How would the Supreme Court rule on the validity of a self-pardon? (user search)
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  How would the Supreme Court rule on the validity of a self-pardon? (search mode)
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Question: How would the Supreme Court rule on the validity of a self-pardon?
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Author Topic: How would the Supreme Court rule on the validity of a self-pardon?  (Read 2881 times)
True Federalist (진정한 연방 주의자)
Ernest
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« on: December 07, 2020, 01:33:01 AM »

Hard to tell, and unlikely to be ruled upon by this Court. The Biden administration is unlikely to pursue Federal charges against Trump, and those that might have been willing to consider could likely be struck down as double jeopardy because he'd already been found not guilty by the Senate in the impeachment trial.
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True Federalist (진정한 연방 주의자)
Ernest
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« Reply #1 on: December 07, 2020, 01:33:28 PM »

Hard to tell, and unlikely to be ruled upon by this Court. The Biden administration is unlikely to pursue Federal charges against Trump, and those that might have been willing to consider could likely be struck down as double jeopardy because he'd already been found not guilty by the Senate in the impeachment trial.

An impeachment trial wouldn't trigger double jeopardy in a criminal prosecution. Double jeopardy only applies to criminal charges & impeachment isn't a criminal charge, having no effect other than to potentially cause somebody holding a public office to be removed from said office. It doesn't resolve the issues decided there in a subsequent criminal case, & certainly doesn't constitute a criminal conviction or an attempt

Yes, impeachment isn't a criminal trial, but as far as trying to infer something out of the penumbras of the Constitution, it isn't as far fetched as some other penumbral inferences the Court has made over the decades. Also, it's a way for the Court to dodge the issue of the validity of self-pardons. It's not a slam dunk, but if I were unfortunate enough to be Trump's defense council, I'd at least include it in a defense unless there's some prior precedent that indicates it definitely wouldn't work.

Since the standard needed for a conviction in an impeachment trial is far lower than the unanimous jury that Ramos requires for criminal trials, it's not an unreasonable proposition that being found not guilty in an impeachment trial could provide double jeopardy immunity in criminal trials involving the same charge, tho it certainly isn't explicitly stated in the Fifth Amendment.
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True Federalist (진정한 연방 주의자)
Ernest
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« Reply #2 on: December 07, 2020, 07:13:03 PM »

Hard to tell, and unlikely to be ruled upon by this Court. The Biden administration is unlikely to pursue Federal charges against Trump, and those that might have been willing to consider could likely be struck down as double jeopardy because he'd already been found not guilty by the Senate in the impeachment trial.
Trump was found not guilty of only two offenses in the impeachment trial. There's a hell of a lot more he could be charged for than those two.

But are they Federal charges, and is there any realistic chance of getting a conviction on them?  The last thing this country needs is to prosecute Trump and thus give him a legitimate reason to be in the news unless he actually goes to prison.
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True Federalist (진정한 연방 주의자)
Ernest
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« Reply #3 on: December 08, 2020, 08:26:10 AM »

Hard to tell, and unlikely to be ruled upon by this Court. The Biden administration is unlikely to pursue Federal charges against Trump, and those that might have been willing to consider could likely be struck down as double jeopardy because he'd already been found not guilty by the Senate in the impeachment trial.
Trump was found not guilty of only two offenses in the impeachment trial. There's a hell of a lot more he could be charged for than those two.

But are they Federal charges, and is there any realistic chance of getting a conviction on them?  The last thing this country needs is to prosecute Trump and thus give him a legitimate reason to be in the news unless he actually goes to prison.

I mean he's already basically committed attempted election tampering in just the past month. I'd be surprised if nothing can be landed on a guy who basically ran a criminal enterprise from the White House for the last four years aside from charges from one specific incident.

Shady and despicable aren't necessarily criminal. While what he has publicly done since Election Day is certainly detrimental to the good of our country, I don't see anything that is unambiguously criminal.
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True Federalist (진정한 연방 주의자)
Ernest
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« Reply #4 on: January 21, 2021, 08:57:23 AM »

There's a very easy way for Congress to stop any president from ever self-pardoning. Pass a constitutional amendment invalidating it and if they want, to, limiting the president's pardon power as it applies to everyone else as well. But they either don't really want to do that, or are just lazy. It's no different than the size of the Supreme Court question and court packing. It'd be incredibly easy to pass an amendment mandating a maximum size. Again, they either don't want to limit the president's power when it's in their interest, or they're just lazy.

I think you don't understand how difficult it is to amend our Constitution. There's zero chance of an amendment addressing a theoretical problem will be sent to the States, let alone ratified by the States, until such time as it becomes an actual problem. The clearest example of that dynamic is the Child Labor Amendment. It was sent to the States only after the Court had overturned some child labor laws and then its progress towards ratification halted once the Court had decided child labor laws actually were acceptable despite the risk the Court could rereverse itself back to its original opinion. Fortunately, that amendment has no time limit attached, so if the Court ever did do that, it would be relatively easy to restore the Constitutionality of child labor laws. (It only needs 10 more States, soon to be 11 likely, and there are 8, soon to be 10, that should easily ratify if needed. So it wouldn't take much of a push to get it done.)
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True Federalist (진정한 연방 주의자)
Ernest
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« Reply #5 on: February 07, 2021, 12:02:05 PM »

I firmly believe that the Supreme Court would never uphold a Presidential self-pardon, even if it would require a very strained reading of the Constitution to do so. Allowing a President to pardon themselves would be such a massive hole in the Constitution that it could render the rest of the document meaningless.

It only becomes a loophole if pre-emptive pardons are Constitutional.  The Constitution already explicitly bars the President from granting pardons in cases of impeachment. So, it's fairly clear that the expectation was that in a case of a President acting as if ey were above the law, Congress impeaches and convicts, then the ex-President is tried and convicted in the courts.

The Constitutionality of pre-emptive pardons has never been established because no later administration has attempted to prosecute those pardoned before being tried, let alone convicted. Given the potential of abuse in pre-emptive pardons, there's a good case to be made they shouldn't be Constitutional. (Imagine if you will that instead of Buchanan being merely impotent, he'd tried to actively aid the South in secession after Lincoln's election and pardoned on the morning of March 4 both himself and his underlings, such as Secretary of War John Floyd, for their actions in transferring Federal arms and supplies to the seceding States.)
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