"The president declared flatly last week that he would not pardon his son if convicted, but did not address a commutation..."

"... which would leave the guilty verdict intact but wipe out some or all of the punishment. Karine Jean-Pierre, the White House press secretary, told reporters on Wednesday that she could not say whether the president might consider such an action. 'He was very clear, very upfront, obviously very definitive' in ruling out a pardon.... But as for a commutation, she added, 'I just don’t have anything beyond that.' Ms. Jean-Pierre said she had not spoken with the president about the matter yet and so her careful response may only reflect not wanting to go beyond her talking points, not an effort to leave the option open...."

The NYT reports.

"[Hunter Biden] was gonna plead guilty to misdemeanor tax charges, do deferred prosecution on the gun charges. And the judge asked a very simple question..."

"... so does this mean that Hunter Biden has immunity from all other past crimes that he has committed? And the defense said, yes, that's our understanding. And the prosecution said, no, we're still investigating him for financial crimes. And the judge said, Then, we don't have a deal. Right? There's no meeting of the minds. There's no contract that can be formed.... [T]he reason this thing blew up was related to the other Hunter Biden stuff, all of the foreign stuff going on.... I'm not figuring out this willingness to go to trial on these charges with these facts.... All of that is gonna be horrible for the Biden family. And again, politically really unpleasant for his father.... Joe Biden has said he will not pardon his son, but... why would you say you're gonna pardon your son before it's necessary and before an election?..."

From the new episode of the Advisory Opinions podcast, "Will President Biden Pardon His Son?"

... the other Hunter Biden stuff, all of the foreign stuff going on.... In my view, all this theater about taking gun statutes seriously serves at least 3 purposes.:

1. It might con people into into thinking that the government is vigorously enforcing gun statutes.

2. It might make people forget "the other Hunter Biden stuff, all of the foreign stuff" that is much more serious and that might intertwine with Joe Biden.

3. It might make people empathize with Joe Biden — that poor father! — and respect him for standing back and declining to rescue his son from what might look like the normal workings of the legal system — and maybe that will make it seem more as though Donald Trump is just another guy caught in a ruthless and neutral meat grinder called criminal justice.

NOTE: I added the words "In my view" to this post, because a commenter wasn't sure whether these 3 points were taken from the podcast. They were not! Be assured that if I were quoting or paraphrasing ideas from someone else, I would say so. Quotes are in quotes or blocked and indented. The 3 points are mine.

6 quotes from today's oral argument in Trump v. United States.

I listened live and took some handwritten notes, so I could find various things in the transcript. Here are the 6 quotes that made the cut for me. All but one are from the Justices.

1. Trump's lawyer, D. John Sauer, encourages the Court to see far beyond Trump to the true horror of criminally prosecuting ex-Presidents:

The implications of the Court's decision here extend far beyond the facts of this case. Could President George W. Bush have been sent to prison for... allegedly lying to Congress to induce war in Iraq? Could President Obama be charged with murder for killing U.S. citizens abroad by drone strike? Could President Biden someday be charged with unlawfully inducing immigrants to enter the country illegally for his border policies?

2. In a similar vein, from Justice Alito:

So what about President Franklin D. Roosevelt's decision to intern Japanese Americans during World War II? Couldn't that have been charged under 18 U.S.C. 241, conspiracy against civil rights?

3. Justice Gorsuch makes a brilliant suggestion. If Presidents didn't have immunity from prosecution, they could give themselves the equivalent by pardoning themselves on the way out. And note the reminder that Obama could be on the hook for those drone strike murders:

Listen to the argument in United States v. Trump. (The issue is presidential immunity.)

From the NYT live-blogging:

"What’s in the best interest of the country is not to have an 80-year-old man sitting in jail that continues to divide our country."

"What's in the best interest of our country is to pardon him so that we can move on as a country and no longer talk about him."

Said Nikki Haley, quoted in "Nikki Haley says pardoning Trump is in the country's 'best interest'/Haley has often been accused of flip-flopping when it comes to Trump. Her comments about pardoning him have opened her up to further criticism" (MSNBC)

"A Proclamation on Granting Pardon for the Offense of Simple Possession of Marijuana, Attempted Simple Possession of Marijuana, or Use of Marijuana."

From Joe Biden.

My intent by this proclamation is to pardon only the offenses of simple possession of marijuana, attempted simple possession of marijuana, or use of marijuana in violation of the Federal and D.C. laws... This pardon does not apply to individuals who were non-citizens not lawfully present in the United States at the time of their offense....

"After nearly a decade of Trump convincing many in the public that all charges against him are politically motivated, he’s virtually inoculated himself..."

"... against political repercussions for deadly serious criminal counts. He’s miraculously seen a boost in support and fundraising after each indictment.... A trial is the best chance to educate the American public, as the January 6 House committee hearings did to some extent, about the actions Trump allegedly took to undermine American democracy and the rule of law. Constant publicity from the trial would give the American people in the middle of the election season a close look at the actions Trump took for his own personal benefit while putting lives and the country at risk...."

Writes Richard Hasen in "U.S. v. Trump Will Be the Most Important Case in Our Nation’s History" (Slate).

It is an egregious abuse of power to criminally prosecute someone for the purpose of educating the public and generating publicity for your political position. 

"Sending people to jail for possessing marijuana has upended too many lives.... That’s before you address the clear racial disparities around prosecution and conviction."

"While white and Black and brown people use marijuana at similar rates, Black and brown people are arrested, prosecuted and convicted at disproportionately higher rates."

Said Joe Biden, quoted in "Biden Pardons Thousands Convicted of Marijuana Possession Under Federal Law/The move represents a fundamental change in America’s response to a drug that has been at the center of a clash between culture and policing for more than a half-century" (NYT).

Look at that quote: Did Biden say the government is guilty of illegal race discrimination? 

I don't think he did! The rate of use of marijuana could be the same among the different races, yet if the decision to bring charges is not based on use, but some other factor, then we need more information. If the people charged with possession are the ones caught with quantities of marijuana that imply drug dealing, then the question would be whether "white and Black and brown" people deal marijuana at similar rates.

There's still potential racial disparity that ought to concern us. Who chooses a career in drug dealing?

But Biden isn't talking honestly about any of that. The racial element is thrown in confusingly and for political gain. Where is the serious and effective program of reconfiguring the embedded patterns of racial disparity?

Will Trump be charged with a crime?

This is your big chance to think about an array of options and rank them in order of likelihood. I'm sure I'm forgetting some possibilities and that you will tell me about them in comments. I'm deliberately leaving out the possibility that he could die before things are resolved. That's too morbid. I'm also leaving out the possibility that the United States itself could pass away. That's too remote, though perhaps not all that remote to those who are inclined to believe in coups.

Here are your options, identified by letter so you can use numbers to rank them. I'm putting them roughly in order of severity.

A. Trump is never charged with any crime.

B. Trump is charged with a crime but President Biden — perhaps observing that "we are not a revengeful people" — immediately pardons him, so he is never brought to trial, and the government is never challenged to prove the charges.

"President Trump granted a full pardon to Stephen Bannon. Prosecutors pursued Mr. Bannon with charges related to fraud stemming from his involvement in a political project. Mr. Bannon has been an important leader in the conservative movement and is known for his political acumen."

One of the shortest entries on "Statement from the Press Secretary Regarding Executive Grants of Clemency/President Donald J. Trump granted pardons to 73 individuals and commuted the sentences of an additional 70 individuals," issued just after midnight on this, the last half-day of the Trump presidency. 

From the NYT article on the new pardons:

The pardon for Mr. Bannon was described as a pre-emptive move that would effectively wipe away the charges against him, should he be convicted....  The president made the decision on Mr. Bannon after a day of frantic efforts to sway his thinking, including from Mr. Bannon himself. The White House had planned to release the list of those granted clemency earlier on Tuesday, but the debate over Mr. Bannon was part of the delay, officials said. 

By late afternoon on Tuesday, advisers believed they had kept a pardon for Mr. Bannon from happening. But by around 9 p.m., Mr. Trump had changed his mind once again. Mr. Trump and Mr. Bannon spoke by phone during the day as the president was weighing the pardon, and Mr. Bannon’s allies tried to apply pressure to make it happen while his detractors pushed the president not to go ahead with it. 

Mr. Bannon helped guide the president’s campaign to victory in 2016. He then had an extraordinarily messy split with Mr. Trump in August 2017, prompting him to leave the White House....

As for the rest of those pardons — no pardon for Snowdon or Assange, but Trump did pardon Li'l Wayne. 

Posing around pardons.

True of both Snowden and Assange. Exactly this: https://t.co/9ACi91c2UY

— Glenn Greenwald (@ggreenwald) January 17, 2021

"So why is it clear that the president lacks the power to pardon himself? There are three reasons."

"The language of the pardon power itself is ambiguous in the face of a constitutional expectation of clarity if the Framers intended to invest the president with such extraordinary power.... Second, the Framers clearly contemplated in the impeachment provisions of the Constitution that the president would not be able to violate the criminal laws with impunity.... And last, but not least, a power in the president to pardon himself for any and all crimes against the United States he committed would grievously offend the animating constitutional principle that no man, not even the president, is above and beyond the law. In contemporary constitutional parlance, the Framers more likely would have regarded a self-pardon not as an act of justice, grace, mercy and forgiveness, as they did presidential pardons of others. They would have viewed a self-pardon as a presidential act more akin to an obstruction of justice for criminal offenses against the United States by a president, the prosecution for which can be brought, at least according to the Justice Department, only after a president leaves office."

From "No, President Trump can’t pardon himself" by the former federal judge J. Michael Luttig (WaPo). 

Luttig has a strong conservative reputation. He was a law clerk to Justice Scalia, appointed to the the 4th Circuit by George H.W. Bush, and often mentioned as a potential Supreme Court nominee when George W. Bush was President. Per Wikipedia: "Luttig was the leading feeder judge on the U.S. Court of Appeals, with virtually all of his law clerks having gone on to clerk with conservative justices on the Supreme Court, a total of 40, 33 of whom clerked for either Justice Thomas or Justice Scalia."

Of course, the issue whether the President can pardon himself is an open question. We will only get the answer if and when a President pardons himself and there's a case that a court has to decide. Is prosecution more likely or less likely if there is a pardon to be presented as a defense? Luttig's argument should have influence with Trump, and there were already good political and legal reasons why Trump should resist pardoning himself. 

Will Trump pardon himself? Should he? Would the pardon hold up in court?

Yes, yes, yes.

No, no, no.

No, yes, yes.

No, no, yes.

Yes, no, no.

Yes, no, yes.

Yes, yes, no.

No, yes, no.

 

pollcode.com free polls

POLL RESULTS (preserved 1/26/21):

"Whatever happens in the courts, Trump is all but certain to be his own vortex of uncertainty over the next couple of months, until the Inauguration..."

"... and that will be true even after there is a decisive resolution. A vengeance-seeker in the best of times, Trump had already signalled before the election that he might fire a long list of officials in his government whom he views as insufficiently loyal or willing to go along with his orders. These include the director of the F.B.I., Christopher Wray; the Attorney General, William Barr; the director of the C.I.A., Gina Haspel; and, even in the midst of the pandemic, the nation’s top infectious-disease expert, Dr. Anthony Fauci. He could seek to fire them even if he loses, or perhaps especially if he does.... Even defeated, Trump could use his executive powers to wreak significant additional damages before January 20th. He could break norms and traditions even more than he has already, and pardon his family, friends, cronies—even, potentially, himself. He could undermine public confidence in a coronavirus vaccine, or stop the government’s fight against it altogether. There are many scenarios for the havoc we might see....”

Writes Susan B. Glasser (in The New Yorker). 

I wonder if we'll miss this Trump-specific alarmism if/when Trump goes away. Of course, he won't go away. He'll regroup within media and carry on the havoc from the outside. He won't withdraw in humiliation at this seeming rejection. He'll feel immensely loved by the true Americans, unjustly ousted by his enemies, and stronger than you can possibly imagine. 

I enjoyed Glasser's reference to the idea that the outrageous President Trump might pardon himself. I used that idea on a Constitutional Law exam 20-some years ago. It was a current topic back then. Here's Slate from December 1998: "Can President Clinton Pardon Himself?" 

In 2018, Bill Clinton — no longer in possession of the pardon power — asserted that the President does not have the power to pardon himself. He just said "no" when asked, which, of course, would get zero credit as an answer on a conlaw exam, where it's all about the reasons you can elaborate. You've got to demonstrate your knowledge of the methodologies of constitutional interpretation. That's what matters.

Also quoted at that last link, President Trump:

As has been stated by numerous legal scholars, I have the absolute right to PARDON myself, but why would I do that when I have done nothing wrong?

That's a strong assertion that the President has the power, then an enigmatic question that contains another assertion — that he did nothing wrong. But it's obvious why someone who'd done nothing wrong might want a pardon. A President may have powerful enemies who are threatening to prosecute him even though — in his opinion — he did nothing wrong.  

"Queen Elizabeth II has approved a rare royal pardon for an inmate convicted of murder who used a narwhal tusk to help stop a terrorist attack..."

"... in which two people were killed before the assailant was killed by the police on London Bridge. The decision to pardon the murderer, Steven Gallant, was in recognition of 'his exceptionally brave actions,' which 'helped save people’s lives despite the tremendous risk to his own,' a spokeswoman for the Ministry of Justice said in a statement on Monday. If a parole board approves, Mr. Gallant’s minimum 17-year sentence would be reduced by 10 months. The attack in November 2019 began at a prisoner rehabilitation conference... Mr. Gallant, who was imprisoned in 2005, was among a crowd of people who banded together to take the assailant down with an unconventional weapon: the narwhal tusk, which had been a wall decoration at Fishmongers’ Hall, the historic building that hosted the conference. He was in the hall for the day on a prison day-release program when he heard noises and saw injured people."

The NYT reports.

Here's my post from the time of the incident.

"Objection! Mr. President, Susan B. Anthony must decline your offer of a pardon."

"Anthony wrote in her diary in 1873 that her trial for voting was 'The greatest outrage History ever witnessed.' She was not allowed to speak as a witness in her own defense, because she was a woman. At the conclusion of arguments, Judge Hunt dismissed the jury and pronounced her guilty. She was outraged to be denied a trial by jury. She proclaimed, 'I shall never pay a dollar of your unjust penalty.' To pay would have been to validate the proceedings. To pardon Susan B. Anthony does the same."

From "Susan B. Anthony Museum Rejects President Trump's Pardon Of The Suffragist" (NPR). The headline says the "museum" rejected the pardon, but to be technical, it's the executive director, Deborah L. Hughes.

Is accepting a pardon for an unjust conviction like paying a fine that is the sentence for an unjust conviction?

To answer yes — as the museum's director does — you must be thinking that the conviction was never anything real. It's simply a nullity, so you don't pay the fine and you don't want a pardon. Either fine-paying or pardon-accepting gives substance to the thing that you consider nothing.

To answer no is easier, but that doesn't mean it is more desirable. All you need to say is that the fine is a burden but the pardon is the relief from a burden or the fine expresses the idea that you were wrong but the pardon expresses some other idea, perhaps that you were completely in the right but also possibly that you did commit a crime but we forgive or we like you so much anyway that we want to do something beneficent for you.

Has Trump reacted to the pardon-rejection yet? What should he say? He could say that the executive director of the museum is entitled her opinion, but he thinks Susan B. Anthony would appreciate the gesture? But I think he should say that he agrees with the museum that Susan B. Anthony doesn't need a pardon because she was a great woman, dedicated to a great cause, and her greatness dwarfs the petty conviction that was imposed on her, but he wanted to do the little part that he could and to correct the record books and remove the blot, and that he cheerfully accepts the rejection of the pardon.

"In [Roger] Stone’s case, the guidelines worked a severe result. In tampering cases, a guidelines enhancement calls for a drastic increase in the sentence..."

"... if the defendant threatened the witness with physical injury. This drove Stone’s 'offense level' from 21 to 29 on the guidelines grid, so even though he is a first offender... his recommended sentence zoomed to 90 to 108 months — instead of 37 to 46 months....  [T]he prosecutors’ submission was an accurate (if extreme and unyielding) rendition of federal sentencing law....[T]he president went bonkers on Twitter upon learning of the recommendation... [but] the DOJ and the White House have had no communications about the case.... Late Tuesday, the DOJ filed a revised sentencing memo, which does not recommend a specific sentence but strongly suggests that a term calculated without the eight-point enhancement — i.e., between 37 and 46 months’ imprisonment — would be just. The new memo concedes that the prosecutors’ calculation in the original memo was 'arguably' correct, but contends that it would be unreasonable under the circumstances... But for his connection to Trump, Stone would never have been pursued in a collusion fever dream that Mueller’s prosecutors knew was bogus when they charged him. Yet his crimes, while exaggerated, were real. He was convicted by a jury... though he could be spared by the judge....  If President Trump is afraid, in an election year, to take the political hit that a pardon for Stone would entail... he should bite his tongue.... The Justice Department’s job is to process cases, including Mueller cases, pursuant to law. If the president wants to make those cases disappear, he has to do it himself and be accountable."

Clear analysis from Andrew C. McCarthy in "The Roger Stone Sentencing Fiasco." (National Review).

Pardon Roger Stone?

Did Roger Stone just get convicted of lying and witness tampering to spare the President of the United States from the impact of a witch hunt?

Easiest pardon ever.

I'd bet on this one. #PardonRogerStone

— Scott Adams (@ScottAdamsSays) November 16, 2019

ADDED: After yesterday's tweet, defending himself as Yovanovich was testifying against him, Trump attracted accusations that he was intimidating future witnesses. Wouldn't pardoning Stone be the other side of that coin — demonstrating to all potential witnesses against him that good things lie ahead if you stick to Trump's side?

Bill Clinton was so embarrassingly awful on the "Today" show, and then he tried again, last night, on Stephen Colbert's show.

I haven't watched it yet. I'll give you the clip — watch it with me — and add my comments in a few minutes:



1. I'm only up to 0:03, and look at the expression on Bill's face:



He's already angry!

2. Colbert begins by talking about the book — the thriller Bill purportedly co-wrote with James Patterson. Colbert's question — aimed at Patterson — is apt and funny: What did Clinton add to this project that you couldn't have come up with yourself? Patterson babbled meaninglessly. He writes pulp and speaks pulp. Some bullshit about authenticity. The question does its work, underscoring what I already think, that Clinton didn't co-write it at all, but put his name on the cover and is participating in this promotional tour. If I had to guess, I'd guess Clinton had someone working for him who read Patterson's drafts, which were marked up with questions and requests for material that could be used to pad out the book, and the assistant had some access to Clinton to use in preparing a response to Patterson. I see no rapport between those 2 men and don't believe they worked together in some way that Clinton pursued for the intrinsic value of creative expression. Patterson is not an amusing associate for Clinton, but the other end of a deal to make money and get good publicity (which makes the bad publicity he's getting so tragic/hilarious). — written after pausing at 0:50.

3. At 1:19, Bill Clinton is warming up, exuding his charm — don't get that on your dress — and finding a way without saying the name to bring up Trump and elicit hoots of hate from the audience that came to a show where hooting hatefully at Trump is what one does. It's so easy, but let's see how many times and how desperately Clinton grabs for that easy rapport with the folks in the room.

4. Just noticing the size of that watch:



5. Colbert interrupts some boring talk about the Secret Service to gratuitously diss Donald Trump and the audience breaks into the chant "Stephen. Stephen. Stephen." Written after pausing at 2:50.

6. After some reference to Melania Trump, Bill Clinton says he likes her and seeing a picture of her made him feel good. Why would he give Colbert that opening to pursue him about his sexual problems? And why doesn't Colbert snap up the opening? At 3:15.

7. At 3:36, we've just gotten a great chance to observe Clinton's demeanor when he is lying.



He's saying that his legal team never considered whether the President could pardon himself. There's no way that's true. I'm sure he could come up with a weaselly argument that it's not a lie. He might say that he believed all along that it was strategically bad for the President to pardon himself, so it didn't matter whether technically the legal argument for presidential power would succeed in court, but the lawyers would for the sake of completeness have researched that question and presented it to him, but he paid only minimal attention to it at the time, since political survival was what really mattered. By the way, if you're looking at my screen grab and thinking about the position of his eyes, remember that Bill Clinton is left-handed.

8. Clinton on his own shifts from the subject of the pardon — where we know he's lying — to the subject of preparing for the interview tonight after the disastrous performance on the "Today" show. He says he did practice interviews — "murder boards" — where his people act as Colbert stand-ins and asked "meaner questions than Colbert would" and then help him tune up his answers, so they're not just what comes straight from his "heart." That is, he's telling us the "Today" show interview, though bad, was spontaneous, and he's not going to do that anymore. Colbert doesn't follow up! He nervously shifts to Patterson and makes the topic Trump again! Does Patterson think "Trump is a believable character"?

9. Colbert brings up North Korea. Bill Clinton says: "We should all want President Trump to succeed here." This is decent. Maybe I shouldn't criticize. But I'll just say this is a nice rest period for Clinton. He can calmly explain something in a presidential style. The audience delivers splattering applause.

10. And that's it. Colbert declares the end of the interview. Quite the softball interview. No mention of Monica Lewinsky. The closest they got to sex was Bill's feeling "good" when he looked at a picture of Melania.

AND: I am just now seeing that the video I watched here was the second segment. There's 9 minutes more and that came first. I'll do a new post with the first segment embedded and see if I can give it the same multi-pointed close watch.

FINALLY: Here's the new post covering the first segment.

The only "shock" is stating the proposition now, before it's necessary to make the argument in a legal context.

Screen grab from Drudge, linking to "President Trump 'probably does' have the power to pardon himself: Giuliani." Hmm. Drudge dropped the "probably" hedging. And Giuliani didn't decide to drop a bombshell, he was on TV and put in a position of having to answer a question:

When [George] Stephanopoulos asked if the president has the power to pardon himself, Giuliani said he "probably does."

"He has no intention of pardoning himself," said Giuliani, a former New York City mayor who is Trump's lead attorney in negotiating an end to Mueller's ongoing investigation. But it is a "really interesting constitutional argument: 'Can the president pardon himself?'"

Giuliani added, "I think the political ramifications of that would be tough. Pardoning other people is one thing. Pardoning yourself is another. Other presidents have pardoned people in circumstances like this, both in their administration and sometimes the next president even of a different party will come along and pardon."

So there's really no shock at all. Giuliani breezed past the legal question without seriously answering it and use the opportunity to talk about the political forces that constrain the use of the power the President "probably" has.

I think that's quite appropriate. The President is focused on his political fate, not what might happen in a criminal case in court, and as long as he's still in office as possessed of the power to pardon, the use of the presumed power to pardon himself would undermine his political position. Better to leave his fate in a possible criminal prosecution for later and to trust that the next President will — like Ford for Nixon — save him from the ignominy of a criminally prosecuted former President. The new President won't want that riveting the country's attention, tearing us apart.

By the way, this question whether the President can pardon himself was big during the Bill Clinton administration. I remember it well because I used it for a Constitutional Law I exam, and I remember a colleague of mine scoffing at the question (without knowing I thought it was good enough for an exam). She just thought it was ridiculous because it wasn't going to happen. You can talk about the President pardoning himself, but it isn't going to happen. The political realities preclude that scenario.

You might be wondering what's the answer to the exam and assuming I have if not a firm answer at least a preferred answer. I really didn't care which way the answers went. I wanted a demonstration of understanding and skill in applying methodologies of interpretation. It would be wise to begin with the text of the particular clause — "The President... shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment" — and wise not to end there.

Great dialogue on ABC's "This Week" this morning on the subject, "Will Michael Cohen flip?"

From the transcript, with George Stephanopoulos and lawprof/defense attorney Alan Dershowitz, legal analyst Dan Abrams, and former prosecutor Mimi Rocah:

ALAN DERSHOWITZ, PROFESSOR EMERITUS, HARVARD LAW SCHOOL: Oh, it's a very serious threat [that Cohen will flip on Trump]. This is an epic battle for the soul and cooperation of Michael Cohen. And prosecutors have enormous weapons at their disposal. They can threaten essentially with life imprisonment. They can threaten his parents. They can threaten his spouse. They have these enormous abilities to really put pressure and coerce a witness. On the other hand, the president has a unique weapon that no other criminal defendant or suspect ever has, he has the pardon power. And go back to Christmas 1992 when President Bush exercised that pardon power and pardoned Caspar Weinberger, precluding him from pointing the finger at him....