I never thought I’d be retweeting Ah-nold, but this is very good, and what we need now. He talks about his family in Nazi
Germany Austria (thanks, Amir Khalid). It’s, among other things, a warning to those who think Wednesday’s assault on the Capitol was a good thing.
And, since we’re doing explainers this morning, here’s Immanentize’s take on pardons.
People using past pardons (Nixon, draft dodgers) are making some big categorical errors in thinking this through.
So, here is how I think about it, as a criminal law matter. First, pardons are for criminal law questions only — that is, you can’t pardon someone out of a civil lawsuit.
Second, the basic unerring premise of criminal law is that every crime must have an act. One cannot punish thoughts alone, only acts (although conspiracy as a crime gets close). So — all crimes must be based on acts. But not all acts are criminal of course.
Third — the prior examples of “blanket” pardons were not all that blanket. Nixon’s pardon was never tested — but it was a pardon of a specific individual for all ACTS while in office (only then by specific dates). The Carter pardon was for a narrow set of crimes (selective service act crimes) for many but it also excluded a good number of people (AWOL offenses for example). So, a wide but finite number of people who avoided the draft, but only for a very narrow category of statutory crimes. So, not so much an ACTS pardon, certainly not a specific person pardon, but rather a bar to Federal prosecutions of certain specific federal crimes before a certain date. Carter’s memorandum was not really considered a pardon of individuals by many, rather a direction to Federal prosecutors not to charge crimes (which is always discretionary anyhoo). When Reagan became president, there was talk of him issuing a new order allowing the prosecutions again, but four years had passed and it seemed like a stupid fight to have. So, again, untested.
So, for a valid pardon to be made here, It seems that the president would have to pardon either specific people, or specific acts related to crimes. I think that he could pardon Q Shaman guy for all crimes committed that day. Or even committed during Trump’s term. A pardon of a Nixon type. But that could/would be tested. Trump could pardon everyone in the world for violating the trespass of public property crimes under a specific statute. A Carter-type “pardon.” But that might only be a prosecutorial discretion act which could end with his term in office.
What I do not think is legal as a pardon is what most people are calling “blanket” pardons. For any act or crime for any person that day. Is he really going to pardon the cop killer(s?). Or, suppose someone did plant a bomb in the Capital that day and it goes off after the pardon issues? The act was planting the bomb, can that conceivably be pardoned? I think not.
If he tries a blanket pardon of this type which has no precedent tested or not, there will be prosecutions and then we will know the outlines of the pardon power.
Further affiant sayeth not. And if there are typos, deal. It’s Sunday morning.