To the lawyers on DU : I need your help to popularize a technical point about presidential pardon.

[syringis]

I have already crossed and exchanged with 2 of you but you are certainly more numerous on DU.

Trump cannot pardon himself or someone else, if he is more or less involved in a criminal case (in theory).

I could have explained it very easily in French, but I am not able to popularize in English such a technical point.

I am not familiar with your legal system, I only have a general knowledge of it.

by the way, this is a matter of universal principles, which prevail over any legal system.

Thank you very much.

[marylandblue]

1. Not a lawyer, but here is my take

The strict language of the Constitution, makes the right to pardon unlimited. But a general legal principle is that nobody, including the president, can do a legal thing for an illegal purpose. So if the purpose of a pardon is obstruction of justice, or to allow bribery, the courts could strike it down.

[syringis]

2. Hi Marylandblue

Thank you.

Before any law, rule,...you have this :

No one can be a judge and jury. It is a universal principle of law. Principles of law prevail over laws.

No matter where you live, what's your legal system, this prevails, no matter what's written in Constitutions, Law,...

[marylandblue]

3. Yes that's true too, but

We have some very conservative justices who are more interested in narrow readings than universal principles.

[syringis]

7. They can't get over it.

It is a principle that has been applied since the dawn of time.

It is also in your system, the Common Law, which you inherited from the British. One of the fundamental cases of the Anglo-American legal tradition is Thomas Gotham v. College of Physicians in the 17th century.

It should also be noted that a presidential pardon is not an absolute guarantee. Even if it is granted and accepted, it is still possible to prosecute and convict someone. In fact, in this case, the grace will have rather devastating effects, one of them being that the pardoned person can no longer invoke the 5th amendment...

[Voltaire2]

5. a pardon is neither judging nor jurying.

[Voltaire2]

4. Well I disagree. I don't think the Supreme Court could find constitutional grounds.

The pardon clause is not complicated:

he shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.

The limits are: must be "offenses against the US" - federal crimes, and must not be "cases of impeachment".

There is no mention of proper purposes.

My opinion is that impeachment is the only limit on this power if used for illegal purposes.

[marylandblue]

6. That's why proper purposes is a "general principle"

And as I said, the strict letter of the Constitution does not include that. But courts in our system could say it's "implied" as they have with other things.

[Voltaire2]

8. Yes well this court is unlikely to read that INTO that clause.

But I suspect we are going to find out soon enough.

[politicaljunkie41910]

13. I agree with you, but regardless, if ever there was a case to be taken all the way to the SC, this

would be it. We need to know whether "we are a nation of laws not a nation of men" as John Adams said. I cannot think of a better case to be fast-tracked to a 5-4 Republican dominated Supreme Court so we can know for certain, once and for all. Otherwise we set a precedent that our president is a king with unlimited powers to include, "he can shot somebody in the middle of Time Square and no one would do a thing". I don't think this is a legacy decision that John Roberts would want to leave this nation with. Chaos would certainly reign and our president would become an autocrat with unlimited powers. I don't think that is what our founders had in mind.

[marylandblue]

14. I think that is what will decide the day

Rather than any particular read of the Constitution.

[EffieBlack]

9. My take

A president’s pardon power is virtually unlimited, but if he uses it to obtain a personal benefit, I believe he can be charged with obstruction of justice or bribery.

Consider this when applied to other presidential powers. For example, the president also has unlimited power to nominate Supreme Court justices. Of course, whether that nominee actually becomes a justice is subject to the Senate’s advice and consent. But the president can nominate whomever he wants. However, if evidence surfaces that Trump demanded and Neil Gorsuch agreed to pay Trump $3 million in return for being nominated or that Trump conditioned the nomination on Gorsuch’s promise that he would decide cases according to Trump’s explicit instructions, both Trump and Gorsuch could be prosecuted for and convicted of bribery and/obstruction of justice.

This would be true, despite the fact that it would not invalidate the nomination or confirmation - although Gorsuch would likely thereafter be impeached (at least under a normal Congress - I’m not confident this crowd would do anything but make excuses).

So, by the same token, I believe that if there is evidence that Trump is exchanging pardons for his personal benefit, the pardons may remain valid, but he could be charged with crimes.

[Gothmog]

10. No, Trump can't pardon himself. The Constitution tells us so.

From Prof. Tribe and others https://www.washingtonpost.com/opinions/no-trump-cant-pardon-himself-the-constitution-tells-us-so/2017/07/21/f3445d74-6e49-11e7-b9e2-2056e768a7e5_story.html?utm_term=.a066d8b411f4

Can a president pardon himself? Four days before Richard Nixon resigned, his own Justice Department’s Office of Legal Counsel opined no, citing “the fundamental rule that no one may be a judge in his own case.” We agree.

The Justice Department was right that guidance could be found in the enduring principles that no one can be both the judge and the defendant in the same matter, and that no one is above the law.

The Constitution specifically bars the president from using the pardon power to prevent his own impeachment and removal. It adds that any official removed through impeachment remains fully subject to criminal prosecution. That provision would make no sense if the president could pardon himself.

The pardon provision of the Constitution is there to enable the president to act essentially in the role of a judge of another person’s criminal case, and to intervene on behalf of the defendant when the president determines that would be equitable. For example, the president might believe the courts made the wrong decision about someone’s guilt or about sentencing; President Barack Obama felt this way about excessive sentences for low-level drug offenses. Or the president might be impressed by the defendant’s subsequent conduct and, using powers far exceeding those of a parole board, might issue a pardon or commutation of sentence.....

President Trump thinks he can do a lot of things just because he is president. He says that the president can act as if he has no conflicts of interest. He says that he can fire the FBI director for any reason he wants (and he admitted to the most outrageous of reasons in interviews and in discussion with the Russian ambassador). In one sense, Trump is right — he can do all of these things, although there will be legal repercussions if he does. Using official powers for corrupt purposes — such as impeding or obstructing an investigation — can constitute a crime.

But there is one thing we know that Trump cannot do — without being a first in all of human history. He cannot pardon himself.

[syringis]

11. Hi Gothmog

Thank you very much

May I ask you to give some further explanation as to the hierarchy of norms in law?

I think it might shed some extra light.

[Gothmog]

15. First, trump's attorneys are weak and this memorandum was poorly written

This is a poorly written legal memo. This is more of a political document and the idiots who wrote this memorandum got the law wrong. I love well done legal writing and pieces of dreck like this memorandum make me mad. Trump has weak attorneys. Jay Sekulow is a con man who converted from Judaism to Christianity so as to be able rip on christian conservatives. John Down set a record for having a client get the longest sentence for insider trading that will not be beaten. Neither of these attorneys are strong attorneys and this memorandum shows this.

Second, the constitution has to control over everything but part of the constitution are certain legal norms that the founders based the constitution on. The concept that a POTUS could not pardon himself goes back to a rejection of the concept that anyone is above the law. The govt can not be above the law is what our country is founded on. The declaration of independence was an indictment of the illegal or immoral acts of King George and is one of the building blocks on which the Constitution was built.

A legal act can be illegal if done for a corrupt or illegal goal. Trump cannot sell pardons even though the pardon power is as close as an absolute power as there is in the constitution.

I was active in politics during the Watergate era. I remember the memo about a POTUS not being able to parson himself. I also remember being upset about Ford pardoning Nixon. I campaigned form and supported Carter in large part due to this pardon.

These are my views. YMMV

[Voltaire2]

12. The specific here is pardon himself out of

impeachment. Yeah, he can’t do that. However that does not address other cases - where impeachment is not in progress or in effect. Tribe is arguing for a broader extension of the impeachment limitation but that extension would have to be created by this court and I think that is unlikely.

[Gothmog]

16. Department of Justice (DOJ) Independence is a Hallmark of American Democracy

Here is a good white paper https://protectdemocracy.org/independent-law-enforcement/

The President recently claimed that he has an “absolute right to do what I want to do with the Justice Department.” This view is anathema to our democratic system of government and shows a profound misunderstanding of our Constitution. The promise that every American will be treated equally under the law and that none is above the law is a bedrock principle of American democracy. Law enforcement free from political influence — real or perceived — underpins all of our other freedoms. In a functioning democracy, those in office do not wield the power of the state to benefit political allies and punish political opponents. The government should not be in the business of picking winners and losers for enforcement based on popularity or political pressure.

For 40 years, Administrations of both parties have maintained policies to protect this bipartisan norm. But while this White House has adopted a limited version of this policy, it continues to violate its own policy and systematically destruct the broader established norms limiting White House involvement in law enforcement matters involving specific parties, as we document in our Law Enforcement Interference Tracker. We have witnessed repeated requests by the President to prosecute his former political opponent, attempts to thwart Special Counsel Robert Mueller’s investigation regarding Russian interference in the 2016 election, and the appearance of political interference in specific antitrust matters to benefit favored companies and harm those that are disfavored.

White House interventions in law enforcement matters involving specific people implicate some of our most fundamental constitutional principles. As we explain in our White Paper, when the White House intervenes in how the law is enforced to benefit allies or target its opponents, it violates the President’s constitutional obligation to ensure that the laws are faithfully executed, as well as core constitutional principles of due process, equal treatment under the law, and the First Amendment right to participate in the political process.

We’re fighting back to protect independent law enforcement. On March 8, we filed an amicus brief on behalf of former DOJ officials raising concerns about the appearance of White House interference in DOJ’s decision to block the merger between AT&T and Time-Warner (CNN’s parent company) based on the President’s animus towards CNN.