On the Issue of Pardons, Why Haven't They Been Handed out Like Confetti Already?

originally posted by: Xcathdra
In response to the questions posed about pleading the 5th if the person is not the subject of a criminal investigation there is no 5th application. There is a reduced 5th invocation in civil cases though since the constitution is specific with criminal applications.

Wrong:

Witnesses can plead the Fifth—that is, invoke the Fifth Amendment's privilege against self-incrimination—in appropriate circumstances. In grand jury proceedings, for example, witnesses who are called to testify but believe their testimony might incriminate them in a subsequent case can generally refuse. Somewhat similarly, the Fifth Amendment gives criminal defendants the right to not even take the witness stand at trial.

I know that I'm not a federal prosecutor or even a lawyer, but my years being a paralegal has taught me many things about the court system--you do not need to be a suspect in order to plead the fifth, and there's not one thing that you can say to me that will dissuade me from that truth, as I saw it happen numerous times in federal trials.

Sure but was it a ruling or dicta? Thats the question and until a person is pardoned without charge and its challenged, its considered to be the latter and not the former

Well, from what I gather in the Justia link, it is a Writ of Error from the U.S. Supreme Court concerning the district court in the Southern District of New York, and it was a binding decision. In my opinion, this would make it a "holding" and not a "dicta." There was no grey area for the district court to disregard the directive of the SCOTUS to release Burdick or any other orders contained within the writ. Also, the decision of the SCOTUS was based on Ratio Descendi, which allows it to be a binding ruling (holding) instead of an obiter dictum.

But, I'm not a judge or lawyer, so there may be some nuances and details that I'm missing that could dictate otherwise.

originally posted by: rockintitz
a reply to: theworldisnotenough

I've already been hit with criticism regarding my media citations

Checks OP again.. no citations. A TV personality? Msnbc?

Who's gonna be pardoned? For what exactly?

Or if you prefer:

a reply to: SlapMonkey

Not wrong... Read the post / question he asked. When the person is not the subject of a criminal investigation in the sense the poster phrased it, the 5th doesnt apply.

As for the last part - It was a dicta, which is an opinion and not a ruling. Once again Nixon's pardon verifies that.

Satire:

a reply to: theworldisnotenough

One reason that tRump might hesitate to grant pardons is that the protections against self-incrimination disappear, and all the witnesses to any tRump crimes could then be compelled to testify, under penalty of criminal contempt for refusal.

a reply to: F4guy

At which point Trump can just pardon them again.

Trump lawyer denies legal team is discussing pardons

Trump lawyer denies legal team is discussing pardons

President Trump’s lawyer, Jay Sekulow, is pushing back against a Washington Post report saying Trump's legal team is “discussing the president’s authority to grant pardons."

Sekulow told CBS News that pardons pertaining to the ongoing federal probe into alleged ties between the Trump campaign and Russian election meddling “are not being discussed and are not on the table.”

Click link for entire article.

originally posted by: Xcathdra
a reply to: F4guy

At which point Trump can just pardon them again.

It is clear from the caselaw that that sort of behavior is itself obstruction of justice. Which would lead to impeachment and then indictment and prison.

originally posted by: F4guy

originally posted by: Xcathdra
a reply to: F4guy

At which point Trump can just pardon them again.

It is clear from the caselaw that that sort of behavior is itself obstruction of justice. Which would lead to impeachment and then indictment and prison.

Not really but whatever works...

Impeachment is not a criminal issue. It is a political issue and Congress determines what a high crime and misdemeanor are. It is not based on a legal question but a political question. There are no restrictions on Presidential pardons in the Constitution so trying to assign a criminal intent to an action that is constitutionally protected is not going to work.

I do believe that I came across the answer to my own question, which was: why haven’t pardons been issued already?.

Bob Bauer, former White House Counsel during the Obama administration, stated on T.V. that if the President issues a pardon to protect his self-interests or to protect his family members or aides, then this would expose the President to a charge of obstruction of justice.

Bingo! There you have it!

originally posted by: theworldisnotenough

originally posted by: Xcathdra
a reply to: theworldisnotenough

Acceptance of a pardon is required.
It is not an admission of guilt if no one is charged / tried / convicted. The DOJ policy requires an admission in order to qualify to receive one, in addition to a conviction. That policy does not apply to pardons issued by the President and accepted by the intended recipient.

A person does not have to be charged nor convicted in order to be pardoned. A Presidential pardon only applies to federal law violations.

Impeachment is the only offense pardons do not affect.

Burdick vs. United States is the case law and it only refers to people who are already convicted. It does not say anything about people being pardoned when they are never charged. It set the precedent that a pardon cannot be forced if it is rejected. It also established the need for the person pardoned to submit the pardon to the courts for the legal side of things.

MSNBC is wrong on the blanket admission of guilt claim. All one has to do is look at Richard Nixons pardon, which MSNBC ignored.

Thank you for the tutorial.

Now let's get back to the original question: why haven't pardons been handed out like confetti especially in light of the anxiety attacks and lack of self-control on the part of The Donald? You'd think that one way or another he'd be more than eager to put a lid on the Mueller investigation. Then again, as noted in the OP, The Donald may be concerned about his business future.

And let's get back to the follow-up question: how will a pardon affect a pardonee's Congressional testimony and the invocation of the Fifth Amendment?

Hillary used them all up.

They just won't show or do like the co-founder of GPS and eric holder.
www.theblaze.com...

Trumps not worried. Gotta prove something first.

a reply to: theworldisnotenough

No, it wouldnt.

This is the problem with using partisan hacks from the Obama administration. Although Obama and his administration are experts on obstruction of justice, even when they kill americans and try to hide it. Like in Benghazi... Fast and Furious... The loss of spec forces in Afghanistan... Clinton Murder Inc... etc etc etc.

a reply to: burgerbuddy

I am still trying to understand what he means by avoiding self incrimination. If the dossier is correct, as the left claims regardless of facts, what was done to the dossier by th4e guy that would constitute a crime? Or maybe this is just another attempt by the left to obstruct justice.

originally posted by: Xcathdra

originally posted by: F4guy

originally posted by: Xcathdra
a reply to: F4guy

At which point Trump can just pardon them again.

It is clear from the caselaw that that sort of behavior is itself obstruction of justice. Which would lead to impeachment and then indictment and prison.

Not really but whatever works...

Impeachment is not a criminal issue. It is a political issue and Congress determines what a high crime and misdemeanor are. It is not based on a legal question but a political question. There are no restrictions on Presidential pardons in the Constitution so trying to assign a criminal intent to an action that is constitutionally protected is not going to work.

Assigning criminal intent to constitutionally protected actions is routine. The 1st Amendment protects speech. But if you speak words with the intent to solicit a murder, that's a crime. You have a constitutional right to vote but if you vote with the intent to collect the 20 bucks the ward boss pr:lovemised, that's a crime. There are many acts that unless coupled with what is called the mens rea, or intent, would not be a crime.

To avoid a Constitutional crisis on the issue of pardon validity the likes of which may very well come out of the crisis, chaos, and scandal-ridden White House, Congress will have to amend the Constitution to read that the only candidates eligible for a pardon are people who have already gone through the federal criminal justice process and have been convicted of a crime per federal statute and who are at “arm’s length” from the President who is granting the pardon.

Just as “arm’s length” means in a business transaction, “arms length” here means that the President has no personal interest in the benefit that is bestowed by the pardon and has no close relation with the candidate-recipient of the pardon. Another way of looking at this is like the non-interest-in-the-outcome and remoteness of a prospective juror from a defendant facing a criminal prosecution in court that would qualify the prospective juror to serve on the jury. Lacking such remoteness or non-interest, the prospective juror should be barred from serving on the jury.

With this explicit criteria in place, the President would not be able to grant pardons to his family members, to most of, if not all of, his White House staff, or — heavens, no, no, no! — to himself.

Extremely funny how stupid-ass babbled about getting a special prosecutor for Hillary while campaigning...

...Now he appears to be going on the defense because there's one on his tail...

LOL

You just can't make this # up...

originally posted by: MyHappyDogShiner
Extremely funny how stupid-ass babbled about getting a special prosecutor for Hillary while campaigning...

...Now he appears to be going on the defense because there's one on his tail...

LOL

You just can't make this # up...

Actually Democrats can... and did.

a reply to: F4guy

and you can be pardoned if it violated a federal statute, even before being charged.

First, pardon my late response--I take the weekends off, generally, from ATS.

a reply to: Xcathdra

In reference to the dicta-versus-ruling, I will still respectfully disagree, as the decision of the SCOTUS was binding and could not be ignored by the lower court. From many sources that I've read, that is a main difference between the two.

As for your consistent citing of the Nixon pardon, this allowed me to do some more in-depth reading on the topic (and I appreciate you causing that), and I still hold the opinion that Ford was wrong for pardoning Nixon when he did. This Smithsonian write-up on the matter was one of the better ones that I came across.

It does cite the Burdick SCOTUS opinion of 1915 as a precedent to go through with the pardon (an "imputation of guilt"), but the aspect of the ruling that Ford's lawyer (Benton Becker) focused on was the fact that acceptance would constitute "admission of guilt" by Nixon concerning his involvement in Watergate--a concern that Ford had (that Nixon would never admit to guilt or be found guilty). But, what Becker failed to pay attention to, in my opinion, is that the same SCOTUS ruling opined that...well, let me just quote it again from directly from the SCOTUS opinion:

It is asserted besides that the pardon is void as being outside of the power of the President under the Constitution of the United States because it was issued before accusation or conviction or admission of an offense. This, it is insisted, is precluded by the constitutional provision which gives power only "to grant reprieves and pardons for offenses against the United States," and it is argued, in effect, that not in the imagination or purpose of executive magistracy can an "offense against the United States" be established, but only by the confession of the offending individual or the judgment of the judicial tribunals.

I feel like it needs to be noted again (unless it's a point that I didn't note before) that this quote--the ruling of the SCOTUS--says that the president (executive magistrate) can not establish an "offense against the United States," but that is up to the judicial branch of government. It's the same as saying that the police commissioner cannot charge someone with a crime, the district attorney must do that--one is in the executive side of law enforcement, the other the judicial.

So, while you continue to cite Nixon's pardon, I will just have to flat-out state my determination: The pardon against Nixon, while inevitable (as was an indictment, both according to the Smithsonian link), was prematurely signed and therefore should be considered invalid. I mean, Ford used basically the exact same verbiage in his pardon for Nixon as Wilson used for Burdick, which prompted the SCOTUS to say that such a blanket, non-specific pardon was unconstitutional.

I think that this point we just need to agree that our acceptance of the SCOTUS opinion as enforceable differs, but without anyone (as far as I know) having formally challenged Ford's pardon, all that means is that nobody really cared enough at the time to take it that far.

But in the end, Ford got what he wanted--the sideshow of the Watergate scandal was put behind him, Nixon wasn't dragged through a lengthy public trial, the visual of a U.S. president on trial was not broadcast around the world, and he (Ford) could now get back to the actual job of presidency. So, maybe it was for the best that no one challenged the pardon, but in the same breath, that doesn't mean that it would stand up to judicial scrutiny if challenged, based on the Burdick SCOTUS opinion.

Here's a short but interesting op-ed concerning the matter on Slate, which I agree with the following excerpt at the least (emphasis mine):

Why was Ford wrong to pardon Nixon? Mainly because it set a bad precedent. Nixon had not yet been indicted, let alone convicted, of any crime. It's never a good idea to pardon somebody without at least finding out first what you're pardoning him for. How can you possibly weigh the quality of mercy against considerations of justice? Yet it would happen again in December 1992, when departing President George H.W. Bush pardoned Caspar Weinberger, former defense secretary, 12 days before Weinberger was set to go to trial for perjury. As I've noted before, this was almost certainly done to prevent evidence concerning Bush's own involvement in Iran-contra (when he was vice-president) from becoming public. The final report from Iran-contra special prosecutor Lawrence Walsh called it "the first time a President ever pardoned someone in whose trial he might have been called as a witness," but in fact it was the second. Ford's motive was less self-protective, but, as Slate's Christopher Hitchens notes here, it had the same effect of shutting down further investigation into illegal activities. Without the precedent of Ford's pre-emptive pardon, Bush père might have lacked the nerve to attempt one himself, and certainly would have created a much bigger ruckus if he went ahead and did it anyway.

I know that this false under the slippery-slope logical fallacy, but bad precedent is bad precedent, regardless. And when the bad precedent also is counter to a SCOTUS opinion on the matter (that cites discord concerning the directives of the pardon power in the constitution), I don't see if as good business, even if the pardon still stands today, unchallenged.

Anyhoo, like I said, I appreciate you prompting me to do more reading into the matter. Nothing that you have proposed will change my opinion about what we've discussed concerning the Burdick ruling/dicta/opinion/whatever (or the right to 'plead the fifth' as a witness), but it has been a very good discussion. Thanks for that!



SM