Anyone telling you that we've seen pardons of this sort before—and therefore we can be sure of their legality under the Constitution—is blowing smoke. These pardons are a matter of first impression for our courts. My view and the view of many is that they should be ruled illegal.
A bad lawyer is one who tries to make precedent fit a novel situation to falsely portray the law as static. A good lawyer is one who distinguishes precedent from a novel situation when new facts present new dangers.
These pardons are a novel case, and good attorneys will say so.
These pardons are a novel case, and good attorneys will say so.
I'd be telling folks what they want to hear if I were to write that these pardons will be vacated. I'm not saying that. I think the chances of that are very small. What I'm saying is strong arguments can and should be made to vacate these pardons—and that such arguments are just.
There are attorneys on Twitter tonight explaining why these pardons are dangerous and not easily remedied—and outlining why they're novel and must be challenged. I respect such folks. Other lawyers are exposing themselves as mediocre by blithely claiming no pardon can be illegal.
There are uses of the pardon power that create a constitutional paradox and thus can't reflect the intent of the Framers. Our system of checks/balances ensures there is judicial review of even executive branch actions that seek to cloak themselves in the mantle of absolute power.
I worked with hundreds of attorneys in my career as a practicing attorney, and one distinguishing line between the good ones and the bad ones were that when the bad ones were faced with a novel situation, they sought conventional wisdom. The *good* ones engaged creative thinking.
(VIDEO) I just laid out in great detail in a live Instagram video all of the significant issues with these recent pardons that make them a potential novel case in our federal courts. If you want to watch my discussion, you can find it on my IG feed, here: instagram.com/seth.abramson
(NOTE) I address the "justiciability" issue in a comment on my Instagram post, for those lawyers wondering about it. As for standing, I address one scenario in the video—but there are many. For instance, you can go ahead and charge these men—then *they* raise pardon as a defense.
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