A president CAN pardon people who are involved in crimes that lead to his impeachment

[StarfishSaver]

There is a mistaken assumption, on this board and elsewhere on the internet, that a president's pardon power doesn't extend to the ability to pardon people for crimes related to activity for which he is being or has been impeached. That's a misreading of the Constitution.

The only connection between impeachment and pardons is that a president cannot pardon an impeachment - - i.e., he can't wipe away an impeachment the way he can wipe away a federal felony. But otherwise, there is no limitation on his ability to pardon an individual for specific crimes committed in connection with any act related to his or anyone else's impeachment.

This is not speculation and it's not a matter of "unsettled law." It's an undisputed and undisputable fact.

Here's an interesting analysis of the presidential pardon power:
https://www.brookings.edu/blog/fixgov/2021/01/17/presidential-pardons-settled-law-unsettled-issues-and-a-downside-for-trump/

[Delphinus]

1. Oh,

this isn't good.

[sboatcar]

2. That's probably a lot of these people haven't been charged with anything too serious

Not until after wednesday at noon anyway

[Bernardo de La Paz]

7. Funny thing about pardons, you can still be charged with a crime & be formally forced to admit

... in court.

According to the 1915 Supreme Court decision, you can be forced to use your pardon in court. And using the pardon is to admit guilt.
https://en.wikipedia.org/wiki/Burdick_v._United_States

The pardon does not actually apply until the defendant proffers it in court in answer to a charge. Nobody can proffer it for them. If the defendant does not proffer the pardon, then they can be convicted.

So,

1) Prosecutors should formally ask every pardoned person if they admit guilt.

2) If they do not, they should be charged.

3) Then they would be forced to admit their guilt, formally, in a court of law, where it will be recorded.

The Supreme Court ruled in Burdick that a pardon carries "an imputation of guilt, acceptance a confession of it".[2]

Burdick v. United States, 236 U.S. 79 (1915), was a case in which the Supreme Court of the United States held that:

* A pardoned person must introduce the pardon into court proceedings, otherwise the pardon must be disregarded by the court.

* To do that, the pardoned person must accept the pardon. If a pardon is rejected, it cannot be forced upon its subject.

A pardon is an act of grace, proceeding from the power entrusted with the execution of the laws, which exempts the individual on whom it is bestowed from the punishment the law inflicts for a crime he has committed. It is the private though official act of the executive magistrate, delivered to the individual for whose benefit it is intended.... A private deed, not communicated to him, whatever may be its character, whether a pardon or release, is totally unknown and cannot be acted on.[1]

[Raven123]

14. Has the power of pardons that are issued before conviction been tested by SCOTUS?

[StarfishSaver]

40. There's no question that pardons prior to conviction are valid

The fuzzy area is where they are granted before the person has actually been charged with a crime.

[Bernardo de La Paz]

43. Nebulous pardons covering vague descriptions of possible crimes is not settled law

Nixon's pardon was never tested in court.

[StarfishSaver]

46. I agree. Nixon was in the gray area

He was one identified person pardoned for any crime he committed within a set period of time. I think that could go either way.

However, I believe that trying to pardon all of the insurrectionists for any crime they committed that day wouldn't fly. I think the Court would rule that such an act doesn't even constitute a pardon.

[msfiddlestix]

49. File it in the category of "Perfectly Legal" even if Perfectly Vile and Unjust

So many things and this is just one more incredibably important one to make the appropriate changes to for future despots.

[StarfishSaver]

50. True in some respects

But it's impossible to change the law in ways that will conclusively prevent despots from abusing them.

We should, of course, make thoughtful changes where they make sense. But just as important, we need to be much more responsible in our choices of who we give these powers to.

[msfiddlestix]

55. yes, but we tried in 2016. How was it possible for us imagine our opponents would choose

the very person their own party reviled in that election. I'm still trying to wrap my head around the fact that several prominent Republican Senators who were candidates in the same primary said the honest truth for once in their lives about the character of the one they ultimately chose to be the one. They could have easily done more to avoid that eventuality in their own primary.

I still can't understand it even if I have come to "terms" with that very fact.

[StarfishSaver]

56. I don't think we (the collective "we") tried hard enough in 2016

Too many people treated the election like it was entertainment or a chance to prove a point or avenge some personal grievance.

Many of us tried to warn those people that you don't give a man like Trump the power of the presidency, but they didn't listen.

The remedy for that, in my view, is not to curtail the powers of the presidency in order to protect us from authoritarian despots who might abuse them, but to take more responsibility for keeping authoritarian despots away from powers they will abuse.

Because, in the end, there's no way we can structure a system to make it abuse-proof. As Trump has proven, a person with no morals and no shame and no fear can pretty much do whatever he wants. We need to make sure that no one like him ever again gets their hands on the massive and necessary powers of the presidency.

[msfiddlestix]

57. All good points.

Unfortunately, those truthful points make me less optimistic at this point in time. Perhaps sometime in the way distant future, when I'm long gone, maybe my great grandchildren or theirs can piece together from the tatters and ashes left in the wake of this experiment and repair all that has been broken or went so wrong in the first place.

The fact that this experiment started off on a very dark footing codifying slavery which took a civil war and the death of many thousands, only to bring on Jim Crow and a 160 years later, still white supremacists remain in tact. I weep for who leave all this to, and for us for failing. Maybe though, Joe Biden and Kamala Harris and their administration and our Senators and Congress people can fix the Military, can fix the Justice Department, can fix Scotus, can fix the Police Force throughout the nation. etc etc etc.

xing fingers.

[Maru Kitteh]

31. Great information, thanks for posting. nt

[BComplex]

41. Great explanation. Thanks! /eom

[femmedem]

3. Thank you for your tireless efforts to stop the spread of misinformation.

You're one of DU's best fact checkers and I appreciate it tremendously.

[StarfishSaver]

10. Thanks.

I try ...

[Squidly]

4. its why they are waiting to throw the book the the insurrectionists

Dont worry, the REAL charges will be dropped on them after shitpants leaves office to avoid his pardon power

[Squidly]

6. sboatcar

lol...great minds think alike

[Raven123]

5. I'm wondering if he can sell pardons

If reports are true, folks are making seals. While the President can grant pardons, I wonder if selling them is different Constitutionally. If so, i can envision a situation where the pardon stands, but the money is forcibly returned. Just my musing.

[StarfishSaver]

8. The Constitution doesn't prevent a president from selling pardons

But the law makes it a crime. So if it's established that he did sell any pardons, the pardons stand, but he can be charged with bribery, extortion, abuse of office, etc.

[Raven123]

12. That's what I'm thinking. So the money he's collecting could be confiscated. Right?

[StarfishSaver]

24. Possibly. And he could also go to jail.

[Maru Kitteh]

34. Oh, that's my favorite part.

"And he could also go to jail."

[getagrip_already]

20. there was a case where a governor was selling pardons and got caught.....

The pardons stood. He didn't.

[Harker]

9. There's no way that he's giving them away.

He'll be expecting to get paid back in cash or services.

[Bernardo de La Paz]

11. There would be some criminal law about using government office for private enrichment, I am sure. nt

[ananda]

29. He is selling pardons. That who he is.. a corrupt grifter.

..

[bullwinkle428]

47. How does $2 million per pardon sound to you? Here's some evidence for that...

An associate of Rudy Giuliani told a former CIA officer a presidential pardon was “going to cost $2m”, the New York Times reported on Sunday in the latest bombshell to break across the last, chaotic days of Donald Trump’s presidency.

The report detailed widespread and in some cases lucrative lobbying involving people seeking a pardon as Trump’s time in office winds down. The 45th president, impeached twice, will leave power on Wednesday with the inauguration of Joe Biden.

The former CIA officer John Kiriakou, who was jailed in 2012 for leaking the identity of an operative involved in torture, told the Times he laughed at the remark from the associate of Giuliani, the former New York mayor who as Trump’s personal attorney is reportedly a possible pardon recipient himself.

https://www.theguardian.com/us-news/2021/jan/17/rudy-giuliani-associate-john-kiriakou-trump-pardon

[lapucelle]

13. Can it be a pre-emptive/presumptive pardon for any and all crimes? N/T

[getagrip_already]

18. not pre-emptive...

Pardon's don't reach into the future. They are based on brittish law which specifically limits them to crimes already committed.

The french had a carte blanche - which was a pre-emptive pardon allowing any crime by the holder. We don't follow that doctrine luckily.

[lapucelle]

21. How does Ford's pardon of Nixon fit into your theory? N/T

[getagrip_already]

22. ford pardoned nixon for crimes already committed...

but not for which he had been charged. If that is what the question is, apologies.

In nixon's case, it wasn't tested. Ford had the doj and there was no stomach to continue the trama.

But it is generally assumed that a pardon can be given before any charges are brought. What I was saying (and thought answering) was that you can't issue a pardon for a crime in the future.

[StarfishSaver]

25. You're right. It hasn't been tested. And I don't think it would hold up

Especially if Trump were to try to preemptively pardon large groups of unnamed people for lots of unspecified crimes.

[getagrip_already]

27. I'm not a lawyer, and I don't play one here....

But my guess is it has been tested at other levels. Lots of pardons have been issued in all the states. Someone has to have done them pre-trial.

[StarfishSaver]

32. Pre-trial pardons have been done in federal and state cases

The issue is whether a pardon granted for unnamed crimes before they were even charged are valid.

I think that's a close question. However, I think blanket pardons granted to large groups of unnamed and unidentifiable people for a broad array of unnamed crimes would not be valid. That, in my view would not be a close question.

[hlthe2b]

15. Yes.

[kentuck]

16. An interesting point in the article:

"Nor can a pardon forestall a Senate trial on a House-passed impeachment."

[BrightKnight]

28. Can a pardon obstruct a Senate trial.

If he pardons his co-conspirators in a Senate trial could he be charged with obstruction.

Also, that would appear to be a version self pardon. I do not think the intent of the pardon power was ever to make the President a King and above the law.

[Tarc]

17. Well I guess that settles it, if the DU's Resident eLawyer hath spoken

Nothing is "proven" until a court hands down a decision. Until then, all is speculation.

[Turin_C3PO]

19. Yes, I've always known that

which is why I was so confused when CNN had a guest on that claimed otherwise. The news networks really need to make sure they’re not spreading misinformation.

[lagomorph777]

23. Settled law would imply settled cases. Lempert's opinion doesn't make it so.

[StarfishSaver]

26. Not true. Settled law also means the Constitution laid it out plainly, it's undisputable

The plain wording of the Constitution settled it.

When the wording of the Constitution is clear, there's no need for the Court to step in and rule on it. There's a reason this hasn't been challenged in court - no lawyer with any skill or ethics above Giuliani or Powell would waste the courts' time arguing otherwise.

[lagomorph777]

30. The wording is pretty plain, and I read it 100% differently than you do.

So that settles it?

SCOTUS will settle it, if/when a case comes before them.

[StarfishSaver]

36. Are you a lawyer with any training in Constitutional interpretationand analysis?

If not, no - your opinion about how this particular sentence in the Constitution should be interpreted doesn't settle anything.

And even if you were, the fact that some lawyers might read it differently doesn't mean a question isn't clear.

[lagomorph777]

37. I am not, and I made no claim as to it being settled law.

However, I am aware that "settled" has a legal meaning, and the opinion of one essayist (even a serious scholar) does not meet that definition.

[BComplex]

45. StarfishSaver, can congress step in for future issues like this? Can they pass a new

law that says a pardon can't move forward if it's part of the president's crime...or some such? Like can they make a law to make sure a future president cannot kill his opponent in an election and then pardon himself?

[StarfishSaver]

48. No, they can't

Congress can't by statute place limits on a presidential power that was conferred by the Constitution. This could only be done through a Constitutional amendment.

Their only power is to impeach and remove him.

[Raven123]

33. The iron is hot. An Amendment to limit the pardoning power of the President should be offered

I actually think it would be popular among most of the country. To convince the Trumpers, just tell them Joe might pardon Antifa

[StarfishSaver]

38. If we're going to amend the Constitution, there are many more areas that have a much higher priority

for me than trying to insert a completely unworkable provision intended to prevent a president from giving a few of his criminal friends a get out of jail free card - but would only undermine the ability of presidents to use the pardon power the way they almost always have for thousands of other people who deserve mercy that the justice system has not always guaranteed and wouldn't prevent a president from still giving his friends a get out of jail free card.

Such an amendment couldn't even be worded in a way that it would do what you want it to do - or even make any sense.

[Pobeka]

35. But pardoning insurrectionists for the crime of insurrection puts Trump in serious jeopardy in trial

But pardoning insurrectionists for the crime of insurrection put Trump in serious jeopardy in the senate trial for inciting that insurrection.

A smart guy wouldn't make his case worse.

But Trump also wants to pardon these folks just to infuriate good americans.

I dunno what he'll do.

[StarfishSaver]

39. Yes. Definitely that

[Chainfire]

42. We may well see the Supreme Court weighing in on some of the pardons before it is all over.

Absolute, may not really mean "absolute."

The equivalency, outside of the Presidency, would be the courts allowing the accused criminal to threaten or buy witnesses for their defense, or to have prosecution witnesses exiled.

The pardon could be a place where "law" and "justice" collide.

[StarfishSaver]

44. That's a good analogy

But an acquittal in the criminal justice system works like a pardon - once gotten, it can't be taken away. If a defendant bullies or bribes a juror or witness and he is later acquitted, he can be charged for the separate crime of bribery or intimidation. But the acquittal still stands and he can't be recharged for the crime he was acquitted on.

The same applies with a pardon.

[struggle4progress]

51. Law is not mathematics; and to my knowledge, this question has never been tested

[StarfishSaver]

52. Law is not mathematics, but it is a lot of "they said what they meant and meant what they said""

and if the Constitution says something clearly, there's no need to challenge it. This is one of those things. The language is clear and, it is basic Constitutional interpretation that if the Founders has intended the language to mean something beyond what they wrote, they would have written it that way.

If the Founders has intended a president not to have the power to pardon people who were engaged in acts that related to the crimes for which he was impeached, they would have said that. And I'd they'd intended for a president's powers to be curtailed while he was being impeached, they'd have said that. They didn't. And since the language is clear, no court is going to step outside of the document to assume they meant something other than or beyond what they wrote.

[keithbvadu2]

53. A pardoned person cannot plead the fifth on that particular crime because he is in no legal danger.

A pardoned person cannot plead the fifth on that particular crime because he is in no legal danger.

He could be required to testify against Trump.

[StarfishSaver]

54. That's true in theory but not always in practice

Yes, a pardoned person can't plead the Fifth on the the grounds that they could incriminate themselves in connection with the specific crime they were pardoned for. But even a pardoned person is still open to criminal liability for other crimes, so they can invoke the Fifth on those grounds.

For example, Roger Stone could still be subject to indictment and prosecution for state crimes and, if called to testify, would no doubt plead the Fifth on that basis.

[kcr]

58. How is it not a matter of unsettled law?

It hasn't been settled yet.

[StarfishSaver]

59. Because the Constitution settled it

The Supreme Court interprets the law - i.e., settles it - when it's not clear or there's a dispute. But some (arguably, ev parts of the Constitution are so clear that they don't need to be interpreted by the Court. The Founders settled it when they wrote the Constitution. This, in my view, is one of those situations. The pardon provision language, including the impeachment language, is so clear that it is indisputable, so there's nothing for the Court to interpret or settle. The fact that some people are trying to argue that the language doesn't mean what it says doesn't make the issue unsettled.

[kcr]

60. The Constitution is self-settling?

Wow, that's neat. However, I think the fact that some people, and it isn't just people on the internet, are trying to argue the language clearly means it IS unsettled. You, and others who interpret the meaning the way you do, may think you understand the definition perfectly and so no argument is needed. But, thankfully, it doesn't work that way.

[StarfishSaver]

61. For the most part, yes it is

It only needs to be "settled" when something isn't clear.

This is clear. One of the reasons the impeachment language has never been challenged. Because hardly anyone who understands the law, how the Constitution works and how Courts approach cases and Constitutional analysis would make this argument to a Court. With few exceptions, most of the people arguing otherwise are laypeople who don't know the law.

Laypeople arguing about the law does not make a matter "unsettled."

Notice how some people are all over the internet insisting that a president can't pardon anyone "while under impeachment"? but even the most aggressive progressive lawyers and scholars haven't argued that Trump's pardons since his impeachment should be challenged because they were made after he was impeached (and some were even made while he was "under impeachment" - the time between his impeachment and his acquittal)? And even the most vociferous Clinton haters never challenged HIS pardons made after he was impeached, even those made between his impeachment and acquittal. There's a reason for that.

So, yes, this has been settled. The U.S. Supreme Court does not need to weigh in on a matter in order for it to be considered "well-settled law."

[kcr]

62. If it's so clear, why are there so many scholars who disagree?

It isn't your opinion itself I take issue with. It's how you seem to claim in your OP that people here are pulling stuff out of their ass. That simply isn't true. There are plenty of scholars who are saying the opposite. And none of them worth their salt claim it's settled.

[StarfishSaver]

63. You won't find many scholars disagreeing

A few here and there are arguing it, as is always the case. It's always possible to find someone arguing something. But you won't find the vast majority of Constitutional law experts making that argument - or even many at all. Dershowitz argues that the Constitution allows a president to commit crimes if he thinks it's in the best interest of the country. And no court has ruled that he's wrong. That doesn't mean that a president's right to commit crimes is "unsettled law."

But I'm done arguing with you about it. Think whatever you like.