No, not surely.
The Double Jeopardy Clause protects a pardoned individual from prosecution, not merely sentencing. See US v. Scott, 437 US 82 (1978) (“The origin and history of the Double Jeopardy Clause are hardly a matter of dispute . . . The constitutional provision had its origin in the three common-law pleas of autrefois acquit, autrefois convict, and pardon.”)
And this is the huge flaw in our democratic system. Relying on political consequences is not an assured way to prevent things from happening. We’re lucky someone as stupid as Trump is testing the system instead of someone more charismatic.
We absolutely need a simple law that the president can’t pardon himself or pardon anyone for purposes of benefiting himself (whether monetarily or otherwise). We need to codify these ethical norms in law. Democracy is great, but we apparently can’t rely on it to enforce these ethics.
Hell, it should be a Constitutional amendment. But that would require lawmakers to take ethics seriously, and we see how few actually do that.
Well, he hasn’t done anything yet. And our system has been working for over 200 years at this point, so I’m not sure I’m seeing this as a ‘huge flaw’, since, again, no one has actually tested it. Our system is also geared towards refinement, so if someone DOES test it with negative consequences or result we can always modify the system to tweak this aspect.
Myself, I’ll wait to see someone actually show it’s a problem before saying our system is hugely flawed because of this theoretical possibility.
Again, I don’t think we need to jerk our knee and ‘fix’ a system that hasn’t actually been shown to be broken yet. Democracy IS great, and our system is flexible enough that if there is a problem we can just fix it and move on.
In this, the best of all possible worlds…
As much as I consider Trump to be a traitor I think you are right. This is not a good case for making new law regarding pardons. However, it may be time to make a comprehensible treason statute and/or other laws regarding collusion with foreign powers. Even then the problem would still remain that Trump was not an elected or appointed official or even a government employee at the time of the collusion. I suppose a new law could apply to candidates and staffers, but making laws in haste to try to fix a unique problem is rarely wise. The Patriot Act is a perfect example of that.
Wow, because the actual wording of that clause refers to ‘life or limb’ as the things you can’t be put twice in jeopardy of.
In any case, Prosecutors don’t charge people with crimes they can’t be convicted of, just to put a bunch of facts on the public record.
If you were pardoned for Mopery, and a Prosecutor charged you with Mopery just to clear the air, you just show the judge your pardon, and the case is dismissed before any hypothetical fact finding could occur.
There are venues for public fact-finding. Congress can conduct hearings, they can appoint a Commision. Courts are not venues for public fact-finding.
Here’s an article with answers for this question from various law talking guys.
I originally posted this in the Russian Collusion thread over in Elections, but it appears it was the wrong place, so here it is:
Following is a link to a legal article dealing with the issue of whether the President can pardon himself (and thanks to dasmoocher for citing the Politico article that led me to it):
Pardon Me: The Constitutional Case Against Presidential Self-Pardons
Full disclosure: I have no idea of Brian C. Kalt’s politics, but the article seems fairly unbiased to me. Also, it’s a longish read, even if you skip the copious footnotes which generally provide background to his points. It’s 30 pages, but it’s a dense 30 pages.
Just FYI to folks, this is the same guy interviewed in the CNN article that XT linked to in post #4, above.
Mmhmm. Unfortunately, his politics are made no clearer by that reference either. It seems academic to me anyway; I don’t see any particular partisan signs in it, one way or the other.
He also is a Doper! He posted a few months ago in the thread about the odd federal judicial district in Yellowstone.
The above written by Laurence Tribe and Richard Painter, law professors as Harvard and University of Minnesota respectively.
Of course, one never knows what the Supreme Court would say. It’s unthinkable that Alito, Thomas, and Roberts would rule against a Republican.
It is an interesting legal question. I tend to agree that a pardon, by its very definition, requires an independent judgment that the pardonee, if you will, is worthy of a pardon. That process is perverted if an individual can pardon himself, but it contradicts the plain text.
Another interesting question would be the taking of bribes to give a pardon. Since the President’s pardon power is absolute, is a law that prohibits taking bribes to give a pardon even constitutional? I could see an argument that since the President is vested with the sole power to grant pardons, his decision may not be questioned in the legal sphere (except for an impeachment) and he can grant or deny pardons based upon race, religion, etc. or whoever ponies up the most money.
But the counterargument would be that such a corrupt system is not what the framers intended. It’s an interesting question.
Yeah, but it’s pretty common for presidents to stake out that type of position. We saw that when President Obama claimed authority to do things that Senator Obama claimed the president could not do.
If he pardons himself, who has the authority to take it to the Supreme Court…and would they actually do it?
Yeah…rather than being sidetracked by some vague “They do it toooo!!” accusation, would you care to comment on what just happened?
Interestingly, this question came up regarding the issue of double jeopardy. In the case of Aleman v. The Honorable Judges of the Circuit Court of Cook County, the Seventh Circuit determined that if you bribe a judge to acquit you in a bench trial, you were never “in jeopardy” and as such the State is free to retry you despite the acquittal.
A pardon is different, since after all the President can basically pardon anyone on a whim, it doesn’t matter if they’re guilty or anything else really. I suspect that a court might suggest that the proper remedy is to impeach the President but that the pardons would still be good.
And is one of about half a dozen arguments that Kalt makes in much more detail.