Showing posts with label Pardon. Show all posts
Showing posts with label Pardon. Show all posts

July 22, 2017

Can Trump Pardon Himself?

The Washington Post reported that President Donald Trump is seeking to understand his pardon power, a development that seems directly linked to the ongoing special counsel investigation into Russian meddling in the 2016 election and possible collusion between the Trump campaign and the foreign power. 
The Post raises the possibility of Trump pardoning top advisers, family members and even himself. Can he do that? To answer that question, I reached out to Brian C. Kalt. Kalt is a professor of law at Michigan State University and the author of a 2012 book entitled "Constitutional Cliffhangers: A Legal Guide for Presidents and Their Enemies." Our conversation, conducted via email and lightly edited for flow, is below.
Cillizza: Let's start with the Constitution. What does it say, specifically, about presidential pardoning power?
KaltArticle II, Section 2, Clause 1 of the Constitution says that the president "shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment." So it doesn't reach state crimes (only "offenses against the United States") and it can't stop or undo a congressional impeachment, but other than that the power is pretty broad. Contrary to what many people think, there is no requirement that a person must be charged or convicted before being pardoned. 
The only other limits are things that are implicit in the definition of a "pardon." So, for instance, a pardon can only reach things you already did. It can't suspend the law in advance, because that wouldn't be a "pardon."
Cillizza: Can a president actually even be prosecuted in office?
Kalt: It's not clear. I (in Chapter 1 of my book, "Constitutional Cliffhangers: A Legal Guide for Presidents and Their Enemies") and many others have argued that presidents cannot be prosecuted while in office, but the argument is complicated and there are points on both sides. 
The Constitution does not explicitly provide for presidential immunity, and that's good enough for some people to say a prosecution would be fine. But the Constitution also makes the president the head of the executive branch that would be doing any federal prosecuting, so a president couldn't really be prosecuted by the federal government unless he effectively consented. 
It is very awkward to have even an independent counsel go after the president, because the president's ultimate control over the executive branch means that the president can derail the investigation as long as he is willing to pay the political price. State prosecutions are awkward too, because having one county district attorney haul the president of the whole country into one is structurally awkward.
If you like the idea of one county DA whose ideology you share having that power and using it against a president you dislike, ask yourself if you would like it if the parties were reversed. Imagine a county DA with politics opposite yours, pursuing a president you like.
Impeachment provides another structural piece of the puzzle. There is broader consensus that presidents can be prosecuted once they have left office, and impeachment can hasten that day.
Cillizza: No president has ever pardoned himself. But what about the pardon of a top adviser? And what was the blowback if any?
Kalt: One example was President Bush (43)'s commutation of Scooter Libby's sentence, but that did not make a very big splash. Another example is President Bush (41), when he pardoned Caspar Weinberger and other Reagan administration officials in December 1992 regarding the Iran-Contra affair. They were not his aides, but he had worked alongside them in the previous administration and Bush was swept up in the scandal to some extent as well. But Bush had already lost the election, so there was nothing much for the blowback to blow back on.
Cillizza: Presidential pardons have become a late-in-the-term move due to the controversy they cause. Has that always been the case, historically speaking?
Kalt: Historically, there does seem to be a slight increase in the use of the pardon power toward the end of terms, but not a lot of overly controversial ones. 
More recently, though, we saw very controversial lame duck pardons by Bush(41) (as mentioned above) and by President Clinton, who pardoned Marc Rich, Susan McDougal, and his brother, Roger Clinton, among many others, on his way out of office. Given what happened to President Ford -- who pardoned President Nixon in 1974 and then lost the election in 1976 partly as a result -- you can see why they might have wanted to wait until after the election (even if a president isn't running for re-election, like Clinton in 2001, he might want to avoid harming his party's prospects). 
But one of the reasons that the framers of the Constitution gave the pardon power to the president was that he is politically accountable. That makes it troubling when presidents wait until the end [of their term], when they are at their least accountable, to issue controversial pardons.
Cillizza: Finish this sentence: "The chances of a president being able to pardon himself are roughly ______%." Now, explain.
Kalt: Ha! I have been studying self-pardons and writing about them for over 20 years now (including in Chapter 2 of my book), and I have thoroughly convinced myself that any court faced with the issue should rule against self-pardons' validity. But "should" and "would" are two different things, and it is so hard to predict just what the Supreme Court would do that I can't say with any precision. I'll just say that I think it's less than 50%, but not close to 0%. 
On the president's side is the fact that the Constitution does not expressly prohibit self-pardons.
The argument is a bit more complicated on the prosecution's side -- that's how it would get to court; the president would have to pardon himself and the prosecutor would have to prosecute him anyway, presumably after the president had left office. 
First, as I said in my answer to [your first question], there are limits in the pardon power implicit in the notion of what a "pardon" is. So the prosecutor would say that a pardon is inherently bilateral -- something you can only give to someone else. "Pardon" comes from the same Latin root as "donate," and it doesn't make sense to speak of donating things to yourself. 
Second, there is a venerable principle in the law that no one can be the judge in his own case. We would not permit a judge to preside over his own trial, for instance. So we would say here that if a president wants a pardon he has to get it from someone else, i.e., a successor. 
Third, there are some historical arguments that support the idea that the framers of the Constitution assumed presidents could not pardon themselves.
One could also interpret your question more practically: What are the chances that a president would feel able to get away with a self-pardon. Given how bad it would look, how it provides grounds for impeachment, and how it could even be a crime of its own (similar to how a pardon given in exchange for a bribe could be prosecuted as a bribe, a pardon given to obstruct justice could be prosecuted as obstruction of justice), and given how it would not affect any state prosecutions, presidents have lots of good reasons not to try to pardon themselves.


June 25, 2017

Manning with a New Life Recovering from Government Jailing

Ever since Chelsea Manning was dumped into a military solitary confinement cell for passing secret information to self-serving Assange of Wikileaks, adamfoxie*blogspot is been posting every time some news squeezed out about her. One did not have to get a degree in space science to know that when a teenager is put in charge of sensitive information to use and without proper safeguards for his state of mind and the information he guarded should not be thrown in solitary confinement without even the benefit of a lawyer. Something was wrong and it was my personal belief that those guarding him and the government in general, had as much if not more responsibility in this embarrassing fiasco for the military and the Bush Administration than the person being blamed totally for it.

 If nothing else will tell you what type of human being we had as President, the act of compassion and sincere truthfulness by him pardoning this woman should tell you. A man with fairness that could look at the case of this young transitioning man and see he was not and never had been a threat to this society. President Obama did the right thing and used his powers to pardon like is never been used before: Not to pardon a crooked President by the next President that took his job or money donors caught with their hands not in the cookie jar but with dump trucks emptying banks of their customer's money, which was then replaced again by the whole country.

He pardoned Manning. I have been curious to see how he looks now and here is a picture and a post from Buzzfeed in regards to all the damage Manning did X0 none.

In the seven years since WikiLeaks published the largest leak of classified documents in history, the federal government has said they caused enormous damage to national security.
But a secret, 107-page report, prepared by a Department of Defense task force and newly obtained by BuzzFeed News, tells a starkly different story: It says the disclosures were largely insignificant and did not cause any real harm to US interests.
Regarding the hundreds of thousands of Iraq-related military documents and State Department cables provided by the Army private Chelsea Manning, the report assessed “with high confidence that disclosure of the Iraq data set will have no direct personal impact on current and former U.S. leadership in Iraq.”
The heavily redacted report also determined that a different set of documents published the same year, relating to the US war in Afghanistan, would not result in “significant impact” to US operations. It did, however, have the potential to cause “serious damage” to “intelligence sources, informants, and the Afghan population,” and US and NATO intelligence collection efforts. The most significant impact of the leaks, the report concluded, would likely be on the lives of “cooperative Afghans, Iraqis, and other foreign interlocutors.”
The June 15, 2011, report, written a year after the leaked documents were published by Wikileaks and an international consortium of news organizations, was obtained by BuzzFeed News in response to an FOIA lawsuit filed in 2015. Classified SECRET/NOFORN, meaning it was not to be shared with foreign nationals, the document was selectively cited by government prosecutors during Manning’s court-martial. Defense lawyers were not allowed to read it. More than half the report was withheld by the government.
To prepare it, more than 20 federal government agencies, including the FBI, NSA, CIA, the Department of State, and the Department of Homeland Security, conducted a line-by-line review of more than 740,000 pages of classified documents “known or believed compromised” by WikiLeaks to assess the damage.
The report goes on to say that the documents the task force reviewed contained details about previously undisclosed civilian casualties in Iraq and Afghanistan, which “could be used by the press or our adversaries to negatively impact support for current operations in the region.”
The task force’s review also found that a so-called, password-protected “insurance file,” which WikiLeaks founder Julian Assange said contained additional classified US documents and which he threatened to publicly release if anything happened to him, likely did not contain any information the task force hadn’t already reviewed.
Manning was released from Fort Leavenworth in May after President Obama commuted her 35-year sentence. Attorney General Jeff Sessions has said the arrest and prosecution of Assange, in connection with these and other documents, is now a “priority” for the Department of Justice.

September 16, 2016

Wikileaks Assange Will Turn Himself in if Obama Pardons Chelsea Manning

WikiLeaks founder Julian Assange, the target of one of the largest national security investigations in U.S. history, agreed on Thursday to hand himself over to authorities. There’s only one catch.

In exchange for his surrender, Assange is asking President Barack Obama to grant clemency to Chelsea Manning, a former U.S. Army private convicted in 2013 of leaking sensitive government files to WikiLeaks. Under the U.S. Constitution, Obama has the authority to pardon or commute the sentences of prisoners convicted of federal crimes.

Manning, a transgender woman, is currently serving out the remainder of a 35-year prison sentence at the U.S. Disciplinary Barracks in Leavenworth, Kansas. She suffers from gender dysphoria (as diagnosed by military doctors) and in July attempted to end her own life, later citing a lack of appropriate treatment as the cause. The military agreed this week to allow Manning to undergo sex reassignment surgery drawing an end to a hunger strike initiated by the prisoner five days before.

While there’s no indication the Obama administration would consider Assange’s offer—the White House did not respond to a request for comment—the president has the ability to commute Manning’s sentence and set her free. (In contrast, a “pardon” is applied in the case of a former prisoner who has already completed their sentence.) According to the Office of the Pardon Attorney, Obama has granted 575 commutations during his presidency, more than the last nine presidents combined, while denying nearly 9,000 commutation requests.   uest for treatment, she must still attend a hearing on Sept. 20 concerning a set of charges stemming from her suicide attempt. Those charges reportedly include “resisting the forced cell move team” and “conduct which threatens.” Manning’s lawyers have characterized the charges as “absurd,” stating it is impossible Manning resisted the cell extraction, or threatened the safety of the prison guards, since she was unconscious when they arrived. Manning additionally faces a charge of “prohibited property” for a book in her cell allegedly mislabeled. 

According to the American Civil Liberties Union, Manning, if convicted, could face an array of harsh punishments, including solitary confinement, reclassification into maximum security, and an additional nine years in medium custody. The conviction might also negate any chance of parole.

Last month, Manning supporters delivered more than 100,000 signatures calling on Secretary of the Army Eric Fanning to drop the charges. 

“Chelsea's access to mental health care has been inconsistent,” Manning attorney Chase Strangio of the ACLU said at the time. “It is an ongoing concern of her attorneys and supporters that she is not getting adequate mental health care, particularly in light of the external forces that are destabilizing her mental health, like the service of these administrative charges against her and the ongoing investigation of those charges.”
100,000+ signatures delivered to the Army requesting Manning's charges be dropped.  

Manning was previously held in solitary confinement for nearly a year at Marine Corps Base Quantico in Virginia for up to 23 hours a day and was forced to strip naked at night. The treatment, the U.N. special rapporteur on torture found, was tantamount to “cruel, inhuman, and degrading treatment.”

Dr. Daniel Ellsberg, a whistleblower behind released the Pentagon Papers in the 1970s, told the Daily Dot by phone that he believes the indefinite detention faced by Manning amounts to a threat of torture by the U.S. government. “It is in fact very common,” Ellsberg said, regarding the isolation of prisoners for extended periods of time, a practice shown by scholarly research to have devastating effects on the human psyche. (Approximately half of all prison suicides in the U.S. occur in solitary confinement.)

“When you say ‘indefinitely,’ we've seen for example in the U.S. system that can mean years, really, many years even,” Ellsberg said. The fact that solitary confinement is widely used, he added, “doesn't mean that it's acceptable, or normal, or tolerable, but rather that torture goes on very widely in our prison system.”

Manning’s treatment at the hands of the U.S. government may offer a preview of what life would be like for Assange were he to wind up in the U.S. under charges of espionage.

A United Nations working group ruled early this year that Assange has been “arbitrarily detained” by the British government for more than four years. Assange, now 45, fled to Ecuador’s London embassy in August 2012 to avoid extradition to Sweden where he is sought by police for questioning over sexual crimes, which he has denied committing. Assange has previously stated he believes Sweden’s request is a ruse by officials seeking to curry favor with the U.S. government by handing him over to face espionage charges for leaking classified U.S. information.

This week, the Ecuadorian embassy agreed to allow an Ecuadorian prosecutor to question Assange at the London embassy on Oct. 17. on behalf of Sweden. Swedish chief prosecutor Ingrid Isgren and a police investigator are permitted to be present during the questioning.

Assange has previously offered to surrender himself for extradition, provided U.K. and Swedish authorities confirm publicly they have no intention of handing him over to the U.S. for his WikiLeaks-related activities. That offer was apparently refused or ignored.

Assange’s fears are, in fact, well grounded. The Federal Bureau of Investigation claimed as late as last year that files pertaining to WikiLeaks are exempt from freedom of information laws due to an “ongoing criminal investigation.” The FBI also targeted Jacob Appelbaum, an activist and researcher and known confidant of Assange, in various ways, including a warrant to acquire a year’s worth of his data from Google.

WikiLeaks did not immediately respond to a request for further details about Assange’s offer. 

For more information about suicide prevention or to speak with someone confidentially, contact the National Suicide Prevention Lifeline (U.S.) or Samaritans (U.K.).

Dell Cameron

 Dell Cameron, 

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