No Hillary Clinton pardon

[mgray]

I wonder here in a blog post (http://wp.me/ppklu-P2) if in the final hours of the Obama Administration will Hillary get a get out of jail free card or is the animosity between Obama and Clinton too much?

[Frankie Pancakes]

Couple of interesting articles relating with two different views.

http://www.slate.com/articles/news_and_politics/explainer/2008/07/preemptive_presidential_pardons.html?GT1=38001

Pre-emptive Presidential Pardons
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Can you be pardoned for a crime before you're ever charged?

By Jacob Leibenluft
With six months to go before President Bush leaves office, the White House is receiving a flurry of pardon applications. The New York Times reported that "several members of the conservative legal community" are pushing for the White House to grant pre-emptive pardons for officials involved in counterterrorism programs. Wait—can a president really pardon someone who hasn't even been charged with a crime?

Yep. In 1866, the Supreme Court ruled in Ex parte Garland that the pardon power "extends to every offence known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken, or during their pendency, or after conviction and judgment." (In that case, a former Confederate senator successfully petitioned the court to uphold a pardon that prevented him from being disbarred.) Generally speaking, once an act has been committed, the president can issue a pardon at any time—regardless of whether charges have even been filed.

As the Explainer has pointed out before, there aren't many limits to the president's pardon power, at least when it comes to criminal prosecutions under federal law. The president's clemency power has its origins in the practices of the English monarchy, and as a result, the Supreme Court has given the president wide leeway under Article II, Section 2 of the Constitution. There are some exceptions: The chief executive can't pardon someone for a violation of state law or nullify a civil ruling, and his power doesn't extend to convictions handed down in an impeachment proceeding. (It's also not clear whether the president can pardon himself for future convictions.)

While pre-emptive pardons remain very rare, there are a few notable exceptions. Perhaps the most famous presidential pardon of all time occurred before any charges were filed. Gerald Ford's pardon of Richard Nixon absolved the former president of "all offenses against the United States which he … has committed or may have committed or taken part in" between the date of his inauguration in 1969 and his resignation in August 1974. In other cases, presidents have pardoned individuals after criminal proceedings have begun but before a judgment has been handed down. In late 1992, less than a month before leaving office, President George H.W. Bush pardoned former Defense Secretary Caspar Weinberger, who had been indicted earlier that year on perjury charges surrounding the Iran-Contra affair. (A lawyer for Roger Clemens' former trainer Brian McNamee claimed the pitcher might receive a similar pardon from Bush if he were ever indicted.) In addition, broad presidential amnesties—like the one President Carter issued to those who had avoided the draft during the Vietnam War—are essentially pre-emptive pardons issued to a large group of individuals.

If someone hasn't yet been charged with a crime, how does the president know what to pardon them for? As in Nixon's case, President Bush could issue a pardon that applies generally to any crimes that may have been committed within a certain range of dates. More likely, a pardon could apply only to actions surrounding a single policy or place—say, the detention or interrogation of suspected al-Qaida members.

Can the President pardon people who haven’t been convicted?
Jacob Leibenluft, in his article in Slate, has missed an important point. To understand the pardon power, we need to examine just what is happening when an executive with pardon power grants a pardon. What he is saying, essentially, is “I won’t enforce a sentence against x for y, and I bind my successors not to do so as well.”

Where the question gets interesting is when we ask if he can grant a pardon for a conviction that has not yet occurred, or prevent a trial from being held. From my historical research, and despite Ex parte Garland, I find the answer to both is no. A pardon has to specify a sentence as well as the defendant, and that can’t be known before conviction. Granting a pardon to someone for anything he might be convicted of, in advance of such conviction, is in conflict with the constitutional prohibition against granting titles of nobility, and exempting someone from prosecution for anything at all is making that person a noble, even if it comes only with a title of “he who is above the law”. Leaving aside the obvious likelihood that the Court in Ex parte Garland was corrupt, this point was not argued before the Court and therefore the precedent does not cover it.

Even if we ignore the problem of conflict with the title of nobility prohibition, it cannot be logically inferred from the pardon power that a pardon can prevent prosecution. The president may refuse to carry out a sentence but he has no power to prevent a charge from being filed, an indictment obtained, and the court from trying the accused. The court might be reluctant to do so if the sentence won’t be imposed, but a trial serves many purposes besides executable conviction, one of the most important of which is to bring out the truth, and it may be important to proceed with trial even if the conviction won’t be executed.

There is also an issue of whether a president can bind his successors not to enforce a conviction. That is an implied power of a monarch, but not of a president. My finding is that the pardon power of the president is not the power to bind his successors.

http://www.constitution.org

[sheme]

If she goes down he goes down, simple.

[PurpleLama]

Still over a day to go....

A preemptive pardon would be tantamount to an admission of her guilt, a very sticky political decision either way it goes.

[A Voice from the Mountains]

I just learned yesterday that presidents can actually revoke pardons.

Ulysses Grant rescinded pardons granted by President Johnson. It was taken before the Supreme Court and the justices ruled that Grant, as sitting president, was perfectly within his constitutional powers.

Just saying. :)

[turiya]

For Obama to issue a pardon to Hillary it would be an admission by the State - United States - that she had committed a crime... It would be total hypocrisy, as the DOJ had not found her guilty of any wrong doing. And we should all know by now how Obama feels about his Legacy... So, I'd say no pardon coming from Obama for Hillary.

[Chester]

zero shot she's pardoned

[norman]

It would be interesting to know if they have discussed it and if so what plan they are going to bet on.

My guess is that Hillary still hopes there's nothing that can't be fixed with a bit of wet work.