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Impeachable Offenses?

~ Examining the Case for Removal of the 45th President of the United States

Impeachable Offenses?

Tag Archives: pardon

Can Trump pardon himself? And other questions about misuse of the pardon power

15 Sunday Nov 2020

Posted by impeachableoffenses in Uncategorized

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abuse of pardon power, pardon, pardon power, Pardons and Fifth Amendment, self-pardon, Twenty-fifth Amendment

By Frank Bowman

In anticipation both that Mr. Trump would lose the recent election and that, on his way out the door, he would issue a spate of pardons, perhaps to himself, and certainly to others, I’ve been researching the issues presented by such a pardon spree. The results are now in an article: “Presidential Pardons and the Problem of Impunity,” which is available at this link.

In summary, I conclude that:

A President cannot constitutionally pardon himself, though the point is untested.  In theory, a President could resign, or under the Twenty-fifth Amendment withdraw temporarily from the office, transform the Vice President into the President or Acting President, and secure a pardon from the his former subordinate. But that seems improbable.

A President can pardon anyone but himself (both humans and corporations), and those pardons, once issued, are almost certainly unchallengeable and irrevocable. A presidential pardon can cover any (and perhaps all) federal crimes the beneficiary has ever committed, so long as such crimes occurred and were completed prior to the issuance of the pardon. A president cannot pardon crimes that have not yet been committed.  Consequently, a pardon issued corruptly might itself constitute a crime that could not be pardoned.

The pardon power does not extend to state crimes or to any civil or administrative action brought by federal or state authorities. A presidential pardon cannot block congressional investigations.  Finally, because a pardon effectively erases the Fifth Amendment privilege as to offenses covered by the pardon, it might make it easier for criminal and civil investigative authorities and Congress to compel testimony from the person pardoned.

Therefore, presidential pardons could inconvenience, but could not prevent, thorough investigations of the private and public actions of a former President or his associates.  The Article concludes by recommending a thorough, but judicious, use of available investigative avenues to inquire into well-founded allegations of wrongful behavior by former presidents and their personal and political associates.

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The Black Pardon

16 Thursday May 2019

Posted by crosbysamuel in Uncategorized

≈ 2 Comments

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Arpaio, canada, Conrad Black, Constitutional, conviction, D'Souza, donald trump, fraud, impeach, Impeachment, Mikaela Colby, Obstruction of Justice, pardon, pardon power, Paul F. Eckstein, president, trump

President Trump has pardoned Conrad Black of convictions for fraud and obstruction of justice from 2007. Black is a friend of Trump’s and a vocal supporter; he published a book entitled ‘Donald J. Trump: A President Like No Other’ last year. Black spent 3 years in prison as a result of his conviction and was banned from the United States for 30 years. This is the latest in a series of politically questionable pardons; readers will recall the Arpaio and D’Souza pardons. But the questions remains: when does a non-kosher pardon become an abuse of pardon power?

Paul F. Eckstein and Mikaela Colby tackle this question in their article entitled ‘Presidential Pardon Power: Are There Limits and, if Not, Should There Be?‘ published in the Arizona Law Journal. In that article the authors examine the history of the pardon power, its constitutional limits, and what remedies may exist for its abuse. They ultimately conclude that new limitations need to be introduced.

black.jpgDarren Calabrese / THE CANADIAN PRESS

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Trump and Pardon Power

12 Friday Apr 2019

Posted by crosbysamuel in Articles, Uncategorized

≈ 2 Comments

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constitution, donald trump, impeach, impeachable, Impeachment, Joe Arpaio, pardon, pardon power, Pepperdine, president, Sheriff, Tyler Brown

Tyler Brown’s article, “The Court Can’t Even Handle Me Right Now: The Arpaio Pardon and Its Effect on the Scope of Presidential Pardons,” published in the Pepperdine Law Review, examines the effect the President Trump’s pardon of Joe Arpaio will likely have on the law and Trump’s political standing:

The Constitution grants the president the power to pardon individuals for offenses against the United States. Courts have interpreted this power broadly, and the American public has historically accepted its use, even in the face of several controversial pardons over the last five decades. However, after President Trump pardoned Joe Arpaio—a former Arizona sheriff who was held in criminal contempt of court for continuing to illegally detain suspected undocumented immigrants—scholars, activists, and political figures questioned whether this pardon was unconstitutional. This Comment discusses the Court’s interpretation of the pardoning power, controversial pardons in modern history, and the details of the Arpaio pardon and the public’s response. After comparing the Arpaio pardon to previous pardons, analyzing constitutional arguments, and laying out the legal and political impact the pardon may have on the Trump administration, this Comment ultimately concludes that the Arpaio pardon is constitutionally suspect, but the current Court is not likely to make any changes to the pardoning power’s broad interpretation.

AP19003760665159.jpgAssociated Press

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Manafort Flips Again

27 Tuesday Nov 2018

Posted by crosbysamuel in Articles, Uncategorized

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campaign chairman, Collusion, Conspiracy, impeachable offense, Impeachment, indictment, lying, pardon, paul manafort, plea agreement, president, Robert Mueller, russia, russians, Special Counsel, trump, wikileaks

Special Counsel Robert Mueller has submitted court filings indicating that his team will not be recommending that Paul Manafort’s, President Trump’s former campaign chairman, sentence be reduced as previously considered, because Manafort has not been cooperative with his investigation. Manafort plead guilty to two counts of conspiracy pursuant to a deal he made with prosecutors; however, contrary to that agreement, Manafort has been lying to authorities (about some unspecified things). David S. Weinstein, a former federal prosecutor, believes Manafort’s lack of cooperation may be due to a belief that he will ultimately receive a pardon for his crimes. The consequences of such a pardon and similar pardons have previously been considered on this blog.

manafort.jpg

 

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The Consequences of Pardoning Manafort

18 Saturday Aug 2018

Posted by crosbysamuel in Articles, Uncategorized

≈ 5 Comments

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18 U.S.C. 1510, bribe, campaign, Collusion, deliberations, Election, Impeachment, interference, jury, Manafort, manager, Mueller, pardon, president, russia, trial, trump, ukraine

Today marked the second day of jury deliberations for the trial of Paul Manafort, the former Trump campaign manager. Manafort is being tried for 18 criminal charges for bank and tax fraud related to the time he spent working for a Ukrainian political party. Manafort refused to cooperate with the Mueller investigation, and it has been theorized that this decision was based on a belief that President Trump would pardon him if he were convicted.

Whether Trump will pardon Manafort is unknown; however he has used his pardon power politically in the past, and his former lawyer, John Down, apparently broached the subject of a possible pardon with Manafort’s lawyers. When asked whether he would consider pardoning Manafort, the President refused to say, but did comment that  “the whole . . .  trial is very sad.”

In an article written for the American Constitutional Society, entitled Why President Trump Can’t Pardon His Way Out of the Special Counsel and Cohen Investigations, Noah Bookbinder, Norman Eisen, Caroline Fredrickson, and Conor Shaw write that “a prospective pardon of a witness in the Russia investigation might . . . constitute an obstruction of a criminal investigation . . . .” They are referring to section 1510 of title 18 of the the United States Code, which makes the “[willful endeavoring], by means of bribery to obstruct, delay, or prevent the communication of information relating to a violation of any criminal statute of the United States by any person to a criminal investigator” a federal crime. If President Trump did, directly or indirectly, promise Manafort a pardon in exchange for his refusal to cooperate with Mueller, then he may not only be subject to criminal indictment but yet another article of impeachment as well.

5b3f9a219e2a102f008b47ed-750-375.jpgDrew Angerer/Getty Images

 

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Kavanaugh, Kavanaugh, Kavanaugh

10 Tuesday Jul 2018

Posted by crosbysamuel in Articles, Uncategorized

≈ 1 Comment

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appointed, Congress, immunity, impeach, indictment, judge, justice, kavanaugh, kennedy, law, law review, minnesota, Mueller, pardon, roberts, shield, sitting, suit, trump

Have you heard? A new Supreme Court Justice has been appointed. His name is Brett Kavanaugh, he hails from the U.S. Court of Appeals, D.C. Circuit, and he’s got Democrats a little bit nervous. Why? Because they think he may try to shield Trump from the Mueller investigation.

Kavanaugh argued in an article written for the Minnesota Law Review in 2009 that sitting presidents should be immune from civil suit and criminal indictment. He cited the investigation of Clinton as a reason for this view, and has implied “that the Starr investigation distracted Clinton from focusing on Osama bin Laden.” Some find this view alarming — however, take a deep breath. As Noah Feldman points out, in an article published by Bloomberg Law, what Kavanaugh actually suggests is that Congress should pass a law that would protect the President. Inherent in that suggestion is an admission that the Supreme Court does not have the power to immunize the President itself. So worries that the Justices may, for instance, enjoin Mueller’s invesitgation, are probably unfounded.

That being said,  that doesn’t mean Kavanaugh cannot be of use to the President in other ways. Kavanaugh may rule that the President can pardon himself, as Trump has suggested in the past. Alternatively, Congress may just take Kavanaugh up on his suggestion and pass a law immunizing Trump. Much remains to be seen.

1200x-1.jpgAl Drago/Bloomberg

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Trump Condemns Arpaio to Guilt

20 Friday Oct 2017

Posted by crosbysamuel in Articles, Uncategorized

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abuse of pardon power, Abuse of Power, Arpaio, Arpaio pardon, bolton, pardon

According to this article, U.S. District Judge Susan Ritchie Bolton has held that President Trump’s pardon of Sheriff Arpaio only functions to stop his sentencing, and not to remove his guilt. In fact she claims it “implies a confession of guilt.” As such, the pardon issued by President Trump will forestall Arpaio from contesting the validity of his conviction on appeal.

Professor Frank Bowman has discussed at length how the Arpaio pardon is an impeachable offense. That discussion can be found here. In addition to a summary of the facts, the link above includes Judge Bolton’s written decision.

la-na-arpaio-timeline-20170801.jpgJoshua Lott / Getty Images

 

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Mueller in League with the States

11 Monday Sep 2017

Posted by crosbysamuel in Articles, Uncategorized

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abuse of pardon power, elizabeth holtzman, House Judiciary Committee, Mueller, pardon, state attorney general

This interview with Elizabeth Holtzman, former Congresswoman and member of the House Judiciary Committee during the Watergate Scandal, contemplates Robert Mueller’s work with New York Attorney General Eric Schneiderman in the investigation of Paul Manafort. Holtzman theorizes that in so doing, Mueller could avoid President Trump’s pardon power, and pressure Manafort to cooperate with his investigation.

Muller-June2017-rt-img.jpgReuters / Joshua Roberts

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People are Talking Arpaio

03 Sunday Sep 2017

Posted by crosbysamuel in Articles, Uncategorized

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abuse of pardon power, Arpaio, impeachableoffenses.net, new york times, pardon, slate

News sources and blogs alike have been discussing Prof. Frank Bowman’s analysis of President Trump’s pardon of Arpaio, which can be found both here and on slate.com. Notably, the New York Times highlighted Professor Bowman and the work he has done on impeachableoffenses.net for its centrist perspective. Additionally, Professor Bowman’s argument was referenced and summarized in this article published by the Independent. Many others cited the argument as well including Metro, the Journal of the Civil War Era, NJ Today, Outside the Beltway, and BillMoyers.com. We here on impeachableoffenses.net look forward to more lively commentary in the near future!

636274475421162300-PNILaVoz-08-01-2014-LaVoz-1-A004--2014-07-31-IMG-VOZ0801-Arpaio.jpg-1-1-K08487AU-L460306135-IMG-VOZ0801-Arpai.jpgDavid Wallace/The Republic

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Wall Street Journal Considers Presidential Self-Pardons … with a little help from “Impeachable Offenses”

25 Tuesday Jul 2017

Posted by impeachableoffenses in Uncategorized

≈ 2 Comments

Tags

grand jury, Mueller, pardon, runaway grand jury, self-pardon

The following article examining the president’s power of self-pardon and other tactics Mr. Trump might employ to stymie the Mueller investigation appeared yesterday in the Wall Street Journal.  We are pleased to note that it quotes Professor Bowman at length and gives a shout-out to this blog.  The WSJ article can also be found at this link.

Presidential Self-Pardon Remains a Murky Issue: 
Constitutional scholars say matter is unresolved
Special counsel Robert Mueller departing after briefing members of the Senate last month on his investigation into potential collusion between Russia and the Trump campaign.
Special counsel Robert Mueller departing after briefing members of the Senate last month on his investigation into potential collusion between Russia and the Trump campaign. PHOTO: JOSHUA ROBERTS/REUTERS

By

Jess Bravin

July 24, 2017 5:23 p.m. ET

WASHINGTON—In 1974, some of President Richard Nixon’s lawyers advised the president that he could pardon himself. In 1992, the Iran-Contra special prosecutor reached the opposite conclusion regarding President George H.W. Bush.

Neither president took that step, and constitutional scholars say the question of the presidential self-pardon remains unresolved.

But the U.S. Constitution, unlike many state governments, centralizes prosecutorial authority under the president. That means he could forbid the Justice Department from investigating or pursuing criminal charges against anyone, including himself, so he may never reach the point of having to pardon himself.

The subject has come to the fore in recent days after reports emerged that President Donald Trump had asked his advisers about his ability to pardon various people, including himself.

Trump officials say the issue won’t come up because there was no wrongdoing.

“I’m not sure if he has the right to [pardon] himself or not,” White House communications director Anthony Scaramucci said Sunday on CNN. “But it doesn’t matter, anyway, because that is another one of those stupid hypotheticals. He’s not going to have to pardon himself, because he’s done absolutely nothing wrong.”

The president himself tweeted Saturday, “While all agree the U. S. President has the complete power to pardon, why think of that when only crime so far is LEAKS against us.FAKE NEWS.”

The Justice Department has taken the position that a president can’t be prosecuted. Past special prosecutors have disagreed.

“It is very likely that a president is subject to federal indictment. No one is above the law in this country,” says Ronald Rotunda, a law professor at Chapman University in Orange, Calif., who worked both for the Senate Watergate Committee and later Kenneth Starr, the independent counsel whose investigation of President Bill Clinton led to impeachment and acquittal.

Last week, the New York Times reported on a memo obtained under the Freedom of Information Act in which Mr. Rotunda advised Mr. Starr that the president was subject to indictment.

“I have thought about these issues for years, beginning with my work on the Watergate Committee,” Mr. Rotunda said. “Starr’s request for a legal opinion forced me to think about it more carefully and see what is most likely the law.”

But past special prosecutors such as Mr. Starr operated under broad statutory authority that since has expired. Under current law, special counsel Robert Mueller, who is investigating alleged Russian interference in the U.S. presidential election, only has the authority to recommend to higher-ups that indictments be sought, says Frank Bowman, a law professor at the University of Missouri who publishes the ImpeachableOffenses.net blog.

Even if Justice Department attorneys obtained an indictment before the president issued an order canceling the investigation—or defied such an order—Mr. Trump could replace hostile officials with those willing to follow his orders. And if a “runaway” federal grand jury voted for an indictment on its own, a prosecution couldn’t proceed without a signature from a Justice Department lawyer, Mr. Bowman says.

“The judge has no independent power to create a prosecutorial authority,” he says.

A president attempting to derail an investigation could wreak havoc with traditional concepts of law and order, legal experts say. Because he has the power to pardon anyone for a federal crime, with the possible exception of himself, a president could in theory pardon individuals for obstructing an investigation if the offense took place under federal jurisdiction—as is all of Washington, D.C.

But there’s a far easier course if Mr. Trump acts on his assertion that the investigation against him is an illegitimate “witch hunt”: He could fire Mr. Mueller.

“If Trump takes Mueller off the board, he can pretty much stop the whole thing,” Mr. Bowman says. At that point, the inquiry’s only avenue “probably rests on the midterm elections of 2018”—and whether the Democrats can seize a chamber of Congress, and with it the ability to pursue their own investigations.

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Frank O. Bowman, III


Floyd R. Gibson Missouri Endowed Professor of Law
University of Missouri School of Law

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