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Tuesday, June 05, 2018
Re Mark Graber's hypothetical
Key to understanding Mark's hypo, I think, is the assumption that the successor to the murderous VP, if displaced, would necessarily be the Speaker of the House from the opposition party. That's certainly true if one accepts the constitutionality of the Succession in Office Act. But Akhil and Vikram Amar have cogently argued that the Act is in fact unconstitutional inasmuch as the Constitution requires that the Congress designate an "officer" of the U.S. to succeed to a vacant presidency, and members of Congress are simply not such "officers." Ditto, of course, with the President pro Tem of the Senate, who's next in line. So, given the unconstitutionality of the present Act, the successor to the murderer would be from his/her own party, i.e., the Secretary of State (assuming natural-born citizenship). There is another solution to Mark's conundrum, which is to repeal the current Succession in Office Act, which is terrible policy even if one disagrees with the Amars and believes that it is unconstitutional. (As we know, a lot of terrible things can be perfectly constitutional.) Besides the possibility of a transfer of party leadership without an election, there is, at least as importantly, no reason whatsoever to believe the the Speaker (and, even more, the geriatric President pro Tem) have the skill set required of a President even in the best of times, let alone the national trauma described by Mark's hypo (or even more moderate hypos). And making the Speaker President also assures that the country would be faced with a potential struggle over succession to that office at a time of national trauma. One might imagine that one could get bipartisan agreement that the current Act, passed only in 1947, is a bad idea and should be replaced with one of its predecessor acts that placed succession in the Cabinet. Or, as I increasingly believe to be desirable, we might get rid of the presidency entirely and instead adopt a parliamentary system (at my constitutional convention). But it is a sign of the craziness of our present system that Mark's hypothetical gains some purchase, because one can altogether easily imagine the kind of partisanship that would prefer keeping a murderer in office rather than give the reins of power to the other party.
"But it is a sign of the craziness of our present system that Mark's hypothetical gains some purchase, because one can altogether easily imagine the kind of partisanship that would prefer keeping a murderer in office rather than give the reins of power to the other party."
ReplyDeleteAs I pointed out to Mark, it's important to remember that the products of your imagination inform you about yourself, not about other people.
That said, yeah, the succession act needs an update. While I'm not totally on board with this particular proposal, I rather like #7; A list of people who don't live in D.C. nominated at the beginning of a President's administration, and confirmed by the Senate.
They could be kept in the loop on what was going on, would certainly be constitutional "officers", and could be kept remote from the rest of the government in case of a large scale accident/attack.
Let's look at Mark Graber's hypo under the more recent decision of SCOTUS in Heller (2008, 5-4). Suppose Mark's VP when he killed the President claims he was acting in self-defense, i.e., self-defense of our nation on the basis of the VP's knowledge that the President was colluding with the leader of a foreign power to further empower the President to remain in power after a second term with or without an amendment to the Constitution, including the use or threat of the nuclear button if necessary. Heller's self-defense can be availed of in defense of another, and presumably extending to our entire nation. With the application of Heller, the VP should be able to serve as President. (The concept of self-defense in Heller is not fixed as of a specific date. Self-defense has evolved since 1787 in America and the states.)
ReplyDeleteThis concept under Heller was alluded to by candidate Trump during the 2016 campaign at his rallies invoking the 2nd A to his followers if HRC were elected President. Perhaps this product of candidate Trump's imagination should have informed us of what he would do - and has done - as President. (I have not made private contact with either Mark or Sandy regarding their posts. But even if I had, I would be reluctant to mention this in a public comment, as that would be bad taste.)
" Heller's self-defense can be availed of in defense of another, and presumably extending to our entire nation."
ReplyDeleteBut only under circumstances of imminent threat. That's an awfully remote threat to respond lethally to, rather than going for the 25th amendment approach.
I've noticed that anti-gunners typically have an awfully poor understanding of the law of self defense.
Perhaps Brett should research how self-defense has evolved in America and particularly at the state level since 1787. Heller did not provide a definition for self-defense, which can differ from state-to-state, nor did Heller provide a date for determining what constitutes self-defense. Perhaps originalists and textualists believe it is determined as of the ratification of the 2nd A in 1791? Maybe Brett can provide us with the meaning of Heller self-defense in his view as a 2nd A absolutist.
ReplyDeleteOnce you have a right to something, you have a right to use it for all lawful purposes. While constitutional rights limit what can be statutorily subtracted from the set of lawful purposes, statutes can extend that set.
ReplyDeleteThus the definition lf lawful self defense is largely, if not entirely, a matter of statutory, not constitutional, law, and Heller didn't need to rule on that.
This ends the diversion from the topic at hand, at least so far as I'm concerned. Got anything useful to say about the law of succession?
Mark: Riggs v. Palmer explains why neither the fictional Vice-President who gains office by murdering the President nor our actual President have a right to their office and may pardon themselves for the crimes they have committed to gain that office. Judge Earl correctly points out that all statutes are read in light of common sense and common law.
ReplyDeleteIs this also true of the Constitution? Have common law principles ever been used to limit a constitutional power?
That common law teaches both that "no one shall be permitted . . . to found any claim upon his own iniquity" and, as discussed in Bonham’s Case (1620), no person may be a judge in his own case. A President may no more escape justice for their crimes, particular the crimes they have committed to gain the presidency, than a murderer may claim the right to inherit from their victim.
Mark is offering two different common law principles here, only one of which could theoretically apply to Mr. Trump.
The Crime: The evidence-free partisan slanders against Mr. Trump are: (a)Trump entered into a criminal conspiracy with Russia to steal Clinton's emails and publish them, and (b) Trump committed obstruction of justice by firing FBI Director Comey or anyone else in the future with any involvement in the investigation of "Russian interference in the election." Given that Congress may not criminalize the exercise of an Article II power like firing subordinates, we are left with the first evidence-free partisan slander.
(1) Prohibition from Profiting from a Crime: If we assume the evidence-free slander Trump conspired with Russia to steal Clinton's emails and publish them, how precisely would a Congress or a court determine Trump gained election and the pardon power through this act? Not seeing it.
(2) No Person May Judge His Own Case: This question of whether an executive may pardon himself has not previously ripened because the executive generally enjoys sovereign immunity and is also the chief law enforcement officer, who directs criminal investigations. Furthermore, under our Constitution, the only remedy for a POTUS committing "high crimes" is impeachment and removal by Congress. A pardon is relief from a criminal prosecution, not impeachment.
However, for the purposes of this exercise, let's assume the criminal conspiracy, impeachment and removal. May POTUS pardon himself before removal to escape later criminal prosecution?
The Constitution places no limits on the pardon power. Such limits were debated and rejected. In all of Anglo-American law, there was never any attempt to bar the executive from pardoning himself.
Let us assume common law principles may limit constitutional powers, does the principle of nemo iudex in causa sua bar POTUS from pardoning himself? This is a common law principle is a limit on judicial officers to avoid apparent conflicts of interest. However, an executive with pardon power is not a judge and such executives can and have pardoned people in cases in which they have an interest. Why not then, themselves?
The last part of the hypothetical raises a disturbing question that law does not answer. Has American politics reached that stage of corruption where one party would tolerate a known criminal as president if the alternative was empowering the other party?
Is this a serious question?
The Democrats crossed that Rubicon with both Bill and Hillary Clinton.
The argument that an executive cannot self-pardon [unless there is an express change to the common law understanding] on the other thread to me makes sense.
ReplyDeleteThe general principle of not judging your own case also deals with the vice president presiding scenario. The concern about not impeaching a murderer is a reasonable hypo and the Founders could cite English history and Shakespeare regarding murderous kings and the like. Plus, the failure to prosecute murderers was seen in the context of lynchings, at times local political leaders were involved with impunity. On the national level, the case might be somewhat less blatant, with some sort of OJ "reasonable doubt" at least for self-interested.
I think the Secretary of State would be an appropriate next in line and agree using the leaders of Congress, one at times an elderly lifer, is not ideal. My preference would be to change the rules to have a new election, at least once we get past v.p., with a placeholder for a limited period of time. Or, Kiefer Sutherland can be next in line.
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ReplyDeleteThe Democrat position on POTUS self-pardon was much different when it appeared that a felony indictment might follow Hillary Clinton into office:
ReplyDeleteCould a future President Hillary Clinton pardon herself?
The short answer is she could certainly try, and may very well get away with it. What’s more, there is likely little Congress could do about it — even with a Republican controlled House of Representatives and Senate. Here is why.
The president’s pardon power comes from Article II, Section 2 of the United States Constitution that provides, “The President … shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.”
Based on the language of Article II, Section 2, the only limits placed on the power are that pardons may only be issued for federal offenses (not civil or state crimes), and a pardon cannot override the Congress’ impeachment power. Presidents have used this power to issue pardons in a wide range of matters throughout the country’s history. However, no president has ever attempted to pardon himself.
As a result, the legality of the self-pardon remains an open question. There are persuasive arguments on both sides. For the sake of brevity, the two arguments can be boiled down to this: (1) those that argue a self-pardon violates longstanding legal principals that a person should not act as their own judge and that no person is above the law; and (2) those, including Richard Nixon’s attorneys in the aftermath of Watergate, that argue that power to pardon is broad and unlimited, except for the two specific limitations mentioned in the Constitution.
So, assuming Clinton follows the latter approach and issues the self-pardon, where does that leave Congress? Could the House of Representatives start impeachment proceedings based on the criminal indictments?
That answer to that question is a resounding “no.”
Under Article II, Section 4 of the Constitution, “The President… shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”
The Constitution further provides that impeachment proceedings are to begin in the House of Representatives and if approved by a simple majority vote, the matter proceeds to the Senate for trial. When the president is tried, the Chief Justice presides over the Senate trial. A conviction requires a 2/3-majority vote and the Senate may impose punishment including barring the individual from holding future office. Although, the Senate is required to take an additional vote if it wishes to impose a ban on holding future office.
In Clinton’s case, however, the conduct underlying this hypothetical indictment occurred prior to her taking office. The House of Representatives, as far back as 1873, has determined that a person cannot be impeached based on conduct prior to them holding office. In other words, House precedent says a President Hillary Clinton could not be impeached as president for crimes related to the e-mail server or the Clinton Foundation.
In 1873, the House of Representatives considered impeaching the Vice President for crimes committed before he took office. After considering the matter, the House determined impeachment was only proper for crimes committed while in office.
SPAM seems to be outGiuliani-ing Rudy with his:
ReplyDelete"The Constitution places no limits on the pardon power. Such limits were debated and rejected. In all of Anglo-American law, there was never any attempt to bar the executive from pardoning himself."
that President Trump could with an AK 47 wipe out all Senate Democrats and self-pardon from such murders.
Query: At the Constitutional Convention on the pardon power, was self-pardon raised, discussed and/or debated?
BD: "The Constitution places no limits on the pardon power. Such limits were debated and rejected. In all of Anglo-American law, there was never any attempt to bar the executive from pardoning himself."
ReplyDeleteShag: that President Trump could with an AK 47 wipe out all Senate Democrats and self-pardon from such murders.
It appears so.
Query: At the Constitutional Convention on the pardon power, was self-pardon raised, discussed and/or debated?
No.
If the States ever call their constitutional convention, perhaps it should be, along with various other recent dictatorial abuses of executive power.
Sure, and then after he'd done it, and been impeached by the surviving Senators, I expect someone would murder him, and likely get a pardon from the new President.
ReplyDeleteThis is perhaps relevant to such extreme hypotheticals.
The pardoning power was not invented by the Constitution; it was conferred upon the President, as opposed to somebody else, or nobody at all. The pardoning power has a long history of exercise by kings. Have kings asserted the power to pardon themselves? Have commentators living in monarchies ever addressed the question of self-pardon by kings? I have no idea what the answers are, but that is where I'd start looking.
ReplyDelete"Query: At the Constitutional Convention on the pardon power, was self-pardon raised, discussed and/or debated?"
ReplyDeleteNo, and that's not terribly surprising. In English history the issue could never arise because of the rule that "the king can do no wrong" (i.e., can't commit crimes; Nixon's infamous quote was true for kings). Charles I didn't try to pardon himself, he argued that Parliament had no jurisdiction to try him.
I was responding to Shag and didn't see CJColucci's questions, so I'll add a bit here.
ReplyDeleteFrom William the Conqueror through George III, there are five instances of kings losing their throne (usually with their heads too): Edward II; Richard II; Lady Jane Grey (if you want to count her); Charles I; and James II. In addition, Henry VI was imprisoned for a while by Edward IV in the Wars of the Roses before he died (or possibly was murdered). In none of these cases did the ruler attempt a "self-pardon". That would have been a non-sequitur under the rule of "the king can do no wrong". All those cases were essentially coups or revolutions.
Brett at 11:18 AM:
ReplyDelete"Sure, and then after he'd done it, and been impeached by the surviving Senators, I expect someone would murder him, and likely get apardon from the new President."
But first the House would have to come up with a bill of impeachment. Some House members might be reluctant because of the murders of the Senate Democrats in personal fear. But if the House does so, then it goes to the Senate for trial. Who knows who would replace the murdered Democrats in the Senate. But Senators, even Republicans, might fear a similar fate in the small hands of Trump with his AK 47 before the trial is completed and Trump can self-pardon for those murders.. Would SPAM and Rudy agree? Recycling impeachments would be in order?
At the Constitutional Convention on the pardon power, was self-pardon raised, discussed and/or debated?
ReplyDeleteThe general "no man is allowed to be a judge in his own cause" principle was cited by Madison in Federalist No. 10, but the specific issue was not.
One concern was that the pardon power would be used (especially in cases involving treason, which some wanted to be an exception to the general power to pardon*) to help compatriots in crime. Impeachment and punishment was cited as a check there.
As to the VP impeachment scenario, there's this provision: "in the Absence of the Vice President, or when he shall exercise the Office of President of the United States." I see a post on Originalism Blog, e.g., suggest a sort of "constructive" absence in this case, perhaps as held by a vote of the Senate. The issue will only be pressed if the VP forced the issue. These sorts of issues are rarely forced but remain hypos and I see there are law professors who have argued both sides. https://fas.org/sgp/crs/misc/R44260.pdf FN13
As to self-pardons, I would also look to governors over the years & possibly other foreign examples, since I'm open to things other than specifically tied to original understanding in 1787 of English history. A memorandum in Nixon's day held against it:
https://constitutioncenter.org/blog/explaining-the-presidential-self-pardon-debate
It would be useful here if pardons could only occur after prosecution (removal then prosecution could avoid the self-pardon problem) but that isn't the case.
* Hamilton's proposal, e.g., had this provision: "pardoning all offenses but treason, which he shall not pardon without the approbation of the Senate."
"It would be useful here if pardons could only occur after prosecution (removal then prosecution could avoid the self-pardon problem) but that isn't the case."
ReplyDeleteI'm somewhat sympathetic to that view, and it would foreclose a lot of potential problems. But it would have also foreclosed, for instance, Lincoln's pardoning of the Confederates, which was essential to achieving peace after the Civil war.
Another serious issue with that stance is that "the process is the punishment"; Our legal system imposes horrendous costs on people it is brought to bear against, and only very rarely even partially compensates them if they are cleared.
This is why the rate of plea bargaining is so high; Even if you're confident of acquittal, merely being tried will ruin you unless you are quite wealthy. This is why, for instance, Flynn plead guilty: He couldn't afford to defend himself, a trial would have left his family in poverty.
Fat lot of good it does to pardon somebody, if a prosecutor has already destroyed their life, and left them bankrupt and unemployable.
Now, if we were to reform the system so that acquittal resulted in you being made whole at government expense, I'd then be fine with pardons having to wait on the conclusion of a trial.
Lincoln's pardoning of the Confederates, which was essential to achieving peace after the Civil war.
ReplyDeleteThe general surrender terms basically was that if you went home, you would not be arrested. This didn't apply to every Confederate. And, it sounds more like a reprieve than a pardon as such. General proclamations of amnesty (see also Whiskey Rebellion) at any rate to me would be different than doing it tied to specific crimes.
The concern about the costs of the trial is a given but the federal government in that case can simply stop the prosecution and even admit error. Anyway, pre-emptive pardons are particularly a concern in special cases.
The "why" about Flynn is gratuitous. I doubt that is the only reason.
You're free to doubt it, but there's plenty of evidence that it was a sufficient reason.
ReplyDelete"there's plenty of evidence that it was a sufficient reason"
ReplyDeleteEven if I granted this for sake of argument, and I'm not (he's not the first person I would think there as compared to your average defendant) that isn't even the same as it being "why."
I've met paranoid people. One of their distinguishing characteristics is that they won't accept, even with evidence, that a sufficient cause is the actual cause of something. No, it has to really be something other than what it appears.
ReplyDeleteThe guy is financially ruined, and you won't take that as evidence that he pled guilty to stop the financial costs.
I suppose it could have been for some other reason, but, where's your evidence?
Brett at 12:28 PM:
ReplyDelete"This is why the rate of plea bargaining is so high; Even if you're confident of acquittal, merely being tried will ruin you unless you are quite wealthy. This is why, for instance, Flynn plead guilty: He couldn't afford to defend himself, a trial would have left his family in poverty."
Is Brett privy to the "why" in the case of Flynn? Was Flynn confident of acquittal? Does Brett know all of the potential crimes Flynn could have been accused of, or does Brett believer the only crime was lying to the FBI? A lot of things go into a plea deal. Flynn was not in poverty going in. Maybe Flynn thought there were several crimes he could have been guilty of and copped to the one that was least serious. If so, then it would have been economically foolish for him to push for acquittals. The high rate of plea bargaining for the poor is a problem for the concept of justice for all. But for Flynn, this was the easy way out, except for a pardon from his good bud, and a good deal for Flynn.
Brett's free to defend everything Trump but Flynn deserves no sympathy.
Shag:
ReplyDeleteYou do not casually f_ck with an unaccountable special prosecutor with unlimited resources, who has a history of abusing his subordinates and destroying innocent people when he was a marginally accountable prosecutor and FBI director.
http://www.newsweek.com/robert-mueller-special-counsel-russia-aides-criticize-722670
In Flynn's case, Mueller ignored and then illegally hid from his lawyers the opinions of the FBI interviewers that Flynn was not lying to them to spring a perjury trap on a general with an exemplary record, purely to pressure him into providing dirt on Trump.
Manafort is an example of what Mueller will do if you do not immediately surrender and enter a plea. Mueller's investigation of Manafort had nothing to do with his portfolio to investigate "Russian interference with the election," he pressured banks to surrender their client's records under bogus national security grounds, ran up every single conceivable banking and tax charge to threaten Manafort with life in prison, and now just moved the Court to withdraw his bail based on an evidence-free claim he was attempting to obstruct justice by contacting witnesses in the case.
The show indictment against thirteen Russians and a handful of companies shows Mueller has no problem seeking an indictment without any substantial evidence, likely by lying to a grand jury. One of the companies voluntarily entered an appearance through domestic counsel and demanded discovery, which Mueller refused to provide. During the first court hearing, the defense identified multiple defendants who were either entities which did not exist in 2016 or were not employees of the business which made the appearance. Under questioning from the Court, one of the Democrats in Team Mueller admitted it (mis)represented social media accounts as legal entities and over a terabyte of social media posts which allegedly influenced our election were written in Russian.
This is a modern star chamber.
Flynn was not some poor, black woman from Tulia Texas (the kind of case that IS exemplary of law enforcement wrong doing but from which we don't hear peep from our resident conservatives) but a former Admiral and very high ranking federal official with connections, money and lawyers. His case is as far from sympathetic in this regard as could be possible, it's only being picked up by our uber-partisans in their usual propagandistic tendencies to throw anything and everything at the wall in the hopes something sticks, bypassing any enduring principles for momentary partisan advantage.
ReplyDeleteIt's there for obfuscation, because can you imagine, just imagine, the caterwauling and paranoid conspiracy theories that would be tossed out here with certainty by Brett and Bart if a Democratic President like Obama had been found to have high ranking campaign and later cabinet officials who were *literal foreign agents* and who then subsequently lied about it?
Consider that the investigation into Clinton's emails was *led by a long time Republican operative,* if those tables were turned we'd again hear no end of caterwauling about fairness and conspiracy theories. In fact, they've actually taken *THAT EXACT SITUATION* and tried to run with it to still get the caterwauling and conspiracy theories. They've taken a situation which had an inherent unfairness to Ms. Clinton in that the man *heading* (not one of many flunkies working) the case was a longtime operative of THE OPPOSING PARTY and turned it into complaints about the unfairness of it and conspiracy theories from their side! Incredible in it's audacity. And now another investigation is being led by a long time GOP operative and *they are still doing it.* Because there is no principle or fact uber-partisans like them respect. None.
SPAM is coming to the defense of all his fascist's men. I'm sure that SPAM in his rural police courts knows about plea deals for DUI charges as many clients cannot afford full blown trials, plea deals that come about to make such a practice economical and provide SPAM time to troll blogs for progressives. Yes, SPAM claims to have been a prosecutor early in his career but SPAM gave up big law in FL for his Mile High State (of mind). SPAM has swallowed Trump the fascist completely, perhaps with a view to taking Rudy's place, defending the fascist against "the modern star chamber." SPAM claims Flynn's "a general with an exemplary record." Alas, a Google search on Flynn will disclose how unpatriotic Flynn has been. SPAM went on a Cruz that crashed and is now trying to make lemonade out of an or orange Judas.
ReplyDeleteThis comment has been removed by the author.
ReplyDeleteMr. W:
ReplyDeleteHow much do you think an admiral earns in retirement and a DC defense attorney with experience is dealing with high profile federal cases earns per hour?
The one advantage a poor black woman from Texas has over Flynn is she is not a Trump associate and thus a target of a vindictive prosecutor with unlimited resources and zero accountability.
The one advantage an objective and ethical prosecutor would have in indicting Clinton compared to Flynn is there is reams of publicly available evidence proving the former committed substantive crimes and no need to trump up bulls_t charges like lying to FBI agents who did not think you were lying.
The Obama administration did not require "literal foreign agents" because the POTUS himself provided aid and comfort to our enemies and then lied to the American people about it.
Comey was never "a long time Republican operative," but rather a bureaucracy who registered Republican and later admitted to the Democrat media that "his party left him" years before; after he whitewashed the Clinton crimes, he commiserated with Obama when she last anyway, and afterward his family was in the "Women's March" (although no disclosure if they were wearing vagina hats).
No matter how much deodorant you try to spray over this witch hunt, it still reeks.
"How much do you think an admiral earns in retirement"
ReplyDeleteAn ADMIRAL with the kind of connections and supporters that brings is Star Wars levels of 'far, far, away' from the kind of sympathetic suspect picture you and Brett are selling.
"The one advantage a poor black woman from Texas has over Flynn is she is not a Trump associate and thus a target of a vindictive prosecutor with unlimited resources and zero accountability."
This statement is as laughable as it is obtuse.
"no need to trump up bulls_t charges"
He PLEADED GUILTY. A man with his connections and supporters. The man is demonstrable liar, the White House itself has said so about him! He was a literal foreign agent who placed in arguably the highest intelligence office in the land failed to disclose his connections to foreign governments and officials. Again, one cannot imagine the amount of caterwauling you would do over that were the parties reversed.
"The Obama administration did not require "literal foreign agents" because the POTUS himself..."
This is just you flinging more ___ on the wall to see what sticks in obfuscation.
"Comey was never "a long time Republican operative,"
Comey was a registered Republican with a demonstrable record of donating to Republican candidates and serving in GOP administrations. Again, if someone with a comparable record in reverse were put in charge of a big investigation involving a Republican you'd caterwaul to no end with accusations of unfairness and conspiracy.
Every one familiar with Russian or Ukranian matters knew that Manafort was a Russian stooge. And this man was THE CAMPAIGN MANAGER for Trump! Not assistant this or associate that, he was the head of the campaign, a known Russian stooge who made his bones subverting democracy in Ukraine, helping Russia get their puppet elected and then suddenly getting massive goodies like sweet deal loans from Russian sources.
ReplyDeleteAgain, imagine, just imagine if the head of the Obama campaign had been revealed to be involved in such shenanigans. We'd never hear the end of accusations and conspiracy from Brett and Bart.
But that's just the tip. These propagandists can take this situation, marry it to the fact that *another long term GOP operative* is looking into it, and then try to sell us that s*^t as gold propaganda that something unfair *is being done to their side!* If there were a scale to measure chutzpah (or lunacy, the two come close at the extreme of the first) it would be broken by what Trump defenders are arguing these days!
Mark Field's answers suggests to me that, in historical practice and conceptually, there was never any such thing as self-pardon. So there was no such power to be conferred upon the President.
ReplyDeleteTo focus on Comey alone...Here was a man with a long history of serving in GOP administrations, long registered as a Republican and with a demonstrable history of donating to GOP candidates. He is put in charge of the Clinton investigation. Concluding no prosecutor would charge her with the crime in question (and others, including Bart here, have never been able to site such a charge in a comparable case), he then broke FBI policy and precedent and engaged in a press conference where he was highly critical of Clinton with the election just months away. Then, when possible new evidence led him to re-start the investigation, he, *days before the election*, once again broke FBI policy and precedent and informed the public *before he had even gotten warrants approved to look at the 'new' evidence.* This man did this while *the entire time he knew Trump and his campaign officials were also under an active FBI investigation, about which he said nothing.
ReplyDeleteUnder any semblance of reality and principle this would be seen as a valid source of concern of Comey's bias *against Ms. Clinton.* But our partisans and their movement counterparts are so far gone to partisanship and away from principle and reality they are still crying about this being unfair *for Ms. Clinton* and this nearly two years after she lost and their side won!
It's impossible to overstate how far gone the mentality is there.
As to the question of self-pardoning...The pardoning power was meant to be a tool for granting mercy and rectifying injustice. This is discussed in at least one of the Federalist papers, for example. In the absence of language one way or another, this intention should be taken into account. Likewise, if the 'spirit' of the Constitution can be taken into account, as the court in Shelby County argued, then I would argue any reading not compelled by the text which leads to unaccountablility in our officials should be rejected, and therefore self pardons ruled out.
ReplyDeleteThis comment has been removed by the author.
ReplyDeleteShag from Brookline at 1:53 calmly was correct.
ReplyDeleteAs to self-pardons, the royal precedent is of limited value since we live a republic. But, basic principle, including the "no judge of our own case" principle to me basically seals it.
This is a case where bare text needs a bit of help, but it shouldn't be too hard.
Mr. W:
ReplyDeleteI have no need to offer a sympathetic victim. I am focusing on the corrupt abuses of power which you defend.
Do you know how many thousands of people plead guilty to charges the government could not prove because the plea bargain is more cost effective and less risky than a trial? And the vast majority of these are facing overworked prosecutors who do not have the time, money and desire to destroy them as Flynn does.
Team Obama went to Israel to work for its Labor Party to remove the POTUS's obstacle Netanyahu. And you are worried about Manaforts perfectly legal foreign free lance work before he even arrived at the Trump campaign?
Hundreds of thousands of Democrats in the permanent deep state work under GOP administrations. The RINO establishment has joined them in their hatred of and abuse of government power against Trump. (Start with the Bushies) It really does not matter of which group the corrupt Comey considers himself a part.
The evidence disclosed to date revealed that Comey determined he would not prosecute Clinton months before he concluded his whitewash. This is "bias against Clinton?"
By enabling it, you are part of this corruption.
"Do you know how many thousands of people plead guilty to charges the government could not prove because the plea bargain is more cost effective and less risky than a trial?"
ReplyDeleteFlynn is simply not in that position, he's a million miles away, a high federal official as connected as can be. To use your language he is an uber-mandarin (you cannot get higher in the federal bureaucracy he was a part of than he was). Conservatives have never expressed sympathy for those who actually are in that position so of course your raising of it here is, as usual, just for partisan propaganda purposes.
"Team Obama went to Israel to work for its Labor Party to remove the POTUS's obstacle Netanyahu"
We discussed the ridiculousness of the faux scandal you're throwing on the wall now to distract so I've little inclination to do so again as it's totally irrelevant, as an American of course I'm focused on literal foreign agents running the campaign of major party candidates. And of course were the shoes on the other feet you'd be screaming treason to no end.
"This is "bias against Clinton?"
Again, a long time registered Republican with a history of serving Republican administrations and donating to Republican candidates broke with FBI policy and precedent to go public with negative disclosures about Clinton while keeping under wraps the concurrent investigation of Trump and his campaign (citing the very policy he broke twice regarding Clinton). Yes, any sane person with any neutral integrity would say there's a beam of support for concern of bias against Clinton than any mote of support for concern for her. And, again were even ONE of those elements switched party wise you and other conservatives would be crying foul 24-7 for years.
SPAM continues with his various conspiracies, obviously from the Trump/GOP talking points. Perhaps SPAM did not live through the days of Sen. Joe McCarthy. Those of us who did and were old enough to understand were aware of the role of McCarthy's attorney, Roy Cohn. Later, Trump earlier in his career as the son of a wealthy man met up with Cohn and they took a shine to each other. Cohn died. Trump tired to replace Cohn, but it required several attorneys over his career that included business failings and bankruptcies. Now as President Trump is still searching for his Roy Cohen. Enter SPAM, who during the 2016 campaign on board the Cruz Canadacy repeatedly referred to candidate Trump as a fascist. Now that Trump is President, SPAM casts his line to Trump in the Republican swamp, supporting Trump's King Rat claims of being above the law. Maybe SPAM might meet the Roy Cohn qualifications Trump is looking for in a lawyer. SPAM has taken a shine to Trump, perhaps as an audition. Watch out, Rudy.
ReplyDeleteMr. W has cut SPAM's screed at 3:16 PM to little bits and pieces. SPAM's response to Mr. W at 7:00 PM is disjointed and pathetic. Imagine, SPAM who deals in economic plea deals in DUI cases in in rural police courts (which leaves SPAM ample time to troll this Blog), now claims to be championing the little guy who can't afford a good attorney. SPAM starts this scree with:
"I have no need to offer a sympathetic victim. I am focusing on the corrupt abuses of power which you defend."
Should we check the records of SPAM's rural police courts for the number of plea deals he has been involved in for for his clients charged with DUI, and how many he actually tries? Sure, there is a national injustice problem involving plea deals, but not in the case of Flynn.
I'm tired. Mr. W hopefully will pick up on this point and the rest of SPAM's screed. I've got to rest up for the Thursday liberals lunch, some progressives, with with the past week's juicy news produced by Trump and his Administration.
OOPS! Mr. W beat me to it.
ReplyDelete"We discussed the ridiculousness of the faux scandal you're throwing on the wall now to distract so I've little inclination to do so again as it's totally irrelevant,"
ReplyDelete[sarcasm] Ah, yes. Obama, the very first President in American histories to have no scandals AT ALL during his administration. [/sarcasm]
I can sort of understand somebody who thinks that Obama was, on the whole, a good President. That's not my judgement, but depending on your ideology it's a legitimate conclusion.
But the people who insist his administration was spotless, no scandals at all, everything above board and clean? That's some kind of psychosis there. Denial ain't just a river in Egypt.
Once again Brett engages in false equivalency. Obama served 8 years. Trump has had scandals starting before his inauguration, adding many more during his not quite 1.5 years. Perhaps Brett recalls candidate Trump telling his base of the Forgotten that if HRC won, she would be involved in investigations from the git-go. Trump called it, not for HRC, but for himself.
ReplyDeleteShag: SPAM continues with his various conspiracies, obviously from the Trump/GOP talking points.
ReplyDeleteActually, most of the evidence of crime and corruption you are willfully ignoring comes from the government itself and the Democrat media.
Taking his cue from the Kagan concurrence, Professor Koppelman just jumped in participate in the predictable spin of the incoherent Kennedy Masterpiece Cake opinion.
ReplyDeleteKennedy offered what are essentially due process concerns about our state's radical and discriminatory civil rights commission (do they come in any other flavor?) to arrive at a substantive ruling: "The Commission’s actions in this case violated the Free Exercise Clause."
The mere fact that the commission is populated with vocal anti-Christian bigots is insufficient to arrive at this ruling.
The only way to read this ruling is the commission violated the Masterpiece Cake's 1A right to free exercise of his faith by using an anti-discrimination law to compel the baker to celebrate a SSM which is contrary to his faith.
Kennedy needs to retire this summer so Trump can replace him with another Gorsuch during the extended August Senate session.
SPAM predictably misreads Kennedy's decision in the Masterpiece case, misreads Kopelman's post, and slanders the CO Commission with this:
ReplyDelete"The mere fact that the commission is populated with vocal anti-Christian bigots is insufficient to arrive at this ruling."
A non-messaging cake was involved. The baker was not involved in a celebration of SSM. The non-messaging cake was only a part of the celebration by the SS couple intended for family and friends. The baker's claim of his faith being at issue was obviously an excuse for his discrimination of gays. And SPAM is displaying his personal discrimination against gays. I wonder if SPAM's faith causes him to turn away gay clients charged with DUI.
Shag:
ReplyDeleteKennedy could have established a clear red line where the 1A protects a merchant's right to make or not make expressive acts, but not to deny sale of generic products.
I suspect, however, that the Supremes were badly split over whether and where to place a red line, so Kennedy wrote an incoherent opinion to which seven Supremes could agree to arrive at his preferred destination.