Posts Tagged ‘US election’

With all the horror that’s beginning to strike people about what President Trump could and could not do in office, something’s been missed, I think. Something fairly important, and I’m not sure why. It could be that there’s so much else worrying people, and it’s only been 36 hours since he was elected…

OK, let’s get this preamble out of the way. With the system of checks and balances inherent to the US Constitution, yes, there are limits to a President’s power.

Indeed, there’s a piece doing the rounds saying – I summarise – “don’t panic, he can’t pass new laws on his own, he can’t repeal laws on his own, he needs Congress to do this and that and the other.” Before he puts anyone on the Supreme Court, for example, he’ll need Senate consent (as he will for any federal appointment). And while the immediate nominee will be to replace Scalia, let’s face it, there’s likely to be more than one nominee to the Supreme Court during his time in office. He’ll also need their consent for signing treaties.

So he’ll need congress and while, for the next two years at least, the Republicans control both the House and The Senate, neither Bill Clinton nor President Obama got everything they wanted when their party controlled both of them. Let’s face it, the truism that the President needs Congress is – for the main part – accurate. Further, there’s a chunk of the Republican Party who will for their own reasons obstruct President Trump’s proposals. Not for nothing is the old saw “A President Proposes, Congress Disposes”.

As for taking the country to war, while that is indeed a power reserved to Congress, it hasn’t stopped previous Presidents for a second, and it won’t stop Trump.

So, what’s been missed? 

Now, for all of the following, bear in mind that I’m no lawyer. I don’t even play one on telly. And I haven’t checked this with any lawyers, so any errors, mistakes or otherwise are mine, all mine.

That caveat aired…

I think what people – in their immediate shock – have skipped is one power the Constitution does give to The President, one power unfettered by anything other than morals, ethics, basic honesty and a respect for the institution of the Presidency and the rule of Law, with all of which Donald Trump has at best a distant relationship. This power, in Article II, section 2, reads as follows:

…he shall have Power to Grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

Trump will have the power, from the first day, the first minute, of his Presidency, to pardon people. Now, sure, it’s limited to federal crimes; he can’t pardon someone for a local speeding ticket, say, or even a serious crime if it’s solely a state matter; that’s a governor’s responsibility. 

But that leaves a large number of criminals found guilty in federal court which Trump has the unlimited power to pardon or reprieve.

While the power to pardon has been used responsibly at times in the past, as an appeal of last resort, it’s also been been controversially used, to put it mildly.

Richard Nixon pardoned union leader and wannabe mobster Jimmy Hoffa, albeit with conditions attached; in due course, Nixon was pardoned by his successor Gerald Ford.

While we’re on Nixon, President Ronald Reagan pardoned New York Yankee’s owner George Steinbrenner (convicted of conspiring to make illegal contributions to President Nixon’s 1972 re-election campaign.)

Bill Clinton pardoned both his half-brother, and Patty Hearst (who’d had her sentence commuted by President Jimmy Carter). Oh, and of course there’s Marc Rich, who Clinton pardoned for tax evasion.

Sometimes, Presidents attach conditions to pardons: Steinbrenner only got his pardon after he admitted the crime.)

Sometimes Presidents give explanations for their pardons: Clinton said he pardoned Rich because Rich’s charitable donations to the Middle East helped the peace process.

However, they’re not obliged to make conditions nor give explanations: Aslam Adam served eight years of his 55-year federal prison sentence, for conspiracy to posses and distribute $1 million worth of heroin. President George H W Bush pardoned him just before he left office and Bush never said why.

In order to prevent abuse, in the past, there have been suggestions that a Constitutional Amendment be enacted to limit a President’s authority to pardon people who are or have been a member of his Administration, and/or have donated cash to the President, or his party.

Worth recalling at this point that one of George W Bush’s pardons was revoked – by Bush – upon it being revealed that the criminal’s father had donated $28,500 to the Republican party.

Here’s the thing, though: President Bush didn’t have to revoke it, legally I mean; he chose to.

The Constitution gives a President the power to issue pardons; it doesn’t limit that authority to “people who ain’t worked for you”, or somesuch. And even ethically, if you’re going to give the authority to a single person to override the courts and issue pardons, then that in itself should be the thing that people go “what the…?” over, not who he pardons.

In about ten weeks, the Oval Office will be occupied by a person who could – unless or until he’s impeached – interfere to an unprecedented degree in the operation of federal justice in the United States.

Anyone he likes personally? Pardon. Guilty of a federal crime with which Trump personally disagrees? Pardon. Already in prison for federal crimes, but you said nice. things about Trump? Commutation or Pardon.

Last week, two of Chris Christie’s aides were found guilty on federal court re ‘Bridgegate’. Rudolph Giuliani, rumoured to be Trump’s pick as Attorney General, today said that they shouldn’t have been prosecuted, and that it wasn’t that big a deal. Assuming this is the first step in a cunning plan entitled “While Everyone’s In Shock, Let’s try And Rehabilitate Chris Christie”, I wonder if pardons for Bridget Anne Kelly and Bill Baroni are already being drafted.

In seventy or so days, Donald Trump will have the power and legal authority to pardon anyone convicted of a federal crime.

Any federal crime.

Treason, mail fraud, aircraft hijacking, kidnapping, bank robbery, child pornography, obscenity, tax evasion, counterfeiting, violation of the Espionage Act, wiretapping…

Murder. Well, not all murders, but Murder of an Elected/Appointed Federal Official (18 U.S.C. Section 351, 1751)? Oh yes.

Someone could kill an elected federal official, be found guilty in federal court, and Trump could pardon them.

Similarly, Murder of a Federal Judge or Law Enforcement Official (18 U.S.C. Section 1114) or Killing of an Immediate Family Member of Law Enforcement Officials (18 U.S.C. Section 115(b)(3))

And if someone was found, in the words of The Producers, “incredibly guilty”, President Trump could pardon them.

Oh, and killing Designed to Influence the Outcome of a Court Case (18 U.S.C. Section 1512), which prohibits murders of court officers and jurors, or killings that are intended to prevent testimony from a witness, police informant, or a victim. It’s also a federal crime to commit murder in retaliation for testimony given at a trial.

And President Trump could pardon them on a whim.

Then there’s Murder Related to Rape, Child Molestation, and Sexual Exploitation of Children (18 U.S.C. Section 2248, 2251).

Now, I’m not suggesting that President Trump would pardon people found guilty of any of the above.

But he could. Any bloody time he wanted to, from 12:01 pm on 20th January 2017.

And that’s a scary, scary thing indeed.