Pardons

[ponderingturtle]

Let's look at it this way.

If the Pardon power is based on the idea that it's "good" (legally, morally, Constitutionally, or some combination of the three) for the President to override the courts because they sometimes make mistakes and/or act vindictively shouldn't it work both ways?

Shouldn't, under this argument, the President be able to extra-judicially convict people of Federal Crimes?

That was the whole principle behind that whole Dirty Bomber held as enemy combatant thing in the Bush II administration.

 

[JoeMorgue]

The path seems mostly procedural - I haven't looked it up recently but I thought there was pardon/clemency board that people actually send appeals to.

It's not in the Constitution, ergo it's tradition at best, habit at worst.

Near as I can tell the only actual Supreme Court ruling on the topic was back in 1883 when it said that a pardon had to be accepted by the pardonee (pardoned? whatever) and that you couldn't, essentially, pardon someone against their will.

Other than that that one paragraph in the Constitution is the only thing that legally binding to Trump in regards to pardons.

 

[Horatius]

Let's look at it this way.

If the Pardon power is based on the idea that it's "good" (legally, morally, Constitutionally, or some combination of the three) for the President to override the courts because they sometimes make mistakes and/or act vindictively shouldn't it work both ways?

Shouldn't, under this argument, the President be able to extra-judicially convict people of Federal Crimes?

That makes sense, in the same way that "Walking uphill should be just as easy as walking downhill" makes sense.

Just because it's possible to build a path in the opposite direction doesn't mean you have to.

The law is entirely a human construct, and is intended to do nothing more or less than enact human will, as expressed by whatever "government" the local humans have decided to adopt. There are no "shoulds" in the law*. "Because we want it that way, and not the other way" is all the justification we, as humans, need to make the law any way we want it to be.

I've seen this a lot in patent law. There's a certain subset of people in the intellectual property community who have it in their heads that any aspect of IP law that isn't "logically supportable" or that contrasts with anything of "natural law" should automatically be thrown out. They don't get that the law is arbitrary, that we can say, "Everything in science and engineering is patentable, except X, Y and Z", and have that just be the Law, even if there's no objective reason for excluding X, Y and Z other than "We want to."



*There's a principle that "the law cannot compel an impossibility", but even that is mostly just a matter of practicality. While it might be stupid and unfair for me to pass a law requiring you to fall up instead of down, if I could get the population at large to support punishing you for falling down, well, that's the law, sorry.

 

[rockinkt]

No executive can pardon themselves or immediate family or individuals with quid pro quo possibilities.

Everybody has the ability to provide a quid pro quo.

 

[rockinkt]

Let's look at it this way.

If the Pardon power is based on the idea that it's "good" (legally, morally, Constitutionally, or some combination of the three) for the President to override the courts because they sometimes make mistakes and/or act vindictively shouldn't it work both ways?

Shouldn't, under this argument, the President be able to extra-judicially convict people of Federal Crimes?

A quick google search tells us this: A presidential pardon restores various rights lost as a result of the pardoned offense and may lessen to some extent the stigma arising from a conviction, but does not erase or expunge the record of the conviction itself.
(my bold)

Since the President cannot erase or expunge a conviction your argument has no merit.

 

[Tommok]

No one should be able to pardon anyone with even the slightest relation to himself or his/her actions in the past. I have no idea why this is even a discussion.

an argument could be made that the President should be able to protect him/herself from a hostile judiciary that is using their relations to put pressure on the Administration.

Errrrm... no.

You see, people like Trump could claim that to be the case every time.

And in what scenario would a "judiciary" be putting pressure on the Administration? It seems like the other way around is much more likely (as evidenced by recent history).

Again, a President could presently pardon someone who has just murdered his political opponent. And we're not very far away from seeing stuff like that happening. So the pardon power needs to go. Fast.

 

[Thor 2]

You hate Trump because he smells like freedom.

Oh, a Trumper in our midst!

Can't see anyone else rallying to your call.

 

[Thor 2]

I'll say this. The laws defining presidential (and other) pardons requires drastic reform. Because as it stands, the implications are insane.

 

[Thor 2]

Well, how else could you selected judges?

Well.... Since you asked. [slight derail]we use a non-political Judicial committee that considers prominent barristers and prosecutors when they are looking for a new District Court Judge. They look at those District Court Judges who have been doing the best job when there is a vacancy in the High Court, High Court Judges are looked at for Appeals Court placements, and finally, they will look among the Appeals Court Judges to find a new Supreme Court Judge.

Once the Committee makes the selection, then they will recommend those name(s) to the Attorney General (who will be a member of the Government's Cabinet) and the AG will generally approve them. (There needs to be a pretty good reason for the AG to reject a selection.)

Once the Attorney General has approved a selection, they take the names and place them before the Cabinet who sign off on the selections.

These two parts are generally a formality.[/slight derail]

I see some merit in this PhantomWolf.

 

[Thor 2]

Legal Eagle, a legal commentator, reports that Hamilton suggested that the presidential pardon power existed to swiftly defuse tensions during a time of national crisis.

https://www.youtube.com/watch?v=JNZc9H54eBI

He gives the example of Johnson pardoning all Confederate soldiers following the Civil War.

Thanks for the YouTube link. Sort of shows the rules and guideline for pardons to be something of a dog's breakfast.

I can see some merit in pardons being granted en masse where the law broken was absurd and possibly revoked.

 

[Little 10 Toes]

I remember hearing something that the pardon is at the federal level only. Some of the current cases against Trump (tax cases?) are state level.

 

[Thor 2]

I am quite aware that Trump has been using his pardon powers incorrectly and stupidly.

After all, does anyone else recall how Trump discussed issuing a pardon to the famous boxer Muhammed Ali? Which was an odd thing for even Trump to do because Muhammed Ali was never convicted, therefore he did not need a pardon.

However, it is still a wise thing for people who are convicted wrongly/unjustly to have some sort of path to vindication, and that is what a pardon is supposed to be used for.

Yet another example of Trump's remarkable lack of knowledge of the facts.

 

[Segnosaur]

I remember hearing something that the pardon is at the federal level only. Some of the current cases against Trump (tax cases?) are state level.

Yes, that is true.

The DA of Manhattan is currently investigating the Trump organization over possible Tax and Bank fraud. And Trump could (in theory) be on the hook for violating state election laws over his call to Georgia election officials (although given the fact that Georgia is still republican-controlled at the state level, I doubt they would prosecute Trump).

Trump would be unable to pardon his way out of these.

There is a whole thread dedicated to Trump's crimes.
See: ISF

 

[PhantomWolf]

Let's look at it this way.

If the Pardon power is based on the idea that it's "good" (legally, morally, Constitutionally, or some combination of the three) for the President to override the courts because they sometimes make mistakes and/or act vindictively shouldn't it work both ways?

Shouldn't, under this argument, the President be able to extra-judicially convict people of Federal Crimes?

I think that this is kind of a silly question to ask. As one other poster almost put it, it's like suggesting that it should be as easy for water to run uphill as downhill.

In the former case, the Presidential Pardon is putting a cap on the Governmental powers of the Judiciary. It is a limiting of Government Power because it can remove the Government's power over a person.

In the Later case, you would be extending the President's power and breaching a person's Constitutional and pretty much Human Rights, in that you are taking away their rights to due process, something instilled in Western Societies since the Magna Carta. You would be turning the President into a King, literally.

 

[Segnosaur]

Will this 'Judicial committee' be within government or outside of it?

It'd outside of the Government*. The Members are appointed by the State Services Commission, which itself is a non-partisan body outside of Government that is responsible for employing the people who are in roles throughout the State Sector. The Government has little say in who is appointed to what role.

And who picks the members of the commission? If the prime minister and his party are the ones that select who to add to the commission, they can stack it with partisan hacks.

And if it is a republican AG, what are the chances of them approving a left-wing judge, if one happens to be selected by the committee?

Well we don't have Republicans, so.....

Fine, replace 'republican' with whatever far-right fringe party you might have there.

Although we are talking about the American system, so if you think the U.S. should adopt your system, you would need to examine how it would function with the same sort of individuals currently in power there.

However, refusing a nominee based on the nominee's political views would be illegal under our employment laws, which the Government and AG would need to follow.

And who decides illegality? Again, if this were the system adopted in the U.S., Barr could have rejected people for no good reason (other than they weren't right-wing enough), and when someone said "that's illegal", well, he's head of the DoJ. He sort of has significant authority there.

And who decides what a "pretty good reason" is? How is it enforced?
I haven't actually seen it happen because the Committee tends to have made sure that there are no skeletons in the closet so to speak.

The issue is not "how well does a system function when everyone is behaving", the issue is "how robust is the system when you have people trying to break it".

You may not have seen any problems with the "commission picked/AG confirmed" process. But I suspect your politicians are not as corrupt as the republicans in the U.S.

Again, I want to stress that your method of selecting judges is not a bad one. It seems fair and looks like it would get good results. I just don't believe ANY system would be safe from being corrupted, if they had someone like Moscow Mitch or Bill Barr involved.

 

[Segnosaur]

Let's look at it this way.

If the Pardon power is based on the idea that it's "good" (legally, morally, Constitutionally, or some combination of the three) for the President to override the courts because they sometimes make mistakes and/or act vindictively shouldn't it work both ways?

Shouldn't, under this argument, the President be able to extra-judicially convict people of Federal Crimes?

The problem with that is the concept in the legal systems of democratic countries to err on the side of caution in assuming people are innocent and that people should not be jailed unless people are relatively sure of their guilt.

Thus, the ability of a president to free someone is more in line with that element of the justice system than giving the ability of the president to jail someone.

 

[PhantomWolf]

And who picks the members of the commission? If the prime minister and his party are the ones that select who to add to the commission, they can stack it with partisan hacks.

The State Services Commission does. Basically, if a member of the Committee is leaving then the Committee will select a new non-partisan member. While I can't say for sure, it would not surprise me that the outgoing member often has a say in their replacement.

And who decides illegality? Again, if this were the system adopted in the U.S., Barr could have rejected people for no good reason (other than they weren't right-wing enough), and when someone said "that's illegal", well, he's head of the DoJ. He sort of has significant authority there.

Our AG has limited Authority. The legality of reasons to reject a nominee is bound by the Bill of Rights, so there is no real argument to be made there if the rejection violates the BoRs. Technically the Human Rights Commissioner could lay a complaint against the AG, or the Employment Courts could be brought in to deal with any alleged illegalities. If it was considered a bad enough breach then there are certainly Parliamentary Enquires and censures as well as the Police if there is deemed to be criminality. The AG is not the head of the Police or any investigative bodies here.

The issue is not "how well does a system function when everyone is behaving", the issue is "how robust is the system when you have people trying to break it".

You may not have seen any problems with the "commission picked/AG confirmed" process. But I suspect your politicians are not as corrupt as the republicans in the U.S.

Again, I want to stress that your method of selecting judges is not a bad one. It seems fair and looks like it would get good results. I just don't believe ANY system would be safe from being corrupted, if they had someone like Moscow Mitch or Bill Barr involved.

One of the strengths of our system is that we have spent a lot of time and effort divorcing the Government benches and the State Sector. Civil Servants work for the Crown, not the Government. The Government Ministers (Basically your Government Secretaries) are not the heads of the Departments, but rather they are there to act as intermediates between the Department and Government, to help learn what the Department has need of, to formula policies to help them achieve their goals and to hold them to account for their ability to carry out the policies of the Government. The Ministers also tend to be held to account when a department fails in its goals.

There is a separation between the politician and the department itself. The Ministers guide and give policies, but it up to the head of the department, who is appointed by State Services, to implement those instructions and policies.

Essentially in our system, the likes of a Moscow Mitch of a Bill Barr would be unable to do a lot of damage because of the way the systems are set up to be reasonably independent of the Government Ministers themselves.

This is why we have cabinet shuffles so often. The ministers themselves are kind of interchangeable. Imagine trying to do that in the US where you shuffled the jobs of all the Cabinet Secretaries every 6-12 months depending on how well they were doing. (Another difference is that all our ministers are elected members of the Parliament, usually from the Government and allied benches, rather than being purely appointed by the Executive.)

 

[Lukraak_Sisser]

Trump seems to pardon rich, important people who have aided him in the past by taking the fall for him.

The rioters were poor unimportant plebs who failed to get Trump what he wanted. Not only that, I'm guessing all his thoughts are now on how to save his own hide, there are plenty more suckers where they came from.
Somehow I doubt he's even considering it.

 

[trustbutverify]

an argument could be made that the President should be able to protect him/herself from a hostile judiciary that is using their relations to put pressure on the Administration.

That would place the President above the law. Maybe governors too. That's a perversion of the constitution.

 

[JoeMorgue]

That would place the President above the law. Maybe governors too. That's a perversion of the constitution.

No because the Constitution was written under the (arguably naive) assumption that the voters would serve as an unspoken, unwritten final check and balance, never electing anyone that was this bad in this way.

The Constitution made allowances for bad Presidents, incompetent Presidents, even evil ones but never accounted for a troll with no fear of reprisals.

The framers assumed that even the "bad" parts of our government would be operating as honest agents with logical agendas.

This is not the case. Trump is not Nixon. Hell he's not even Jefferson Davis. He has no goal beyond "make it all worse."