At the federal level, and only at the federal level, he can pardon anyone he damn well pleases, except possibly himself – and that’s going to be debated by legal scholars until there’s a test case.
You also said that Biden should use an executive order to revoke all Trump’s pardons, so I’m pretty sure you removed yourself from serious consideration before you got to that sentence.
Why, exactly?
I don’t want to speak for @Exapno_Mapcase, but for myself:
What exactly is your legal reasoning behind the idea that pardons are temporary and revocable?
If a pardon can just be cancelled by the next guy, what’s the point? And how would that work in practice?
Your one cite is a 150 year old case, and was actually on whether a pardon can be cancelled before it goes into effect, and hinged on when a pardon is legally considered to go into effect. Trump’s pardons will all have been “received” by the recipients by the time Biden takes office, so it doesn’t really apply.
I would go further and argue that revoking a pardon is effectively a bill of attainder. And as such, it is explicitly prohibited by the Constitution.
While theoretically the President could pardon all 150,000+ prisoners in the federal prison system, I have a hard time believing that the federal judiciary would just throw its hand up and say, “Oh well, his prerogative,” while every terrorist, spy, mobster, gang member, murderer and securities fraud violator walks out of all BOP facilities. At the very least the pardon would be stayed pending legal challenges, and scrutinized for any and all conceivable procedural deficiencies that could be a basis for nullifying it.
And even if the pardon did comport to all procedural requirements, there’s no way that the Supreme Court would allow it to proceed. A seemingly Constitutional authority, exercised in a way that would cause such enormous damage, would likely cause the Court to revisit its precedents and find a limitation to the pardon power.
I would speculate that if a President decided to pardon everyone who’s been convicted of a federal crime, there would be a quick decision that this indicated the President was incapacitated and the Vice President would “temporarily” take over under the terms of the 25th Amendment. The pardon would be withdrawn by the acting President and everyone would agree that it never really went into effect.
The way I read it, invoking the 25th Amendment would not empower the Vice President to withdraw the pardon. The President’s the President until the VP/half the cabinet invoke the 25th, with the full ability to pardon until then, and the VP as his successor would not have the authority to withdraw that act.
However, I could see invoking the 25th Amendment as supporting a legal argument that the President was not competent when he issued the pardon due to infirmity or mental deficiency. The Supreme Court could then find that the pardon was never valid in the first place.
Well, see the cite @Exapno_Mapcase dug up in post #20. If the pardon hasn’t actually been “received” by the pardonee yet, apparently a succeeding President can retract a pardon issued by the preceding President. In this specific hypothetical, if the 25th gets invoked and processed quickly enough, there might be enough time. And we’d presumably get an appeal, and the Supreme Court would have to revisit the issue of what it means for a pardon to be “issued” and “received”, and it would be a huge mess.
Honestly, though, with the latest flurry of Trump pardons, including war criminals who murdered children, we’re frighteningly close to that hypothetical.
I actually think there may be a better case for impeachment now, for rampant abuse of the pardon power by a lame duck President, than there was for “Ukraine-gate”.
It’s difficult to say how and if that precedent would apply. The only source I can find for this precedent is a Time article that’s an excerpt from a blog posting by a professor who . . . let’s just Google him here. . . HOLY SHIT KILLED HIS CHILDREN AND HIMSELF IN 2018.
It’s true that Lightnin misread their own link and didn’t understand that a pardon could be revoked only if it never reached its intended target. I wasn’t making an accusation; that Time article in their link was confusingly written. And it snipped the reasoning behind Grant’s action, making it even worse. That piqued my curiosity and got me to track down the original. I gave the fuller story from it, just as additional information. Then I got snarked at.
I realize that we live in a time when the actual President of the United States is violating all norms of conduct, and that people want to guard against a future leader with competence and a backbone who would not back down as easily. But there have been a plethora of threads containing schemes to change our government, all of them by people who apparently have no understanding how our government works. They make me not just wrought, but overwrought.
There are no magical wands that can be waved to zap away our problems. All procedures are slow and incremental and messy, and most of them require large majorities to proceed, something that are in critically short supply.
I wish I had evidence that the many posters here patiently cutting their way through the legalese and giving guidance on the laws, norms, and policies (some right here in this thread) are reaching their intended targets. I don’t. Maybe after Biden takes care of the six hundred most pressing emergencies, he can launch a national Civics program to get Americans up to speed on how politics is a process and not an action.
He has the power to do it under the constitution. The natural limit to that power is the point at which people react with such great outrage that they demand a repeal of that power.
That could happen - one day.
The problem isn’t that the system gives the President this and other powers. The problem is we gave the power of the Presidency to a person who does not use it correctly.
There’s a solution to that problem. We used it in November.
There are some powers no single person should have; there is more than one way to pardon someone and granting that power to one person is not the way to do it. It would be better, fairer, more rational to give that power to congress via the presidency, and to establish a pardons board.
That said, your point is essentially correct: whether the power of the pardon lies within the executive or legislative branch, we can still have corruption.
Bumping this thread because we may see a situation in the next few days where a president pardons people that tried to accomplish a seditionist coup by storming the Capitol Building with the intent to disrupt the electoral process for the president. So he could stay in power.
A Coup that the president himself supported and encouraged.
This would seem to give a green light for future presidents to encourage criminals to do anything they can to benefit the president himself, and if they fail, he’ll pardon them.
“Hey guys, go rob this bank, kill any guards you find, and then bring me the money. Don’t worry, if you get caught, I will pardon you all.”
(I know, robbing a bank can open you up to non-pardonable, non-federal charges… just work with me on this)
It’s impossible to say how this would play out. I know that some people in this thread and others have said that the pardon power is absolute, aside of some obvious things like the President can only pardon for federal crimes. But Supreme Court precedents regarding the pardon power are few, and could always be revisited by the court.
And even the most textualist judges can usually find their way to a decision that contorts the Constitution if the alternative would be a patent miscarriage of justice or lead to governmental or societal upheaval (well, maybe not Gorsuch). Just spit balling, but in the scheme you’ve outlined the justices could find that the pardon is invalid because it contradicted his Constitutional duty to, “take care that the laws be faithfully executed.”
Homeboy has a trial coming up in the Senate. If he wants to not be convicted, he better sit on his hands. If he pardons the insurrectionists, he will be screwing himself and he will never help anyone if it has a chance of hurting him.
That is an advantage of having the trial start after he leaves office. Pardoning accomplices won’t be seen well.
Who is Trump angriest with right now? Trump should invite them over to the White House. After a meeting or dinner or whatever, Trump should kill them and then pardon himself.
If he has the power of self pardon, what is to stop that?