Can Trump be prosecuted by the incoming DOJ for abuse of pardon power?

[triron]

[Stallion]

1. No There is No Standard to Judge the Complete Discretion Allowed by the Pardon Clause

[C_U_L8R]

2. Or can the pardons be voided (for their corrupt intent)?

[marble falls]

5. Sort of a quid pro quo?

[C_U_L8R]

7. mmm hmmm

[tritsofme]

20. The Supreme Court has ruled that a pardon is final once it has been delivered.

[PoliticAverse]

24. No, the Court ruled that a pardon is not final until it has been delivered, which is a bit different

[SoonerPride]

3. No. He could literally give pardons to everyone named Smith

And there ain’t a thing to stop him.

[PoliticAverse]

15. Suppose a president pardoned every white male who was convicted of a certain offense, could that...

pardoned be challenged? Perhaps an argument could be made that such a pardon conflicted with other parts of the Constitution.
We'll never know until there is such a challenged case.

[StarfishSaver]

18. No

He can pardon whomever he wants for any reason he wants or no reason at all.

[PoliticAverse]

21. That's not a settled legal issue. It's possible the Supreme Court could find a pardon the President

issued conflicts with another part of the Constitution. We will not know the limits of a President's pardon power unless that limit is tested.

And your statement "whomever he wants for any reason he wants or no reason at all" implies a Present could pardon themself, something I very much doubt courts would recognize as valid.

[StarfishSaver]

26. It's also possible the Court would find Article I conflicts with another part of the Constitution

and dismantles the Congress. That has never been tested, either.

But neither that nor the Court invalidating the pardon power is going to happen.

[PoliticAverse]

27. I guess we'll have to wait until he "pardons everyone named Smith". n/t

[StarfishSaver]

31. Yes, we'll see

[Mr.Bill]

36. Not if someone paid for it.

Or if the pardon had anything to do with impeachment proceedings.

[StarfishSaver]

39. Paying for a pardon doesn't void it

It simply opens the president and the pardoned person subject to bribery charges.

And there's also no prohibition of pardons "having anything to do with impeachment proceedings." The only limitation related to impeachment is that a president cannot use the pardon to prevent someone from being impeached or removed from office pursuant to impeachment.

[Mr.Bill]

41. And that would include himself, right?

[pecosbob]

4. I don't believe so, but individual pardons can be challenged

I don't believe it has happened before, but most agree that a president cannot pardon himself...this would most certainly be challenged in court.

[PoliticAverse]

16. The DOJ would probably have to persue a prosecution of the President...

in order to challenge such a self-pardon in the courts.

[StarfishSaver]

19. The pardon can't be challenged or voided

But if there's evidence of an illegal quid pro quo, he could be charged with bribery. The pardon, though, would stand.

[sunonmars]

6. Biden needs to hopefully look at changing the power of the pardon. Its too broad.

There needs to be clear set rules for this

[mahatmakanejeeves]

8. Biden has no say in this at all.

The rules for amending the Constitution are well known.

[sarisataka]

10. It is a Constitutional issue

Biden cannot change it on his own.

[sarisataka]

9. How has he abused the power to pardon

According to the letter of the law?

The spirit of the law carries little to no weight in a court.

[marie999]

11. Nothing can be done about the pardon once the president pardons someone.

The Constitution makes it clear the president can pardon people the only time he can't is for impeachment. But that person's crime is also a state crime they can be prosecuted in state court. Also if it can be proven that person paid for the pardon they can probably be tried for that. But the person might be pardoned for that.

[slumcamper]

12. Yes.

This is untested legal terrain. The DOJ can (and should, IMHO) construct a case that tests the limits of a president to pardon herself (or himself, in this case).

Let's not forget that we exist in a political space and time where our institutions are subject to extreme test and judicial scrutiny.

That said, it might be preferable to have a court more sympathetic to a looser interpretation of the Constitution. On the other hand, in the interest of original intent relative to executive authority and rule of law, it may be fortuitous that the Court is stacked with strict constructionists.

This should be tested.

[mahatmakanejeeves]

14. Cite, please. NT

[slumcamper]

29. Conventional response, but irrelevant.

The point is that we are in uncharted legal terrain. Asking for citation or reference to precedent that does not exist is (fill in the blank).

Beyond that point, the larger point is that precedent is in the process of being made. Therefore, it is incumbent that the unexamined Constitutional question of whether a [criminal] chief executive can exercise the pardon power to absolve (and protect from legal consequence) herself (or himself in this case) of wrongdoings that would otherwise be proven and subject to penalty be subject to judicial scrutiny.

The original question stands on its merit--essentially, can the Justice Department challenge the assertion of the presidential pardon power when that power is perceived to be exercised in abuse of broader Constitutional considerations.

[mahatmakanejeeves]

30. No.

The original question stands on its merit--essentially, can the Justice Department challenge the assertion of the presidential pardon power when that power is perceived to be exercised in abuse of broader Constitutional considerations.

[slumcamper]

32. And therein lies the need for interpretation/resolution, correct?

Moreover, aside from the political calculus (which is a VERY real consideration), nothing prevents the DOJ from mounting an effort to impel such an examination, does it?

For nearly 4 years we have witnessed an administration constantly testing traditions, precedents, and the very limits of rule of law. How is this different?

[mahatmakanejeeves]

33. What part of "no" do you not understand? NT

[slumcamper]

40. Your assertion of "NO" is certainly not the final word on this--or anything.

I hope you understand that.

It's been intriguing to engage with such dogmatism, however I now declare our conversation finished.

[StarfishSaver]

35. Are you an attorney?

[slumcamper]

42. Perhaps in a former or future life.

The OP implicitly invokes a great many questions, doesn't it?

Aside from the central questions of the scope and limits of Article II executive powers, the corollary question of whether it is prudent for the incoming DOJ to challenge a hypothetical self-pardon as exceeding intent or meaning is another matter.


To leave the question unexamined implies institutional consent, and that is problematic. To advance the question in the legal arena is fraught with political risk.

CAN the DOJ do it? Yes. Should they? I'm uncertain, but lean toward the affirmative. Will they? Who knows.

[StarfishSaver]

43. I don't think DOJ would try to void a pardon

They'd be unlikely to prevail - since the Constitution sets no limits and therefore any limit set by a court would be judicial activism to the nth degree - and in the very remote instance that they did, it would set a terrible precedent.

I do think they'd be much more likely to charge Trump and the person pardoned with bribery or public corruption.

[slumcamper]

46. I suspect you are correct...

Ultimately, whether to hear the matter would be up to the SCOTUS--and they may not want to touch it.

But if they chose to take it up, then the original intent as expressed in Federalist 69 & 74 would certainly guide any ruling, as well as the anti-Federalist writings by Clinton and others. I would HOPE that a ruling might assert the primacy of separation of powers and checks and balances over any conception of absolute power by an executive. We do not have a king.

Now to my copy of the Federalist Papers!

[StarfishSaver]

48. The drafters of the Constitution already asserted the primacy of separation of powers and checks and

balances and decided to give the executive the power to grant pardons and reprieves.

It would be different if the Constitution didn't expressly confer this power on the president. But since it does, the Supreme Court can't come back 233 years later and say the president shouldn't have that right because it conflicts with the intentions of the founders as set forth in the Federalist Papers.

The Constitution supersedes the Federalist Papers. The only time the Court consults them and relies on them for any guidance is if the plain meaning of the Constitution isn't clear. That's not the case here. The Constitution language is clear and unambiguous. And the fact that the drafters set one limitation on the pardon power - regarding impeachment - tells us that they intended that to be the only exception and that aside from that one restriction, the pardon power is limitless.

[slumcamper]

34. Ahh... I think I see your point.

So it seems we may both be correct.

How one construes "prosecuted" might easily lead in different directions.

Prosecution, as in holding one legally liable to penalty for violation of law, is one thing.

Prosecution, as in testing the Constitutional limits of executive power, is another thing.

It remains for legal determination whether a self-pardon is an abuse of power and, hence, a violation of law.

Perhaps the more germane question is whether the incoming DOJ SHOULD or should not prosecute such a perceived abuse of executive power.

On that matter I say YES. To allow such a thing to stand implicitly invites such abuse in the future and cracks open the door of tyranny. Even a loss in the SCOTUS would make it no worse.

[Fiendish Thingy]

45. That "no" isn't absolute, especially if bribery can be proven.

It doesn’t void the pardon, but holds the president accountable for his own criminal actions, regardless of whether they are related to his constitutional powers.

[slumcamper]

47. Federalist 69--here's something

"He is to have power to grant reprieves and pardons for offences against the United States, except in cases if impeachment..."

WAS he impeached?

Damn right he was; and Federalist 69 would certainly apply to "impeachment" of the president himself (not merely others who were impeached). To think otherwise defies reason.

So the legal question that we should be asking relative to the Founders' intent is whether he even has the power to grant reprieves and pardons in the first place.

[onenote]

49. As is clear to everyone, except you,

the meaning of the Constitutional clause you quote is that a President cannot interfere in the impeachment process -- which is assigned exclusively to the legislative branch -- through the use of the pardon power.

It doesn't mean a president who has been impeached, like Bill Clinton for example, can't grant pardons to the same extent as any other president.

[Fiendish Thingy]

50. Completely, utterly incorrect.

That clause refers to the exclusion of the charge of impeachment from the eligibility for pardon, not the suggestion that impeachment removes a president’s power to pardon.

[Cha]

13. I was just thinking.. that Fucker needs to

be held Accountable for that some Way!

[PoliticAverse]

23. Well people could vote him out of office due to disgust with his actions. n/t

[Cha]

25. Yes, he will be out Jan 20th.. but

I hope there's more accountability for his actions while he was in office After he gets Kicked OUT.

[PoliticAverse]

28. Well he could be impeached but that was tried already. The could "censure" him.

But I don't see that happening in the next month either...
https://en.wikipedia.org/wiki/Censure_in_the_United_States

[Mr.Bill]

37. Trump will break laws before the sun sets on January 20th.

He won't be able to not do it.

[Hoyt]

17. Before it's over, he'll pardon everyone convicted of federal hate crimes.

[trof]

22. no

[David__77]

38. They can try - I doubt it would withstand legal challenge.

...

[Fiendish Thingy]

44. Sure, as long as Pence hasn't pardoned Trump, especially if evidence exists of bribery. Nt