August 7, 2017

A new first for Alan Dershowitz.

At Twitter:



The underlying dispute if you follow the tweets back to something concrete is about whether the President can pardon himself. Dershowitz has said nobody knows, and Tribe called that "A misguided & impoverished take on what it means to answer a constitutional Q on which text, history, and SCOTUS precedent aren't definitive."

ADDED: This isn't a real dispute. Dershowitz is just choosing to take a more distanced view, and Tribe is acting more like a lawyer who's trying to win. The only interesting question to me here is psychological. Why does Dershowitz want to be distanced here? Is it that he thinks pegging the answer at "unknown" is helpful in getting through this difficult political problem? And why does Tribe think claiming to know the answer is a good idea? To begin to try to answer answer that last question, I had to look up which way Tribe knows the answer. It turns out he knows that the President can't pardon himself. That's funny to me, because I think I know that he can.

131 comments:

Michael K said...

Tribe is an angry partisan. Dershowitz isn't. He is trying to see through a thicket that is being deliberately created.

The left is really asking for civil war.

Bob Boyd said...

It's getting so even the experts are feeling hostile toward expertise.

Bay Area Guy said...

Dershowitz 1, Tribe 0

Because he has steadfastly defended the rule of law with respect to the bogus "Russian-Collusion" investigation, Dersh has become slightly persona non grata with his Martha's Vineyard crowd. He's an apostate. So, Tribe, self-appointed legal attaché for the Martha's Vineyard Crowd tends to bird-dog Dersh on the trivial hypothetical constitutional matters.

Why would Trump even contemplate pardoning himself when there's no evidence that he committed a crime, nor any indictment, nor any allegation of such?

Todd said...

You know the left is lost in the outback when they start going after Alan Dershowitz.

I mean come on, Alen (friggen) Dershowitz!?!? I think this is the second time in recent weeks that the left has tried to take him to the woodshed for completely reasonable "leftish" statements. They are all turning into cannibals. Not that (in this case) there is anything wrong with that. If they are all busy eating their own, they are not eating me and mine (and they will be all the weaker for it).

Quayle said...

Let's game this out:

Trump pardons himself, on his own authority as set forth in a statement that he is independently empowered to interpret the Constitution, and his interpretation is that he can pardon himself.

There is a scramble for pursuasive arguments of standing, but someone gets before the Supreme Court and argues that the pardon must be set aside because the President doesn't have the authority to pardon himself.

And the SCOTUS makes a ruling that he does NOT have power to pardon himself.

And what is the basis of their authority to make such a ruling?

On their own assertion that they are independently empowerd to be the final deciders on the meaning and powers of the constitution.

Bay Area Guy said...

Probably, Trump can pardon himself. Then, the House would impeach him, the Senate would remove him, and life in Leftwing fantasyland would once again be peaceful, with butterflies and rainbows and unicorns,

Achilles said...

"It turns out he knows that the President can't pardon himself. That's funny to me, because I think I know that he can."

A country is an Aristocracy when the text of law has no meaning other than to serve the entrenched elite. This "investigation" is merely the aristocracy trying to take power back from the lawfully elected president.

They will accede peacefully or they will be removed.

Owen said...

Tribe is just more tribal than Dershowitz. Same point differently expressed is, Dershowitz is a member of any ther trube, which prefers to not rush to judgement in an area where so little seems fixed. We are, after all, up in the ionosphere of ultimate authority, the same rarefied air that the Supreme Court first breathed in Marbury.

Ann Althouse said...

Tribe is saying: Hey, I'm being a lawyer here. Don't mess up my game. I say it's clear that X, all signs point to X, I know X is true, because that's more convincing. I'm not going to insert all sorts of equivocation. That's not how the game is played.

Owen said...

Typo: "any ther trube" = "another tribe". Apologies.

Ann Althouse said...

It's kind of like the way Trumpists don't care that Trump is always "lying." They get what he's saying and understand his form of expression and they don't need him to be precise about what is true and what is not.

Clayton Hennesey said...

Why would Trump even contemplate pardoning himself when there's no evidence that he committed a crime, nor any indictment, nor any allegation of such?

Because the whole pardon narrative is a retroactive assumed consent close. Once you get your adversary to talk pardons with you, you've forced them to concede a criminal outcome requiring a pardon. Once you've got them conceding a criminal outcome requiring a pardon, you've forced them to concede the existence of a crime, no matter how ineffable it might be. In-eff-able.

Robert said...

The act of pardon is a high crime etc? I don't think the Supreme Court would bite on that one.

mccullough said...

Tribe's arguments have never fared well at the Supreme Court. So whatever he believes the answer is to an unresolved legal issue, bet against his view.

Birkel said...

Quayle has the precise measure of this issue. And that precise measure is why Dershowitz' view is probably best. These are known unknowns all around.

I think the power to pardon has one limitation. That one limitation under normal analysis means other limitations do not exist. Statutory interpretation 101, as it were.

And that means all presidents have the power to pardon themselves for crimes against the federal government. Civil suits may proceed uninterrupted. States would have to wait until after the president leaves office, it would seem.

Nice. Tidy.

Impeachment is the answer to the political, and not the legal, problem.

Ralph L said...

I don't remember this issue being raised in 1998.

Ann Althouse said...

"There is a scramble for pursuasive arguments of standing, but someone gets before the Supreme Court and argues that the pardon must be set aside because the President doesn't have the authority to pardon himself. And the SCOTUS makes a ruling that he does NOT have power to pardon himself. And what is the basis of their authority to make such a ruling? On their own assertion that they are independently empowerd to be the final deciders on the meaning and powers of the constitution."

That's how it worked in the Watergate Tapes case.

Here, there would be a case if the prosecutor brought criminal charges against the President. That's unlikely to happen. It didn't happen to Nixon. But if it did, the President would defend on the ground that he'd pardoned himself and the courts, doing their own work, will have to figure out what to do, which will inherently include determining if the power to pardon includes the power to pardon himself. The President could refuse to participate and see how that plays out, but he'll probably want to have a lawyer show up and argue his side of it. That's what Nixon did in the Watergate Tapes case, even though part of his argument was that the President's interpretation of his own power is the final determination of the scope of his power. Listen to the oral argument in that case. It's funny. The lawyer's effort to make that argument is interrupted repeatedly to ask him why the hell he's standing there arguing if he doesn't think the court has the power. (I'm paraphrasing.)

MikeR said...

"I had to look up which way Tribe knows the answer." I knew the answer to that question before you answered it, just based on Tribe and the fact that he says he knows.

Ann Althouse said...

"I don't remember this issue being raised in 1998."

I do.

I even remember doing an exam based on it.

Ralph L said...

Charles I argued that Parliament had no authority to try him, but he still lost his head.

Ralph L said...

You, a law professor.
Me, TV viewer.

Quayle said...

This is what I tell my foreign work colleagues who ask me about Trump stuff.

There are two ultimate checks on the President:

-The voters, every 4 years.

-Impeachment and Senate vote, by a super majority, to convict.

Other than that, he can fire and keep firing FBI Directors, Special Prosecutors, and AGs, AAGs - as many as he or she wants.

MaxedOutMama said...

The president might be able to pardon himself, but he or she would still have to be in office to do that. It is very likely that criminal prosecution would follow impeachment and ejection from the office.

From the perspective of the average citizen, what matters most would be ejecting a criminally-involved president from office. We do know how that's done with great certainty.

MikeD said...

Why I can't ever take Larry's opinions seriously,a now deleted tweet:
Laurence Tribe on Twitter: "There should be a law barring the payment ...
https://twitter.com/tribelaw/status/893241982948171776
3 days ago - Stephen Miller is the reincarnation of Josef Goebbels or the result of a secret Nazi cloning experiment Here they are at about the same ...

Todd said...

Well you know how it goes. For some "learned minds" the answer to the question of whether the President can pardon themselves or not mostly depends on what if their name is followed by a "D" or an "R". Once you understand that, the answers to these "thorny" questions are easy!

Left Bank of the Charles said...

If the other branches can play that game too, and I don't see why they can't, Congress can backdate an impeachment to the day before the President pardoned himself thereby negating the pardon.

Quayle said...


What if Trump directed the DoJ to brief him weekly on all investigations, and not take any steps without his approval? Is there a law against micro-managing?

What if Trump directed the DoJ to not bring charges against him and his, and focus prosecutorial resources on someting else?

He has that right, despite what all the talking heads on TV seem to suggest.

Professional lady said...

I listened to Dershowitz's Modern Scholars course on the most pivotal cases in the 20th Century. I was surprised by how often I agreed with his point of view. He was very concerned with preserving civil liberties in the Bush era after 9/11. Maybe I missed it, but he seemed pretty silent on this issue during the Obama administration. He made a big deal about Sandra Day O'Conner allegedly making a private statement of "oh, now I can't retire" when Bush v Gore came up. He thought O'Conner should have recused herself because the statement demonstrated that she clearly wanted Bush to win. Wonder what he would say about Ruth Bader Ginsberg not recusing herself if a case arose regarding Trump pardoning himself.

Quayle said...

"If the other branches can play that game too, and I don't see why they can't, Congress can backdate an impeachment to the day before the President pardoned himself thereby negating the pardon."

Holy cow! We've got outselves a real democratic republic here!

Mike Wallens said...

Reading Tribe's tweets, I am shocked what a radical, and at times irrational, overly emotional thinker he is. I have never paid much attention to him but have heard his name tossed out as a Supreme Court possibility. Reading his tweets makes me shudder at that thought.

steve uhr said...

Dershowitz is a defense counsel. He eagerly represented OJ. If it is a close question he will never side with the prosecution.

Fabi said...

A damned funny reply from the Dersch.

Ralph L said...

It is very likely that criminal prosecution would follow impeachment and ejection from the office.
Not if he's pardoned himself. Prosecution (or even indictment) isn't required to pardon someone.

Any bets that if Clinton had pardoned himself between impeachment and trial, that the Senate would have removed him?

Owen said...

Birkel: I don't know if your angle would be accepted but I like the distinction you seem to be drawing between real crimes (with a bleeding victim on whom a Presidential pardon would work manifest injustice) and technical crimes (where we taxpayers collectively get screwed or some other public good is damaged).

Birkel said...

I scratched Left Bank and found a fascist underneath.
Odd how frequently that happens.

The Left is about the raw exercise of power.
That is why BAMN! is an acceptable strategy.

BDNYC said...

I honestly don't understand the argument for why a president CAN'T pardon himself. Why would he excluded? Is he below the law? I don't get it. If he's a criminal, the Congress can impeach him. I get it that no one likes the idea of criminal conduct going unpunished, but that's the essence of pardons. In this regard, the president gets to bind his administration and all future administrations.

I seem to recall being lectured about how horrible it would be for Trump to prosecute political opponents like Hillary. To me, it felt like classic projection in that many Democrats would love to see Trump in shackles. Given where America seems to be headed politically, all presidents would be wise pardon themselves and their inner circles before leaving office.

Quayle said...

"The lawyer's effort to make that argument is interrupted repeatedly to ask him why the hell he's standing there arguing if he doesn't think the court has the power. (I'm paraphrasing.)"

Priceless! I wonder what would have happened if nobody showed up from the Executive branch.

Unknown said...

I'd love to be able to say I think Tribe is correct, but I've read others who also say it's unknown. However, Trump won't be able to pardon himself from state prosecutions.

Trump Can’t Escape the States. No matter whom he fires or pardons, the president won’t be able to hide from state attorneys general.

Birkel said...

Clinton could NOT pardon himself. He was not charged with a federal crime. The lawsuit in question was happening in a state court. The power of presidential pardon is limited to federal criminal issues.

The power of presidential pardon does NOT extend to civil issues.

As for criminal prosecution for state law offenses, much like Congresspeople, the Constitution prevents the state from taking action. The states must wait.

Birkel said...

UnknownInga64 learned how to hyperlink instead of just cutting and pasting?

Martin said...

Maybe Dershowitz is being the honest commentor he presents himself as being, while Tribe is being an advocate and doesn't want to admit it?

Howard said...

From Wiki... Tribe has fought for the Moonies, anti-alcohol religious zealots and big corporate rights, so he is right-wing friendly that you people should like. From Wiki:

In 1983 Tribe represented Unification Church leader Sun Myung Moon in the appeal of his federal conviction on income tax charges.

Tribe represented the restaurant Grendel's Den in the case Larkin v Grendel's Den in which the restaurant challenged a Massachusetts law which allowed religious establishments to prohibit liquor sales.

Since the mid-1990s, Tribe has represented a number of corporations advocating for their free speech rights and constitutional personhood.[24] Tribe represented General Electric in its defense against its liability under the Comprehensive Environmental Response, Compensation and Liability Act ("Superfund")...

In 2014, Tribe was retained to represent Peabody Energy in a suit against the Environmental Protection Agency. Tribe argued that EPA's use of the Clean Air Act to implement its Clean Power Plan was unconstitutional.

Birkel said...

Howard,
You are backward as to Tribe's participation in the Grendel's Den case. He represented the bar against the Left's puritanical laws that gave churches power under state law to stop alcohol sales. But that case was Lefties on all sides given that it was Cambridge, MA.

Not like you care about facts. Not like you understand conservatives.

Richard Dolan said...

"And why does Tribe think claiming to know the answer is a good idea? ... It urns out ..."

Oh, come on. You knew perfectly well how Tribe would come out on that question given the political context in which it was coming up. In his public, non-academic writing, Tribe is a reliable peddler of the Dem line, just as Krugman is.

traditionalguy said...

Obstructing coup d'etat is only a crime if you lose the showdown.

I just want to know if Marine One has had four 50 cals forward firing installed to strafe Congress .

NorthOfTheOneOhOne said...

All this pardon talk is coming from the people like Tribe who just know that the only way Trump could beat Hillary is by hook or by crook. Tribe and his ilk are planning the next battle before the pending battle has even been fought. That's stupid. Dershowitz isn't stupid.

Howard said...

Birkel: You are correct. Thanks for straightening me out on that one!

What do you think of the other republican causes Tribe defended? ... or the murderers Dershowitz got off. The fact is that both these guys are liberal heavy hitters that sometimes bat for the other side, which in my book makes them both worth listening to. This recent dustup is how these aging lions stay marginally relevant in popular culture.

Angel-Dyne said...

Mike Wallens: Reading Tribe's tweets, I am shocked what a radical, and at times irrational, overly emotional thinker he is. I have never paid much attention to him but have heard his name tossed out as a Supreme Court possibility. Reading his tweets makes me shudder at that thought.

I know little about Tribe or his current reputation among his peers, but he's put out stuff on twitter that is truly jaw-dropping. "Radical, irrational, overly emotional" is way too charitable a description. My first (more charitable) reaction was to wonder how old the guy was and if senile dementia was beginning to take its toll.

Steve Uhr said...

Certainly he will pardon anyone in his family rather than see them in jail. If your last name is Trump (or Kushner) you have a get-out-of-jail free card.

jimbino said...

It seems to me that there are extra-Constitutional principles that necessarily supersede the Constitution and control Constitutional interpretation.

One is that the text of the Constitution need be understood in the English language--a principle not part of the Constitution itself. Another is that a person cannot serve as a juror or judge in his own trial.

Thus I hold that a person with pardon power cannot pardon himself any more than he can be judge or juror in his own trial.

Bad Lieutenant said...

traditionalguy said...
Obstructing coup d'etat is only a crime if you lose the showdown.

I just want to know if Marine One has had four 50 cals forward firing installed to strafe Congress .
8/7/17, 11:29 AM

Who could doubt the country would be better run if we replaced the 535 jackals in Congress with the 535 best geographically appropriate candidates from the Armed Forces? Or 535 service members selected at random?

The temptation is to wonder if just a *little* killing would do...

Bad Lieutenant said...

jimbino said...
It seems to me that

America is spelled with a "k"

A fig for your opinion. Next!

Birkel said...

Howard,
Now that you have defined free speech as a Right wing issue instead of a human rights issue, I believe we are at an impasse.

Can you do better?

Birkel said...

Statutory Interpretation:
If there is a list then the list is final unless the list itself says the list is not final. This is not controversial.

There is a list of things the president cannot pardon and it has one element: cannot pardon an impeachment.

Steve Uhr said...

Tribe is a constitution law God and it's too bad he never had the opportunity to serve the people on SCOTUS. If you don't believe me, read his treatise American Constitutional Law. A bargain at $108.99 on Amazon.

Unknown said...

Trump is the one who brought up the subject of pardons himself.

"All this pardon talk is coming from the people like Tribe..."

"While all agree the U. S. President has the complete power to pardon, why think of that when only crime so far is LEAKS against us. FAKE NEWS."
Trump tweet, July 22.

readering said...

Tribe stopped revising/updating his treatise in 2005 because he felt he could no longer write authoritatively given inability to read the Supreme Court given paradigm shift in Rhenquist Court.

traditionalguy said...

The low flying strafe runs with four forward mounted 50 cal machine guns was invented by Gen George Kenny for rigging a squadron of B-25s to sink Japanese troop ships and freighters that the bombers could not seem to hit with bombs. It won the New Guinea campaign by air power, much to the frustration of the all out effort by Japan. Without resupply the Japs had no food and no ammo to use on the Kokoda Trail over the Owen Stanley's.

The man in Leadership that demands results is the key to every victory. And Trump is the right man at the right time. Congress will be impeached by the voters.

readering said...

Folks realize of course that the answer to this question applies equally to presidents they like and dislike, right?

Todd said...

jimbino said...

Thus I hold that a person with pardon power cannot pardon himself any more than he can be judge or juror in his own trial.

8/7/17, 11:41 AM


Ah, but he is not "a person", he is the President. Consider it in the context of "only God can stand in judgement of God". I am NOT saying Trump is God, far from it BUT according to the Constitution, he has MUCH power and can do much as the head of the executive branch. Hence the reason reasoned lawyers answer this question cautiously and is likely a question no one with any sense really wants to find the answer to for if we get to that place (where it matters in the absolute) there will be one hell of a mess either way it goes.

Ralph L said...

He was not charged with a federal crime
Starr provided evidence that he lied to a federal grand jury. Of course, it would have been monumentally stupid to pardon himself. I'm just wondering if any Dem senators would have changed their votes if he had. Maybe Lieberman.

Steve Uhr said...

Trump being the person he is will pardon himself while proclaiming his innocence at the same time. A pardon should have the same process as a guilty plea - you have to first acknowledge guilt before the court will accept it.

hombre said...

Unknown: "I'd love to be able to say I think Tribe is correct, but I've read others who also say it's unknown. However, Trump won't be able to pardon himself from state prosecutions."

Interesting how for Democrat swamp enablers, including their prosecutors, bringing down Trump has become the holy grail, even if they have to commit/condone numerous criminal and ethical violations to bring it about.

Trouble is, we deplorables know it is not Trump they want brought down, it is all of us. We now know what we suspected during the Wisconsin witch hunt, the law doesn't matter to them except if it can be used as a political or despotic weapon.

That is why it is important to continue to support Trump's presidency, including his right to pardon himself. Despite the fact that I agree with Dershowitz, by now this has become an adversarial, not a legal, matter. Certainly it has for Tribe who has declared himself.

I am curious. If Trump pardoned himself and his team TODAY for all conceivable federal crimes, what impeachable offenses do his implacable opponents claim he will have committed?

Steve Uhr said...

hombre - a pardon doesn't make the crimes disappear like they never happened. They can still be the basis for an impeachment. Impeachment doesn't require a conviction. In fact, I believe it is impossible to convict a President while in office.

Ralph L said...

Impeachment doesn't require any crime at all, it's a political act.

Sebastian said...

"I had to look up which way Tribe knows the answer." Funny, I think you might agree.

I guess "knowing" in law and knowing outside law are two different things. Epistemology just totally missed out on it. Hume, Kant, Frege, the logical positivists--they know nothing of the Tribes.

Ignorance is Bliss said...

readering said...

Folks realize of course that the answer to this question applies equally to presidents they like and dislike, right?

Yes. Most of us also realize that the answer to this question applies equally whether we like that answer or not. ( We're not liberal Supreme Court justices, after all. )

Michael K said...

Steve Uhr is a little shaky on civics.

They have classes on those.

Feste said...

~
“Why does Dershowitz want to be distanced here?”

Slouching toward emeritus? Already there?

Product of wisdom. Holding his judgment cards near his fruiting breasts.

Birkel said...

Ralph L,
Wasn't Clinton sued in state court? And then he appealed to a federal court to block the state civil lawsuit? Or did he remove to a federal court based on diversity jurisdiction?

Asking because you seem to remember the procedural issues.

Anyway, I thought the perjury that forced him to lose his license happened in the state civil action. But I am happily corrected.

Marcus Carman said...

That's the problem with Democrat lawyers: they believe they can makeup the law as they go.

Kevin said...

Impeachment doesn't require any crime at all, it's a political act.

Which is why the Chief Justice's role is outlined in Article I as overseeing the impeachment trial of the President. Because, you know, there must be a judge to oversee a trail for something which is a political act.

A political act is a vote, which requires neither a trial, nor a justice to oversee it. For political acts, we have Article 25.

If you had said committing a crime is not necessarily grounds for impeachment, it's a political act, you would have been more correct.

dreams said...

Alan Dershowitz is less of a liberal partisan than Laurence Tribe, actually he is the more principled person.

Unknown said...

"I am curious. If Trump pardoned himself and his team TODAY for all conceivable federal crimes, what impeachable offenses do his implacable opponents claim he will have committed?"


Isn't accepting a pardon an admission of guilt?

The Cracker Emcee Activist said...

All Presidents commit crimes, ostensibly for the good of the Republic. The political trauma entailed in the criminal prosecution of a President is so great that I doubt it would ever happen unless he murdered someone (other than a politician) with his own hands. This, like trying W for war crimes, is just a Leftist masturbatory fantasy. The Deep State, whatever that is, may not like Trump but even they wouldn't go there.

The Cracker Emcee Activist said...

"Isn't accepting a pardon an admission of guilt?"

Not at all. In most cases it's an acknowledgement that you were wrongly convicted or likely to be maliciously prosecuted.

Birkel said...

UnknownInga64,

One does not accept a pardon. One is pardoned. The president has plenary power.

The Cracker Emcee Activist said...

At that level, confusing realities with legalities is unpardonably idiotic.

Ignorance is Bliss said...

Unknown said...

Isn't accepting a pardon an admission of guilt?

The Presidential pardon power does not depend on the acceptance of the recipient. So all the recipients could claim they don't want, need, or accept the pardon, and they would be pardoned anyway. ( I've always thought that Trump should have pardoned Clinton, just to have the implication in the history books, even though it would in no way be evidence of her guilt ( the was plenty of that already )).

Of course, it would be more than odd for Trump to pardon himself, while claiming that he didn't want, need, or accept it. But I wouldn't bet against him doing so. Via Twitter.

Kevin said...

Isn't accepting a pardon an admission of guilt?

What if you were convicted of a crime because the prosecutor withheld critical evidence which was clearly exculpatory? In lieu of going back to court and having your verdict overturned, you instead accepted a Presidential pardon to immediately be removed from prison and restore your name.

Is that an admission of guilt?

What if you got 50 years in a situation where the typical sentence was 10. Say it was because you were black and the typical defendant was white.

After 20 years you are pardoned. Is that an admission your original sentence was fair?

Those are only two examples. We can think of many more.

Kevin said...

First time I've been attacked for showing too much humility.

Lefty lawyers, like lefty judges, are supposed to know the right answer at all times, which is then what the law should dictate - at all times.

To act otherwise is to confuse the left-lectorate about which way the long arc of history must certainly be bending.

Unknown said...

"One does not accept a pardon. One is pardoned. The president has plenary power."

The Supreme Court ruled that one must actually accept the pardon.

"President Andrew Jackson is the only president to have actually received a rejection from an individual of his pardon. George Wilson, a postal clerk, robbed a federal train and killed a guard during the presidency of Jackson. The court convicted him and sentenced him to death. Because of public sentiment against capital punishment, Jackson granted Wilson a pardon. However, Wilson refused it! The Supreme Court had to step in to decide if a person could refuse a presidential pardon, and it decided that a person is free to decline a pardon. In other words, a person must actually accept the pardon. Why would someone refuse a pardon? It sure doesn’t seem too logical. If only we could ask Wilson…"

Earnest Prole said...

Larry Tribe is also the author of the Emoluments Clause Hail Mary lawsuit, and is increasingly resembling a trial lawyer in his old age.

dreams said...

We assume that Mueller is just out to get Trump but he might also be investigating Hillary's conduct relative to Russia and the election. Here's some info that suggests it's possible.

"My question is, does that mean that there are no red lines that Mueller or any special counsel can investigate under the terms of your order, anything he finds?

ROSENSTEIN: Chris, the special counsel is subject to the rules and regulations of the Department of Justice, and we don’t engage in fishing expeditions. Now, that order that you read, that doesn’t detail specifically who may be the subject of the investigation --"

dreams said...

http://donsurber.blogspot.com/2017/08/robert-muellers-handler.html?spref=tw

Scott said...

One thing to point out is that the first time a president was impeached, it was in part for violation of a law that was ruled unconstitutional later by the US Supreme Court.

Relevant articles: https://en.wikipedia.org/wiki/Tenure_of_Office_Act_(1867)
https://en.wikipedia.org/wiki/Myers_v._United_States

What is getting muddled here is impeachment is expressly a political matter. If Congress so wanted, it could make eating ketchup on steak or taking two scoops of ice cream an impeachable offense and use that to try to remove Trump from office. Get a majority of the House and 2/3 the Senate to approve and you remove Trump, who returns to private life. The pardon power does not apply in this case since it's expressly forbidden and also a political matter.

Criminal matters such as robbery are a totally different matter and are covered by the pardon power.

Birkel said...

UnknownInga64

You quoted "...a person must actually accept the pardon. but that is clearly wrong. A person can be pardoned posthumously. No action is required.

The president has plenary power. The cut and paste quote you offer is self-refuting.

PB said...

Isn't the president immune from prosecution while in office? If he can't be prosecuted and convicted until he leaves or is removed from office, then he isn't president and no longer has the power to pardon himself. The real questio would seem to be the constitutionality of pre-emptive pardons. How can someone be pardoned if there is no conviction to be pardoned?

The issue of whether the president can pardon himself seems to never exist.

Unknown said...

"In Burdick v. United States (1915), the city editor of the New York Tribune was asked before a federal grand jury to reveal sources of information for a story his paper had printed. Burdick refused to testify, claiming his answers might incriminate him. To facilitate Burdick's testimony and avoid any possibility of self-incrimination, the U.S. Attorney arranged for him to be granted a full pardon from President Wilson for all offenses he "committed or may have committed". Burdick, however, declined to accept the pardon and persisted in his refusal to answer questions. He was convicted of contempt. On appeal, the United States Supreme Court rejected the notion that a pardon could be forced on Burdick; Mr. Justice McKenna wrote that although offered with good intention, a pardon may bring with it even greater disgrace than it initially sought to avoid. The putative recipient of a pardon can therefore reject it, rather than making the confession of guilt implied by its acceptance".

Birkel said...

PB,
Pardon requires nothing of the sort. You can be pardoned for any or no reason at any point in the process.

A president can pardon anybody but the pardon has to be of individuals, as I understand it. No mass pardons without names attached. (e.g. "All people in Missouri are pardoned for any federal crimes" is not allowed)

Trump could pardon John Wilkes Booth if he wanted. Was he ever convicted? Or Lee Harvey Oswald. Ditto?

Unknown said...

Burdick v. United States, 236 U.S. 79 (1915),[1] 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 this, 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."
Chief Justice John Marshall


Bay Area Guy said...

Trump should offer himself a pardon and then reject it under Burdick.

Birkel said...

PB,
Yes the president (and Congress critters when Congress is in session) is immune from criminal prosecution.

Birkel said...

A convicted person must enter the pardon to be released from prison. That does not mean they accept the pardon

UnknownInga64 is thick, as ever.

Fabi said...

Is the presidential prehumous pardon power potentially plenary?

Unknown said...

"One limitation is that a pardon cannot be issued for a crime that has not yet been committed. Pardons also don't affect civil cases, or state or local cases. Pardons are meant to dismiss sentences stemming from affronts to the United States through the breaking of laws. They're not intended to relieve an individual from his responsibility to make restitution to a victim's family, for example, which would be considered a personal affront. So a presidential pardon of a criminal sentence would not relieve the defendant from paying restitution from a related civil case.

Pardons also don't work unless the person to whom the pardon is granted accepts the pardon. A 1915 Supreme Court case decide that it was to be left up to the grantee of the pardon to decided whether he wants to accept the pardon or not. This seems self-evident, but some federal cases have challenged this once hard-and-fast rule. In one, the Supreme Court decided that matters of life and death fell outside this ideal."

readering said...

These precedents do not apply to turkeys.

Unknown said...

“The language of the Constitution embraces the idea that there is one person who grants a pardon and a different person who accepts that pardon,” said Jessica A. Levinson, a professor at Loyola Law School, Los Angeles. “There is also a principle of so-called natural law, which provides that no person should stand as her or his own judge.


Is accepting a pardon an admission of guilt?

Some say yes.

“In my view, I think the president can pardon [him-] or herself, but should expect to get impeached and removed from office for doing so,” said Susan Low Bloch, professor of constitutional law at Georgetown University Law Center. “Accepting a pardon is an admission of guilt. And even if the president can pardon [him-] or herself, it can only be for federal offenses.” The president, she noted, would “still be subject to prosecution by states for any state offenses.”

She added: “It's likely that the only way we will get a definitive answer is if a president pardons [him-] or herself and then, after leaving office, gets indicted by federal officials. Then the former president would challenge the indictment in court, and the court would rule on the validity of the pardon. Until then, we will all just keep debating the question.”

http://www.latimes.com/nation/la-na-pol-presidential-pardon-20170721-htmlstory.html

Bad Lieutenant said...

A president can pardon anybody but the pardon has to be of individuals, as I understand it. No mass pardons without names attached. (e.g. "All people in Missouri are pardoned for any federal crimes" is not allowed)


Jimmy Carter pardoned all the draft dodgers by name?

Birkel said...

The question in Burdick was whether the recipient of a presidential pardon could decline the pardon. And the Court balanced the Fifth Amendment Right of Burdick against the power of the presidential pardon and found Burdick could decline the pardon.

Unknown said...

LOL! So yes, you were wrong and I am right.

One CAN accept a pardon and one can reject a pardon. It sure took a long time to get through your tough skull.

Birkel said...

Bad Lieutenant, here is text from Carter's announcement of intent to pardon:

"If you believe your conviction is covered by President Carter’s Proclamation and you can provide the required documentation from your criminal case that will enable us to verify that you are covered by the Proclamation, you may obtain an individual certificate of pardon evidencing the fact that this Pardon Proclamation applies to you. The certificate will be issued only if you were convicted of such an offense."

He did not pardon the offenders on his first day in office, but announced his intent to pardon convicted individuals.

Birkel said...

No, the question was rejection. Rejection is allowed.

Parsons can happen posthumously. Do you see the problem with acceptance in such a case?

Birkel said...

UnknownInga64 is not smarter than UnknownInga51 or 68 or any of the Betty Boop names...

Fabi said...

This may be the dumbest UnknownInga of the bunch.

Unknown said...
This comment has been removed by the author.
Unknown said...


Sorry that you're still having difficulty understanding the concept Birkel. Maybe it wouldn't be wise to brag about your intellect anymore.

"The presumption, then, is that someone offered a pardon naturally will accept it; why not if it is so easy and the President wants to grant it? The Supreme Court supplied a reason not to accept a pardon just over 100 years ago, in 1915, writing that a person who accepts such pardon is confessing guilt because a pardon carries an imputation of guilt. In other words, the person offered the pardon actually may reject the pardon from the President because he or she does not wish to admit guilt, even if accepting the pardon would extinguish any penalties related to the alleged crime. And, a presidential pardon does not erase or expunge the records of a conviction. So, an individual’s criminal history record will reflect both a conviction, if there is one, and the pardon.

That leaves one remaining question: Can the President pardon himself? Following the rationale of the 1915 Supreme Court opinion, it stands to reason, albeit unheard of, that the President probably can pardon himself, if he is willing to accept the imputation of guilt. That in turn almost certainly would implicate impeachment, which is the constitutionally specified means of removing a federal official from office for violations of “treason, bribery, and high crimes and misdemeanors.” This writer previously addressed that the President will not be “prosecuted criminally” for obstruction of justice because of a long-standing Office of Legal Counsel memorandum that says the Department of Justice will not prosecute a sitting President. So, it simply is difficult to imagine the President taking a step that effectively would initiate his own impeachment process."

https://www.forbes.com/sites/jacobfrenkel/2017/07/21/president-trump-can-preemptively-pardon-his-advisors-and-family-but-will-he/#673b8466c3bb

Birkel said...

Rejection is allowed.
Acceptance is not required.
Odd that you cannot see these are not opposite sides of the same coin.

Keep cutting and pasting.
We know it is UnknownInga either way.

Try a new account?

Birkel said...

...confessing guilt...alleged crime


Self-refuting cut and paste a the best cut and aste.

Unknown said...

"Rejection is allowed.
Acceptance is not required."

If you do not reject the pardon, you're ACCEPTING it, duh! Sheesh. What is wrong with you? Problems with simple concepts, wow.

Unknown said...

"Blogger Birkel said...
UnknownInga64,

One does not accept a pardon. One is pardoned. The president has plenary power.

8/7/17, 3:53 PM"

I'd be embarrassed if I were you.

Left Bank of the Charles said...

There is a category of crimes for which Trump cannot pardon himself, violations of state law outside the scope of his official duties which began at his inauguration. So, for example, if he were to shoot a man on Fifth Avenue, he could be prosecuted by New York for that crime, and wouldn't be able to pardon himself. Whether that might extend to prosecution for collusion with the Russians in the selection of New York's or some other states' electors in the 2016 election, now that is an interesting question.

Birkel said...

It can be rejected.

Posthumous pardons are a thing.
You can grok this.

Unknown said...

Quit digging Birkel. I proved my point.

Birkel said...

Left Bank:
The state would have to wait until he was out of office. Civil suits could proceed.

Birkel said...

No, UnknownInga64.
Acceptance is not required.
Rejection is allowed.

Unknown said...

Who said acceptance was REQUIRED? Nice try, but you failed.

Unknown said...

No,
"Acceptance is not required.
Rejection is allowed."

If one does not reject a pardon, one implicitly ACCEPTS it. Duh.

Birkel said...

Posthumous means after death.

Mac McConnell said...

Laurence Tribe is the Paul Krugman of law. HACK!

IgnatzEsq said...

Not to disparage all law professors, but this is much more true than it should be whenever you see any law professor in the news (Ken White from Popehat)

"Quoting professors about law is particularly risky, if your aim is an accurate and informative discussion of free speech law. If you call a physics professor and ask them what will happen if you drop your pencil, and why, he or she will say "it will fall, because of gravity." There is a relatively low chance that the professor will tell you "well, maybe nothing will happen" because he or she harbors the belief that the current gravitic regime is unfair and otherwise problematical. But when you call a professor of law, or political science, or journalism, and ask them a question about whether some controversial speech is protected by the First Amendment, there is an unacceptably high probability that you will get a quote expressing what the professor thinks the law ought to be. Sometimes the professor will flag a statement as an argumentative one, sometimes not. Moreover, some professors . . . . how can one put this delicately? Some law professors' views on how a court is likely to rule on an issue are untainted by exposure to actual courts."
(emphasis added)

https://www.popehat.com/2015/05/19/how-to-spot-and-critique-censorship-tropes-in-the-medias-coverage-of-free-speech-controversies/

The Cracker Emcee Activist said...

"If one does not reject a pardon, one implicitly ACCEPTS it. Duh."

How dumb can you get? If you don't reject my proposed, unsolicited, contract you have implicitly accepted it? Even a Leftist can't be this stupid.

Unknown said...

"If you don't reject my proposed, unsolicited, contract you have implicitly accepted it? Even a Leftist can't be this stupid."

How stupid do you have to be not to understand it is not at all unusual to say "one accepts a pardon". Did you bother reading even one article? How stupid and lazy you Trumpists are.

Unknown said...

"ALL the talk about a potential presidential pardon for I. Lewis Libby Jr. has infuriated critics of the Bush administration; many feel that a Libby pardon would amount to a whitewashing of the White House’s actions relating to Valerie Plame’s identity.

Perhaps they should take heart: Mr. Libby may escape prison time, but if he accepted a pardon, he (and Mr. Bush) would have a hard time continuing to insist that he was an innocent victim of a vengeful prosecutor. It would also undermine the claim that the Plame investigation was a partisan ploy to discredit the White House, and leave another stain on Mr. Bush’s legacy.

Here’s why: If Mr. Libby were to accept a traditional presidential pardon— a “full and unconditional” grant of clemency — he would be admitting that he was guilty of the crimes of which he was convicted: obstructing justice, perjury and lying to the F.B.I. Perhaps it shouldn’t be that way, but it is — no ifs, ands or buts about it. So, while many who have been pardoned like to claim they have been “exonerated,” that simply isn’t so."

http://www.nytimes.com/2007/03/26/opinion/26lardner.html

Unknown said...

Acceptance, as well as delivery, of a pardon is essential to its validity; if rejected by the person to whom it is tendered, the court has no power to force it on him. United States v. Wilson, 7 Pet. 150.

Birkel said...

See what the court said? They said the person rejects...

Posthumous means after death.
Can you grok it?

Birkel said...

I enjoy when Leftists quote Justice Taney approvingly.

UnknownInga64 is the gift that keeps giving.

SukieTawdry said...

I don't know why a president couldn't pardon himself for a federal crime. Nobody has ever tried it so no court has ever dealt with it, right? The Constitution gives the president the power to pardon and places no limitations on it other than in cases of impeachment. That would suggest the Founders had no other limitations in mind (I would say perhaps it seemed too ridiculous to contemplate that any president would ever try it, but I don't think our Founders had any illusions about the ridiculous lengths to which the political class might go). It would be interesting to see how such an audacious move would play out. Not that I want to see it play out, but let's face it, if ever there were someone with the audacity to make such a move, it would be Trump.

Tribe claims in granting a pardon, the president takes on the role of a judge. I don't agree with that interpretation so the rule that no one can be a judge in his own case wouldn't apply.

Kevin said...

If Obama had pardoned himself, we would have been told it was yet another nuanced move that people of lesser intellect should shut up and accept. We would also have been accused of racism because we were just upset a black man thought of it first.

In addition, the people on this thread arguing it implied guilt would be arguing it was simply a savvy political move with no such admission attached. The pardon would have wiped out the notion of any crime and thus any basis for impeachment.

Kevin said...

The real pardon discussion was the one Obama was going to give Hillary after she won the election to put the server business behind her.

It would have been just as egregious as anything contemplated by the anti-Trump crowd, but would have received 1/1,000th the interest from the press corps and otherwise-opinionated TV law professors because it was "clearly within the scope of the President's powers".

n.n said...

Dershowitz is facing the dysfunctional progress of his Pro-Choice.