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Old 05-14-2018, 08:02 AM
davidm davidm is offline
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Was the Arpaio pardon unconstitutional?

https://trib.al/wzU4PM4
Quote:
In 2011, a federal district court ordered Arpaio to stop arresting people suspected of being undocumented; two years later, the same court found that he had discriminated against Latinos and violated the 2011 order to stop targeting them. But Arpaio’s discriminatory policies continued. Finally, last year, a federal judge found him guilty of criminal contempt of court. But before he could be sentenced, Trump swooped in and pardoned him last August.
...
When Trump pardoned Arpaio, Martin Redish, a constitutional expert at Northwestern University’s law school, had just completed a book on the importance of an independent judiciary to safeguard constitutional rights. He saw Arpaio’s pardon as the perfect cautionary tale. LThe night before Trump officially pardoned the former sheriff, Redish penned a New York Times op-ed laying out the case for why the rumored pardon was unconstitutional. His argument was simple: The government cannot take away someone’s liberty without a court ruling under the due process clause of the Fifth Amendment. Pardoning Arpaio deprived Latinos in Maricopa County of that right—and undermined the court’s ability to protect individual rights. “[I]f the president can employ the pardon power to circumvent constitutional protections of liberty, there is very little left of the constitutional checks on presidential power,” Redish warned.
is Redish right? Are there constitutional limits to presidential pardon powers? Can a president pardon a government official who has violated citizens' constitutional rights, or do those constitutional rights outweigh the constitutional pardon power?
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Old 05-14-2018, 08:23 AM
Gyrate Gyrate is offline
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IANAL but - much as I'd like Arpaio's pardon to be rescinded - I'm finding this argument a little speculative. Presumably, in order to test whether this is a reasonable interpretation of the Fifth Amendment someone with appropriate standing (and I'm not sure who that would be - the victims of Arpaio's actions? Maricopa County itself?) would have to challenge it by some mechanism which would ultimately drag it up to and through the Supreme Court, with the potential risk that if successful the President's power to pardon anyone could be severely impacted forever. Even if it's possible (and I don't know that it is), that'd be a pretty heavy lift for an outcome that may not be ideal in the longer term.

Plus who even knows whether Arpaio will live that long?
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Old 05-14-2018, 08:32 AM
HurricaneDitka HurricaneDitka is offline
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Originally Posted by davidm View Post
https://trib.al/wzU4PM4
is Redish right? Are there constitutional limits to presidential pardon powers? ...
No and just one:

Quote:
... he shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.
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Old 05-14-2018, 08:44 AM
Ravenman Ravenman is offline
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Seems to me that this is another example of an attorney trying to make a case that a plain reading of the Constitution doesn't mean what it actually and clearly says.
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Old 05-14-2018, 09:25 AM
Little Nemo Little Nemo is offline
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Pardoning Arpaio was wrong but it wasn't illegal or unconstitutional.
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Old 05-14-2018, 10:25 AM
Procrustus Procrustus is offline
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Pardoning Arpaio was wrong but it wasn't illegal or unconstitutional.
I would agree
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His argument was simple: The government cannot take away someone’s liberty without a court ruling under the due process clause of the Fifth Amendment. Pardoning Arpaio deprived Latinos in Maricopa County of that right—and undermined the court’s ability to protect individual rights.
The government would just have to find other ways to protect individual rights. Unfortunate, but not impossible. During Reconstruction, the US Government sent federal troops to Southern states were the rights of freed slaves were being trampled by the local sheriffs (and everyone else).
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Old 05-14-2018, 10:36 AM
Shodan Shodan is offline
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The government cannot take away someone’s liberty without a court ruling under the due process clause of the Fifth Amendment. Pardoning Arpaio deprived Latinos in Maricopa County of that right—and undermined the court’s ability to protect individual rights.
I don't see how the Latinos are being deprived of their rights. Maybe they were, but that guy was arrested and convicted.

Maybe I have the right not to be kidnapped. But if they arrest the guy who kidnaps me and convict him, and he gets pardoned, I am no longer being kidnapped.

The remedy of a pardon you don't like is impeachment. If you don't have the votes for impeachment, well, sux to be you.

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Shodan
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Old 05-14-2018, 10:58 AM
Gyrate Gyrate is offline
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The remedy of a pardon you don't like is impeachment. If you don't have the votes for impeachment, well, sux to be you.
How would that "remedy" the pardon? I'm pretty sure there's no way to "un-pardon" someone who has been legally pardoned, and as discussed already the argument that this particular pardon wasn't legal is tenuous at best. All impeachment does is to prevent future pardons by that president.
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Old 05-14-2018, 11:49 AM
Shodan Shodan is offline
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And that's the best that can be done - i.e. the only remedy available. Impeachment is a check on the President, pardons are a check on the judiciary, the courts are a check on the President and the judiciary. Etc.

The President has the power of pardon, except for impeachments. If you don't like it, amend the Constitution.

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Shodan
  #10  
Old 05-14-2018, 11:53 AM
Ravenman Ravenman is offline
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I don't see how the Latinos are being deprived of their rights.
The basis of Arpaio's crime was that the courts found pretty substantial civil rights violations, and when ordered to stop it, he did not. That led to the contempt charges. Arpaio's defense seemed to consist of, I'm not the guy responsible for those civil rights violations; and then later agreed that he was in civil contempt of court.

All that being said, the issue of whether there were civil rights violations is not in dispute. However, I agree that Arpaio not serving jail time does not translate into an additional civil rights violation.

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Originally Posted by Gyrate View Post
How would that "remedy" the pardon? I'm pretty sure there's no way to "un-pardon" someone who has been legally pardoned, and as discussed already the argument that this particular pardon wasn't legal is tenuous at best. All impeachment does is to prevent future pardons by that president.
Well, there just ain't a remedy to a pardon. This is why it is important to select good people to exercise irrevocable decisions.
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Old 05-14-2018, 11:57 AM
Little Nemo Little Nemo is offline
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Appeals and pardons are part of due process. You can't deny them to accused people just as you can't deny accused people the right to have a trial, confront witnesses, and present a defense.
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Old 05-14-2018, 03:08 PM
John Mace John Mace is offline
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We could repeal the pardon power by amending the constitution and there would still be a due process clause, so I don't think that pardons are considered part of "due process". A pardon is it's own thing, separate and apart from due process.
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Old 05-14-2018, 03:43 PM
DavidwithanR DavidwithanR is offline
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We could repeal the pardon power by amending the constitution and there would still be a due process clause, so I don't think that pardons are considered part of "due process". A pardon is it's own thing, separate and apart from due process.
It could be said (it isn't said of course, but it's true if you think about it) that presidential pardons are - because of how they work - UNdue process. They are supposed to be for when due process has failed for some reason.

I don't think due process failed Arpaio at all, but I'm not president of anything.
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Old 05-14-2018, 03:57 PM
begbert2 begbert2 is offline
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I don't see how the Latinos are being deprived of their rights. Maybe they were, but that guy was arrested and convicted.

Maybe I have the right not to be kidnapped. But if they arrest the guy who kidnaps me and convict him, and he gets pardoned, I am no longer being kidnapped.

The remedy of a pardon you don't like is impeachment. If you don't have the votes for impeachment, well, sux to be you.

Regards,
Shodan
Well, with this attitude, the obvious approach would be to quietly wait until Trump leaves office, and then have their replacement shout that anybody who murders Joe will be pardoned of any and all charges associated with the event, up to and especially including torture.

That would, of course, be perfectly okay. Right?
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Old 05-14-2018, 04:18 PM
HurricaneDitka HurricaneDitka is offline
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Originally Posted by begbert2 View Post
Well, with this attitude, the obvious approach would be to quietly wait until Trump leaves office, and then have their replacement shout that anybody who murders Joe will be pardoned of any and all charges associated with the event, up to and especially including torture.

That would, of course, be perfectly okay. Right?
Do you think torture and murder would be appropriate punishments for contempt of court?
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Old 05-14-2018, 04:19 PM
Lemur866 Lemur866 is offline
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I don't see how the Latinos are being deprived of their rights. Maybe they were, but that guy was arrested and convicted.

Maybe I have the right not to be kidnapped. But if they arrest the guy who kidnaps me and convict him, and he gets pardoned, I am no longer being kidnapped.

The remedy of a pardon you don't like is impeachment. If you don't have the votes for impeachment, well, sux to be you.

Regards,
Shodan
But there's also steps short of impeachment. Like, for instance, complaining that the president shouldn't have pardoned this person. Making the president pay a political price for his wrong actions, even if that price isn't impeachment, is perfectly appropriate. Every vote in Congress is a change to deliver appropriate correction to an out of control executive.

The President's power to pardon for offenses against the United States is unreviewable, sure. And if his party pays a price--short of impeachment--for his irresponsible exercise of that power, then sux to be them.

So my response to this pardon is to vote against each and every Republican in each and every office in my district, and to urge everyone else everywhere else to do the same. Will that get Trump impeached? Maybe, maybe not, but a Trump that has massive opposition in the Legislature is going to find his opportunities for mischief limited compared to a Trump with a supine and corrupt Legislature.
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Old 05-14-2018, 04:21 PM
HurricaneDitka HurricaneDitka is offline
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... So my response to this pardon is to vote against each and every Republican in each and every office in my district, and to urge everyone else everywhere else to do the same. ...
I strongly suspect you were going to do that anyways, regardless of the pardon.
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Old 05-14-2018, 04:23 PM
Lemur866 Lemur866 is offline
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Do you think torture and murder would be appropriate punishments for contempt of court?
How do you Republicans put it? "If you don't have the votes for impeachment, well, sux to be you"? Is that it?

Of course the flaw in this plan is that murder is a state crime, and the president only has the power to pardon for offenses against the United States. So for the same reason that Trump can't pardon financial shenanigans that are crimes against the State of New York, some hypothetical future president can't pardon murders that take place in Arizona.
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Old 05-14-2018, 04:25 PM
Lemur866 Lemur866 is offline
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I strongly suspect you were going to do that anyways, regardless of the pardon.
Bullshit.

I used to vote for Republicans regularly. Fuck, I voted for Bush in 2000. Show me some Republicans who can credibly promise to vote against Trump and I'll vote for them. Except such people don't exist in 2018.
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Old 05-14-2018, 04:28 PM
begbert2 begbert2 is offline
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Do you think torture and murder would be appropriate punishments for contempt of court?
No, but I also don't think that "Fuck you, ha ha" is an appropriate response to the fact that nobody can keep Trump and his cronies from pissing on the law.
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Old 05-14-2018, 04:33 PM
HurricaneDitka HurricaneDitka is offline
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Bullshit.

I used to vote for Republicans regularly. Fuck, I voted for Bush in 2000. Show me some Republicans who can credibly promise to vote against Trump and I'll vote for them. Except such people don't exist in 2018.
I'm curious, you apparently didn't vote for Bush in '04, McCain in '08, or Romney in '12 (and presumably not Trump in '16). If Romney and McCain didn't qualify as "some Republicans who can credibly promise to vote against Trump", I'm having difficulty imagining how anyone could get over the hurdle you've set. So my question is this: Why didn't you vote for McCain in '08 or Romney in '12?
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Old 05-14-2018, 04:34 PM
HurricaneDitka HurricaneDitka is offline
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No, but I also don't think that "Fuck you, ha ha" is an appropriate response to the fact that nobody can keep Trump and his cronies from pissing on the law.
They're not "pissing on the law", at least not in the case of the Arpaio pardon. As noted earlier in this thread, it was a perfectly Constitutional exercise of President Trump's power to pardon.
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Old 05-14-2018, 04:36 PM
HurricaneDitka HurricaneDitka is offline
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No...
So why did you call it "the obvious approach"?
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Old 05-14-2018, 04:42 PM
begbert2 begbert2 is offline
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They're not "pissing on the law", at least not in the case of the Arpaio pardon. As noted earlier in this thread, it was a perfectly Constitutional exercise of President Trump's power to pardon.
And yet it was still pissing on the law. Joe CERTAINLY has been pissing on the law, and Trump endorses that.

It is of course the case that use of the pardon power always carries the risk of being considered an attack on the law (because it explicitly is - it takes the entire judicial process and throws it out), but it's hard to get more flagrant about it than backing Ole' boy Joe.

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So why did you call it "the obvious approach"?
If "Fuck you ha ha, we support crime, racism, and tyranny and are super-happy that the current president does as well" is the position one is presented with, the obvious approach is to respond with the similar mindset.
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Old 05-14-2018, 04:46 PM
begbert2 begbert2 is offline
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Of course the flaw in this plan is that murder is a state crime, and the president only has the power to pardon for offenses against the United States. So for the same reason that Trump can't pardon financial shenanigans that are crimes against the State of New York, some hypothetical future president can't pardon murders that take place in Arizona.
You have a point, though I'm sure steps could be taken to mitigate this. Kidnap him and take him across state lines first, perhaps? The president could post an instructional video on how to murder somebody and get away with it scott-free, with the final step being "If I was annoyed by whoever you killed, I'll totally pardon you. Here's a (long) list."
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Old 05-14-2018, 04:54 PM
davidm davidm is offline
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You have a point, though I'm sure steps could be taken to mitigate this. Kidnap him and take him across state lines first, perhaps? The president could post an instructional video on how to murder somebody and get away with it scott-free, with the final step being "If I was annoyed by whoever you killed, I'll totally pardon you. Here's a (long) list."
I think the state could still charge and convict, even if the federal charge was pardoned.

That's unless it's a state like NY, which recognizes federal pardons.
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Old 05-14-2018, 04:59 PM
Lemur866 Lemur866 is offline
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I'm curious, you apparently didn't vote for Bush in '04, McCain in '08, or Romney in '12 (and presumably not Trump in '16). If Romney and McCain didn't qualify as "some Republicans who can credibly promise to vote against Trump", I'm having difficulty imagining how anyone could get over the hurdle you've set. So my question is this: Why didn't you vote for McCain in '08 or Romney in '12?
Because the cancer consuming the Republican party didn't pop up out of nowhere on November 8, 2016. Trump is just the culmination of it.

Hey, you wanna run some reasonable Republicans in the future that I'll consider voting for, knock yourself out. But the problem with this is that any decent up and coming people are going to have to align themselves with Trump to have a future in the Republican Party. If you can't stomach that, your options are to sit on the sidelines, or sign up with the Democrats.

Anyway, if you don't like being smeared by Trump's broad brush just because you vote Republican, sux to be you.
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Old 05-14-2018, 05:36 PM
HurricaneDitka HurricaneDitka is offline
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... Hey, you wanna run some reasonable Republicans in the future that I'll consider voting for, knock yourself out. ...
The "reasonable Republicans" lost in '08 and '12 and Trump won. *shrug*
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Old 05-14-2018, 06:00 PM
Bryan Ekers Bryan Ekers is offline
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Arpaio walked this time, but he'll end up back in the slammer sooner or later. His kind always does. [Law & Order Dunk-Dunk sound effect]
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Old 05-14-2018, 06:03 PM
HurricaneDitka HurricaneDitka is offline
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Arpaio walked this time, but he'll end up back in the slammer sooner or later. His kind always does. [Law & Order Dunk-Dunk sound effect]
His rate is what, something like one offense per 80 years?
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Old 05-14-2018, 06:08 PM
begbert2 begbert2 is offline
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His rate is what, something like one offense per 80 years?
Given that you don't have to be convicted to have an "offense", he's racked up a few more than that.
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Old 05-14-2018, 06:14 PM
Lemur866 Lemur866 is offline
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The "reasonable Republicans" lost in '08 and '12 and Trump won. *shrug*
So your response is to go all-in supporting the unreasonable Republicans.

See, it all depends on whether you actually want what you say you want. Your embrace of Trump proves...well, it proves what it proves. I could go on, but this thread isn't in the pit and isn't about Trump exactly.

To get back to the OP, the pardon was perfectly constitutional. Unwise and ridiculous doesn't mean unconstitutional. The President can do all sorts of things that are unwise and ridiculous that aren't unconstitutional or illegal. But when we elect an conman as president, this is what happens.
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Old 05-14-2018, 06:19 PM
HurricaneDitka HurricaneDitka is offline
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Given that you don't have to be convicted to have an "offense", he's racked up a few more than that.
I don't know what this means. You have to be convicted to "end up back in the slammer", don't you?
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Old 05-14-2018, 06:21 PM
begbert2 begbert2 is offline
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I don't know what this means. You have to be convicted to "end up back in the slammer", don't you?
It means that you're not going to convince anyone that Joe is an innocent angel. I was flabbergasted that you even wrote something so astoundingly stupid.
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Old 05-14-2018, 06:24 PM
HurricaneDitka HurricaneDitka is offline
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It means that you're not going to convince anyone that Joe is an innocent angel. I was flabbergasted that you even wrote something so astoundingly stupid.
He's a pardoned angel, and he's out of office, so the odds of him doing something to "end up back in the slammer" at this point seem vanishingly small.
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Old 05-14-2018, 06:28 PM
begbert2 begbert2 is offline
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He's a pardoned angel, and he's out of office, so the odds of him doing something to "end up back in the slammer" at this point seem vanishingly small.
Oh, I'm not saying he'll be back in the slammer. I was objecting to your outrageous claim that he'd only committed one offense in his entire life.

Hell, I've committed more offenses than that just counting speeding (though I've never actually been ticketed for that). Joe's done a bit more than speed.
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Old 05-14-2018, 06:40 PM
Ravenman Ravenman is offline
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His rate is what, something like one offense per 80 years?
By that metric, Bull Connor is preferable to Sheriff Joe.
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Old 05-14-2018, 06:44 PM
HurricaneDitka HurricaneDitka is offline
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Oh, I'm not saying he'll be back in the slammer. I was objecting to your outrageous claim that he'd only committed one offense in his entire life.

Hell, I've committed more offenses than that just counting speeding (though I've never actually been ticketed for that). Joe's done a bit more than speed.
My "outrageous claim" was in response to Bryan Ekers prediction that "he'll end up back in the slammer sooner or later. His kind always does." In that context, I thought it was obvious that "offense" referred to a criminal offense. Apparently not for some though?
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Old 05-14-2018, 07:00 PM
begbert2 begbert2 is offline
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My "outrageous claim" was in response to Bryan Ekers prediction that "he'll end up back in the slammer sooner or later. His kind always does." In that context, I thought it was obvious that "offense" referred to a criminal offense. Apparently not for some though?
I'm sure that given enough time the dude would do something illegal. His kind always does. Unlike Bryan Ekers, though, I'm not at all confident the dude won't die before he does something egregious enough to attract attention. (Especially given how normalized racism and such are becoming nowadays.)
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Old 05-14-2018, 07:10 PM
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The "reasonable Republicans" lost in '08 and '12 and Trump won. *shrug*
That's the point. His winning doesn't create any obligation for Republicans to vote with him. And, as long as they do, anyone who doesn't support Trump should vote against the Republicans.

That Trump won the primaries, which was mostly Republicans voting, tells us the problems in your party. That the reasonable Republicans lost is a condemnation of your party.

Last edited by BigT; 05-14-2018 at 07:11 PM.
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Old 05-14-2018, 07:37 PM
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The President can pardon any goddamn person he pleases -- provided that he has federal jurisdiction.

Case closed.
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Old 05-14-2018, 07:47 PM
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Originally Posted by davidm View Post
. . . NY, which recognizes federal pardons.
Are you sure of this?

I was a little alarmed when I read it here, but, googling, I'm almost seeing the opposite.

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The President has the power of pardon, except for impeachments. If you don't like it, amend the Constitution.
It's a major constitutional defect that this king-like power is given to a political leader. So much for separation of powers.

Unfortunately, this isn't the kind of non-partisan issue where there is a chance of getting over the very high barrier for a constitutional amendment. Giving the pardon power to some non-partisan non-governmental organization would be seen as something only Democrats like
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Old 05-14-2018, 08:59 PM
davidm davidm is offline
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I think the state could still charge and convict, even if the federal charge was pardoned.

That's unless it's a state like NY, which recognizes federal pardons.
Are you sure of this?

I was a little alarmed when I read it here, but, googling, I'm almost seeing the opposite.
...
https://www.cnbc.com/2018/04/18/new-...-loophole.html
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New York law bars someone from being prosecuted in state court if that person has already been prosecuted elsewhere for the same acts. That is known as a protection against so-called double jeopardy.

But Schneiderman said there is a "problem" under Article 40 of the state's Criminal Procedure Law.

Under that law, he wrote, "jeopardy attaches when a defendant pleads guilty or, if the defendant proceeds to a jury trial, the moment the jury is sworn."

"If any of those steps occur in a federal prosecution, then a subsequent prosecution for state crimes 'based on the same act or criminal transaction' cannot proceed, unless an exception applies," Schneiderman wrote.
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Old 05-14-2018, 10:37 PM
Bryan Ekers Bryan Ekers is offline
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Well, better for Arpaio to get the Law & Order treatment instead of, say, Miami Vice. Under that paradigm, the guy who gets a walk is always gunned down on the courthouse steps.
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Old 05-15-2018, 09:03 AM
Shodan Shodan is offline
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How do you Republicans put it? "If you don't have the votes for impeachment, well, sux to be you"? Is that it?
Actually it's more like "Elections have consequences, and at the end of the day, I won.” But it's not always Republicans who put it that way.

Regards,
Shodan
  #46  
Old 05-15-2018, 09:09 AM
Shodan Shodan is offline
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Originally Posted by begbert2 View Post
And yet it was still pissing on the law. Joe CERTAINLY has been pissing on the law, and Trump endorses that.
To the same extent that Obama endorsed dealing in cocaine, methamphetamine, money laundering, theft, and fraud.

Regards,
Shodan
  #47  
Old 05-15-2018, 10:56 AM
Gyrate Gyrate is offline
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Any of them pardoned before they served a day of their sentences?
  #48  
Old 05-15-2018, 11:39 AM
Typo Negative Typo Negative is offline
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The President can pardon any goddamn person he pleases -- provided that he has federal jurisdiction.

Case closed.
Yup, pretty much. If we don't like, we will have to take to the polls.
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  #49  
Old 05-15-2018, 11:55 AM
Ravenman Ravenman is offline
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Can you provide some details of why those pardons are bad? I'm familiar with Arpaio's case, I don't know anything about those that you implied were terrible.
  #50  
Old 05-15-2018, 12:07 PM
ElvisL1ves ElvisL1ves is offline
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Simpler yet, in which of those cases did the defendant, like Arpaio, not serve a sentence?
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