The Presidential Pardon Power

Over at Lawfare, I have a new post out suggesting that it is time to think about a constitutional amendment restricting the presidential pardon power. As in most things, President Donald Trump is particularly brazen and corrupt in how he uses the pardon power, but he is not unique in abusing one of the few unchecked powers that presidents possess.

The federal constitution is an outlier in how it structures the pardon power. The state constitutions reflect how the American people have learned from their experience with the experiment of republican government, and the state constitutions offer ready-made models for how the pardon power might be reformed.

Here's a taste from the post:

We have seen a train of abuses of the pardon power. Future such abuses could be remedied through a bipartisan constitutional amendment. It is a straightforward matter to make it explicit that a president cannot pardon himself, and it should not be hard to take pardons of immediate family members off the table as well. It should also not be difficult to require that pardons be issued only after conviction, or that pardons cannot be issued during the lame-duck period after a presidential election and before a president-elect has been inaugurated. It is possible to entrench into the constitutional text a process for considering pardons, so that presidents in the future cannot bypass the Department of Justice and issue pardons based on personal appeals by friends, family and television news hosts. It would be possible to require others to sign off on the pardon, whether existing members of the president's Cabinet or a new body like a pardon and parole board. It would be possible to make pardons conditional on a congressional vote, perhaps comparable to the vote to override a presidential veto of legislation. If Congress and then 38 states so decided, it would even be possible to give Speaker Pelosi the power she wrongly asserts that she already has and allow Congress to subject the pardon power to statutory regulation.

Read the whole thing here.

Comments

[Sebastian Cremmington]

If Republican senators had done their job and removed Trump from office, or at the very least forced him to quit the 2020 race, this debate wouldn’t be necessary. I still can’t believe Republican senators are so afraid of stupid Trump voters that they relinquished constitutional power while collectively peeing their panties. RIP Senate...a once proud institution.

[bernard11]

I think it would still be necessary.

I like Whittington's suggestions.

[M L]

The Obama administration launched a baseless investigation into their political opponents, the Trump campaign, and they secured the assistance and contributions of 16 foreign countries in doing so.

It would be quite amazing if Trump was impeached for mentioning a non-baseless inquiry into Hunter Biden's corruption.

[Sebastian Cremmington]

Hunter conned a few corrupt Ukrainians out of their money...good for him! And the phony Russia collusion investigation happened on Trump’s watch because Trump foolishly surrounded himself with Bush loyalists like Rosenstein and McGahn.

[NToJ]

What's your definition of "baseless"? There is no serious debate that Russia did, in fact, attempt to interfere in the 2016 election. We (the US) indicted dozens of Russians and Americans, including Manafort, Gates, and Stone.

[Lee Moore]

There is no serious debate that Russia did, in fact, attempt to interfere in the 2016 election.

Sure - nobody doubts that. Nor that 2016 was not their freshman year at it. Nor that other foreign powers don't do it too. But the provable Russkie effort seems to have run to the tune of $100,000 of Facebook ads - mostly after the election.

I know there are allegations that they hacked the Dems server, but as - mysteriously - the FBI and the SC chose not to try to collect any evidence, but instead relied on the report of a private contractor hired by the Dems (and a redacted report at that !) - there's nothing beyond allegations.

I also know there are some who think their interference also extended to seeding Mr Steele with Russian disinformation to pass on to the Clinton campaign, the FBI, the State Department and the media, but I think that is pretty obviously nonsense. The "disinformation" was entirely home brewed.

We (the US) indicted dozens of Russians and Americans, including Manafort, Gates, and Stone.

I don't believe that Manafort, Gates or Stone were indicted for anything even tangentially related to Russian interference in the 2016 election. As for indicted Russians, I believe the DoJ abandoned the only case in which they were required to produce actual evidence rather than mere indictment by press conference.

[Sebastian Cremmington]

Steele Dossier has no impact prior to the election while Republicans Comey and McCabe did their Keystone Cops routine that clearly negatively impacted Hillary’s campaign. The Russian interference investigation under Obama but the Russian collusion investigation was clearly illegitimate but it happened because Trump is incompetent and Trump appointed people that had a very low opinion of him.

[Lee Moore]

Steele Dossier has no impact prior to the election

Whether it had an impact or not is a matter for conjecture. But whether Steele told his story to the media, and whether it was published is not :

https://www.motherjones.com/politics/2016/10/veteran-spy-gave-fbi-info-alleging-russian-operation-cultivate-donald-trump/

But as I say, the Steele dossier wasn't Russian disinformation, and so wasn't Russian interference in the election.

[Sebastian Cremmington]

Nobody reads Mother Jones so it had no impact. Contrast that with McCabe’s lies about Hillary which were blasted on Drudge and discussed on Fox News and talk radio and by the Trump campaign.

The Steele Dossier was Russian disinformation but Hillary didn’t use it...but she still should not have unwittingly participated in the Russian disinformation campaign.

[M L]

"their interference also extended to seeding Mr Steele with Russian disinformation to pass on to the Clinton campaign, the FBI, the State Department and the media, but I think that is pretty obviously nonsense. "

I'm not sure it's nonsense. What it would mean is that it was the Clinton campaign that colluded with Russia to interfere in the election. With the Obama FBI's help.

I suspect that if a handful of Russian facebook ads in broken English are such a grave instance of foreign interference in our elections, then it follows that we must prevent all foreign publications, internet sources, and any kind of information content from being published in the US.

As far as the hacking of the DNC, you are absolutely correct that there is no good evidence known to us that the Russians were behind it, just bare assertions by our lovely deep state operatives. In fact, one would expect that a successful hacking operation would be very unlikely to leave behind any scintilla of forensic evidence tracing back to the perpetrator, and contrary to the reasoning used to pin this on the Russians, the assumption should be that any "breadcrumbs" found were left intentionally.

But let's assume that some Russian persons did the hacking. How is this really different from when the Washington Post, NYT, Buzzfeed, WikiLeaks, etc routinely reveal secret government information?

[NToJ]

"I know there are allegations that they hacked the Dems server, but as – mysteriously – the FBI and the SC chose not to try to collect any evidence, but instead relied on the report of a private contractor hired by the Dems (and a redacted report at that !) – there’s nothing beyond allegations."

Yes, just allegations! No confirmation from multiple foreign and domestic surveillance entities, the Russians never actually released the emails, maybe the Democrats were behind it! None of it is true. The DNC handed over 15 gigs of server logs and metadata showing the intrusion activity. The metadata is evidence. The server logs is evidence. Law enforcement often secures evidence that way. There's pretty good evidence the FBI knew the Russians were after the DNC servers before receiving the metadata and the logs from the DNC.

What does Steele have to do with anything I said? (If we're doing non-sequiturs, do you even know who hired Fusion GPS in the first place?)

"I don’t believe that Manafort, Gates or Stone were indicted for anything even tangentially related to Russian interference in the 2016 election."

Ok. You're wrong but you're free to believe that.

[Lee Moore]

What does Steele have to do with anything I said?

You mentioned Russian interference in the 2016 election. I mentioned the Steele dossier as something that has been suggested as Russian interference in the election. And that I did not believe that it was.

[Lee Moore]

You’re wrong but you’re free to believe that.

Here's the original indictment of Manafort and Gates.

https://www.justice.gov/file/1007271/download

Russia is mentioned twice - as the place where the former President of Ukraine fled to.

The 2016 election is not mentioned at all, never mind any Russian connection to it.

[NToJ]

What about Stone?

[Lee Moore]

https://www.documentcloud.org/documents/5694704-Stone-Indictment-012419.html#document/p1

He was indicted for, and convicted of, lying to Congressional investigators about his totally fruitless attempts to contact wikileaks.

He was certainly trying - in doofus fashion - to acquire whatever DNC stuff wikileaks had got its hands on. But even if wikileaks had actually got DNC stuff from the Russkies - alleged but not within a thousand miles of proved - he didn't get anything. So Stone had literally nothing to do with this wicked alleged Russkie interference, either at the front end - stealing, or the back end - distribution. Or anywhere in the middle.

So even if we were to stipulate that the Russkies did get the DNC leaks and passed them on to wikileaks who made them public, Stone had precisely zero part in this. His conviction had nothing to do with Russkie activity, even as stipulated, since no one - including Mueller - claims any Russkie related Dem leakery had anything to do with Stone.

It's like arresting an old drunk in a bar for boasting that he can get you some cheap cigars. His boast is based solely on the fact that he read in the newspaper that a truck carrying cigars was held up a couple of weeks back, and that he's made hamfisted and completely fruitless efforts to find out who has got the cigars. In fact it's even more remote. He's arrested for lying about his efforts to find out who's got the cigars.

To claim that he's got anything to do with either the truck robbery or the distribution of the stolen goods would be to stretch the elastic of truth well past anything resembling a tangent.

[Lee Moore]

So even if we were to stipulate that the Russkies did get the DNC leaks and passed them on to wikileaks who made them public, Stone had precisely zero part in this.

In fact there's an amusing exchange of emails he has with wikileaks - the equivalent of their help desk - where an obviously irritated wikileaker says something like - stop claiming you have anything to do with this, you stupid old blowhard !

[NToJ]

The original claim was that the FBI launched a "baseless investigation" into attempts by the Russians to interfere in the 2016 election, and by associates of the President to meet the Russians on that front. That Stone was a bumbling idiot in his failed attempt doesn't make the investigation "baseless". And you haven't persuaded me that his failed attempt is not "tangentially related" to Russian interference.

[Lee Moore]

Stone had nothing to do with the launch of the FBI's investigation. He was a johnny-come-lately only scooped up after he started lying to the HPSCI after the SC was appointed in 2017.

And Stone's bumbling - to an honest investigator - would have been seen as compelling evidence for the lack of Trump-Russia "collusion." Who needs to bumble around like the Keystone Cops on a moonless night to try to get hold of Russian dirt, if the Russians are in bed with you ?

The only answer is - incredibly sophisticated, expert, triple bluff conspirators, possibly equipped with Aston Martins, trying to lay a false trail of incompetence. That how you see Stone ? Or the Trump campaign ?

[NToJ]

The investigation was in to (since proven, and which you don't dispute) Russian attempts to interfere with the 2016 election. That investigation expanded into attempts by the Russians to infiltrate the Trump Campaign, which implicates Stone, Manafort, and Gates. You can hand waive the pathetic attempts, but they demonstrate a willingness on the domestic side to participate in a proven scheme by a foreign power. You can conclude that there is yet evidence of President Trump directly ordering his underlings to engage with the Russians and their interference, without also concluding that the original investigation itself, or the allegations against Stone, Papadopoulos, etc., were "baseless".

You send an idiot, like Stone, to bumble around because you're trying to get in bed with the Russians. And, since Russia is apparently much more sophisticated than our administration, there's also a serious concern of compromised bumblers.

[Lee Moore]

The investigation was in to (since proven, and which you don’t dispute) Russian attempts to interfere with the 2016 election.

Er, OK. Facebook ads.

That investigation expanded into attempts by the Russians to infiltrate the Trump Campaign

Sure, it expanded, but the question in re baselessness, is whether there was any basis for such an expansion. Of course we now know there wasn't - but could a reasonable investigator reasonably have suspected that there was at the time (of the expansion) ?

And the answer is no. As has been pointed out, the basis for the original investigation - Crossfire Hurricane - was thin to the point of vanishing. In any other case, the FBI would simply have given the campaign a defensive briefing if they were genuinely worried about Russkies sniffing around the Trump campaign. Which they weren't, because they knew perfectly well who Mifsud was. They chose not to because they wanted to investigate the campaign.

The Carter Page FISA and the Steele Dossier were total garbage (and they knew it at the time.) And as for expansion into Stone - that didn't happen until long after Jan 2017, by which time whatever case they might ever had imagined they had, had collapsed in the face of their interview with Steele's primary sub-source.

which implicates Stone, Manafort, and Gates

I take this to mean that if you imagine an illegal co-operation between a foreign power and a political campaign, and decide to investigate whether it exists, everyone on the campaign is thereby "implicated."

Really ?

[Lee Moore]

https://www.realclearinvestigations.com/articles/2020/05/13/hidden_over_2_years_dem_cyber-firms_sworn_testimony_it_had_no_proof_of_russian_hack_of_dnc_123596.html#!

"There’s not evidence that they were actually exfiltrated. There's circumstantial evidence but no evidence that they were actually exfiltrated."

Asked directly if he could "unequivocally say" whether "it was or was not exfiltrated out of DNC," Henry told the committee: "I can't say based on that."

The [Mueller]report stated that Russian intelligence "appears to have compressed and exfiltrated over 70 gigabytes of data" and agents "appear to have stolen thousands of emails and attachments" from Democratic Congressional Campaign Committee and DNC servers, respectively

Note the conspicuous appearance of “appears” and “appear.”

They’re guessing. May be a good guess, may be a bad guess. And neither the FBI nor Mueller actually checked the servers themselves.

[NToJ]

"Note the conspicuous appearance of “appears” and “appear.”"

Ok, does the conspicuous non-appearance of "appears" and "appear" earlier in the paragraph belie that? You can go read the entire passage (p.40 of the Mueller Report). The paragraph begins with "The GRU began stealing DCCC data shortly after it gained access to the network." The next paragraph begins: "The GRU also stole documents from the DNC network shortly after gaining access."

This conceit about "checked the servers themselves" belies a complete misunderstanding about forensic investigation of computers. You don't need to physically see a server to examine metadata about what happens to a server, or logs of same. What would looking at the server do? Yep, that's a server alright. (Do you, like the President, think the server is in the Ukraine?) The images provided of a server create a virtual duplicate. That's all you need. This obsession with the server is like saying that law enforcement can't rely on video evidence or pictures.

[Lee Moore]

The Mueller Report references the "evidence" for these claims as the Netyksho indictment.

Which is a Mueller team production containing allegations, no evidence for which is presented, and which the Mueller team knew perfectly well would never be presented, never mind tested in court. As I mentioned before, the only SC indictment of Russkies for which the SC had to produce actual evidence, resulted in the SC dropping the case.

I don't say there is no evidence, merely that what has been produced is mere allegation, not evidence.

Since the ham sandwich indictments of Russians by the Mueller team were plainly intended solely for presentational purposes, and since several of their other indictments paint pretty pictures - without evidence - but eventually land on much narrower process charges, I don't think we can reasonably treat allegations in a Mueller indictment as if they were evidence.

[NToJ]

"The Mueller Report references the “evidence” for these claims as the Netyksho indictment."

That's footnote 130 (from the paragraph preceding the two I mentioned). The source for the things in the part I quoted were footnotes 131 and 132, and neither of us have the source on those. Even footnote 130 is partially redacted as well.

"...I don’t think we can reasonably treat allegations in a Mueller indictment as if they were evidence."

The Mueller Report is not the only evidence of Russian interference with the 2016 election. And I don't understand why we're arguing about that, since you agree that the Russians did, in fact, attempt to interfere with the 2016 election.

[Lee Moore]

And I don’t understand why we’re arguing about that, since you agree that the Russians did, in fact, attempt to interfere with the 2016 election.

You're probably right. I was objecting more to the suggestion that the indictments of Russkies, and of Manafort, Gates, Stone etc had something to do with that rather small social media base.

Which as explained at tedious length, they didn't. They were :

(a) stuff we don't have to prove (Russkies) and
(b) stuff we can pin on these guys even though it's got nothing to do with Russian interference in the 2016 election.

[Lee Moore]

NToJ : The images provided of a server create a virtual duplicate. That’s all you need.

https://www.cbsnews.com/news/fbi-director-comey-agency-requested-access-to-dnc-servers/

The FBI requested access to the Democratic National Committee’s (DNC) servers and servers for other Democratic entities that were hacked during the 2016 election, FBI Director James Comey said Tuesday, but its request was not met.

Asked by Sen. Richard Burr (R-N.C.) whether direct access to the servers and devices would have helped the FBI in their investigation, Comey said it would.

Oh dear ! Jim Comey lying again ? And to a Congessional Committee too !

[NToJ]

Maybe, but that's he said/she said between Harris and Comey, at this point. But it's cherry-picking in any event. He also testified that the FBI "had gotten the information from the private party that [the FBI] needed to understand the intrusion by the spring of 2016." Comey's testimony, consistent with Harris's, is that this was Russians.

[Amazing Propagandist]

"As in most things, President Donald Trump is particularly brazen and corrupt..."

Yawn.

[Sarcastr0]

So then hate on Clinton or Obama's pardons.

[santamonica811]

SarcastrO,
I think his point was, "Trump is, in fact, incredibly corrupt and brazen. I'm not disputing that. So much so that I, Amazing, am incredibly bored by the 1,723rd example of this. Trump's incredible normalization of the abnormal has inured me over the course of his presidency. There is, literally, *nothing* that Trump does, by this point, that surprises me."

Hence the yawn.

[Brett Bellmore]

"Brazen" in this case, means little more than that he isn't waiting until after his last election to issue pardons. Which any way you look at it is the way Presidents should behave; Presidents SHOULD just issue pardons as they conclude they're justified, rather than waiting until doing so can't have any political consequences.

As far as whether the commutation was justified, I'll let Trump speak for himself.

If what he says is what he believes, there's nothing corrupt about this act. If you think he's lying, and had bad motives?

Well, when have you ever not thought that?

[Bruce Hayden]

He does write for Lawfare.

[Bob from Ohio]

The Pravda of legal blogs.

[Max]

You know, I thought the purpose of the pardon was to free someone serving 10 years for selling weed, not to shield your friends from prosecution. Maybe I'm just idealistic though.

> If what he says is what he believes, there’s nothing corrupt about this act. If you think he’s lying, and had bad motives?

The whole purpose of limiting the pardon power (or any power) is to limit the damage the president can do if we assume he has bad motives. If we could assume the president would act in good faith, we wouldn't have a Congress or separation of powers, we'd just have an elected king.

[Lee Moore]

Look at it with a more symmetrical eye. The pardon power is intended to protect against miscarriages of justice - whether accidental or deliberate.

The downside is that if it is misused some people who should be in jail are outside. But that is a downside we face all the time with that damn "beyond a reasonable doubt" thing that juries get to play with. The downside of "beyond a reasonable doubt" both in actual acquittals of people who should be in jail, and in prosecutors deciding not to bring cases to court that they know are hopeless, must be about six orders of magnitude bigger than the downside of any damage the President could do abusing the pardon power.

Meanwhile, restricting the pardon power risks keeping people who should not be in jail, in jail.

Which is the more worrying downside that we need to protect against - that too many people stay in jail as a result of restricting pardons, or too few stay in jail as a result of not doing so ?

[Krychek_2]

Lee, I'm not sure that's quite the point. The number of people killed on 9/11 is small compared to the number of people killed in car accidents, but that's not the point either. The point is that some single acts are so breathtaking in their ability to upend the system that the actual number of victims is irrelevant.

Suppose Trump were to say, "Just to prove I can, I'm going to randomly draw from a hat the name of a Democratic US Senator and have him tortured to death on national television." Suppose further that were something he could actually do. The point would not be that there was only one victim, and most Democrats were not impacted; the point would be that that type of act is such an affront to democracy that it should not be allowed to stand.

And that's why the Stone pardon is so repulsive. Sure, in the scheme of things, one incarcerated felon more or less doesn't matter much. But when the specific felon is a felon for having attacked the rule of law itself, well, that's a problem.

[Lee Moore]

But when the specific felon is a felon for having attacked the rule of law itself, well, that’s a problem.

Er, you do know that Stone was convicted of lying to Congress and obstructing a Congressional investigation ?

Nothing whatever to do with the rule of law or the administration of justice ?

I'm not defending Stone - he's a jerk, an idiot and he broke the law. But if he hadn't been a friend of Trump he would never have been prosecuted - which makes him an excellent case for a commutation (whether by Trump or any other President.) Prosecution because your friend is a politico the prosecutor doesn't like is an abuse worthy of correction.

How do we know Stone was only prosecuted because he was a friend of Trump ? Because Mueller had Jerome Corsi by the short hairs, for lying blatantly to investigators never mind Congress. Corsi was one of those people Stone was using to try in his doofusy fashion to make contact with wikileaks - each blowharding and bs-ing each other about their fantasies.

Mueller offered Corsi a plea deal, and Corsi refused it. So what did Mueller do ? Dawn arrests on CNN ? Weissman thumbscrews ? The book thrown ? No - it was "meh - OK then, off you go." Nada.

The guy who lies blatantly to the investigators - a crime that is frequently charged - gets off with no prosecution.

The guy who lies blatantly to Congress - a crime which is virtually never prosecuted - gets the full works and a heavy prison sentence.

Spot the friend of Trump.

[NOVA Lawyer]

Lee Moore,

Basically, all of your information about Corsi comes from Corsi. Why do you believe him about any of that? He is a credible source?

[Lee Moore]

Er, it comes from

(a) the Mueller Report itself, where Corsi's somersaults are recounted (p58 et seq)

and

(b) the draft SCO plea agreement with Corsi leaked to the WP

I would not regard either of these as credible sources, but at least in the case of (a) it's an admission against interest.

[Krychek_2]

Lee, I flatly disagree that lying to Congress has nothing to do with the rule of law or the administration of justice. If it's an attack on the rule of law to lie to people who enforce the law, then lying to people who write the laws is an attack on the rule of law for the same reason. It strikes me that the point at which the laws are made is just as important to the rule of law as is the point at which the laws are enforced.

[iowantwo]

That's your opinion about lying to congress. The facts are it is rarely prosecuted. Does "rule of law" encompass equal application of law?

[Krychek_2]

Well, probably 99% of people driving above the speed limit don't get tickets, for a long list of reasons. Does that mean the unlucky few who do should escape penalty because other people get away with it?

Sorry, but I'm just not seeing how "other people did it too" is relevant, or a legitimate argument. Yes, other people got away with it. So what?

[Lee Moore]

Does that mean the unlucky few who do should escape penalty because other people get away with it?

Depends on whether it's luck, doesn't it ? If the 1% all happened to be black, I doubt you'd be putting it down just to bad luck.

[Lee Moore]

1. The House Committee that Stone lied to was not engaged in legislative business, it was engaged in investigating.

2. There is a tremendous amount of lying going on in Congress, and always has been, and it's only the Speech and Debate clause that keeps most of the critturs out of jail. So suggesting that the rule of law is threatened by lying in the halls of Congress strikes me as a little precious.

3. But also wrong - I pluck from LexisNexis :

The Rule of Law. In its simplest form, the rule of law means that "no one is above the law." It is the foundation for the development of peaceful, equitable and prosperous societies. For the rule of law to be effective, there must be equality under the law, transparency of law, an independent judiciary and access to legal remedy.

This is all about how citizens are treated by the government. It has precisely zip to do with how the legislative sausage factory works.
So we'll have to agree to disagree on this point.

4. If you want a real illustration of a threat to the rule of law , in its accurate sense - equality under the law, due process etc - from witnesses before Congressional committees, it would be a hundred witnesses lying and only one being indicted.

[Krychek_2]

1. Congress may only investigate appropriate subjects for legislation, which foreign interference in our elections clearly is. That what they were doing was one step removed from the final process is irrelevant.

2. That others get away with it is not a legal defense. I'm not sure it's even a moral defense. Next time you get pulled over for speeding, try telling the officer that everyone else was speeding too and let us know how it works for you. In this case, as I pointed out earlier, Stone was prosecuted not even so much for what he did but the brazenness with which he did it. He essentially was asking to be prosecuted.

3. As with many other terms, the rule of law means different things in different contexts, and the LexisNexis definition does not apply to our facts.

4. Did the other 99 conduct themselves with the same brazenness with which Roger Stone conducted himself?

[Krychek_2]

And one other thing: To the argument that Stone was only prosecuted because he's a Trump associate, I doubt this, but for sake of argument let's say it's true.

The cold, hard reality is that accepting certain jobs makes it that much less likely that you're going to get away with certain crimes. I would not, for example, expect to get away with using cocaine if I have a job that requires periodic drug testing. That's life.

By choosing to be closely associated with Trump, and to engage in dirty tricks as part of the bargain, it was entirely predictable that Stone would come under more scrutiny than you or I would. And if he can't accept that, he should have either not associated with Trump, or obeyed the law.

[iowantwo]

1. Congress may only investigate appropriate subjects for legislation, which foreign interference in our elections clearly is. That what they were doing was one step removed from the final process is irrelevant.
Here's the rub. Nothing connected Stone to Russian interference. Stone tried, and failed to talk to WikiLeaks. Nothing to do with Russian interference. The media spread lie that Russia hacked the emails, never had any providence. Tying something that never happened to wikileaks has no bearing on the questioning of Stone.
Much like a faulty search warrant. Nothing gained by violating the accused rights is evidence.

[Krychek_2]

iowantwo, I'm having trouble following your logic. The only reason Stone would have tried to talk to Wikileaks was to influence the election. That's true whether Russia was involved or not. And at the time the House was investigating, it wasn't known if Russia was involved or not, so that, too, was a proper subject for investigating. And even if Russia wasn't involved, Wikileaks is a criminal enterprise so the mere fact that Stone was talking to them at all was worthy of investigation.

You're basically trying to argue that what Stone did isn't a real crime, and even if it was, he was singled out. Your mother would not have accepted those excuses from you when you were a child caught with his hand in the cookie jar.

[Lee Moore]

It would certainly enhance Prof Whittington's credibiity if he could link to his pre-Trump pieces on constitutional amendments to limit the pardon power. Let's see the Whittington piece about how Marc Rich shows we need to reform the pardon power. If the Stone commutation rates 100 on the scandal-meter, the meter would have to go up to about 15,000 to cover Marc Rich.

Trump's commutation of Roger Stone's sentence is hardly egregious by historical standards, and the fact that he was only prosecuted because of his connection to the President makes it a little lopsided that he shouldn't be allowed to be pardoned / commuted if he's connected in some way to the President. Indeed it doesn't even move the dial on my scandal-meter. Commuting the sentence for a political prosecution is just. Since he did do the crime, and it was his own dumb fault for putting himself in a position where he could be kneecapped, a pardon would be inappropriate.

Indeed that's the whole problem with Whittington's silly idea. If you have political prosecutions, you're going to get political pardons.

Roger Stone is a stupid jerk, whose absurd boasting did not help Trump - it hurt him. He got prosecuted for lying to Congress - an offense that typically attracts a 0.000007% prosecution rate.

Moreover, I fail to see why commuting death sentences automatically because of a personal objection to the death penalty - utterly routine not just for anti death penalty Governors, but also by different means, for anti death penalty judges - is any less corrupt than pardoning your golfing buddy. In each case you're indulging yourself.

is any less corrupt than pardoning your son for drunk driving.

[Bob from Ohio]

"He got prosecuted for lying to Congress – an offense"

A crime but no offense. They routinely lie to us, its a patriotic duty to lie to them IMHO.

[M L]

This.

[NOVA Lawyer]

Noted that you two have decided to give up on the American experiment.

[Aktenberg78]

The American experiment died with the 1965 Immigration Act.

[Krayt]

the fact that he was only prosecuted because of his connection to the President

Pretty much this. He is a scoundrel and a nerf herder. But he wouldn't be in this situation but for people trying to hurt a political enemy using the government's power of investigation, which is forbidden for that use.

Is this not a valid use of pardon? He wasn't even pardoned, just commuted. The valid conviction stands.

Of course this isn't a political convictLETS GET THEM AT THE STATE LEVEL!

[bernard11]

But he wouldn’t be in this situation but for people trying to hurt a political enemy using the government’s power of investigation, which is forbidden for that use.

Or but for the fact that he did indeed commit a number of crimes.

And how is Stone Mueller's "political enemy?" That's Foxbot nonsense.

[Lee Moore]

Trump is Mueller's political enemy. Though Mueller was more of a stooge for Weissman. Stone is an old time Trump crony.

My enemy's friend is my enemy. Not that hard is it ?

[Sebastian Cremmington]

Uh no, the group of people that orchestrated the absurd Russia collusion investigation were Bush loyalists. Bush loyalists lost interest in the Mueller investigation when it was clear Trump had outsourced judicial appointments to McGahn and McConnell who got Bush’s right hand man on the Supreme Court. Trump’s original sin was surrounding himself with Bush loyalists...I knew Trump was doomed when he appointed Tillerson on Condi Rice’s advice!?!

[NOVA Lawyer]

Lee,

While Trump obviously views Mueller as his political enemy, the opposite is not at all established. In fact, it very much appears not to be the case.

I am pretty sure that's bernard's question. And your answer is Foxbot nonsense.

[Sebastian Cremmington]

Mueller is Comey’s mentor so that is motive for animus for Trump. Btw, Hillary was ecstatic when Trump fired Comey but apparently her advisers told her to denounce Trump’s actions. Obama made two big mistakes—Comey and Robert Gates. The Republicans that rose to the top during W Bush’s presidency are the reason Trump was able to win the nomination in 2016–Bush Republicans are a bunch of losers that think they are great because losers that in 2016 voted for Trump voted for them in 2000 and 2004.

[Max]

> Let’s see the Whittington piece about how Marc Rich shows we need to reform the pardon power.

Did you read the original article? Whittington specifically used this an example.

> Bill Clinton pardoned financier Marc Rich, Whitewater investigation resister Susan McDougal and his own half-brother. There is a long history of dubious pardons issued to friends and allies of sitting presidents.

Also, Whittington suggests implementation be delayed until after the current president, "so as not to be seen as a swipe at the sitting president."

[Lee Moore]

My point is that he has been provoked to write his piece by the utterly milquetoast commutation of Stone's sentence; and yet he was not moved - for a whole nineteen years - by the Marc Rich affair.

His offering is not a serious proposal to amend the pardon power - he knows it's going nowhere. It's just a political piece designed to support the notion that there's something terribly wrong with Trump's use of the power. Four months ahead of an election.

It is not intended to be taken seriously.

[bernard11]

How do you know what his reaction to the Rich pardon was? Because he didn't put up a blog post?

[Lee Moore]

Because he would have mentioned in this piece how he's been brewing in fury about the Presidential pardon power ever since 2001, when he had become enraged by the Marc Rich pardon.

[Jason Cavanaugh]

Tell me this Lee:

Are you getting dumber?

[Lee Moore]

Undoubtedly. And unless you're under twenty, so are you.

[Alpheus W Drinkwater]

Continually bringing up Marc Rich isn't a very good defense of an unlimited pardon power. As for Prof. Whittington, the beginning of the excerpted article does begin "We have seen a train of abuses of the pardon power." So he is clearly talking about more than Trump pardons. If you disagree with his opinion that Trump's pardons have been more egregious, that's fine, but that isn't really a refutation of his proposal.

[Lee Moore]

I'm not attempting - here - to defend unlimited pardon power, I'm attempting to question Prof W's sincerity in raising the question.

If you calmly watch a rhinoceros, an ostrich, a lion, an elephant, a hippo, a black mamba and a hyena wander though your sitting room; and then when a fieldmouse scurries across you suddenly leap up and say - "this has got to stop !" - it doesn't really matter if you then cite the rhinoceros, ostrich etc as well as the fieldmouse.

The interesting question is why on Earth did you leap up and complain about the fieldmouse, when the population of the Serengeti wandering through your house didn't even raise a yawn ?

[Bob from Ohio]

"So then hate on Clinton or Obama’s pardons."

Clinton pardoned his brother. He also pardoned Susan McDougal as a reward for keeping her mouth shut.

Obama commuted a terrorist leader whose group carried out more than 130 bomb attacks in the United States.

[santamonica811]

Bob,
Clinton pardoned McDougal after she served a ton of time. If Trump had pardoned Stone after he had served all his time, or even a significant' portion of his time, then said pardon would have been much less controversial. The two situations are not that comparable, IMO.
You're arguing with Whore-Barr on this case . . . which might make one want to reevaluate his or her position. 🙂

[Sarcastr0]

I'm a bit leery of limiting the power, but the reforms suggested in the OP are pretty modest and common sense-seeming to me, and don't swallow the entire enterprise.

[Commenter_XY]

I am even more leery about limiting that power. I do not think we should. The Founders had good reasons for giving the POTUS this power. We should leave well enough alone.

There have been controversial pardons since the founding of the Republic.

[Voize of Reazon]

Good reasons for the existence of a pardon power isn't the same as good reasons it should be at the absolute discretion of a single individual.
It's ironic that a country with elimination of the monarchy as a founding principle now has a president with far more real personal power than a British king has had in centuries.

[Commenter_XY]

Yeah, I hear you. But to me, it comes down to this. Do we want pardons or not. The Founders answer was yes, and the potential for abuse was extensively debated. Yet, they went ahead and did it anyway.

I have not seen a good enough reason put forth to eliminate or water it down. The power is there for very good reasons. We should leave well enough alone.

[Krayt]

It's the same good reason as getting rid of the electoral college: transient difficulties in one party winning an election

If that doesn't justify screwing with the constitution, I don't know what does!

[LawTalkingGuy]

That's not really comparable because there are much more major issues at stake: choosing President who doesn't command even a plurality of the vote share, and giving some citizens a weightier vote than other citizens. You shouldn't have a system where it is possible to get as little as a third of the votes overall and still win the presidency.

[MatthewSlyfield]

Most of the problems with less than plurality wins and other flaws you mention could be eliminated or at least lessened by the states dumping winner takes all in favor of the set up used by Maryland.

Two electors go to the over all state winner the rest go to the winning presidential candidate in each House district.

[bernard11]

Maryland doesn't do that. Maine and Nebraska do.

And it's a terrible idea. Gerrymandering means that most of a state's EV's might easily go to the candidate who gets fewer votes in the state.

The more you break voters into arbitrary groups, as the EC does, the more you randomize the results.

[Lee Moore]

The States are not "arbitrary" groups. It's a Federal Union.

[NOVA Lawyer]

It being a Federal Union doesn't stop the grouping of voters awarded EC votes being arbitrary. The boundaries of very nearly every state are arbitrary in today's world, historical artifacts that, to the extent the reasons for their precise location weren't arbitrary at the time (such as where a river flows), they now are for all practical purposes. Giving voters on one side of a river more voting power than voters on the other side serves no beneficial purpose.

But bernard's point stands even if the breaking up of voters isn't arbitrary.

[iowantwo]

The EC is not voting by arbitrary groups. The EC gives the power to sovereign States. There has never been a federal election. The vast majority of power rests with the states, according to the constitution. The Nation, is designed as subordinate to the States. Our whole govt structure is designed to protect against democracy.
Why the fetish to embrace something that is as dangerous as mob rule?

[LawTalkingGuy]

Well, the Supremacy Clause and Fourteenth Amendments suggests that the nation is not in fact "subordinate" to the states.

And I don't think anyone is fetishizing "mob rule". They're just pointing out that there is no justification for ensuring minority rule at literally every level of government. We already have the Senate and the judicial branch to temper majority power. There's no reason to also give the minority the Presidency and the House and legislatures through gerrymandering. Consistent minority rule tends to legitimize the entire system.

I mean you would never propose a system for any organization where whoever or whatever gets the second most votes always wins. That's completely irrational. So too, should the government not always be run by the people who get second place.

[iowantwo]

Lawtalk, we are only talking about the President. Stands for election in less than four years. Like you say, the legislature, and judiciary stand ready to act if the electors make a mistake.
But this is the rub??? The legislature is fine with the President. The judiciary is not, Judges have ruled from the bench, "but for who the President is, my ruling of the executive order would be different" Throughing out the law and going full political.
Four years is a very short time, no need to craft a Constitutional amendment. Let the system work. The voters have another shot. As it is playing out now, President Trump will win with a subsantial margin of victory in the popular vote, and EC. Alas that too will have law profs attempting craft a way to overturn the will of the people.

[Commenter_XY]

Yeah, I am not in a hurry to screw with the constitutional system, Krayt. Then again, I am also a guy who thinks the 17th amendment needs to be repealed immediately. 😉

[Max]

The founders understood neither the system they were creating, nor our modern world. They didn't even predict the inevitable rise of competing parties just years after the ratification of the Constitution. They may have good reasons at the time, and it's remarkable how the Constitution has not failed in a major way, but they had neither unusual prescience nor intellect unmatched by people today.

The idea the Constitution can't be improved on even in minor ways such as those suggested by Whittington is unsupported. If you think the pardon power ought to be maintained, I think you should argue for it on its merits, not based on the authority of some venerated, long-dead statesmen.

[Commenter_XY]

Max...I don't think the onus is on me to argue why a system that has worked for the entirety of our Republic should remain. I don't see what Whittington peddles as an improvement. Quite the opposite, actually.

[DStraws]

Clearly, given the examples cited it hasn't "worked". Unless, of course, it has "worked" means that there have not been any significant political consequences.

[bernard11]

I don’t think the onus is on me to argue why a system that has worked for the entirety of our Republic should remain.

That's if you assume it's "worked," in the sense of achieving desirable goals without imposing heavy costs.

But that's circular. What Whittington is saying is that the costs are too great, and the potential for abuse can be mitigated without harming the main purpose.

I mean, is it really a good idea for the President to be able to pardon himself, cronies, or family members? That's all OK with you?

[Commenter_XY]

bernard11, no POTUS has pardoned himself for any action. That is an objective fact. So we can dispense with that canard right now.

Whittington peddles intellectual crap. What tangible cost? He names none. I would have significantly more respect for Whittington if he actually quantified a cost. He can't, and he doesn't. His argument is dialectical smegma. Maybe you can take a stab at quantifying an actual cost, bernard11. Not being facetious, either. What is that quantified heavy cost?

To answer you directly (you asked fair questions and I will answer them). Can a POTUS pardon family and cronies? Yes. Should a POTUS do so? It depends. Is this set of affairs Ok with me? Yes.

The power of pardons has been present since the founding of the Republic. Controversial pardons have been happening since the founding. Jefferson Davis, a traitor, was pardoned. Richard Nixon was pardoned. Marc Rich was pardoned. Oscar Lopez Rivera was pardoned.

My point is not 'whataboutism'. The point here is that we cannot predict with any certainty what circumstances will present themselves. The four instances cited above are very different, and a completely different set of circumstances. It is critical for a POTUS to have the ability (and flexibility) to exercise their judgment, considering the totality of the circumstances, in deciding to commute or pardon.

When we screw around with the Constitution in a 'reactive' mode, which is what Whittington is proposing, my observation is that bad things generally happen, from unintended consequences. We should leave well enough alone.

[Voize of Reazon]

This

no POTUS has pardoned himself for any action. That is an objective fact. So we can dispense with that canard right now.

combined with

When we screw around with the Constitution in a ‘reactive’ mode, which is what Whittington is proposing, my observation is that bad things generally happen

is a recipe for paralysis on any issue. Don't fix it if it hasn't broken, and don't fix it if it has.

[Commenter_XY]

Uh...no. We have a process to change the Constitution. We even have a process to abolish it and start over. I think you're missing the point, so let me try it another way, and see if it resonates.

In my reading of the debates and discussions leading to the Constitution, my impression is that the Founders had a couple of working hypotheses. One, slow the process down to avoid radical, whipsaw changes to the Republic. Two, in slowing down the process, many problems will resolve themselves without requiring a dramatic intervention (like changing the Constitution). That is a feature of our Constitution, not a bug.

It is not paralysis. It substitutes considered judgment for rash action. What Whittington proposes is rash action. And he quantifies nothing in the way of cost. Whittington's writing on this topic has precisely the value of the monetary price we pay for Professor Blackman's SCOTUS predictions; absolutely nothing.

[Voize of Reazon]

What Whittington proposes is "it is time to think about a constitutional amendment restricting the presidential pardon power". That is the process to change the Constitution, it begins with discussion, and proposals, and more discussion. I don't believe he is using his post as cover while organizing an armed revolt.
As far as "avoiding a dramatic intervention" goes, if the text of the Constitution causes the problem then it won't be cured by anything less than an amendment. The only avoidance is to convince yourself that there wasn't a problem worth solving in the first place. I'm sure many people feel that way, you seem to be one of them, e.g. that no system can be perfect and the occasional failure or abuse is a price that must be paid. Others disagree, so engage them on the substance of their arguments.

[Commenter_XY]

Yes, you understand where I stand = The only avoidance is to convince yourself that there wasn’t a problem worth solving in the first place. I’m sure many people feel that way, you seem to be one of them, e.g. that no system can be perfect and the occasional failure or abuse is a price that must be paid.

Still waiting for something of substance from Whittington, though. 🙂

[Alpheus W Drinkwater]

Interesting discussion. Just a small point. I don't think Jefferson Davis was ever actually pardoned, at least not individually. President Johnson on Christmas 1868 issued a blanket pardon for "every person who directly or indirectly participated in the late insurrection or rebellion." And even then there will still charges pending against Davis in federal court, which were only dropped in 1869 after the government attorney indicated that the prosecution would not be pursued.

[iowantwo]

How many presidents have we had? 45? So that's 46X 50 selfserving pardons, 2250. How many prosecutions are never pursued? Like abuse of classified information?
The fact is 10's of thousands of criminal cases are ignored by prosecutors every year. 100's more people are targeted by corrupt prosecutors. But I am to believe The President of the United States is the problem to be addressed?

[BillyG]

I agree with you for most of them, but I've got issues with one in particular.

or that pardons cannot be issued during the lame-duck period after a presidential election and before a president-elect has been inaugurated

I see no point to this limitation. It strips a sitting president of power while still in office. I don't see a difference between this and prohibiting passing bills and appointments during the lame duck session of congress.

[Lee Moore]

Could move to the British system - the new guy is in by the following morning.

Would also cut down on the old administration spying on, and trying to run blocking patterns on, the new administration. They'd have to concentrate 100% on destroying evidence in their last few hours.

[Noscitur a sociis]

Unless we also get rid of the electoral college, there's going to be at least some lag time before the newly elected president takes office.

[Lee Moore]

Well effectively the Brits have an electoral college too - the House of Commons.

The difference is that the Brits have a Queen who is allowed to make a shrewd guess as to who's going to win in the electoral college, in advance of it actually meeting, so as to get on with things.

[BillyG]

In any system, there's going to be a time lag. Well, maybe if you got rid of mail-in ballots there wouldn't be (much of) one. I don't see that change happening.

[bernard11]

True, but it could be significantly shortened.

Nobody has to ride a horse, or even a train, to get to Washington to be inaugurated, and there's lots of opportunity for mischief during the time lag.

There's no reason we couldn't get a new President, and Congress, in place by early December.

[Noscitur a sociis]

That seems like it's probably true, though it would itself require an amendment.

What should the incumbent president be allowed to do between the election and "early December"?

[bernard11]

What should the incumbent president be allowed to do between the election and “early December”

Very little. The incumbent should be regarded as a caretaker, able to respond to national emergencies and so forth, but otherwise highly restricted. He should be able to veto, or not, legislation, though why a lame duck Congress ought to be able to pass legislation, is not clear.

Mostly, no appointments of any kind, or maybe all appointments, including to the judiciary, are to be regarded as expiring on Jan. 20.

[JohnSteed]

Another item for a long list of things that might be amendments, with no showing as to why this might be important enough to be near the top of the list.
Why not an amendment against gerrymandering? Or fixing the number of Supreme Court Justices, or limiting their terms of office?Those could be bipartisan.
Or, on the Democrat side, an amendment allowing a direct tax on wealth? (Just kidding, they'd never admit they need one.)

[Cynic 2]

Great idea; in Congress we trust.

So let's also restrict: the Executive from declining to prosecute people (subject to abuse like pardons); the Judiciary from entering directed verdicts or judgments notwithstanding the verdict (same); and the Judiciary from imposing lax sentences shorter than the maximum (subject to abuse like commutations).

[Sarcastr0]

Did you read the reforms? Because this isn't that.

[MKE]

Did the author even bother to read the President's explanation for the Stone commutation? No, just the same litany of insults that are no short supply in any twitter feed. Compelling.

[LawTalkingGuy]

Didn't he have a bunch of crap about the jury forewoman, even though the court developed a thorough record about how she actually slowed the process down and didn't demonstrate any biases in deliberations?

[Sarcastr0]

Not on subject, MKE, and also the explanation was a bunch of conspiratorial nonsense.

Unsupported, of course.

[Noscitur a sociis]

It would be possible to make pardons conditional on a congressional vote, perhaps comparable to the vote to override a presidential veto of legislation. If Congress and then 38 states so decided, it would even be possible to give Speaker Pelosi the power she wrongly asserts that she already has and allow Congress to subject the pardon power to statutory regulation.

[Noscitur a sociis]

This was supposed to be a reply to Sarcastr0.

[Sarcastr0]

It was, I'm tracking.

I was taken in by the underlining, and did not read carefully once I got through the sensible seeming parts there.

I get the issue of the poster I was replying to. That is indeed what's being proposed, at least in part.

I'm down with the underlined bits though!

[Dan Schiavetta]

These are good reforms but Republican opposition would prevent such a Constitutional amendment.

[Bob from Ohio]

"Republican opposition "

Now. Let's see who is opposed in 2021 et seq. if Biden wins.

[Dan Schiavetta]

I don't think Democrats would have a problem with it. The only President who has issued pardons to immunize himself from criminal liability is Trump.

[Bob from Ohio]

"The only President who has issued pardons to immunize himself from criminal liability is Trump."

History begins yesterday.

Clinton pardoned Susan McDougal as a reward for keeping her mouth shut over Whitewater.

[Dan Schiavetta]

You forgot to mention that she had been acquitted as to that.

[Bob from Ohio]

"McDougal was convicted of her role in Whitewater on May 28, 1996, and was sentenced to spend time in prison for four counts of fraud and conspiracy relating to the Whitewater scandal" wiki

[Dan Schiavetta]

Irrelevant to what you said about Clinton's pardon. He did not pardon her for "keeping her mouth shut about Clinton" because she had been acquitted of that.

[Dilan Esper]

From Whittington's article:

He routinely circumvents the informal practices that have helped discipline the presidential process for granting clemency.

I might accept some sort of amendment limiting the pardon power, if we also put in language prohibiting the BS Whittington is referring to. What he is referring to is that the DOJ prosecutors have "pardon guidelines" that basically prohibit anyone from getting a pardon except maybe long after theiy serve their time. It's outrageous, on substantive and procedural grounds.

It's outrageous on substantive grounds because on big reason we have a pardon power is to reverse bad decisions by prosecutors, courts, and juries. If prosecutors, for instance, convict an innocent man, or severely violate his rights, or racially discriminate in jury selection, or prosecute a victimless crime, the President can step in and completely nullify all their work. That's an important power. The entire purpose of DOJ pardon guidelines is to prevent Presidents from doing that, under the fiction that DOJ prosecutors not only never do evil but never even make a mistake.

Second, it's procedurally objectionable. Foxes shouldn't guard hen-houses, and prosecutors shouldn't decide pardons. The pardon power is fundamentally about overruling prosecutors and throwing their work in the garbage can. So the guidelines should very obviously be written by defense attorneys. Prosecutors should have no say.

So I would propose that any amendment of the pardon power be amended further, as follows:

"No prosecutor employed by the US governmen or any state or territory thereof shall have any involvement whatsoever in the determination of any pardon or clemency application or any rules or guidelines for determining pardon or clemency applications."

[Dilan Esper]

By the way, Whittington doubles down:

It is possible to entrench into the constitutional text a process for considering pardons, so that presidents in the future cannot bypass the Department of Justice and issue pardons based on personal appeals by friends, family and television news hosts

What is this fricking worship that people have of prosecutors. Does Whittington really think that the DoJ is full of people who will fairly evaluate whether people they send to prison for long periods of time deserve to be there?

And does he really think everyone in the DoJ is a wonderful public servant who always acts from the best motives and fairly metes out justice, putting away people and ruining lives only when the action is totally justified?

Why do people worship prosecutors? The entire point of several constitutional amendments is that prosecutors aren't to be trusted. The framers knew this. But suddenly, any President who- gasp- departs from the vaunted Department of Justice guidelines as to when their own work should be undone (answer: almost never) is abusing his office?

This is nuts, it is sad, and it is offensive.

[Bruce Hayden]

He writes at Lawfare, and they were the architects of the Mueller SC coup attempt, where their bogus legal theories (such as their misinterpretation of an Obstruction statute, or using the Logan Act and FARA) were used by career DOJ prosecutors to try to remove their Constitutional boss from office and to protect the DOJ and FBI from Congressional oversight.

[Brett Bellmore]

The name says it all: They're not about law, they're about using the law as a weapon of political war.

[Jason Cavanaugh]

The suffix -fare comes from the Middle English word Fare, meaning passage, journey, or travel.

When you two are done circle-jerking each other, perhaps your ignorance can be addressed.

[KHP54]

Good grief. The term 'lawfare' is of recent coinage, by deliberate analogy to 'warfare'.

Please try again.

Even better... don't.

[Jason Cavanaugh]

My input is backed by etymology. Yours is assumption backed by bias.

By any reasonable standard, you lose.

[Dilan Esper]

Actually, no. The etymology of the suffix "fare" isn't relevant here, because "lawfare" is a word which was of fairly recent coinage and was coined for a specific reason.

Just because someone coins a word whose parts may have some interesting backgrounds doesn't mean that is being adopted into the new word. KHP is right. The word "lawfare" was coined to describe waging war with lawyers. It occurred during our lifetimes.

[Jason Cavanaugh]

So "airfare" clearly refers to airplane wars, because when new words are created, it's actually just a bunch of random letters put together without regard to language at all.

Got it.

Every new word is created during someone's lifetime. That isn't a rationale to claim etymology has nothing to do with the result.

[Jason Cavanaugh]

I'm guessing that you're part of the "I hate lawfare.com" brigade of Bruce and Brett, but I'll give up the goat anyway. Since nobody's remarked on the particular bullshit yet, I'll quote the problem.

"...law as a weapon of political war."

I threw out the etymological history of the suffix as a pedantic response to that nonsense. Everything from those two is political. Science is political. Prosecution is political. Disliking Trump is political. Websites they don't like are political. News they don't like is political. Enough is enough.

If I were a betting man, I'd take a guess that it is a play on 'warfare' in the sense that going to court and arguing a case is a tactical situation analogous to fighting a battle.

What is most certainly is not, is an attempt to use the law to wage "political war."

Regarding yours and KHP's responses, you both infer that recently-created words are wholly separate, if not completely exempt from the meanings of their parts. If either of you want to argue that etymology doesn't matter when it's a "recently-coined" term, I'll take that argument on as well.

[Jason Cavanaugh]

Typo. Game, not goat.

[David Nieporent]

Mueller SC coup attempt

You know that using this phrase is basically a red flag saying that you are a very stupid and dishonest person, right?

[KHP54]

This!

If I recall correctly, you and I have very few areas of policy agreement, but when you're on, you're on. For myself, I think the role of prosecutor--while absolutely a necessary one--is so inherently corrupting and destructive to the person wielding those powers that the office itself, at all levels, should be strictly term-limited.

[KHP54]

"This!" was meant for Dilan, but I'll gladly sign on to what Bruce is saying, too (both here and below.)

[Brett Bellmore]

Agreed. Maybe not allow people to be prosecutors until they've served as public defenders, too.

[bernard11]

These are good points.

I'm not a big fan of prosecutors myself.

[LawTalkingGuy]

That also stuck out at me. I don't know a lot about who gets to be in the Office of Pardon Attorney, but I would not be surprised if they don't come straight over from the Federal Defender's Office.

So while I don't have a problem with having a system to process applications per se, it's obviously going to have institutional biases towards DOJ, so codifying that process to exclude alternative sources of information about pardons is just a good way to deny chances at justice to people who might deserve it.

[Dilan Esper]

Read the guidelines. They are exactly what you would expect prosecutors to say. No pardons until you served your sentence. You have to admit you were guilty (because of course the DoJ never actually prosecutes anyone innocent). You have to pay a bunch of fines even if you can't afford to. Etc.

And then any time ANY President (not just Trump- they did this to Clinton too) pardons someone outside the guidelines, all these people come out of the woodwork and cite these guidelines to a credulous press, who don't even think about the fact that maybe prosecutors aren't trustworthy to write these guidelines.

[LawTalkingGuy]

Agreed. I forgot about all the exhaustion requirements. Pardons should ideally help people who are serving an unjust sentence and need immediate relief.

[Bruce Hayden]

But, of course, those very same federal prosecutors ignore that they routinely gain convictions in less than ethical ways. It seems that not a week goes by anymore that another instance of perfidy or intentional unethical behavior by AUSA Brandon Van Grack and his band of Mueller prosecutors, or at the top of the DOJ and FBI is not revealed in the Flynn case.

It’s very simple. The corps of federal prosecutors whom Whittington is trying to give the pardon power to, have been caught out trying to use their prosecutorial power to remove the Constitutionally elected President, the source of all of their legal and more authority, from office. They have grossly abused the trust that the people put in them by this coup attempt. So, yes, they are butt hurt that the President is trying to right some of the wrongs that they caused. That is, in the end, why they want to rein in his pardon power - because it was their excesses, their immorality, that caused the President to act as he did. Most often, the President’s pardon power is reserved for sympathetic causes. This time it was to overrule systematic misconduct by the same prosecutors who want control over his pardon power - so that he cannot, in the future, contravene their actions.

[David Nieporent]

It seems that not a week goes by anymore that another instance of perfidy or intentional unethical behavior by AUSA Brandon Van Grack and his band of Mueller prosecutors, or at the top of the DOJ and FBI is not revealed in the Flynn case.

No perfidy or unethical behavior was revealed in the Flynn case.

[Bob from Ohio]

I agree DOJ guidelines are stupid. [I do not agree with your proposed amendment nor the prosecutor hate]

We need more pardons and commutations, not less.

[Dilan Esper]

It's not that I hate prosecutors, Bob. I don't trust them. I think they make mistakes, and I think like any group of human beings, there are some people in the field who are inattentive, or venal, or have a bad moral compass, or otherwise sometimes abuse their power.

So fundamentally, the pardon power is an anti-prosecutorial power. it's a corrective. And it is subject to the same regulatory capture as any other regulatory corrective. Or, alternatively, it has the same problems that have caused cities to institute civilian review boards to watch over the police- when police control the process, they apply too narrow a definition of excessive force because they don't want to get their fellow officers in trouble.

As long as prosecutors are considered legitimate participants in the pardon process, you will have the fox-guarding-the-henhouse problem and an overly restrictive pardon policy.

[Lee Moore]

It’s not that I hate prosecutors, Bob. I don’t trust them. I think they make mistakes, and I think like any group of human beings, there are some people in the field who are inattentive, or venal, or have a bad moral compass, or otherwise sometimes abuse their power.

And the folk who are supposed to keep them under some kind of control - the judiciary - are mostly retired prosecutors who have themselves done all the off piste stuff that prosecutors typically get up to.

So we don't just have a fox guarding the henhouse problem, we have an Farm Animal Welfare Commission composed almost exclusively of old foxes with bits of chicken still stuck between their teeth.

[Bob from Ohio]

I don't think line prosecutors participate in the pardon process. The chief has no prosecutor experience in her bio, .

My objections are the 5 year wait, use of credit status and civil lawsuits and "involvement in community service, or charitable or other meritorious activities." Plus you have to grovel, I mean accept "responsibility, remorse, and atonement"

The only people who get DOJ approved pardons are those who don't need them because they already made successes of their post conviction lives.

[Dilan Esper]

If there's going to be an office of pardon attorney, why should it be part of the DoJ at all?

Make it a part of the Department of Education or Health and Human Services, and prohibit anyone who has worked at Justice from holding a position in the office.

[David Nieporent]

My objections are the 5 year wait, use of credit status and civil lawsuits and “involvement in community service, or charitable or other meritorious activities.” Plus you have to grovel, I mean accept “responsibility, remorse, and atonement”

The problem here is a fundamental disagreement about the pardon concept itself. They view it as an act of forgiveness for someone who has earned it. And it certainly is that. But it's also to correct miscarriages of justice. People who should never have been prosecuted in the first place (or who were prosecuted much more harshly than they deserved.) Prosecutors have a blind spot about that.

[Voize of Reazon]

In some states, and other countries, they give the pardon power to the parole board. What would you think of that?

[Dilan Esper]

Slightly better, but as I said, it really should be separated entirely from the governmental agency that prosecutes.

[santamonica811]

Some good suggestions, some not so much.

[Michael W. Towns]

How many pearls-clutching articles did law professors write about reforming the pardon power after Obama pardoned actual terrorists and traitors, like Bradley Manning?

So sick of this virtue signalling from the professors.

[Dilan Esper]

Don't deadname Chelsea Manning. It's offensive and bigoted, no matter what you think of what she did.

[Michael W. Towns]

"She" was Bradley Manning when she committed treason; please stop white-washing history and facts, it's offensive and dishonest.

[Dilan Esper]

She. No scare quotes. She. Putting the word she in scare quotes is more bigotry. Refusing to accept who she is is bigotry.

And it is perfectly honest. That's her name.

Don't be a transphobe. You are being like the southerners who refused to give up the n-word when everyone else did.

[Michael W. Towns]

Whatever, boomer.

[Brett Bellmore]

We don't think "she" did anything, because Manning is a guy. A psycho guy who had himself mutilated, sure, but still a guy.

[LawTalkingGuy]

Dude, you are such a dick sometimes.

[Brett Bellmore]

Playing along with lies like that is the left's gateway drug to postmodernism. Never let them bully you into saying five fingers when there are only four.

[LawTalkingGuy]

I've found that bullies are generally people who can't manage the most basic courtesies to others.

[Bob from Ohio]

"deadname "

Names are cultural so I have no general problem with Bradley becoming Chelsea. After all, Evelyn while a female name in the US is a male name in the UK. Lynn can be either.

But referring to the former name of a famous person is not bigoted. Bruce Jenner won an Olympic gold and was on the Wheaties box, not Caitlyn.

As for "she", you can pretend, we don't have to.

[Dilan Esper]

It depends, Bob. If you are talking about her currently, you should say Caitlyn Jenner.

However, if you are saying "the 1976 decathlon gold medal was won by Bruce Jenner", I agree, that's fine.

[Brett Bellmore]

He can have the name, as far as I'm concerned, though if I'm talking about what he did before the name change I'll use the name he had then.

What he can't have is the "her", because that's a lie.

[Dilan Esper]

What he can’t have is the “her”, because that’s a lie.

Except non-ignorant non-bigoted people know it is the truth. And further, even if it were a "lie", it isn't your job to call the person out on it. There's no reason to gratuitously act like an asswipe to someone and then pretend you have a political or truth-telling justification for doing it.

[LawTalkingGuy]

They have a high school biology textbook, Dilan, they know everything...

[David Nieporent]

Except non-ignorant non-bigoted people know it is the truth.

It's weird, because usually you have a less complimentary opinion of people with religious beliefs that don't match reality.

[LawTalkingGuy]

He commuted her sentence after she had been incarcerated for seven years. There were also credible allegations of mistreatment.

[Michael W. Towns]

Doesn't matter. Has nothing to do with Obama's "abuse" of the pardon power.

[LawTalkingGuy]

It does matter, because you said he pardoned her. He didn't. There's also a difference between having someone serve a somewhat significant portion of a sentence and not having them serve any sentence at all.

[Bruce Hayden]

Pardon power was fine then, because it wasn’t used to overturn the highly political work by career prosecutors to try to remove the President of the opposite party from office.

[theobromophile]

I'm a believer in removing the pardon power during the lame-duck period and in fact, would extend it to a month before the election. Put your pardons up for a vote, and even if you are term-limited out, your party (and therefore, your legacy) will suffer if you're particularly corrupt.

That's also why the notion of Trump being particularly corrupt about pardons rankles. Trump pardons people when it matters: before elections. Over 75% of Clinton's pardons happened at the end of his time in office. (Leah Libresco has an article in fivethirtyeight with pretty graphs.) Obama's pardons and commutations were disproportionately in December 2016 and January 2017; in fact, he pardoned someone on 17 January 2017 and commuted another sentence on 19 January 2017.

[M L]

Agreed.

[Michael W. Towns]

Incredible. I don't remember the professoriat going into apoplectic paroxysms of shock and dismay when the great Obama was being corrupt. Huh. Interesting.

[Flight-ER-Doc]

Nor the great Clinton - who also pardoned Marc Rich on his last day in office...

[Sarcastr0]

Trump pardoned Stone because he couldn't avoid it at that point.

[iowantwo]

Stones crime was being associated with the President.
Stone was convicted of lying during an investigation that lacked any predicate. As of January 4th of 2017 the FBI declared Crossfire Hurricane, and Crossfire Razor Flynn), finished. due to lack of any derogatory information. (no evidence existed, or could be credibally fabricated.) President Trump pardoned the 70ish Stone because of malicious prosecution. A determination well within the Presidents Article II powers. Only lawyers, and professors, could argue about such meaningless twaddle.

[David Nieporent]

Stone was convicted of lying during an investigation that lacked any predicate.

Utterly false and utterly irrelevant.

As of January 4th of 2017 the FBI declared Crossfire Hurricane, and Crossfire Razor Flynn), finished.

A lie, and also utterly irrelevant.

President Trump pardoned the 70ish Stone

Sigh. You can't even get basic facts correct. No, he didn't.

[Joe_dallas]

https://en.wikipedia.org/wiki/List_of_people_pardoned_by_Bill_Clinton

https://en.wikipedia.org/wiki/List_of_people_granted_executive_clemency_by_Barack_Obama

https://en.wikipedia.org/wiki/List_of_people_pardoned_by_George_W._Bush

[CJColucci]

It's not the exact pardon reform I would advocate, and there are things I would try to change, but I'd accept it as the end-point of negotiations.

[MKE]

Like always, an interesting view into the grossly blinding political animus against the President underlying virtually all calls for reform. No thoughtful effort to actual consider the rationale offered by the President in his grant of commutation in the Stone case (by the way did Clinton offer a statement justifying his pardon of Mark Rich? did Obama offer anything comparable explaining his pardon of unrepentant terrorist Oscar López Rivera?). No, just silly consolatory insulting tropes against the President. If a cogent argument in favor of modifying the Pardon power exists, this ain't it.

[Michael W. Towns]

That's because it's not a "cogent argument." It's pure virtue signalling designed to get kudos and accolades from other circle jerk law professors.

That's all it is.

[Brett Bellmore]

At this point I think it's less about trying to get kudos, and more about trying to avoid being attacked by the mob.

[Rev. Arthur L. Kirkland]

Contemplating a lifetime of (1) obsequious compliance with the preferences of better Americans and (2) political and cultural irrelevance as our nation progresses has made you cranky, Michael.

[Just Eric]

Not yet convinced there is a problem for this solution. On the other hand, I can imagine political prosecutions, including of family members. Can also imagine that lame duck pardons do some good with respect to unsympathetic and unconnected people who might actually have rehabilitated or otherwise merit mercy. Barring self-pardon might be good correction, if that is even required.

[Bob from Ohio]

Clinton pardoned his brother. We didn't amend the Constitution then.

[David Nieporent]

This is doubly stupid as an argument. First, Clinton pardoned his brother after the brother's sentence was completed. Second, Clinton didn't pardon his brother to protect himself.

Doesn't mean it was advisable. But it was nothing like this.

[Bruce Hayden]

The entire Mueller investigation was highly political and partisan from the first. There never was a compelling, non political, reason for the Mueller SC investigation. The FBI knew, well before it was launched, that the Steele Dossier was politically funded rubbish, that the Russians, while they may have hacked Clinton’s email system, they didn’t give her emails to Wikileaks, that the Russians, while doing a little of their usual meddling, didn’t collaborate with Trump or his campaign, or try to throw the election to him, and that the entire artifice used to get FISA warrants was internally fabricated, likely in collaboration with the CIA. The FBI knew from the first that Carter Page was a CIA asset, and had been working for the FBI up until earlier that year. The SC investigation was set up by FBI DD McCade (whose wife had received over $700k in political contributions from long time Clinton ally, Terry McAuliffe), working with the same group of people involved in much of the rest of the perfidy. They had the prosecutors (all registered Democrats) picked, and the paperwork already prepared, that they used when his boss, D Comey was fired, and he became acting FBI Director. It only required a credible, easily manipulated, face to put on the SC investigation, that was effectively already staffed, and the senile Mueller fit the bill.

[David Nieporent]

Really, Bruce; it's amazing how you can write a single paragraph in which every single word, including "and" and "the," is a lie.

[LawTalkingGuy]

The more I'm thinking of it, the more I don't like any of these suggestions, other than the clarification that a President cannot pardon himself.

Codifying a DOJ process means codifying DOJ guidelines.

Waiting for a conviction isn't necessarily good because a lot of times, the process is the punishment.

Banning lame duck pardons means that a President can't pardon or commute sentences of deserving but politically unpopular people, which does not necessarily include the President's cronies. A ban on family members is also weird to me because that gets into some weird definitional issues and singles people out for a disfavored legal status based on something they have zero control over.

The only limit I might suggest that wasn't suggested, is to ban pardons for contempt of court. It's one of the very few ways a court can vindicate its authority over a willfully recalcitrant party. Giving the President the power to pardon criminal contempt unilaterally could give him or her the green-light to empower people in government to ignore any and all court orders. Then again, presumably the court would still have the authority to enter civil contempt sanctions which I don't think a President can pardon, so maybe it's not a big deal.

[Commenter_XY]

I think I'd like to see a POTUS actually try a self-pardon before doing anything about it. It is not a problem yet. Solving problems we don't actually have isn't sound, is it?

[Jimmy the Dane]

No one seemed to care about pardon powers when Obuma let criminals and even murderers off the hook.

Lots of faux outrage now because "Orange Man BADDDDDD!!!!"

This is an example of a solution looking for a problem.

[LawTalkingGuy]

You cared? A lot of conservatives cared.

[Jimmy the Dane]

Not really....

[Rev. Arthur L. Kirkland]

Plenty of presidents issued sketchy pardons, but you (like most conservatives) focus myopically on the black guy.

That is because you are a right-wing bigot, Jimmy.

Enjoy your continuing diminution toward cultural irrelevance as America progresses against your preferences and efforts.

[Lee Moore]

It is a straightforward matter to make it explicit that a president cannot pardon himself, and it should not be hard to take pardons of immediate family members off the table as well.

Why not political cronies, allies or contributors ? Much more likely beneficiaries of a corrupt pardon. But a little difficult to define, neh ?

It should also not be difficult to require that pardons be issued only after conviction

So that the bulk of the punishment - the process - can be inflicted without that pesky Presidential interference.

It is possible to entrench into the constitutional text a process for considering pardons, so that presidents in the future cannot bypass the Department of Justice

Yup, we must get this out of the hands of the elected folk and safely back into the swamp.

It would be possible to require others to sign off on the pardon, whether existing members of the president's Cabinet

So as to ensure the Cabinet is selected 100% on loyalty rather than competence, rather than the traditional 85%.

or a new body like a pardon and parole board.

That's a good one. Let's not use a corner of the existing swamp, let's dig up a field, flood it, and make new swamp !

It would be possible to make pardons conditional on a congressional vote, perhaps comparable to the vote to override a presidential veto of legislation.

OK. Make it an override requiring say 95% of the members of both chambers. Should be enough to rule out purely personal corrupt pardons. If 95 Senators and 414 Reps aren't willing to play ball, then fine.

[Flight-ER-Doc]

Right...Trump is far more 'Brazen' than Clinton was with Marc Rich....Who bought a pardon.

[Jimmy the Dane]

Hey Clinton needed that money for his Foundation. Who are you to question him!!!!

[Eddy]

So...require pardon applications to go through the Justice Department, a basically prosecutorial agency?

Create a new board or commission to block pardons and vest even more power in unelected, unaccountable officials?

Such ideas are premised on the idea that our three-felonies-a-day federal criminal justice system is basically just, and that the worst threat to justice is too much clemency.

[theobromophile]

Yeah, I noticed that, too. The entire point of clemency is that sometimes, the system fails. Not sure how "more system" helps.

[LawTalkingGuy]

Especially when that system is part of the prosecutor's office...

[Eddy]

I see Reason covered a story where the administration was considering transferring some pardon petitions from the Justice Department to the White House, and some people who were fans of the Obama pardon initiative were also fans of the reported plan:

"Barkow and Osler, along with many other criminal justice advocates, say it's a conflict of interest for federal prosecutors to exert so much influence over the clemency petitions of the people they put behind bars."

You don't say!

https://reason.com/2020/02/25/trump-white-house-considering-limiting-justice-department-influence-over-pardons/

[Dilan Esper]

It really is.

And one of the problems with folks like Whittington is that they never answer this argument. It's not like it is new. The pardon guidelines have been outrageously pro-prosecution for decades. But they never even bother to mention that the "guidelines" that they say should naturally be followed are terrible and premised on the idea that the DoJ never makes mistakes.

There's just an enormous pro-prosecutorial assumption in our legal discourse. Nobody has to ever even justify it.

[Bruce Hayden]

I would suggest that the basic problem there is that the DOJ is a well entrenched bureaucracy, whose primary purpose is prosecuting, and the FBI is an equally entrenched bureaucracy, whose primary purpose is investigating. While the DOJ name includes “Justice”, that has never been its primary emphasis.

[Dilan Esper]

Yeah, but the nomenclature is what it is. For instance, here in California, the prosecutors are "the People". And they revel in it. There's never any inkling that perhaps if the defendant is innocent, or overcharged, or the victim of misconduct, "the People" might be better represented by the defense attorneys.

But I accept that. That's too burned into the legal traditions to change.

And it also probably has at least a kernel of goodness. After all, some prosecutors really do take seriously the fact that they are supposed to do justice and represent the people. Not all of them are overcharging machines.

That doesn't mean, though, that when discussing POLICY questions, we should assume DoJ is always right.

[LawTalkingGuy]

Sort of tangential, but the Chief Justice had a really good quote that I think about a lot in a dissent in Kaley v. United States (2014):

"Federal prosecutors, when they rise in court, represent the people of the United States. But so do defense lawyers— one at a time."

[Dan Schiavetta]

It's called the "Department of Justice" and in theory it's supposed to serve the interest of that blind lady holding the scales. A good D.A. will not proceed with a prosecution if there are wider countervailing reasons which serve the ultimate ends of justice.

Not so with criminal defense attorneys, who freely admit (at least the honest ones do) that they sometimes get clients freed who were factually guilty. Their only aim is to avoid a conviction.

[Dilan Esper]

It’s called the “Department of Justice” and in theory it’s supposed to serve the interest of that blind lady holding the scales.

I don't think "theory" matters very much when tens of thousands of people have either been wrongfully prosecuted, wrongfully convicted, overcharged, over-sentenced, or subjected to violations of constitutional rights that DoJ prosecutors argued didn't happen or were completely permissible.

We have to deal with reality. And the reality is DoJ prosecutors, like all other lawyers, in the main, try to win maximal results in their cases. That's what they are rewarded for, that's what the culture of the Department demands. Further, there's a self-righteousness about prosecution that also is bred in prosecutor's offices.

Defense lawyers are actually a lot more noble. First of all, defense lawyers aren't careerists. They are also honest about their desire to win cases. And most importantly, they are in "theory" just as important to our constitutional system as prosecutors are. It's right there in the Sixth Amendment.

Indeed, the Constitution actually NEVER mandates there be prosecutors at all, but mandates defense attorneys.

[Dan Schiavetta]

I'm from New York, which has a long tradition of honorable and honest D.A.'s who knew when not to push -- Mario Merola and Robert T. Johnson in Bronx, Frank Hogan and Robert Morgenthau in New York. They were "lifers" in the job and had no further political ambitions.

[Dilan Esper]

I haven't studied their tenures, but I will tell you that while we had plenty of DA's and City Attorneys here who I consider to be reasonably honorable people, they still overcharged, put people in prison too long, charged too many victimless crimes and minor drug offenses, prosecuted vulnerable sex workers, etc. I'm willing to bet the folks in NY you praise did all that stuff too.

Just because occasionally a DA says "no", especially in some high profile case, doesn't mean that he or she is a saint who takes the oath to "the people" seriously. DA's, including the supposedly "ethical" ones, have been part of the apparatus of the carceral state for decades.

[Life of Brian]

"Trump does something all presidents do, but it's worse 'cause he sucks."

Drink!

[Aladdin's Carpet]

I mean, most of these sound reasonable enough.

I would strongly oppose subjecting the pardon power to statutory restrictions or Congressional approval ... do you really want to politicize the legal process more? The pardon power is meant as an extremely rare exception, an act of kindness, the idea if senators and congressmen voting and opining on guilt or innocence is kinda unseemly. Thats left to the courts, with the exception, in extraordinary circumstances, the president. You could combine the proposals and say, if the president pardons himself or does a restricted thing, then congress is activated, but still, idk.

[Dilan Esper]

The pardon power is meant as an extremely rare exception

No it really isn't. Indeed, in the 19th Century, pardons were pretty common. We don't have direct evidence of this, but it's fairly clear that the framers assumed that prosecutors, judges, and juries made mistakes all the time and that executive clemency should operate as a substantial check, as well as a tool for mercy. Indeed, in a real, functioning, fair judicial system, pardons and commutations should probably be pretty common and widespread.

[LawTalkingGuy]

" Indeed, in a real, functioning, fair judicial system, pardons and commutations should probably be pretty common and widespread."

Or perhaps they actually would be pretty rare in such a system because prosecutors would be more circumspect in bringing cases, more honest in their dealings with the court and defense, courts would not be so deferential to law enforcement overall and sentences would not be outrageously long.

[Dilan Esper]

Sure, but I think some of that is unavoidable unless we massively reimagined the incentives in our legal system.

So in any conceivable fair system consistent with American traditions, executive clemency would be common and accepted.

[dwshelf]

Whittington sounds partisan.

If there's a single best use of the pardon, it's to quash the effect of corrupt prosecution. This seems of no value to Whittington, because the current president isn't to Whittington's liking, and he doesn't have any sympathy for the victims of corrupt prosecution so long as the victims are associated with Trump.

[OtisAH]

I support this whole heartedly and have many ideas for other changes we didn’t realize we needed until Trump came along. But the only way the pardon amendment is remotely possible is under a dem admin. Republicans would never sign off on it under a Republican President. It’d be “Dems are being mean, cheating, whatever else” all day long in the latter context. But they’ll get on board if it means adding another handcuff to a dem President.

So, let’s get that train rolling. Vote Biden.

[MollyGodiva]

Here are my thoughts on the proposals. I am generally against them and I do like the idea of people getting mercy and forgiveness.

A president cannot pardon himself: I think this is already not allowed, but I am for clarifying it.

Take pardons of immediate family members off the table as well:
Tempting, but I think that ones legal rights should not depend on who your parents are.

Pardons be issued only after conviction: No. Having criminal charges, or the possibility hang over your head is very stressful, and prosecutions can be very expensive, stressful, and commonly come with pre-trial incarceration. If one deserves a pardon, then they should get it without having to suffer though a trial or even the possibility of charges.

Pardons cannot be issued during the lame-duck period after a presidential election and before a president-elect has been inaugurated: This one I am for.

It is possible to entrench into the constitutional text a process for considering pardons, so that presidents in the future cannot bypass the Department of Justice and issue pardons based on personal appeals by friends, family and television news hosts. It would be possible to require others to sign off on the pardon, whether existing members of the president's Cabinet or a new body like a pardon and parole board: No, the Constitution is silent on the structure of the federal government other then in the broadest terms. I do not want specific boards, or cabinet posts, or other details in the Constitution. In a broader sense, I am ok with having the president have the power of mercy and forgiveness without bureaucracy.

It would be possible to make pardons conditional on a congressional vote: No, again I do like the idea of an easy path for the president to show mercy and forgiveness.

Give the speaker of the house pardon power: I am ok with this also. I think we need to have far more pardons at the federal level.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Clinton's pardons didn't trigger outrage, but Trump's did. Gotcha.

[MollyGodiva]

Oh they did.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Enough to suggest constitutional amendments?

[MollyGodiva]

I don't think so, but Clinton's pardons were not nearly as disgusting as Trumps. Remember that Trump pardoned Joe Arpaio who was convicted of contempt of court for refusing to stop violated people's civil rights. That one was really bad.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Remember Mark Rich, pardoned at the last minute? From a corruption point of view, he was much more telling than pardoning a political ally.

You probably don't remember Clinton's rapes either, or his rapist apologizer wife. Of course, they were just interns, they were on their own, and probably liars and gold diggers to boot.

[MollyGodiva]

Oh I remember those, but Joe Arpaio was worse because he blatancy violated people's basic civil rights and Trump said to everyone that he was ok with it. It not just let off someone who deserved what was coming, but set a tone that Trump does not respect civil rights that has lasted his whole term. Pardoning a fugitive tax evader, even for bad reasons, was nothing in comparison.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

In some ways, Trump is the most transparent President in a long time. He bragged about Sheriff Joe and treating women like dirt. Clinton lied and continues to lie, Hillary aided and abetted his lies, and he won't talk about his flights on Epstein's plane to Epstein's island. Neither will discuss the slush fund they got foreign officials to donate to while she was Secretary of State.

The Clintons were and are corrupt to the core. Trump is merely publicly crude. It's pretty obvious you are fitting your facts to your politics. Me, I hate politicians in general.

[MollyGodiva]

The Clintons are done, gone, out of office and not running for office. Trump is in office and running for re-election.

[iowantwo]

The Clintons are done, gone, out of office and not running for office. Trump is in office and running for re-election.

Points for admitting you have no problem with the process, just the person exercising it.

[Sarcastr0]

This thread sucks.

It has more ad hominems than the usual Somin immigration thread.

A bunch of anti-virtue signaling crowing about how they're owning the virtue signalers.

And in a largely nonpartisan post, jumping on the partisan tidbit for an orgy of whattaboutism.

Slow day at the empty partisanship mines or something?

[Sarcastr0]

The good stuff about the perverse incentives prosecutors have and expanding the use of pardons to compensate is tragically buried, but I encourage people to check it out if you can find it.

[Life of Brian]

Second sentence of post: "As in most things, President Donald Trump is particularly brazen and corrupt in how he uses the pardon power"

Sarc: "in a largely nonpartisan post"

Sorta like "27 officers injured in largely peaceful protests," I guess. There's no speak like Newspeak!

[phoqueue]

It would be possible to make pardons conditional on a congressional vote, perhaps comparable to the vote to override a presidential veto of legislation.

You might as well just eliminate pardons at that point.

[PublicNameNotInUse]

Two things no one seems to want to acknowledge. First, we go through all this theatrical hand wringing every time a president pardons someone.
Second, pardons don't seem to be doing any great harm.
This might be the biggest mountain-to-molehill ratio in politics.

[Dilan Esper]

Mad, 25 years from now, people will find it silly that anyone thought deadnaming trans people was a good thing to do.

[Lee Moore]

I don't believe Dilan is a virtue signaller on gender, he / she / they is a true believer.

It may seem to detract a bit from his /her / their typically non-batcrazy lefty comments on other subjects, but we shouldn't get too hung up on other folks eccentricities - we all have our own little foibles.

I, for example, rather liked Abba, and I am not even ashamed of it.

[Dan Schiavetta]

You're right -- in particular the pardon of Weinberger. All signed as HW Bush was packing up to go back to Kennebunkport.

[Dilan Esper]

The problem with your argument is that the deadnaming issue is separate from what you are calling the "trans phenomena".

In other words, if your bet was, "the medical community may have a different and more skeptical approach than trans activists about gender dysphoria", sure, that's a possible outcome.

But deadnaming is going to be seen as the douchy move that it is. Because deadnaming is just deliberately being mean to trans people for no good reason.

[LawTalkingGuy]

Josh is pretty young. He will surely keep it going and we'll be arguing in the comments to part 8 of his twenty-five year retrospective series on Blue June 2020.

[Lee Moore]

It's possible that we may have strayed a step or two from the marked path - pardons, but I do think this is a category error.

Virtue signalling is a reason for doing X - eg :

X = insisting on she rather than "she".

Ditto true belief. The act is doing X.

So when you accuse Dilan of virtue-signalling you are mistaking the act for the reason. And in Dilan's case the reason for doing X is true belief not virtue signalling.

[LawTalkingGuy]

So you have to be rude because being nice will lead to executions? That's your logic?

[Dilan Esper]

Actually, the Clay/Ali thing is a great example, although it doesn't lead to the conclusion you think it does.

You see, when the name change happened, A LOT of sportscasters and writers were resistant to it. Even boxing promoters sometimes continued saying "Clay". Opposing fighters did too- and Ali punished some of them in the ring for doing so. Famously, Howard Cosell used his changed name, and was one of the few to do so.

But by the late 1970's, it had completely flipped. There were still a handful of sportswriters and broadcasters who didn't say "Muhammad Ali", but they were seen as jerks. The public completely accepted the name change.

And that's my point about deadnaming. You guys seem to think that using deadnames is some political statement, but it isn't. Many people who disagreed with Ali's politics nonetheless eventually accepted that his name was Muhammad Ali.

It's just about common courtesy. It is very possible that other aspects of the trans rights debates will remain controversial. But not deadnaming or misgendering. People who insist on doing these things will be seen as douchebags, because what you call people isn't a proper part of political rhetoric. It's simply intentionally being a jerk.

[Brett Bellmore]

Yeah, Mohammad Ali got people to use the new name instead of his old by proving that, by any name, he was a good boxer. He rested his rep on his performance in the boxing ring, the new name wasn't a gimmick.

In precisely the way Jenner's name change was just about putting a washed up athlete back in the news.

[LawTalkingGuy]

When I was reading Ordinary Men relatively recently, I didn't get the sense that any of the major participants were particularly tender. So while basic courtesy may feel like tyranny to you, much in the same way a teenager feels oppressed by social norms, it isn't likely to lead to gas chambers.

[Brett Bellmore]

The left has long been weaponizing "basic courtesy", by pushing the line that surrendering to their demands is just being polite. You can't say this true thing, you can't say that true thing, how dare you disagree...

No, it's not basic politeness to humor people who are either lying or deluded.

[LawTalkingGuy]

Brett,

You are not qualified to make that determination. At all. I know your arrogance knows no bounds but you have to at least admit you don't have an MD, PsyD, or PhD in psychology or biology. You do not study gender dysphoria. You do not counsel trans people. You do not treat them. You have opinions that are based on your feelings (the thing you accuse liberals of doing).

If I am wrong: point me to your peer reviewed studies. Show me your experiments. Give me the name of your clinic.

Because you are adamantly unqualified to determine if a trans identifying person is deluded or lying you declining to humor them is just being a jerk. And I hope to God you never actually demean a trans person in real life the way you do on these blogs.

There are people who know about things more than you do: the trans person themselves and their doctors/counselors. So forgive me if I think being polite based on their views is the better course than listening to the feelings of an arrogant man who is all too happy to be a jerk to people he knows nothing about.

[Lee Moore]

I'm puzzled by LTG's demand for psychology qualifications. If someone tells you that she is a woman then :

(a) she is a woman, or

(b) she's not telling the truth
(i) deliberately or
(ii) because she's mistaken

What other possibiities are there ?

Brett doesn't require more than a Biology High School textbook (at most) to determine whether the person is in fact a woman. Except in the very rare cases, maybe 1 in 1,000 cases, where he'd need the advice of a more high powered medic or biologist.

As for treatment for people with gender dysphoria then certainly, psychologists and psychiatrists are where you'd go. But you wouldn't need them for ruling (a) in or out.

And yes it's possible that psychy folk might counsel that humoring delusions would help their patient, but complying with such requests is hardly "basic politeness" - it would be an exceptional accommodation to help the sick.

And if the psychy folk insisted that you continue the humoring even when their patient is not about, but also in every word you speak or write, it would be an exceptional accommodation way too far. No one would even contemplate doing that for someone claiming to be Napoleon, outside the four walls of the hospital.

[LawTalkingGuy]

Lee;

You suffer from the same flaw as Brett. A lot of people who have studied this issue far beyond that of a high school biology textbook have determined how to deal with gender dysphoria and they don’t think trans people are lying. The fact that you think the issue is simply resolved with a high school textbook shows that your beliefs are also based on your feelings. Again, I’m going to go with the people most affected and the people who treat them as opposed to those who use their arrogance to mask their simple mean-spiritedness.

[Lee Moore]

LTG : A lot of people who have studied this issue far beyond that of a high school biology textbook have determined how to deal with gender dysphoria and they don’t think trans people are lying

The high school biology textbook only determines whether someone who says "I am in a woman" is in fact a woman. If, after consulting the textbook, it turns out that the someone is not a woman, then the only possibilities left are that the someone is lying, or is mistaken. You seem to have skipped over the "mistaken."

You do not need a psychology qualification to work that out. Psychology is completely irrelevant to sex determination. And whether you are a woman or not is a question of sex determination. It's nothing to do with feelings - mine, Brett's, yours or the subject in question's.

You need the psychology qualification to work out how best to help people who think they are one sex but are not, and perhaps the more numerous cases of people who know they're sex A, but find this very distressing, as they feel they're not. I don't deny at all that such people exist.

So I'm quite happy to accept that in such areas of care and treatment, psychologically expert advice is useful.

But on whether someone is actually a woman or not, a psychologist can't tell you anymore than a graphic designer. Or a high school biology textbook. Waving psychology qualifications around to establish credentials on this question is destructive not enhancing of credibiity.

[LawTalkingGuy]

Lee,

All you will ever have on this topic is your feelings and a high school textbook. If that’s enough to justify you being a dick to trans people. Then that’s your choice I guess. It’s just a supremely arrogant and simple one. Deal with it.

[Lee Moore]

I note, en passant, that you have wisely avoided any attempt to offer any further possibilities in analysing a claim of womanhood, beyond :

(a) yes actually a woman

(b)(i) not a woman - lying, or
(b)(ii) not a woman - mistaken

and that you continue to insist that a blacksmith's advice is valuable, nay essential, not merely on horseshoes, but also on hairstyling. Good luck with that.

[Lee Moore]

Virtue signaling is a verb.

True but irrelevant. I could warn someone not to speak by waving my hand. The physical act is to wave, the reason for doing so is to warn. Both are described by verbs - I waved, I warned.

[Voize of Reazon]

Virtue signaling is a verb.

In that sentence it is a gerund.

[theobromophile]

Dilan, the "right side of history" commentary gets old. If history will indeed prove you correct, then explain why.

My problem with the "deadname" concept is that people change their names all the time, and many people refuse to abide by the name change or change the name where no name change occurred before; however, 'deadname' gets an inflammatory label.

If you get married and change your name, you're Susan Doe, nee Jones. No one acts like the previous name didn't exist or is somehow "dead." It existed; Susan went by that name for years; people remember her as being Susan Doe.

If you get married and don't change your name, everyone understands when you're upset with your husband's grandmother for writing your name as Mrs. James Jones or Mrs. Susan Jones. But no one slaps some awful-sounding label on that: we just call it rude and say that Granny should be more mannerly.

The use of "deadname" as a "sit down, shut up" is what gives me pause, not convinces me to sit down and shut up.

[David Nieporent]

Mad, 25 years from now, people will find it silly that anyone thought deadnaming trans people was a good thing to do.

Or maybe they will find it silly that because some woke SJW coined a stupid term like "deadnaming," anyone took it seriously. It is not "offensive" to any sane person to talk about a person who became famous under name X by using the name X. And it of course fits no actual definition of bigoted.

It's one thing to argue that when addressing someone, it is courteous to use the name that person currently uses. If you're talking to the ex-Laker, you'd say "Kareem," not "Lew." (Though I can't imagine actually saying "Hey, Metta" to Ron Artest.) It's another to say that when talking about the person, it's some made up thing that isn't a thing to use their original name. It is not "deadnaming" to talk about how Lew Alcindor did at UCLA; it is historically accurate.

[LawTalkingGuy]

Mad,

See my response to Brett. What you believe to be a lie is based on your feelings. That's it. If I am wrong, point me to your co-authored studies that show otherwise. The truth you believe to be telling comes from your gut. But gut feelings are not a basis to be rude to someone.

[Lee Moore]

Granny should be more mannerly

Or less demented.

[Sarcastr0]

I'm not in such high dudgeon as Dilan, but I do try and call people what they want to be called if I can.

[Dilan Esper]

The difference is that the new name accompanies a new gender. Thus, it's more similar to Ali, whose new name accompanied a new religion. (You may recall for a long time that the artist formerly known as Cat Stevens did not like being deadnamed, though he has made his peace with it.)

A married woman, I would hope, is not repudiating her singlehood. (At any rate, it's 2020 now; lots of women marry and keep their names rather than becoming a wholly owned subsidiary of their husband anyway.)

The point is, Dan transitions and becomes Dorothy, and you call her "Dan", or call her "him", there's a malicious intention to deny that the transition took place, i.e., anti-trans bigotry.

[The Grand Moff Tarkin]

"The right side of history" has a Marxist/Maoist ring to it. I believe biology is a thing. I will avoid tiresome and easily avoidable conflict by referring to Manning as Chelsea and using female pronouns to describe that individual. But I do not believe that this reflects reality.
Our society now consists of men, women, and others. Maybe we need a new set of pronouns.

[Lee Moore]

I think that's the right way to put it.

The person who has the primary rights in the words you use is you.

Anyone you may happen to refer to with your words, if they have any interest (qua property interest) in your words at all, has a distant secondary interest, way way subsidiary to your own.

Any accommodation you may choose to make to Anyone as regards their distant secondary interest is an indulgence, a favor, a gratuity laid out by you out of the goodness of your heart.

If you are a polite, kindly sort of person, you may feel the desire to accommodate and to indulge, so long as that does not seriously inconvenience you, so long as it is not offensive to you, and so long as you think Anyone is deserves the indulgence (which not everybody does.)

Put it that way round and we can all get along fine. But don't be doing any of that demanding - it shreds the desire to be polite.

[theobromophile]

Likewise, but the problem is that the pro-trans people use the term "deadnaming" to describe someone who calls a trans person by his/her birth name. No other issue surrounding preferred names (nicknames, maiden names used professionally, married names but 'nee,' name changes, even misspellings of names) elicits this reaction.

"Deadname" is also inaccurate: it is literally the name someone was given at birth. But "deadname" sounds like you're doing something horrible, not using someone's birth name.

[theobromophile]

" (At any rate, it’s 2020 now; lots of women marry and keep their names rather than becoming a wholly owned subsidiary of their husband anyway.)"

Dilan, I am one of those women; my last name has stayed put, socially, professionally, and legally. Please explain why you think I need the lecture.

[theobromophile]

Further, I do not get upset when people call me by my husband's last name. It's a non-issue. People who make honest mistakes don't need to have me screech at them; people who are rude are best ignored. I'm not going to yell at someone and make up a whole new term to describe it: you "propertynamed" me. You "patriarchnamed" me.

Worst I've ever done is smile and tell people that the choices were to change my state (I moved to be with my husband) or my name, and if it's really important to them that my name be changed, we'll move back to Boston. Shuts 'em right up.

On that vein, the 'deadnamed' trans people need to develop a sense of humour. "I got my junk cut off. In your experience, do people named 'Bruce' usually lack a set?"

But that doesn't happen; what happens is a really nasty term is applied to people who use someone's former name. Why?

[Dilan Esper]

Because the premise of your argument- a married woman changing her name is like a trans woman transitioning- is false for that reason as well. Married women changing their names is not nearly as common as it once was, whereas large numbers of trans people change their name when they transition.

[Dilan Esper]

Likewise, but the problem is that the pro-trans people use the term “deadnaming” to describe someone who calls a trans person by his/her birth name. No other issue surrounding preferred names (nicknames, maiden names used professionally, married names but ‘nee,’ name changes, even misspellings of names) elicits this reaction.

Well, maybe because, for instance, people don't go around telling married women "you're not really married, you're actually single". People don't go around telling Muslims "you're not really Muslim".

You are pretending you don't understand something you actually understand perfectly, in order to adopt a cover story for bigotry. It's sad, Theobrom.

[Dilan Esper]

On that vein, the ‘deadnamed’ trans people need to develop a sense of humour.

Theobrom, check your privilege. Trans people face massive discrimination because of their identities. You don't.

[LawTalkingGuy]

Mad,

The issue is that even if there is objective truth, you lack the qualifications to determine it as to this issue. You will only ever have your feelings. And you need to admit that.

[David Nieporent]

See my response to Brett. What you believe to be a lie is based on your feelings. That’s it. If I am wrong, point me to your co-authored studies that show otherwise. The truth you believe to be telling comes from your gut. But gut feelings are not a basis to be rude to someone.

Why would one need to point to a study? If I say that rain consists of water falling from the sky, is that just based on my feelings unless I have an advanced degree in meteorology?

[Dilan Esper]

I believe biology is a thing.

Biology may be a thing, and believe it or not, it may not even be quite as cut and dried as some trans activists want it to be.

The problem is THAT DOESN'T MATTER WHEN IT COMES TO NAMES AND PRONOUNS.

When you call a trans female "he" or use a deadname, you aren't making an argument about biology. You are just being a jerk.