Pardons

Another problem with self-pardons

A "self-pardon" might bring about exactly the prosecution it seeks to avoid.

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Jonathan Adler's post sets out some of the legal problems with a purported self-pardon by the President. (For more, see the arguments that Andrew Hyman laid out here.)

Those arguments make sense to me, but there's also a practical problem involved. An attempt at self-pardon might also be self-defeating: it might encourage precisely the federal prosecution it's intended to prevent.

Winning candidates usually don't try to jail the losers. That's for good reason: you want the incumbents to leave office peacefully, and you want the challengers to seek office peacefully.

Many people objected to the chant of "Lock Her Up" in 2016. It wasn't because—or wasn't just because—they believed Secretary Clinton to be factually innocent of any infraction of federal law whatsoever. It was also because a world in which elections determine who goes to prison is a world in which you can expect even more electoral mischief than we might see today.

Prosecuting former presidents is, in general, a bad precedent to set. That's one reason why it's important to deny the office to those whose conduct might force the issue. Whatever its virtues, the system of criminal law enforcement is not that great at handling crimes by those in high office. There's a good deal of discretion and rough-justice inherent in the system, and when high officers are in the crosshairs, that can reallocate political power to the wrong people. (Cf. why J. Edgar Hoover was bad.)

Normally, the real checks on presidential lawbreaking aren't criminal prosecutions and prison sentences. Rather, a presidential lawbreaker will face election losses, damage to their political party, and the undermining of a broader policy agenda. (Which is another reason why it's important to deny the office to those who are relatively indifferent to such things.)

An attempted self-pardon, though, threatens to set precedent in the other direction. If future Presidents think they can get away with it, they might try all sorts of unusual things while in office, secure in their ability to self-pardon before they leave.

So, if President Trump claims to issue himself a pardon, the Department of Justice in a Biden Administration might see the balance as pointing the other way. They might see it as crucial to restore a consensus that such pardons are invalid. And the only effective way to do that, once a President has challenged the consensus publicly, would be to bring such a prosecution and to have the pardon tested in court.

In other words, an attempt by President Trump to grant a pardon to himself could well result in the very prosecution that the Biden DoJ might otherwise forgo.

(It's yet another way in which the current administration can be both a symptom of the decay of crucial norms of behavior, and a cause of further such decay.)

NEXT: Poetry Tuesday!: "God's Grandeur" by Gerard Manley Hopkins

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  1. OK, Stephen. Those are your feelings.

    What language in the constitution prohibits self pardons, except to overturn an impeachment by the Senate? The constitution is written at the level of a high school reader. It is not hard to read.

    1. Article II gives the president the power “to grant Reprieves and Pardons.” Can a person “grant” something to himself?

      1. Governors have pardoned themselves, without courts opining one way or the other. Why not the President?

        As for the verb, it’s common enough in fiction to grant oneself things, usually in the form of of intangible things, but not always. “One for me, one for you.”

      2. Yes. Obviously.

        Kings have always granted themselves medals and titles.

        Even in the US, Governors have granted themselves pardons.

        1. Yes, Governors (and mayors too) have pardoned themselves, but none of those pardons ever been adjudicated in a court of law so it’s not exactly precedent.

          I can’t imagine anyone arguing with a straight face that the writers of the US constitution intended to allow the president carte blanche to commit crimes and then pardon himself and everyone else involved.

          But I can’t see anyone’s face here, so who knows? And if you’re about to make the argument that presidents can pardon themselves, please substitute “President Clinton” for “President Trump” and see if it changes your opinion.

      3. I answered the “grant” argument, which is stupid, in the other thread. Of course you can grant stuff to yourself- as long as you are in different capacities. For instance, a rich individual can make a grant to her charitalble foundation. A person can make a grant to their sole-member corporation or business entity.

        And the President in his capacity can grant a pardon to the civilian who happens to occupy the office, in his personal capacity.

        And in any event, this has to be so, because the alternative is that the President simply pardons the Vice President, resigns, and then gets pardoned by the Veep as acting President. At some level, the Constitution allows a self pardon.

        1. No, that’s stupid. One’s foundation is not oneself in a “different capacity.” It’s a separate legal entity entirely. Nobody doubts that Trump could pardon the Trump Foundation. The issue is whether he can pardon himself.

          And the President in his capacity can grant a pardon to the civilian who happens to occupy the office, in his personal capacity.

          Ipse dixit is not an argument.

          And in any event, this has to be so, because the alternative is that the President simply pardons the Vice President, resigns, and then gets pardoned by the Veep as acting President.

          What has to be so? That a former president can be pardoned by the new president (we settled the question of whether a veep who fills a presidential vacancy is “acting president” or president almost 200 years ago) has absolutely no bearing on whether a current president can be pardoned by himself.

          1. The fact that POTUS and VPOTUS can agree to pardon each other (and they clearly can) argues against reading in a restriction, not required by the text, against self pardons. Because it would be meaningless.

            And if “grant” really prohibited a self pardon, some framer would have said so. The President is an office, not just an individual. This is why he has personal lawyers separate from the White House Counsel. It’s why suing POTUS in his official capacity is barred by sovereign immunity and suing him in his personal capacity isn’t. The office grants the individual a pardon.

            1. The fact that POTUS and VPOTUS can agree to pardon each other (and they clearly can)

              Can they? “I’ll pardon you if you pardon me” sounds like a bribe to me. (To be clear, in such a case I think the pardon would be enforceable but also criminal.)

              But I reject your reasoning anyway; “you can achieve result X by doing A, so therefore getting to the same place by doing B must be permissible” is not valid.

              And if “grant” really prohibited a self pardon, some framer would have said so.

              Unless they thought it was self-evident. They did discuss potential misuses of the pardon power, so it’s not like they didn’t think there was such a thing. So their failure to discuss this particular possibility implies that they thought it was either perfectly acceptable or obviously unthinkable.

              1. On one, you conceded my point and misstated my argument. My argument is you shouldn’t be trying hard to find BS linguistic technicalities to insert your policy preferences into the Constitution if they are easily circumvented anyway.

                And no, the framers didn’t think it was self evident. That’s the last refuge of “I have zero support for my position.”

                1. I wouldn’t call requiring two corrupt people cooperating as being “easily” circumvented. And I don’t know why you are so frantic to interpret something in such a way as to make permissible something nobody thinks is legitimate. I mean, if one were an extreme textualist, far stricter than self-proclaimed strict constructionists, I guess I could see picking that hill to die on. But that’s not the category you fall in, so why are you being so obstinate about it in support of an absurd position?

                  And no, the framers didn’t think it was self evident. That’s the last refuge of “I have zero support for my position.”

                  Again, they discussed misuse of the pardon power. But they never discussed this particular possibility. So either they didn’t see anything wrong with it, or they thought it was so obvious that it wasn’t permissible that they didn’t need to discuss it. Which is more plausible?

              2. “Can they? “I’ll pardon you if you pardon me” sounds like a bribe to me. (To be clear, in such a case I think the pardon would be enforceable but also criminal.)”

                That’s a good question: President X can certainly give me $10,000 of his own money. There’s no law against that.

                But if he gives me $10,000 to, say, break in to the Watergate Hotel and steal something, he’s conspiring to commit a crime which is illegal the last time I looked.

                IANAL, so I’m not sure whether I would be able to keep the money or not, but that question is orthogonal to whether he’s guilty of conspiracy. Seems like the same reasoning would apply regardless of whether the remuneration was in the form of cash, a pardon, or a herd of goats.

    2. And the Constitution was written by men with a memory of both what happened when Cromwell came to power and then when he was removed — including the Danvers (not Salem) Witch Trials of 1692 which came out of that, in part.

      Imagine if Trump can’t pardon himself — and instead takes a few Divisions that are loyal to him. That very quickly becomes a shooting civil war — and it’s far better than one guilty man go free…

      1. Ed,
        I assume you intended to write “…far better THAT one guilty man go free.”, yes? Otherwise, your last sentence seems to conflict with everything else that you wrote prior to that.

      2. Dr. Ed 2 : “Imagine if Trump can’t pardon himself — and instead takes a few Divisions that are loyal to him”

        Divisions of what? The Michigan Militia ?!? Trump is already starting to shed cultists like a Siberian husky his fur in the heat of August. Everyone just wants this buffoon GONE.

        Now I sense we’re close here to a secret fantasy very special to Dr. Ed. I’d advise he keep it private and spare us all the lurid details. It’s looking more & more likely Trump is less interested in phantom divisions than the $170 million (and counting) that he’s fleeced from dupes, rubes, dimwits, lackbrains and the all-too easily conned. It’s for Trump’s “Election Defense Fund” (read slush fund). Who knows, maybe Dr. Ed has made his contribution? To buy toy swords for all those pretend troops…..

        1. There’s nothing secret about Ed’s frequent wishcasts of another civil war.

      3. When do you think the constitution was written, exactly?

  2. Well, nobody has prosecuted an ex-president (to my knowledge), but why would that restrict a “president” who stole and election through fraud?

    1. Darth, what Trump ought to do is pardon both himself and Hillary, with a provision that if either pardon is ruled invalid or unconstitutional, both are invalidated.

      Then he has a solid political case of “we don’t prosecute former Presidents” — *and* a solid incentive for the left not to challenge his self-pardon.

      Trump could even issue a pardon stating that he is pardoning every living former POTUS and every immediate family member of such an individual — again with the “all or none” criteria.

      1. Silly. Scientists have yet to invent a machine sophisticated enough to measure the nanosecond between such an offer and Hillary’s refusal of, “Um, thanks, no. I did nothing criminal and I unambiguously reject any pardon or offer of a pardon.”

        If Trump wants to be sure, he should resign in his final week and have Pence pardon him. Pence clearly has the authority to do this, and that would be the end of the matter. (It would also be the end of Pence’s political career, so I don’t see it happening.)

        1. I don’t see Pence’s political career happening, but it’s understandable human nature if he’s the last one to know.

          1. Before Trump picked him to be VP, he was a Representative for 12 years, and a state Governor for 4. Then he spent 4 years as VP. Some people would view that as a “career”. And, in fact, a pretty good resume if you were going to run for President.

            Naturally, that doesn’t look good to Democrats, but I doubt he’d try for the Democratic nomination.

            1. No need to take umbrage at the most obvious of facts : Pence has next to zero chance of the presidency, which is the only career step available to him. (Has any Vice President of recent history gone back to the Senate?)

              As for your list, anyone one can play that game. Say you have a U.S. representative from 1977-1981, U.S. senator from 1981-1989, and Vice President from 1989-1993. That doesn’t mean Dan Quayle has any shot at POTUS.

              1. Hubert Humphrey served as vice president under President Lyndon Johnson, January 20, 1965 – January 20, 1969. He later served as senator from Minnesota, January 3, 1971 – January 13, 1978 (his death).

                Andrew Johnson served as vice president under President Abraham Lincoln, March 4, 1865 – April 15, 1865, and then as president upon the assassination of Lincoln, April 15, 1865 – March 4, 1869. He later served as senator from Tennessee, March 4, 1875 – July 31, 1875 (his death). He is the only former president to serve in the Senate.

                Hannibal Hamlin served as vice president under President Abraham Lincoln, March 4, 1861 – March 4, 1865 . He later served as senator from Maine, March 4, 1869 – March 3, 1881, and later as minister to Spain.

                John C. Beckenridge served as vice president under President James Buchanan, March 4, 1857 – March 4, 1861. He then served as senator from Kentucky, March 4, 1861 – December 4, 1861, and was expelled after joining the Confederate Army.

                John C. Calhoun served as vice president under President John Quincy Adams, March 4, 1825 – December 28, 1832 (resignation). He then served as senator from South Carolina, December 29, 1832 – March 3, 1843, and again November 26, 1845 – March 31, 1850.

                Other vice presidents have gone on to public offices other than, of course, president. Levi P. Morton served as vice president, March 4, 1889 – March 4, 1893, under President Benjamin Harrison. He then served as governor of New York, January 1, 1895 – December 31, 1896.

                So, no former vice president has been elected to the Senate since November 1970. But then, no former vice president has been a candidate for Senate since then, either. If Pence runs, presumably in Indiana, it’s up to the voters to decide. Todd Young (R-IN) is up for reelection in 2022. Mike Braun (R-IN) is up for reelection in 2024. There might not be any opportunities for Pence to run for U.S. senate in Indiana without challenging a Republican incumbent for some time to come. Of course, like former First Lady Hillary Clinton and former Massachusetts governor Mitt Romney, he could run for Senate from a different state.

                1. Thanks! I’m actually surprised there’s an example as recent as Humphrey. There’s certainly no reason a veep should look at that option. Whatever the limitations of being a Senator, the job is clearly more important than a bucket of warm spit.

                  1. “shouldn’t for “should” (I wish we had an edit function)

                2. So, no former vice president has been elected to the Senate since November 1970. But then, no former vice president has been a candidate for Senate since then, either.

                  Not correct. Walter Mondale ran for senate in 2002. (He was the pinch hitter after Paul Wellstone died in a plane crash.)

                  1. Thanks, David, for the correction!

  3. “(It’s yet another way in which the current administration can be both a symptom of the decay of crucial norms of behavior, and a cause of further such decay.)”

    I still remember, it was a long, long time ago (VC before they went disqus, back when they had the OG, non-threaded commenting system) having a conversation about norms. And how important norms are for governance, and the law, and society. This was also around the time when ‘constitutional hardball’ was a big topic of conversation.

    And Matthew Slyfield rubbished the idea- basically stating that if it’s not against the letter of the law, who cares. Norms are for losers.

    I keep thinking back to that, because it pretty much encapsulates all the problems we are having today. Human systems don’t work without norms. In fact, the legal system isn’t what we need, it’s the last resort in all cases.

    But so few people care anymore.

    1. The difficulty with “norms” is when they are constructed specially for a current purpose.

      Norms are more plausible if they can be shown to have solid precedent.

      I’m inclined to prefer rules to norms. I agree that where the rules underspecify good and bad behavior, a norm is better than nothing. But once a norm is well enough known and understood to be suitably normy, why not just convert it to a rule, to remove the temptation to defect ?

      1. A few years ago, when the Republicans still controlled Congress, I was saying that they should propose an amendment to fix the size of the Court at 9. They had the leverage back then, there were several things they could have done if the Democrats had refused to go along with it. And gotten away with doing them, because that would have demonstrated the Democrats’ intent to pack the Court, too!

        But those two years were pretty disappointing all around.

        1. Before Barrett after Garland there was no “Democrats’ intent to pack the Court”. It didn’t even move the needle a twitch.

          But you already know that, don’t you?

          1. “Before Barrett after Garland there was no “Democrats’ intent to pack the Court””

            GRB, You’re wildly incorrect here. Even in this blog we’ve had the “blessed reverend” screaming to pack the court add two more states, etc.

            1. I have an expansive regard for the Reverend, but submit he doesn’t reflect the mainstream of the Democratic Party, particularly at the highest levels were policy is set. There I’m right (as a matter of historical fact) & you’re wildly incorrect.

              1. In line with the QAnon-level reasoning that permeates this blog, and the level of evidentiary precision that inspires most the recent commentary in these parts, who is to say that I am not merely the Rev. Kirkland but instead the actual deviser, implementer, and controller of all liberal, libertarian, Democratic, and mainstream activity in America?

                Perhaps I am not the “blessed reverend.” Perhaps I am the one who blesses.

                1. Until you learn to clean yourself such that the stench of cat urine doesn’t precede your presence by yards, perhaps bestowing a blessing should be left to those whose odor does not empty each the seats next to you on the bus. Bathe, you horror!

          2. No, there were Democrats proposing it back in 2016, and even earlier. It was enough of a topic of conversation in 2017 that Ilya did a post attacking the idea.

            We knew it was a looming threat, and did nothing to stop it when we could have.

    2. This is true in the sense that a political unit such as a nation needs to have a broad common cultural ground with regard to its objectives and the ordering of society and government. Norms, being in this case an ordinary course of conduct that people conform to entirely voluntarily, are a manifestation of that common ground.

      Now in today’s reality, one might argue that there is no such common ground. And therefore we are left with “Human systems don’t work.” Accordingly, the political bands should be dissolved.

      Of course, ideally the “common ground” from which norms operate are not the common objective of a corrupt bipartisan establishment and a permanent bureaucratic state to enrich and benefit themselves at the expense of the American people. Such a common ground is quite sufficient to keep our government “working” like a well-oiled machine for a long time. But this gets to the issue of what it means for a system to “work,” i.e. for whom is it actually working.

  4. There’s no reason we would know about a self-pardon until someone tried a prosecution.

    1. I thought that all pardons were public. (It’s hard to imagine that Obama secretly pardoned Hillary, or Bush pardoned Cheney [etc etc] and were able to do so secretly. But that’s just my logic talking…I have no legal court rulings or federal laws to rely on in re this.)

      1. Certainly, I have never heard of a secret pardon.
        What sense would that make?

        1. Of course you wouldn’t hear of it, it would be a secret!

          No, you’re right, a silly idea. The most a President can do is secretly order the DOJ to not prosecute. Unlike a pardon, though, this has no binding force going forward.

        2. I didn’t see the invisible man today. I won’t see him again tomorrow.

  5. All that a rule against self-pardons would accomplish is to make sure that anyone who leaves the presidency under a cloud of accusations will try to do as Nixon did, and appoint someone who will pardon him afterwards.

    And I totally disagree that prosecuting ex-presidents sets a bad precedent. Because they’re all corrupt except Trump (proven by the fact that he lost money while in office), and our existing precedent of always letting them get away with it just means that no honest person will dare to run for office again, lest he become the target of one colossal smear campaign after another for his entire term in office, all for the real purpose of preventing news of the real corruption of his opponents from ever seeing the light of day much less being prosecuted. That is what has happened to Trump, and if the perps get away with it they’ll never stop doing it.

    All the major media need to go on trial as accomplices too.

    A representative republic simply cannot continue if the candidates and parties are not mostly honest. And the Democrats have shown they are not.

    1. “Because they’re all corrupt except Trump (proven by the fact that he lost money while in office)…”

      Cannot one be both corrupt and lack business success at the same time?

      1. Come on Gasman, give the guy some props. We got a late entry into the “Dumbest comment on the internet in 2020” sweepstakes. Breathtaking stupidity should be congratulated, not dissed.

      2. Gasman : Cannot one be both corrupt and lack business success at the same time?

        If only we could come up with an example of such an odd bird. Say someone who lost more money than anyone else in America between 1985-1994, but still managed to launch a crude huckster con like the Trump Foundation.

        There’s a name on the tip of my tongue but I just can’t remember…..

    2. “will try to do as Nixon did, and appoint someone who will pardon him afterwards.”

      Wonder what Pence would do if Trump tried this gambit. My bet is he would say, so sorry, I am not selling out the office for your vanity.

  6. “It’s yet another way in which the current administration can be both a symptom of the decay of crucial norms of behavior, and a cause of further such decay.”

    It’s a way the current administration could end up being such, if Trump actually pardoned himself. He hasn’t done it yet, so far it’s just one more example of people who don’t like Trump suggesting he might do something bad, and then pointing to their suspicion as a basis for not liking him.

    1. Trump has given people who don’t like him many reasons for not liking him. The fact that he raised the possibility of pardoning himself is just one of dozens (hundreds?).

      1. If he’d given them so many reasons for not liking him, they wouldn’t have to fantasize so many reasons.

        1. This isn’t a fantasy.

          “I have the absolute right to pardon myself.'” – Donald Trump, January 2018.

          https://www.businessinsider.com/trump-pardon-himself-mueller-unconstitutional-2018-6

  7. *Schoolyard bully grabbing your arm and making you hit youself”

    Stop hitting yourself.

    Politics.

    1. Politics is the art of saying “Nice doggy” while reaching for a big stick.

  8. Agree with all the points. And even if self-pardons are valid, I suspect the public would be so incensed, it would motivate state prosecutors to look for crimes to prosecute.

    1. The public is already incensed, at least those capable of that emotion re: Trump. I don’t know that it would move the needle one bit. Meanwhile his cult^H^H^H^Hsupporters would give him a standing ovation for showing such bravery.

      Don’t believe me? Scroll up and read the comments.

  9. Yes, I made this exact point one or two days ago. Glad to see that you’ve continued the conversation . . . Trump can ensure an (attempted) federal prosecution from a Biden administration by trying to self pardon.

    I guess we’ll see what happens when it happens.

  10. Nice victim blaming you got there.

  11. “the Department of Justice in a Biden Administration might see the balance as pointing the other way. They might see it as crucial to restore a consensus that such pardons are invalid.”

    There is no such consensus to restore. Wishful thinking is not a legitimate consensus.

  12. Who believes Hillary is factually innocent? Even Comey said she technically didn’t obey the law in her handling of classified documents. She was let off on a good enough for a swamp-dweller standard that other non-Clintons and non-swamp-dwellers don’t have available.

    “Lock her up” is just talk. She didn’t get locked up. She got a pass. Stop playing the victim. It’s false.

    Meanwhile, the plans to punish Trump for [a crime to be determined later] are truly Marxist-dictator-type thinking.

    1. Ben_ : Who believes Hillary is factually innocent? Even Comey said she technically didn’t obey the law in her handling of classified documents.

      Sigh. So much ignorance. First, guilty of what? There was nothing illegal in using private email, as witnessed by both her immediate predecessors. So you move on to sending classified messages improperly, but that doesn’t wash either. Every email in question was considered unclassified by the sender before being upgraded by a later review – something I bet happens thousands of times each year in the federal behemoth.

      It also happened hundreds of times to Clinton’s two predecessors, but let’s consider another problem. Except for three or four emails, every message (later reclassified) was sent by a third party to Clinton — usually by .gov State Department email. But that system is no different in the eyes of the law (on classified traffic) than Clinton’s server or Colin Powell’s AOL account.

      So per Ben_’s ignorant opinion, every person in each message train should have been hauled off to jail. That tally of hundreds of people must be joined by the zillions of other government employees who also misjudged the government’s byzantine classification system, Condoleezza Rice and Colin Powell included.

      There was never a snowball’s chance in Hell Clinton would be charged, because nobody not-named-Clinton has been charged for anything similar. Now obviously Ben_ is just repeating what his handlers tell him (as always), but we should cut him some slack.

      After all, Comey did make a spectacle of haranguing Clinton, snowball notwithstanding. This was because of two things : (1) Political positioning for himself & the FBI. (2) Because the hypocrite prick is narcissist enough to believe anything he wants to do is inherently righteous, however murky his motives.

      1. She doesn’t need you to be her defense attorney. She got a pass.

        Setting up your own email server so you can do off-books communication and hide official government documents from everyone isn’t something a factually innocent person does though.

        1. She’s lucky to have you as her prosecutor, since you lack any knowledge of the facts & just ain’t got a frigg’n clue. Let’s take a look at this new response of yours – which abandons your old line of argument – (which I demolished)

          Sorry, but your luck isn’t getting any better. Go dig up Comey’s harangue (which you relied on so much in your first shtick) and you find this:

          “I should add here that we found no evidence that any of the additional work-related e-mails were intentionally deleted in an effort to conceal them. Our assessment is that, like many e-mail users, Secretary Clinton periodically deleted e-mails or e-mails were purged from the system when devices were changed. Because she was not using a government account—or even a commercial account like Gmail—there was no archiving at all of her e-mails, so it is not surprising that we discovered e-mails that were not on Secretary Clinton’s system in 2014, when she produced the 30,000 e-mails to the State Department”

          It just isn’t your day, is it?

          1. Right, and that’s Comey describing crimes she committed.

            Didn’t set it up to back up to the government archive.
            Deleted work related emails after leaving office, instead of handing them over.
            Server wiped while under a preservation order.
            And communicated classified information over her unsecured email, which happens to be a strict liability offense, so that she didn’t “intend” to leak anything is irrelevant.

            1. Hillary was only extremely careless in her handling of classified information. The law requires gross negligence. So totally not a crime.

              1. Heh. Yeah, that was Strzok’s work. The original version of Comey’s statement said “grossly negligent”, then they realized that was the exact language the statute used, so they changed it.

            2. Brett Bellmore : Right, and that’s Comey describing crimes she committed.

              This is what happens when you combine (1) ignorance of the facts, (2) the shortest term memory, and (3) advanced partisan hackery. I wonder if Brett knows his list of “crimes” would have put Colin Powell in prison just as quick as Hillary. A greater percentage of Powell’s official messages were lost than hers.

              And does anyone recall the George W. Bush Email Scandal? (I thought not). W set up an entire independent communication system in the White House for back-channel messages. An estimated five million official emails were lost. This resulted in about two weeks of news stories and was quickly forgotten.

              People who claim Clinton avoided prison because of deep state machinations are full of it – to a black-is-white/up-is-down degree. Her record of turning over email to the National Archives was no worse than her immediate predecessors (if not better). Her mistakes misjudging the classification status of messages were their mistakes too. But they were rarely her mistake anyway:

              As I noted above, over 99.9% percent of the emails involved weren’t Clinton communicating “classified information over her unsecured email” but her receiving (later retroactively) classified messages sent by somebody else over their “unsecured email”. Thus per Brett, hundreds of people involved – both sending & receiving – should have gone to prison. This just shows Brett knows zilch on the subject he rants about.

              Need further proof? Brett says “that she didn’t “intend” to leak anything is irrelevant” That’s one-hundred-percent factually wrong; intent is the beginning & end of establishing criminality in these cases. The U.S. federal government would need to build new prisons by the dozens if it wasn’t.

              Let me repeat this slowly so it might sink in : No person not-named-Clinton is prosecuted for the mistakes Clinton made. Otherwise Condoleezza Rice, Colin Powell, and thousands of other .gov employees would be wearing stripes & breaking rocks.

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

  13. Too much of this reads as feelings about Trump, as if he is somehow different from all other politicians.

    “That’s one reason why it’s important to deny the office to those whose conduct might force the issue.”

    “(Which is another reason why it’s important to deny the office to those who are relatively indifferent to such things.)”

    “(It’s yet another way in which the current administration can be both a symptom of the decay of crucial norms of behavior, and a cause of further such decay.)”

    If the first two might be seen as generic and not directed at Trump specifically, the third leaves no doubt.

    Trump is rude and crude, lewd and loud. But in some ways he was also the most honest and transparent President in history. He had lots of bad policies, but as so many recent articles about Biden’s plans show, Biden’s policies have nothing to offer those who hated Trump’s policies. The only improvement to people who hated Trump is that Biden’s groping and shoulder massaging and hair sniffing are less grotesque than Trump’s tweets.

    This article is TDS in all its glory.

    1. And I’m thinking of three words: Lyndon Baynes Johnson.

      That man was truly corrupt…

      1. Yes, your historical knowledge is very impressive, other than not being able to spell the name of one of the most prominent presidents of the United States.

    2. Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf : “most honest and transparent President in history”

      Folks, this is your brain on Cult. After all, no praise is sufficent for Dear Leader….

    3. The man lied about the weather. More than once.

      1. So? A politician who lied only every other time he spoke would be the most honest politician in the history of the universe.

        Heck, a politician who forgot to lie just once in his life would be up there on the list of honest politicians.

  14. Trump has never been accused of a crime, beyond the hysterical rants of TDS.

    1. They want to decide the punishment first, then look for a suitable crime. Because they’re The Good Guys.

      1. Read Harvey Silverglates _Three Felonies a Day_.

  15. If my enemies were telling me that I would be unwise to pardon myself, I would be doubting that they had my best interests at heart.

  16. You have cultivated quite a collection of followers at this blog, Volokh Conspirators.

    I hope law school hiring committees have observed this because (1) it will prevent hirings of movement conservatives at strong schools and (2) it will ensure that lesser schools provide livelihoods for the Conspirators, none of whom I wish to see starve.

    1. Is all of this in your clinger “just world,” or in the real world?

    2. The Top Tier law schools are a toxic effluvia, poisoning our nation. All government privileges, subsidies and grants should be immediately stopped. Then, they should be shut down.

      Artie, I have never seen any sign in your comments that you attended a law school? Did you do so in the USA? You do not seem to know anything lawyer, that I have ever seen.

    3. Kirkland, has it ever occurred to you that the populist MAGA movement, which extends beyond Trump (and somewhat was started by Howard Dean) might just put those “strong schools” out of business via bar licensing requirements.

      Answer this: What law school did John Marshall attend?

      1. RAK has some out-there takes, but since he hasn’t had a complete break with reality, I am confident that no, it has not occurred to him.

    4. Wow, can you spew hate.

    5. Wash yourself and stop bathing in cat urine before they kick you out of the library.

  17. “Prosecuting former presidents is, in general, a bad precedent to set.”

    Yes, prosecute the little people and if they ask if ex-Presidents (and ex-candidates) will be punished for the same thing, just laugh because we all know the system is a joke.

  18. Very, very, poor reasoning. It is not a question of whether self-pardon is a good idea or not, of course it’s a bad idea. The problem is that the Constitution does not forbid it and therefore it is permitted.

    1. Of course, the correct question is whether the Constitution authorizes it, not whether the Constitution forbids it.

      And, yes, it’s trivial to observe that there’s no express, “The president may not pardon himself” language in there. If you think that’s the end of the inquiry, then you don’t really understand the difference between the constitution and a statute.

      1. The Constitution authorizes him to pardon, that’s your authorization right there. Absent some qualification, the power extends to anybody, including himself.

        You’re inventing a limitation with no textual basis at all.

        1. The question is whether the pardon power extends to self-pardoning.

          Don’t assume the answer.

        2. Yes, it’s a structural limitation, not a textual one.

    2. You misunderstood his point. He was not referring in general to whether self-pardon’s are a good idea. Rather, his point is that for the self-pardoner, the act will end up provoking the very thing he is trying to avoid. Sort of like the Barbara Streisand effect for suing for defamation.
      Perhaps if Trump self-pardons, we will have the Donald Trump effect.

      1. I understand that. I think he COULD pardon himself, but it would be a really stupid move, and extremely unlikely.

        1. I think he COULD … but it would be a really stupid move,

          So you’re saying that it’s 100% guaranteed he’ll do it.

  19. It appears that the only Governor who it can be proved pardoned himself for an actual offense was the Governor of a Territory[Washington]
    Gov Stevens

    the rest were jokes or rumors
    https://www.newsweek.com/trump-granting-himself-pardon-governors-641150

    Until trumpski calls on Putin to prevent his eviction, I don’t see anything he has done in office worthy of imprisonment

    He might pardon his past taxes though

    HE better pardon all his lackeys though, I can just see him on the stand trying to plead the 5th….

  20. The “self pardon” argument is a prime example of how far the crazy left to get Trump (or potentially get him). They will bend the law (and reality) to get there.

  21. The premise of this idea was already pointed out by a commenter last week.

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