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T. Greg Doucette @greg_doucette
, 69 tweets, 20 min read Read on Twitter
No. A person being pardoned can refuse it, rendering it ineffective. That was the precise issue in Burdick v US, where Burdick refused to accept the pardon so he couldn't be compelled to testify
There is no exception for pardoning his own crime, that's a myth. He can absolutely pardon co-conspirators

Impeach and remove faster. There's nothing saying they couldn't do all of that in the span of minutes; the procedural requirements for an impeachment trial are a political question courts can't adjudicate. See Nixon v US (*not* US v Nixon)

Call CJ Roberts on his phone and have him be there tomorrow

There's no confusion, just people wishcasting -- the argument is that one can't be a judge in their own case, but clemency is an executive function so there is no judging

A lot of ppl who argued Clinton could pardon himself now claim Trump can't, and vice versa

The reality is there are only 2 limits in the text of the Constitution: federal crimes only, and never impeachment

@BrandonLBradfor
I mean I suppose theoretically someone could have Trump jailed until then. That itself would violate the Constitution, but once the impeachment and removal was done that's a wrap

The end result IMO, that I've been saying since 2016, is that all of this ends in mass pardons for everybody and there's no way to stop it.

Folks wanting Trump in cuffs will have to pray for state-level crimes

@bentwhee
I don't think so. The admission would be to having committed the crime; the rationale ("at the direction of the candidate") isn't part of the offense itself so wouldn't factor in

Depends on what's been done. From what I've seen thus far, I'd be perfectly content seeing him in prison.

Fair. His ongoing threat to national security is the more immediate problem

There a bunch of different rules governing when a witness can be compelled to testify in a particular case, so whether they could be or not would still be unknown. But accepting the pardon means no Fifth Amendment right to silence; similar to immunity

A campaign finance lawyer could probably explain it better, but there are 3 rules to remember:
1️⃣ Corporate contribs are banned
2️⃣ Individual contribs are capped at $2,700.00, and must be disclosed
3️⃣ No self-funding cap, but must be disclosed

1/
The Daniels & McDougal stories cross some lines:

➡️ National Enquirer made illegal contribs

➡️ If one argues it wasn't illegal b/c Cohen paid, Cohen exceeded $2700 cap

➡️ If one argues Cohen is fine b/c Trump reimbursed him, Trump violated disclosure reqs

2/
@blouchtika
Then there's the separate offense of conspiring to circumvent the reporting reqs, which I'd argue is worse than doing it "accidentally"

3/3
@blouchtika
"Immunity by Congressional majority," yes

Presidents from both parties have been ruling as autocrats for decades now; lots of scholarly writing on "the imperial presidency"

It just happens people are only upset now
Of course not. The Founders figured Congresscritter egos would be so large they'd jealously guard their own power

Turns out they only wanted the salary, perks, and dinner invites

No. Pardon only covers past conduct, not prospective

Fair, but it long predates him too. I had an "imperial presidency" textbook in my freshman Poli Sci class -- in 1998

That's not how the law works

"I always used to do this thing that was legal when I wasn't a candidate!" means diddly when you choose to become a candidate and engage in the same behavior

It was done expressly to benefit the campaign, because had she gone public it would have damaged Trump in the polls. If it's for a campaign-related purpose, it needs to be disclosed.

By way of example, when I ran in 2016 we purchased name tags for a campaign fundraiser

Even though we use the same name tags for when I teach CLE classes, I had to disclose the expense b/c it benefited my campaign

@Blouchtika
Also possible, but I suspect Pence wouldn't want to end up like Ford

How long have you been a campaign finance lawyer?

Trumpists are so funny

🤡: "This thing is *NOT* a crime even though Michael Cohen pled guilty to it in court."

👴🏼:
Trump couldn't pardon state crimes at all; he could pardon federal crimes if the conduct has already occurred, even if charges aren't brought yet

It's bizarre. That's the Deep State for you I guess, deeper than deep

Yes. Ex Parte Garland and Burdick v US are 2 SCOTUS cases that are required reading for understanding POTUS pardon powers.

It can reach any past conduct that constitutes a federal crime, regardless of any indictment or plea or etc

Folks go to prison in "his word against the other guy's" cases every day

But "independent evidence" was also already seized in the raids on Cohen's offices, so his word isn't all that important

If there were a hypothetical trial on this, the Government would have to prove the intent was to benefit the campaign. In that scenario, this argument would be a good topic for cross examination of the Govt's witnesses

Typically it would be standard income taxes, though 1099s also get filed frequently too (even though I'd contend they often shouldn't be)

I never argued laws are impossible to understand without going to law school.

I argued *you* don't understand them, so I asked how long you've been a lawyer in the field so I know who to avoid in the profession

He could pardon the conspiracy (the criminal conduct that had already taken place), but not the murder until it happened and in a manner/jurisdiction that made it a federal crime (most murders are state offenses)

State disclosure laws vary of course, but yes. I had to disclose that as well.

No requirement for specificity. It could just say "All federal criming between X and Y dates"

Historically yes. The topic of self-pardoning has been discussed by legal scholars since Nixon, and the only points against are unconvincing memos from the White House Office of Legal Counsel under Nixon and Clinton

SDNY == The United States Attorney's Office for the Southern District of New York

It's still a federal court, considering federal offenses. This was not a state-level prosecution

Each state has 1+ federal courts operating on top of it; North Carolina has 3 for example, and IIRC New York has 4. They have jurisdiction over federal crimes occurring in that geographic territory, but states have their own separate right to prosecute

It's referred to as a "dual sovereign" model. Some offenses are only federal (e.g. federal campaign finance regs); others are only state (e.g. random murder not on federal property); some are both (e.g. drug trafficking)

@AliaGvR
The Cohen cases were referred to SDNY for federal prosecution, rather than handled by Mueller's Team out of DC/VA, b/c the crimes primarily tied to Cohen's taxi business and non-Russia-related campaign issues

@AliaGvR
Tongue-in-cheek reference from the Obama years, where Rs fabricated a "day of rage" story on social media and insisted minorities were planning to spend the day committing crimes. They were subsequently mocked by ppl who detailed the "criming" they planned
Basically making crime a verb to highlight how stupid the story was

@JJT_E_I_T
They all need Hooked on Phonics and Intro to Logical Fallacies

You should definitely stop talking about your interpretation of federal law

I give nary a f*ck on whether you want to talk about anything else

The first statement is true; the second is not

Again, you really should stop talking

The default is no, but states can add expanded double jeopardy protections

That's the discussion happening in NY now about what they're calling a "Fifth Amendment Loophole"; it's not a loophole, they just have a statute providing more protection

Yep. The entire Trump team is filled with criminals and incompetents, who are too stupid to realize some of their crimes wouldn't be crimes if they handled them like normal law-abiding people

Except that's not my argument's "logical conclusion."

Which you would understand, if you were better at logic.

You're illustrating my point. Read your excerpt on the irrespective test, then read what you tweeted me, and see if you can spot your error

The OLC memos, and the SCOTUS reasoning in US v Nixon and Clinton v Jones, are rooted in POTUS's Art II obligation to "take care the laws be faithfully executed." Indictment impedes that regardless of when the criminal conduct occurred

It's not a matter of interpretation. There is a core logical error between the excerpt you quoted and what you tweeted; a lawyer – or anyone versed in logic – would notice.

So are you conceding you don't notice the logic error you made? "It's OK I'm wrong because Dersh gave me the idea"?

I'll leave that in your discretion. I don't think he'll understand even if you explained it

I think (without knowing) there may be a language issue there b/c IIRC the original questioner is native French-speaking, not sure how the translations pan out in that scenario

I'd be fine with that. "The President shall have no power to pardon an offense committed, in whole or in part, by a President. Any such attempted pardon shall be void."

If the Founders didn't intend that possibility, they'd have written the prohibition into the document

The idea the Founders weren't concerned about a new monarchy, or weren't concerned about foreign powers influencing the election, is wildly ahistorical

It was front in their minds. Hence, e.g., req'ing the President to be "a natural born citizen"
The powers are different – the Russians are steering the election instead of the British or the French – but the fears were still present in 1787
Correct. Most states' governors have the power to pardon state-level offenses, but NY's Governor is currently a Democrat and unlikely to do so

You've inverted how the federal Constitution works here though. It's a document of limited and enumerated powers; where it's silent, the President has no authority unless so given by Congress (as with INA)

Re pardons, the authority is expressly written

"Courts resolve ambiguity daily"

Agreed. Now explain what's ambiguous about "[H]e shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment."

The addition of the "except" lays out the list of exceptions. That's standard statutory construction, practiced by courts daily.

Notice what's not in the list of exceptions? Crimes the President himself has committed.
Argue "but he'd be above the law!" all you want. Just be honest that there's zero basis for a no-self-pardoning position to be found in the document or in the Federalist Papers or in the case law.
"Two+ centuries of law and precedent" can't manufacture ambiguity in an unambiguous clause from the document under which that law & precedent were enacted

To say otherwise is to argue the words don't actually mean anything b/c they can be interpreted away
If Manafort were pardoned, and he accepted, he could not be retried on those 10 counts

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