Skip to comments.“Pardon Me Rudy” -- More Disney Flick Than Legal Theory
Posted on 06/06/2018 6:23:43 AM PDT by Kaslin
With the Trump Administration it often is difficult to determine whether a bizarre public statement is a clever smokescreen, or if the proponent actually believes what he or she is saying. While Trump is a true master at manipulating his enemies, his advisors are not always as deft.
Take, for example, the recent proclamation by Trumps latest Legal Eagle, Rudy Giuliani, asserting the president possesses the power to self-pardon.
Considering all that has been happening in Washington these days, one might conclude that such a statement serves as an intentionally crafted distraction by Trumps attorneys, thrown to the media like chum for sharks in order to keep them thrashing about. On pause, however, and again taking into account other recent statements by various legal pundits, it might be that Giuliani has come to actually believe such nonsequiturshave, in todays world, become true.
Contrary to Giulianis novel theory, which is like a Magic Mirror into which a president speaks and is granted a pardon, such fantastical pardon powers do not actually exist. And, if Giuliani were the lawyer he fancies himself to be, perhaps he would realize the reason this power does not exist in law is because the law -- going back all the way to the Federalist Papers-- makes such powers legally and factually irrelevant.
In Federalist No. 69, Alexander Hamilton lays out the two methods for dealing with corrupt presidents. The first is electoral, with Hamilton stating the president could be re-elected as often as the people of the United States shall think him worthy of their confidence. The second method is impeachment. Here, Hamilton declares the President subject to be impeached, tried, and, upon conviction removed from office; adding that the president would afterwards be liable to prosecution and punishment in the ordinary course of law.
In case Rudy missed it, the operative word used by Hamilton, as regards the issue of impeachment and prosecution, is afterwards. First comes impeachment. Then a trial and conviction by the Senate. And, only after these proceedings, when the president is removed from office and no longer occupying a seat of power, can he be prosecuted for his crimes.
Though hinging on a single word, this is a crucial distinction and one essential for the smooth operation of the Republic. If a president couldbe indicted and prosecuted while in office, there is nothing to stop rogue U.S. Attorneys, or in the case of President Trump, out-of-control special prosecutors, from bogging down the Executive in non-stop litigation, frivolous or otherwise. Such procedural protections would also logically extend to the fruits of prosecution for the same reasons, such as refusing subpoena or deposition requests, or generally cooperating with investigators (as Giuliani, to his credit, has previously mentioned).
Though not tested to the fullest extent by former President Bill Clinton during the impeachment investigation against him, Clinton regularly defied Independent Counsel Kenneth Starr. Had Clintons actions been tested in court, I suspect the former president would have prevailed for the reasons outlined here.
All of this is not to say that Trump is wrong in declaring the vast extent of his pardon powers. Courts have consistently deemed absolute the presidents power to pardon those who have committed federal crimes. We were reminded of this in 2001, when challenges were unsuccessful against Clintons pardoning of his brother Roger and corrupt financier Marc Rich on the last day of his presidency.
The far better track on which Trumps lawyers should be travelling (and the President himself) is to argue that he would never, ever find himself in a place where he would need to invoke a self-pardon. Arguing otherwise implies he would have been successfully prosecuted for a crime a situation which can only occur after he is out of office.
Periodically, and depending largely on which partys representative resides at 1600 Pennsylvania Avenue, both major political parties have advocated for increasingly robust powers for the person who occupies that office. Most recently, a legal memorandum prepared by Trumps legal coterie reportedly describes the office as sacred. In reality, the president is neither deity nor absolute monarch. As a matter of constitutional history and law, however, he is insulated from the vagaries of prosecutorial politics. President Trump does not need legal fairytales spun by those like Giuliani to protect
The only “except” clause in the pardoning power is impeachment. The president cannot pardon anyone from impeachment.
It is stupid for Giuliani to even mention the President’s pardon power.
Trump did nothing wrong. There was no collusion. He is not guilty of a crime. Why is anyone talking about a pardon - least of all his lawyer?
To bring it up as a even a possibility just fuels the illegal effort to remove President Trump.
I think Rudy means well. Hes an old school deep stater (pre-treason) and has perhaps a bit of Alzheimers going on.
He really needs to go back to pushing security web stuff.
Rudy needs to get someone in Congress to hook him up with their free dementia meds program. He’s lost more than a little off his fastball.
Giuliani is harming the President every time he talks about Trump pardoning himself. The impression of most people is that Trump must be guilty of something if he is even thinking of pardoning himself. Giuliani comes with a checkered past. He did convict a few corrupt Democrats and rallied NY after 9/11. However conservatives cannot forget that during his tenure as mayor he allowed NYC tax funds to directly support the abortionists at Planned Parenthood. Also despite many objections he sought and welcomed a homosexual festival known as the “Gay Games” to New York. When the Yankees foolishly allowed their home opener to be scheduled on Good Friday, Giuliani festooned himself in Yankee gear and paraded around Yankee Stadium like some pre pubescent adolescent. He had no regard for the solemnity of Good Friday or the sentiments of Christians. This guy has serious character flaws.
Sorry but Trump has a hard time picking good lawyers. First Cohen, then Sessions and now Giuliani.
I’m so disappointed in you weak Freepers that are dissing Giuliani. He is doing as planned and he has the full support of Trump. And it’s working. Quit nagging.
Bob Barr jumped the shark a long time ago. It’s too bad because he was once a good trooper. Washington DC conservatives just don’t want to win.
Rudy didn’t bring it up.
Trump can pardon anyone of any federal crime including himself. He can not pardon himself from impeachment. Impeachment and conviction in the Senate is simply a removal process and not a criminal conviction.
Hamilton’s Federalist papers do not trump the Constistution (no pun intended), which limits pardoning power to Presidents only regarding impeachment. The text is unambiguous about this matter.
“In case Rudy missed it, the operative word used by Hamilton, as regards the issue of impeachment and prosecution, is afterwards. First comes impeachment. Then a trial and conviction by the Senate. And, only after these proceedings, when the president is removed from office and no longer occupying a seat of power, can he be prosecuted for his crimes.”
That’s still irrelevant, since the President can also pardon people from FUTURE prosecution.
Ford pardon Nixon in advance of prosecution.
This is a distraction. 1) it would never happen because Trump hasn’t done anything that he would need to pardon himself for, and 2) Rudi can point to at least a couple of articles when the Democrats were saying the exact same thing, based on the idea that Hillary could pardon herself. Of course, those were written when everyone knew Hillary was going to win, but it’s going to be funny when Rudi starts quoting those stories.
It doesnt matter who brought it up.
The correct response would have been to say it was an irellevant question because the President has done nothing wrong. The question was a trap and he fell for it.
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