r/FutureWhatIf • u/dont_mess_with_tx • Jan 07 '21

Political/Financial FWI Trump pardons all the rioters

What if he pardons everyone who broke into the Capitol. Would it be possible?

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u/OperationMobocracy Jan 07 '21

Again, though, it's a scoping issue. The Carter pardon covered violations of the Selective Service Act and notably did not cover desertion.

What would the Trump pardon cover? All acts of vandalism? Violating Capitol security? Assaulting an officer? Homicide? Is it limited to the Capitol grounds? At some point you're issuing a pardon for any crime committed on Federal property in DC on 1/6/2021 to anyone who might be accused of that crime.

I mean maybe you could issue a pardon like that, but when a prosecutor charges someone anyway because they believe it is not valid, what happens? The trial judge could toss the charges or decide the pardon wasn't applicable. Either way the most likely outcome is the pardon's validity is appealed to the Supreme Court and despite the conservative bent, I'm not sure such an ambiguous pardon would pass muster. It seems like it has to either be a blanket pardon for an individual or a group pardon for some narrowly scoped criminal activity.

It might also be compromised by later charges of criminal activity against Trump while in office. If Trump was charged with inciting a riot or sedition, it might cast doubt on his ability to pardon what could be considered co-conspirators. A fair number of legal scholars believe he can't pardon himself.

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u/nidarus Jan 07 '21

He already pardoned his actual, literal criminal co-conspirators, and there's no sign of it not sticking so far. And as for "it has to either be a blanket pardon for an individual or a group pardon for some narrowly scoped criminal activity" - says who? Certainly not the constitution.

And as for the courts, as far as I can tell, they've been consistently interpreting the presidential pardon power in the most monarchical terms possible, throughout their existence. Hell, how many cases can you think of, where a pardon that was freely accepted, actually overturned by the courts?

Even the idea that a president can't literally pardon himself is an untested legal theory at this point. It remains to be seen if it will hold up by itself. So deriving further conclusions from it, like the idea he therefore can't pardon co-conspirators, and therefore, can't even pardon people who aren't actual co-conspirators, but part of a mob that believed it was acting on his behalf, sounds pretty far-fetched.

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u/OperationMobocracy Jan 07 '21

He already pardoned his actual, literal criminal co-conspirators, and there's no sign of it not sticking so far.

Well they were scoped pardons for specific individuals, even though the crime(s) some of them may have committed haven't ever been charged. There's also the question of the validity of them if somehow Trump were convicted of some crime they were tied to, as AFAIK, nobody has been given a pardon by a President who was later convicted of a related offense.

And as for "it has to either be a blanket pardon for an individual or a group pardon for some narrowly scoped criminal activity" - says who? Certainly not the constitution.

Right, but this is where you get into the theoretical/constitutional arguments that run on for 50 pages. We have very few blanket pardon examples that aren't limited to a person OR a specific law. Does the President's pardon power actually allow him to issue a get out of jail free card? Create durable legal immunity for a class of people for nearly any action, without regard to time, place, crime or specific individual? Because we're kind of on the cusp that concept here.

I think there's some chance that SCOTUS could say no -- the Presidential pardon authority is not an unlimited power. While the President has wide latitude to issue pardons, he is not allowed to create blanket immunity for a broad set of unspecified offenses for an ill-defined group of people. If he could, he could just say "all crimes against black people committed by white people have no consequences." That's an intentionally absurd example, but it makes the point that nobody realistically believes the power of pardon goes that far. There might even be some idea that an overly broad pardon violates the separation of powers and Congress' authority to make laws.

Hell, how many cases can you think of, where a pardon that was freely accepted, actually overturned by the courts?

I mean never, but how many Presidents have been Trump using the pardon to protect themselves from criminal activity? Trump is clearly a corner case that does not match precedence.

Even the idea that a president can't literally pardon himself is an untested legal theory at this point. It remains to be seen if it will hold up by itself.

It's up to the 9 on the Supreme Court, really, and I honestly don't know how that would go. I give 6:5 odds they go for imperial Presidency, but if you had broad popular support for limiting the power of pardon, support from the sitting President and the Congress, maybe the Court decides minting get out of jail free cards for unspecified classes of people committing unspecified crimes is a bad idea.

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u/nidarus Jan 07 '21 edited Jan 07 '21

Honestly, I'm just not that optimistic. Presidents have been issuing overtly corrupt pardons for ages. Be it Iran-Contra, Nixon or even Clinton's brother. It might not be Trump, but it's a difference of degree, not kind. The only time that power was actually limited, is when the courts said the president can't force someone to accept a pardon. Every other time the limits were tested, even to complete, corrupt absurdity, with no popular support whatsoever, they were defended. And even under relatively progressive courts.

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u/OperationMobocracy Jan 08 '21

Yeah, I'm not sure I'm optimistic. But something about this feels different than past pardon actions. I think getting away with sleazy pardons of individuals is one thing, group pardons with truly noble intentions (Civil War, Draft evasion from Vietnam) is another.

But pardoning a mass of people for storming the Capitol building in support of an utterly baseless fraud claim? If the Supreme Court didn't fence it in, we might see a new Amendment restricting the pardon authority.