasn't been tested because it hasn't been needed but if the act of the pardon were to be inherently part of the crime itself, and part of the obstruction to justice the courts would be very unlikely to advance the theory that using the pardon as part of a crime would be constitutional.
The Constitution clearly states that only an act of Congress allows for the suspension of Habeas Corpus during a rebellion but Lincoln did it by executive order during the Civil War.
http://www.baltimoresun.com/news/opinion/oped/bs-ed-op-0829-pardon-power-20170828-story.html
As a lawyer and law professor, I can tell you theres no such thing as an absolute anything when it comes to constitutional interpretation. If a case ends up in a federal appellate court as many constitutional cases do it means that smart lawyers identified a gray area in the law that lower courts could not resolve to everyones satisfaction.
In turn, when the Supreme Court issues a split decision in a case, it means the justices disagreed on something. If that something is how to read a provision of the Constitution, it logically follows that the constitutional provision itself was not clear-cut, absolute and obvious in the first place. Even so-called originalists, who purport to adhere to the plain meaning of the Constitutions terms, must call balls and strikes must exercise subjective judgment.
The main difference between originalists and those who advocate a so-called living Constitution is that the latter camp calls balls and strikes based on the goals, purposes and norms that underlie the Constitution; they dont mask true intentions behind the fiction that words have a single absolute, definitive meaning.
To my eye, the pardon power is no different. Article II, Section 2 of the United States Constitution states that the president shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.
If the power to pardon was truly absolute then there would be nothing that would prevent the President from pardoning himself, something that you concede is illogical, or pardoning every contributor to the Republican Party en masse (Jimmy Carter pardoned all draft dodgers who went to Canada as a group), something I think everyone would agree is not constitutional.
The real question is where does the act of pardon approach the furtherance of a crime where a court would begin to question its limitations.
marylandblue
(12,344 posts)And I am less certain of the answer than you are. I am not an originalist either. But I see that the Constitution is getting old and creaky. We are very far from anything they could have thought of, eventually the constitution will snap. The pardon power may already have been misused. Bush I pardoned a bunch of people after the Iran-Contra affair, short-circuiting the investigation and prosecution of several conspirators. It's possible that if the investigation had continued, the trail would have led to him. We never found out. Trump is not so smart, so I think we will catch him and all of his cocospirators.
But Trump has shown how a smarter evil person could get elected and subvert the Constitution. All he would have to do is cover his tracks better.
global1
(25,761 posts)use a get out of jail free card.
Wouldn't Trump be accused of obstruction of justice.
If all these people walk - we're through as a country and democracy.
JustABozoOnThisBus
(23,685 posts)Putin can break laws and has a get-out-of-jail-free card.
kentuck
(112,310 posts)And would be required to answer all questions from the prosecution.
Albeit, the charges for refusing to answer the questions would probably be much less severe than the original charges?
Shrike47
(6,913 posts)If you are held in contempt, you could be in jail (not a white collar country club prison) sort of indefinitely. They bring you in to court periodically, ask the question, and if you wont answer the question still, back to jail you go.
kentuck
(112,310 posts)Is there some time limit to how long one can be held for "contempt"?
Vinca
(50,761 posts)It would be a waste of time to pardon Flynn because Flynn has already sung. Same with the others who have entered guilty pleas. Cohen is probably in violation of lots of state laws since NYC is the financial center of the universe and Trump can't pardon those charges. That's also why Manafort is screwed. I suspect Manafort is putting on a show for the benefit of the Russians. He doesn't want to be one of those people who suddenly loses their balance on the roof of a building.
american_ideals
(613 posts)I think this angle is overrated.
If he pardons someone and they refuse to testify, he can just pardon them for contempt.
Link to tweet
?s=20
struggle4progress
(119,487 posts)or obstruction-of-justice. I'm free to give anybody $5000 if I want, but I choose to give such a gift to someone planning to testify against me in a civil or criminal suit, some serious criminal issues immediately arise
american_ideals
(613 posts)What does that phrase mean?
No one knows. Because no court has ever ruled on it.
Ill bet anyone that in the next year our court system will have to rule on what that phrase means.
unblock
(53,917 posts)american_ideals
(613 posts)If the president has an impeachment case against him, can he pardon anyone? Courts will need to rule.
If the president is ultimately impeached for a set of crimes, can pardons of others related to those same crimes stand? Courts will need to rule.
"Except in cases of Impeachment" is a phrase I predict we will get to know very very well.
unblock
(53,917 posts)But the outcome seems pretty clear to me.
The founders surely didn't want a presidential pardon to interfere with congress's power to kick someone out of office.
It's not at all clear that they wanted to encroach on the presidential power of pardon while the president is under an impeachment cloud.
Remember that impeachment happens far more for non-presidential officials....