Patroklos wrote: ↑
Things don't have to be tested in court to be legal.
No shit. But it can be difficult sometimes to determine whether something is legal or not, if it has never been put to the test. Ultimately, its something that the Supreme Court would have to rule on, if the issue were ever to be put to the test. That's how a Constitutional Crisis works.
The concentration of autocratic power is not mutually exclusive with the rule of law.
No, but it is mutually exclusive with the Founders' intent to prevent an autocracy, which was my main point here. Do you deny that?
A terrible idea does not illegal make. Abuse does not illegal make. Impeachable does not illegal make.
Out of curiosity, I'd actually like your opinion on whether you believe that a Presidential self-pardon by Trump would be a) a terrible idea, b) Abuse of power, or c) impeachable.
You can, as a matter of legal fact, abuse a power legally, and you can be impeached for such a legal abuse.
Doesn't the Constitution specifically say that the President can be impeached for "high crimes and misdemeanors"?
To be more clear, the "high crimes and misdemeanor" you are being impeached for requires no action via the Executive's law enforcement apprentice for Congress to impeach and convict. They can do it entirely inside their own bodies independently. They don't even have to apply statutes in doing so. They can make it up as they go, and this makes a lot of sense when you think about which branch of government the framers envisioned as the primary seat of Federal power (hint, it was not the Executive).
If impeachment was intended to be for "high crimes and misdemeanors", does not that imply that for something to be impeachable, it must also be illegal?
Yes, it is obviously legal and its not really a question for any serious Constitutional scholar.
Those are some pretty bold assertions, given the scant evidence you've provided (hint: Appeal to Authority works better if you actually cite some specific authorities).
The relevant section of the Constitution is surprisingly clear on the matter, not just establishing a pardon power but also expressing narrowly the specific circumstances (impeachments) it can't be used and what it applies to (crimes against the United States). The portion of Article II, Section II in question:
The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.
The only restrictions on pardon power is that it has to be an offense against the United States (so a federal crime, not a state (or foreign for that matter)) and it can't be applied to an impeachment. It doesn't get any more clear than that.
What about the argument that a "pardon" is implicitly not something one can grant to oneself? Because you know as well as I that things like precedent and the underlying intent of the law matter in its interpretation, not just a literal reading of the text.
You will note that this means Congress gets the last word should they decide such a pardon is an abuse of power, even if it is a legally allowable use, as their impeachment against a President can't be pardoned. However, the ex-President would still be immune from follow on criminal prosecution for whatever was pardoned.
To clarify, then, your position is that the President effectively has absolute immunity for all federal crimes, up to and including treason, terrorism, etc.?
While I agree that abuse of the pardon is something that Congress should address, I'm not convinced that its something that cannot
be addressed outside of Congress- that the President is immune to prosecution. And if that IS determined to be the case (a determination that the Supreme Court would ultimately have to make, if it were put to the test), then that would essentially mark the end of the rule of law in America, and set an absolutely damning precedent, as it would essentially say that a President can break Federal law with absolute impunity for personal gain, with the only possible repercussion being loss of office (and not even that if he has a friendly Congress).
In that case, I have three follow-up questions:
1. Do you believe that the President should have such immunity?
2. Do you believe that it is consistent with the Founders' intent in writing the Constitution?
3. Would you still hold this view if Hillary Clinton were President and was weighing the possibility of pardoning herself for EmailGate?
4. Would you support a Constitutional Amendment to limit the President's power to pardon?
Its also important to note that even if the technical exercise of a pardon is not illegal, the thing the pardon is meant to do can be. For instance, if a pardon was issued to silence a witness, that's still witness tampering. You would be impeaching for the witness tampering, not the pardon. It may seem like a meaningless distinction, but it really is quite important. But again, they could just impeach for the pardon, it just won't invalidate it.
That's a valid point, but if you are correct, the President could just pardon himself or herself for those crimes as well.
I guess there's still the possibility of state charges. As far as Trump's concerned, I wouldn't be surprised if he ends up being nailed by the State of New York, and I don't much care whether its a federal or New York state prison he spends his twilight years in. But in a larger sense, I think that its deeply dangerous to a republic for a President to have the ability to grant themselves immunity to all federal law.