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Old 06-04-2018, 09:09 AM
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Question Trump's Pardoning Himself Would Trash Constitution

Trump's Pardoning Himself Would Trash Constitution
By: Noah Feldman
RE: https://www.bloomberg.com/view/artic...h-constitution

Here’s some unsolicited advice for President Donald Trump: Don’t listen to any lawyers who might tell you that you can pardon yourself, or even that it’s a close legal question. You can’t -- and no court is going to rule otherwise.

There’s a decent historical argument about why, but it’s beside the point. The bottom line is that if the president could pardon himself, we would no longer have a republic -- nor a government of laws rather than men. We would be a dictatorship, not a democracy.

You know that. Americans know it. The Supreme Court knows it. Now let’s move on.

The very idea of self-pardon is the kind of silly technicality that non-lawyers think lawyers engage in all the time. I’m not going to offer a full-throated defense of the legal profession, but we’re not really that dumb or bad -- at least not usually.

The idea of the pardon power itself is old, going back at least to medieval England -- and the king. It is based, roughly speaking, on the idea that the king is in charge of administering the common law, and therefore has the authority to go around that law and issue a pardon or reprieve when it’s desirable to do so.

This made some sense in a system that wasn’t democratic and imposed the death penalty as punishment for all felonies, including relatively minor ones.

In theory, the justification could be mercy, that most Christian of virtues. In practice, kings sometimes issued pardons to political allies, or in exchange for compensation, or to get military conscripts.

As a result, as early as 1311 (you read that right), Parliament forced the king to promise that he would only pardon “by process of law and the custom of the realm.” The idea was to rein in the pardon power, making it into an instrument of law, not of arbitrary royal prerogative.

Given that worry about the anti-legal nature of the pardon power was already more than 450 years old when the Founding Fathers drafted the U.S. Constitution during the hot summer of 1787, it’s a bit surprising that the pardon power even made it in.

In Philadelphia, the more rights-oriented republicans, like George Mason of Virginia, questioned the whole idea of the pardon power. The more pro-executive participants, like Alexander Hamilton and James Wilson, managed to get it in, albeit without much debate. The idea was that pardons served mercy and could be expedient.

No one so much as hinted that the president could pardon himself. The king, after all, was above the law -- he would never have to pardon himself because he could never be brought before one of his own courts. The president wasn’t above the law.

At the North Carolina ratifying convention, the future Supreme Court justice James Iredell gave a lengthy defense of the need to have a merciful pardon power somewhere.

In the speech, Iredell pointed out that the president wouldn’t be able to pardon an impeachment. The clear implication was that if the president was himself impeached, he could then be criminally tried. Iredell also commented that it was highly unlikely that the president would treasonously pardon a traitor -- further reason to believe no one contemplated self-pardon.

But frankly, the history isn’t the point. The basic problem with self-pardon is that it would make a mockery of the very idea that the U.S. operates under the rule of law. A president who could self-pardon could violate literally any federal law with impunity, knowing that the only risk was removal from office by impeachment.

We have a name for an elected leader who is outside the law: dictator. And dictatorship is fundamentally inconsistent with the republic established by the Constitution. In fact, it’s a little difficult to think of any single idea that would more grossly violate the rule of law than a president free to break any and every law and then wave a get-out-of-jail-free card.

Of course, it’s true that no court has ever held that the president can’t pardon himself -- because no president has so outrageously tried to flout our basic constitutional principles.

We can thank God for that. But more immediately, we can thank a constitutional structure that is designed to limit the institutional power of any single branch of government.

And that’s why I can predict with complete confidence that no court would uphold a presidential self-pardon. To do so would be to render the courts essentially useless as checks on the executive, to say nothing of Congress, which passes the laws in the first place.

This isn’t a normal legal problem for courts to resolve by weighing plausible, competing arguments. It’s the whole ball of wax: the survival of constitutional government. The courts will treat it as such.

If the president uses the pardon power to end investigations against his cronies and protect himself, that’s a political problem that would call for a political solution, namely impeachment.

But if the president were to try to pardon himself, the courts would simply rule that the pardon was ineffectual. Once out of office, by impeachment or by the end of his term, the president would be subject to criminal charges.

It won’t come to that, I believe. The Republic isn’t about to turn into a dictatorship. To make sure things stay that way, no one should talk as though self-pardon is a realistic possibility. It isn’t -- not in a functioning democracy with the rule of law.
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O Almighty Lord God, who neither slumberest nor sleepest; Protect and assist, we beseech thee, all those who at home or abroad, by land, by sea, or in the air, are serving this country, that they, being armed with thy defence, may be preserved evermore in all perils; and being filled with wisdom and girded with strength, may do their duty to thy honour and glory; through Jesus Christ our Lord. Amen.

"IN GOD WE TRUST"
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Old 06-04-2018, 09:15 AM
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Arrow Pardon my foot in your mouth!

Trump’s Lawyers Say He Is the Law
By: Timothy L. O'Brain 6-4-18, 6:00 AM CDT
RE: https://www.bloomberg.com/view/artic...-he-is-the-law

On Saturday, the New York Times published two confidential memos President Donald Trump’s legal team sent to Special Counsel Robert Mueller last year and earlier this year. The memos argue, among other things, that one facet of the Justice Department’s investigation of Trump – whether the president tried to obstruct the probe itself – isn’t viable because the president has such broad constitutional authority to end the investigation or pardon those targeted by it that presidential obstruction simply can’t exist.

The first memo, written shortly after Mueller’s appointment, offers an almost unfettered view of some of the powers the nation’s chief law enforcement official enjoys:

“Put simply, the Constitution leaves no question that the President has exclusive authority over the ultimate conduct and disposition of all criminal investigations and over those executive branch officials responsible for conducting those investigations. Thus, as set forth more fully below, as a matter of law and common sense, the President cannot obstruct himself or subordinates acting on his behalf by simply exercising these inherent Constitutional powers.”

The second memo, written in January in response to Mueller’s request to interview Trump, put it more bluntly:

“The President’s actions here, by virtue of his position as the chief law enforcement officer, could neither constitutionally nor legally constitute obstruction because that would amount to him obstructing himself, and that he could, if he wished, terminate the inquiry, or even exercise his power to pardon if he so desired.”

On Sunday, one of Trump’s attorneys, Rudy Giuliani, made his rounds on the TV talk shows to elaborate on all of this. On NBC’s “Meet the Press,” he said that “it sure looks” like the president has the authority to stop Mueller’s probe and even pardon himself should he be found guilty of a federal crime. “Nothing limits the presidential pardon,” he allowed.

Not that Trump would ever go there, of course. “The president of the United States pardoning himself would just be unthinkable,” said Giuliani. “And it would lead to probably an immediate impeachment.”

Positing that the president might reside beyond the reach of federal law was so unthinkable that Giuliani also brought it up on ABC’s “This Week.”

“He has no intention of pardoning himself," said Giuliani. Still, it is a “really interesting constitutional argument: ‘Can the president pardon himself?’”

It sure is interesting. The president’s lawyers and allies are asserting that he is endowed with such bounteous constitutional powers that he can ultimately swing a scythe across law enforcement institutions that might constrain or restrain him – if the president so chooses, but which Giuliani assures us he would never choose to do.

Why put that argument out there? Well, Trump’s lawyers appear to be uncomfortable with the prospect of Mueller issuing a subpoena that would force the president to testify about possible obstruction. They argue in the second, much lengthier memo that the president and others have already turned over copious amounts of information to investigators, including information that executive privilege otherwise might have allowed them to withhold. All of that information, shared in the interest of transparency and cooperation, would make Trump’s testimony redundant and thus unnecessary, they also argue.

Mueller, however, wants to discern what the president’s intentions were when, for example, he fired his former director of the Federal Bureau of Investigation, James Comey. The president’s own testimony offers a window onto “intent” – and possible knowledge of wrongdoing – that’s central to criminal prosecutions and which documents and testimony from other people won’t fully establish.

That’s what makes a brief but telling section at the very end of the second memo that Trump’s lawyers sent to Mueller so interesting.

In that section, the lawyers address a New York Times article from last July disclosing that the president’s son, Donald Trump Jr., and other campaign advisers met with a Russian lawyer linked to the Kremlin during the 2016 presidential campaign to discuss potentially damaging information about Trump’s opponent, Hillary Clinton. Trump’s attorneys also advise Mueller that he has “received all of the notes, communications and testimony indicating that the President dictated a short but accurate response to the New York Times article on behalf of his son, Donald Trump, Jr.”

The problem with that description is that for the better part of the last year, the White House has claimed repeatedly that the president didn’t write the statement (which said that Donald Jr., met with the Russians to discuss Russia’s policies on adoptions and made no mention of whether the presidential campaign was discussed).

On ABC on Sunday, Giuliani said that one of the president’s attorneys, Jay Sekulow, made a “mistake” last summer when he said Trump had nothing to do with Donald Jr.’s statement. Giuliani didn’t address the fact that Sarah Sanders, the White House press secretary, also claimed the president wasn’t involved. Giuliani also didn’t account for why a number of other Trump aides last year disputed a Washington Post article reporting that Trump had “dictated” Donald Jr.’s statement.

Now that Trump’s attorneys have asserted themselves that the president dictated the response to the Times, some legal experts are focusing on the significance of that revelation. Jed Shugerman, a professor at Fordham University School of Law, took to Twitter to note that the “stunning admission” amounts to “felony obstruction” and “witness tampering.”

Wouldn’t Mueller want to talk to the president about all of that? Of course he would. And wouldn’t whatever “notes, communications and testimony” that the White House has turned over about this event be not quite the same as sitting the president down to ask him in person what was on his mind – what his intent was – when he dictated that letter? Of course they wouldn’t.

The memos leaked to the Times amount to warnings directed at Mueller and his investigative team. Trump’s lawyers have put the Justice Department on notice about how they interpret the full powers of the executive branch, an interpretation that might have to be tested, ultimately, before the Supreme Court. Leaking the memos also pulls the public into the debate, a debate that eventually will force citizens, voters and politicians to decide whether they favor an unfettered and fulsome presidency that takes flight at the expense of the rule of law.

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Personal note: if he's not guilty what's the big deal - this could have been resolved months ago if he would have just met with Muller. I don't like this type of politics and being so public for the world to see is a real embarrassment. This is not what I expected from this President or his cabinet. Clean up your act guys as the world is watching and take more cold showers and zip your tongue! Best advise I can give to someone out of control!

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O Almighty Lord God, who neither slumberest nor sleepest; Protect and assist, we beseech thee, all those who at home or abroad, by land, by sea, or in the air, are serving this country, that they, being armed with thy defence, may be preserved evermore in all perils; and being filled with wisdom and girded with strength, may do their duty to thy honour and glory; through Jesus Christ our Lord. Amen.

"IN GOD WE TRUST"
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