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Notes -
Politico says that Biden’s staffers are allegedly pushing for preemptive unilateral pardons for controversial figures in order to “inoculate” them in preparation for Trump’s DOJ & FBI. There are some real eyebrow-raisers in this article, so forgive me for this block-quote:
Emphasis mine. It’s not really surprising that Biden wouldn’t be brought into these discussions given how isolated he has been said to be in these last weeks, but the fact that his staffers see an opportunity to extend his personal clemency for his son to a general pardoning of anyone Trump dislikes (including those that might have committed legitimate crimes, like Fauci) seems to me to be another attempt to just have one final ‘fuck you’ against Trump as lashed out from Biden’s lame duck period. As mentioned in the article, one of the major weighing concerns in actually doing this would be the fact that the very instance of such pardons would seem to be indicative of actual foul play, and to add on it would seem to be reminiscent of the pardons Trump gave out in his last weeks as President even as in those cases the pardons weren’t sweepingly preemptive as these would be.
The very fact that Fauci of all people might get a pardon, despite the fact that entire governmental agencies as seen in the House & Senate reports believe that some fuckery might have been going on with gain-of-function research, seems to me to be a huge mistake to make; his pardon if done would have to specifically make clear the timeframe in which that research was going on to clear him for it (if any foul play occurred during that timeframe) if that’s what the Biden administration believes Trump will prosecute him for. This is just one example of a possible pardon and its disastrous implications, too, notwithstanding the other rumors of Biden pardoning SBF or whomever else (which would also be another thing that could be explosive given conflict-of-interest).
Removing the fifth amendment protection from insiders is probably not that wise.
The poetic irony of it would be terminal though.
Biden staffers forced to reveal every single dirty work of his administration to be milked for political points by Republicans for decades to come, all because they wanted to shield themselves from any possible consequences.
You wouldn't even write this in fiction because it'd be too on the nose.
When I looked it up, SCOTUS had said presidential pardons must be accepted by the recipient to go into effect, so if any member of his staff believed this was the likely outcome they could choose to roll the dice and reject the pardon. Actually, given that ruling, what if a person pardoned for multiple crimes chose to introduce a pardon into the proceedings for one crime and not another? Could someone 'selectively' accept a pardon?
Further, going along with the irrevocability of pardons we were talking about the other day, I wonder how the court would rule on the idea of withholding, and not rejecting, acceptance of a pardon for an indefinite period of time. Could Biden pardon a large set of people who then withhold acceptance of the pardon into the next administration, only accepting the already-existent and irrevocable pardon if and when it becomes expedient to do so?
A lot of our precedent on pardon powers comes from custom and tradition rather than law, like prosecutors just dropping a case after a pardon is issued rather than fighting to see if the pardon will be accepted. I Am Not A Lawyer, so maybe there's a lot of scholarship on the subject I'm not familiar with. But there's a lot of fascinating questions about how pardons are supposed to interact with the court system.
For instance, it's not at all obvious to me as a layperson why accepting a pardon would or should invalidate someone's right against self-incrimination; as I understand it, accepting a pardon is not an admission of guilt, and a person may have perfectly reasonable opposition to testifying as to their factual guilt. If a pardon doesn't stop a pardoned murderer from being compelled to state under oath and before the whole community that they murdered their housekeeper, or something, well... seems like it's a blessing with a curse.
Well, let's look at the actual language of the Fifth Amendment:
The underlying thrust of this, especially when read together with the rest of the amendment, is that the constitution offers protections against prosecution. Not embarrassment, not reputational harm, not even civil liability. Once a pardon is issued, the pardoned individual can't be a witness against himself in a criminal case because there can be no criminal case. Look at what happened with Bill Cosby; the prosecutor dropped a weak criminal case to allow the alleged victim the opportunity to pursue a civil suit. By entering into a non-prosecution agreement, the alleged victim could now depose Cosby and he couldn't invoke the Fifth Amendment privilege because nothing he said could incriminate him. (Ignore the fact that the trial court misapplied the law and he ended up serving prison time for these statements; the clarification from the appellate court upholds the principle.)
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