Constitutional law

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Can the President pardon himself?

No.

That was easy!

I mean, come on — you don’t have to be a Constitutional scholar to figure that one out. A President who has the power to pardon himself is a king, a dictator, a tyrant. A President could murder his enemies and then pardon himself afterwards if that were the case.trump evil

The Constitution mentions the pardon power in Article II, Section 2. The president “shall have the Power to grant Reprieves and Pardons for offenses against the United States.”

“Offenses against the United States” means for federal criminals, not state ones. So if, say, the state of New York brings charges against Trump, it doesn’t appear that he would have the power to pardon himself of those charges.

But even so, it’s a long-standing tradition in both English and American law that a person cannot judge themselves. A judge who commits a crime in his or her jurisdiction must have another judge appointed to rule over that trial. Clearly, a pardon is a type of judging and therefore a person cannot pardon themselves.

Usually no one gets pardoned until after they have been convicted and have served some time — the President may pardon them so they can have a clean record.  However, Gerald Ford pardoned Richard Nixon before Nixon had been convicted or even charged (even though those charges were clearly coming). This set a bad precedent, was highly criticized by many legal scholars, and surely played a part in Ford’s failure to win re-election. Since Nixon accepted the pardon, it also means that he agreed he was guilty, doesn’t it?

But there’s more to Section 2 as well — “except in Cases of Impeachment.” So a President cannot pardon anyone who has been Impeached (which would include himself). Impeachment, of course, is separate from criminal proceedings. Bill Clinton was impeached even though he had not committed any crime.

So can a President pardon himself? While the Constitution does not explicitly say, all precedent and logic state that he cannot.

Can I mention in passing how absolutely ridiculous this past year has been? If I had pitched this as a fantasy novel to follow Bloodsuckers, my agent would have said it was too outrageous and unbelievable. And now this lunatic President is talking about pardoning himself?

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Who cares what the Founding Fathers thought?

The Founding Fathers were a bunch of politicians, not too different from the politicians we have today (except that they were all rich white men). Some were tremendously intelligent people who deserve all the accolades they receive. Thomas Jefferson, Benjamin Franklin, John Adams — great men who did their best to create this great experiment.constitution_quill_pen

Others have been lost to history. William Blount? Alexander Baldwin? Pierce Butler? Some were mediocre men, who fought against giving people any power, who argued to keep slavery, who forced the great men into compromises like the 3/5ths clause and the 2nd Amendment in order to gain their votes.

You know — politics.

And that’s why it is so frustrating when the Constitutional Fundamentalists say that we should obey the “will of the Founders” when interpreting the Constitution.  Well, which Founders?  This wasn’t adopted unanimously, you know. To argue that we should never have a position about the Constitution based on who won is like saying we should never question Obamacare because hey, it got passed by some politicians so it’s gospel and cannot be challenged.

And that’s the key — I call these people Constitutional Fundamentalists because they view the document like it’s a religious holy book, handed down by the Founding Gods, and we should obey what the Founders said. (And, of course, 100% of the time, just like religious fundamentalists, these people know exactly what the Constitution means and it matches their own personal views perfectly! Isn’t that amazing!)

The Founders created a foundation for a building — the Constitution provides the very minimalist blueprint. “Freedom of Speech” it says, but it doesn’t go into any detail. Does it include libel and slander? Television and internet? Can you cause a riot and claim this freedom as a defense? Can you reveal military secrets and not get punished? The Constitution doesn’t say.

That means it has to be interpreted, just like it had to be within a few years of its passage, when the Supreme Court had to make decisions and Founding Fathers argued before members of the Court (who were also Founding Fathers) and they didn’t all agree! 

So with all respect to the great men who founded this nation, 230 years later, who cares what they thought? These were guys who thought you could cure diseases through bloodletting. They thought humans could be property, women should be close to property, and killing natives for land was perfectly fine.

This would be like trying to add air conditioning and heating to your home but being told “No, the original blueprints from 200 years ago don’t mention that, so you can’t do it.” We should not have our society limited, Amish-like, to a time that no longer exists.

Many religious fundamentalists already understand this. They already ignore the parts of the Bible they want to ignore, recognizing that something that was written so long ago should not guide modern thinking.

Somehow, Constitutional fundamentalists have yet to reach that stage.

 

 

 

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No, The Gay Marriage Case has Nothing to do with Guns

Fox News commentator Allen West (a non-lawyer) wrote an article recently saying that since the Supreme Court gay marriage case says this must be applied over the entire country, then clearly it has set a precedent to allow for “conceal and carry” in all states.

This shows a real misunderstanding of the law.

First of all, the gay marriage case had to do with the 14th amendment, which prohibits discrimination against people. Despite the fact that the Supreme Court has called corporations “people” it’s not about to call guns, cars, or toasters “people” any time soon.rainbow.ak_

The analysis used in the gay marriage case is old. Like 50 years old. This same analysis was previously used to give rights to blacks and then later to women. It has just been expanded to include gays and lesbians. It is not a new analysis.

If the gun lobby could use this same analysis to do what the gun lovers want, they would have done it 50 years ago.

The short version: If the government wants to take away the rights of someone, the law must pass the “strict scrutiny” test:

It must be justified by a compelling governmental interest. While the Courts have never brightly defined how to determine if an interest is compelling, the concept generally refers to something necessary or crucial, as opposed to something merely preferred. Examples include national security, preserving the lives of multiple individuals, and not violating explicit constitutional protections.
The law or policy must be narrowly tailored to achieve that goal or interest. If the government action encompasses too much (overbroad) or fails to address essential aspects of the compelling interest, then the rule is not considered narrowly tailored.
The law or policy must be the least restrictive means for achieving that interest. That is, there cannot be a less restrictive way to effectively achieve the compelling government interest. The test will be met even if there is another method that is equally the least restrictive. Some legal scholars consider this “least restrictive means” requirement part of being narrowly tailored, though the Court generally evaluates it separately.  [NOTE:  I copied this from wikipedia, but it’s correct.]

It is very difficult for laws that discriminate to pass this test. The Supreme Court did not change this test at all, but merely added gays and lesbians to the test (at least as far as marriage goes — other discriminatory laws against gays and lesbians will be challenged under this test soon and should also fail, using this case as precedence).

This test is not used to determine whether everyone has the exact same rights as they travel from state to state — but West (and the people who foolishly believe him) are convincing themselves that they are being discriminated against because they don’t have the same rights as someone in another state.

Under this logic, there would be no more federalism at all. Using that logic, any law passed in any state would have to be enforced in every state.

Does that mean that marijuana would be legal everywhere? Hooray! Oh wait, we’d first have to decide which state laws apply — What if it’s decided that the state laws that prohibit guns from being carried everywhere are the laws that apply over the entire country? Why are these people assuming it’s the law they want that will prevail?

“But but,” the gun lovers scream, “the court said that you have to give gays these rights because it’s based on ‘certain personal choices central to individual dignity and autonomy’ and dadgummit, it’s our personal choice to buy guns without background checks and carry them into churches and shopping malls whenever we want to!”  Besides being ridiculous and not at all what the gay marriage case was about, this is also not what the 14th amendment is about.

Seriously, I’m not even going to dignify this by explaining why. If you can’t see why there is a difference between the fundamental right of all adults to get married and the right to own an inanimate object, then you’ve become so brainwashed by your guns and the gun lobby that there is no hope for you.

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I am in favor of murder and rape, according to Republicans

Yes, it is true.  I have represented some terrible people.  That’s my job as a defense attorney.

Clearly, then, I support criminal activity.  I mean, there is no other explanation.  It certainly can’t be that I support the United States Constitution, especially the 4th, 5th, 6th, 7th, and 8th amendments.

The Republican Governor’s Association knows this is true.  They are running ads against a Democrat in South Carolina who fought against the powerful District Attorneys and Attorneys General, who protected citizens against abuses by the police, who made sure that everyone’s Constitutional rights were not violated as they went through the system, and even helped some innocent people fight against unfair accusations.

So what do the ads say?  “He supported violent criminals instead of South Carolina.”

So yes, it’s true.  I am an anti-American person who doesn’t deserve any respect, because I am in favor of crime.  I am lower than the people I represent.  How dare I demand that we obey the Constitution.

Let’s hope this ad backfires on the GOP, as it should.

But then again, this is South Carolina, where they elected Mark Sanford after he had used government money to support his mistress.  Violating the Ten Commandments?  No big deal.  Supporting the United States Constitution?  What a terrible person!