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Old 10th January 2021, 02:59 PM   #1
Thor 2
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Pardons

Trump's fragrant abuse of his privilege to grant pardons brings this to mind.

I just wonder why a head of state should be given this privilege. How did this come about and what is the reasoning behind it?
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Old 10th January 2021, 03:03 PM   #2
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Originally Posted by Thor 2 View Post
Trump's fragrant abuse of his privilege to grant pardons brings this to mind.

I just wonder why a head of state should be given this privilege. How did this come about and what is the reasoning behind it?
Because sometimes the king needs to circumvent justice, as is his divine right. Duh!
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Old 10th January 2021, 03:28 PM   #3
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Originally Posted by Thor 2 View Post
Trump's fragrant abuse of his privilege to grant pardons brings this to mind.

I just wonder why a head of state should be given this privilege. How did this come about and what is the reasoning behind it?
I do think there can be value for a leader to pardon (or commute sentences) in it for certain circumstances...

- Sometimes new evidence may come up that justifies 'clearing' a person immediately. (Its possible that the courts might ultimately cause their release, but that might take time.)
- Circumstances may have changed for the incarcerated. (I'm thinking of someone like Chelsea Manning... who, due to her sexual identity, had more problems than normal for a prisoner)
- Society may have changed the way the crime is viewed. (I am thinking of something like Carter pardoning all Vietnam draft dodgers)
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Old 10th January 2021, 03:39 PM   #4
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Originally Posted by Thor 2 View Post
Trump's fragrant abuse of his privilege to grant pardons brings this to mind.

I just wonder why a head of state should be given this privilege. How did this come about and what is the reasoning behind it?
It is in place because the Justice System is not perfect and so there needs to be a mechanism to remedy a miscarriage of Justice once all appeals have been exhausted. The trouble is that it was not foreseen that a criminal President would be enabled by his own party to continue to act in a way that was criminal and so then pardon himself and those around him. They assumed that an act of criminality would lead to Impeachment, and so added in that the Pardon power could not be used in cases of Impeachment. Again however they failed to specify if this was merely a prohibition for Pardoning a person's impeachment, or whether it means that they can't be pardoned for crimes that lead to an Impeachment, nor whether those that aided in such crimes are also ineligible for a pardon.
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Old 10th January 2021, 03:39 PM   #5
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Originally Posted by Segnosaur View Post
I do think there can be value for a leader to pardon (or commute sentences) in it for certain circumstances...

- Sometimes new evidence may come up that justifies 'clearing' a person immediately. (Its possible that the courts might ultimately cause their release, but that might take time.)
- Circumstances may have changed for the incarcerated. (I'm thinking of someone like Chelsea Manning... who, due to her sexual identity, had more problems than normal for a prisoner)
- Society may have changed the way the crime is viewed. (I am thinking of something like Carter pardoning all Vietnam draft dodgers)

All of the above should be able to be addressed within the normal legal system.

I think the principle of separation of political power and the legal system is good, and yet we have this anomaly. Another is the appointment of judges by political leaders.
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Old 10th January 2021, 03:43 PM   #6
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Originally Posted by Thor 2 View Post
All of the above should be able to be addressed within the normal legal system.

I think the principle of separation of political power and the legal system is good, and yet we have this anomaly. Another is the appointment of judges by political leaders.
Trouble is that this is sometimes almost impossible, especially in a system where Prosecutors, Judges, and Police are very anti admitting that they might have gotten a conviction wrong despite blatant evidence showing that they did so.
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Old 10th January 2021, 03:44 PM   #7
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Originally Posted by Thor 2 View Post
Trump's fragrant abuse of his privilege to grant pardons brings this to mind.

I just wonder why a head of state should be given this privilege. How did this come about and what is the reasoning behind it?
Pure speculation, but.....


I think the power of the king, and later the president, to pardon probably stems from a time where the most common sentence for any felony was hanging, and it was usually carried out within days or weeks of a conviction, and Courts of Appeals weren't really a thing.

I have to believe it was basically a way of overriding a verdict before someone could be killed. The prosecutor and judge held life and death power over the accused, and the only appeal was to the king.
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Old 10th January 2021, 03:56 PM   #8
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Originally Posted by Thor 2 View Post
Quote:
I do think there can be value for a leader to pardon (or commute sentences) in it for certain circumstances...

- Sometimes new evidence may come up that justifies 'clearing' a person immediately. (Its possible that the courts might ultimately cause their release, but that might take time.)
- Circumstances may have changed for the incarcerated. (I'm thinking of someone like Chelsea Manning... who, due to her sexual identity, had more problems than normal for a prisoner)
- Society may have changed the way the crime is viewed. (I am thinking of something like Carter pardoning all Vietnam draft dodgers)
All of the above should be able to be addressed within the normal legal system.
Yes, those problems should be able to be addressed within the normal legal system. The question is, can they be. L

Like I said, sometimes things may simply take too much time to work through the system. (e.g. "We found evidence clearing you... but you will stay in jail for the next month or 2 while it makes its way through the court system.") And perhaps in other cases legislation could be drafted (e.g. to handle the draft dodgers), but that might not always work itself through the legislature if you have a divided congress.

Quote:
I think the principle of separation of political power and the legal system is good, and yet we have this anomaly. Another is the appointment of judges by political leaders.
Well, how else could you selected judges?

In some cases they can be elected, but then popularity may not necessarily lead to having the best judges. You could have them selected by some non-government agency (such as the Bar association), but many people would probably not like the idea of their judges being selected by people with absolutely no control.

The system of nomination-by-president/confirmed-by-senate is a system which (in theory) should work well... the confirmation process means that judges should be well vetted, and reflect the standards of society. Its unfortunate that Moscow Mitch corrupted the process. (But then, any political process is only as good as the people involved.)
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Old 10th January 2021, 03:58 PM   #9
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I think that a head state granting a pardon undermines the principle of equality before the law.

When I google "Pardons in the World" I am swamped by stuff about Trump and little else. I did find this however:

Quote:
By the time of the Enlightenment, though, pardons were also viewed by some commentators as an arbitrary, monarchical power. ‘In democracies, this power of pardon can never subsist,’ pronounced English jurist, William Blackstone, author of a seminal 18th-century work on English common law. Yet subsist it did.
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Old 10th January 2021, 03:58 PM   #10
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Originally Posted by Thor 2 View Post
Trump's fragrant abuse of his privilege to grant pardons brings this to mind.

I just wonder why a head of state should be given this privilege. How did this come about and what is the reasoning behind it?
It's pretty common.
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Old 10th January 2021, 04:00 PM   #11
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Originally Posted by Thor 2 View Post
Trump's fragrant abuse of his privilege to grant pardons brings this to mind.

I just wonder why a head of state should be given this privilege. How did this come about and what is the reasoning behind it?
So many ways to go here, it's hard to choose...
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Old 10th January 2021, 04:14 PM   #12
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Originally Posted by Segnosaur View Post
Well, how else could you selected judges?
Well.... Since you asked. [slight derail]we use a non-political Judicial committee that considers prominent barristers and prosecutors when they are looking for a new District Court Judge. They look at those District Court Judges who have been doing the best job when there is a vacancy in the High Court, High Court Judges are looked at for Appeals Court placements, and finally, they will look among the Appeals Court Judges to find a new Supreme Court Judge.

Once the Committee makes the selection, then they will recommend those name(s) to the Attorney General (who will be a member of the Government's Cabinet) and the AG will generally approve them. (There needs to be a pretty good reason for the AG to reject a selection.)

Once the Attorney General has approved a selection, they take the names and place them before the Cabinet who sign off on the selections.

These two parts are generally a formality.[/slight derail]
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Old 10th January 2021, 04:18 PM   #13
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There are also posthumous pardons for cases that were obvious travesties of Justice but were not seen as such at the time. Usually it’s mitigating old cases where racism led to unfair trials, etc. These cases would never be cleared by the courts.
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Old 10th January 2021, 04:29 PM   #14
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Originally Posted by PhantomWolf View Post
Well.... Since you asked. [slight derail]we use a non-political Judicial committee that considers prominent barristers and prosecutors
Will this 'Judicial committee' be within government or outside of it?

If its within government, then you run the same risk that you have now... it can be hijacked by a political party to advance its own agenda. If its outside government, then people may not like the fact that some extra-governmental organization is making such selections.

Quote:
Once the Committee makes the selection, then they will recommend those name(s) to the Attorney General (who will be a member of the Government's Cabinet) and the AG will generally approve them.
And if it is a republican AG, what are the chances of them approving a left-wing judge, if one happens to be selected by the committee?

Quote:
(There needs to be a pretty good reason for the AG to reject a selection.)
And who decides what a "pretty good reason" is? How is it enforced?

I don't think the process you're suggesting is necessarily a bad one, just that the same problem exists with the current system... you can't prevent judicial appointments from getting political at some point, if the people in charge are more interested in politics than the law.
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Old 10th January 2021, 04:36 PM   #15
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It's the same problem as the fillibuster and riders on bills.

Nobody wants to give up the ability to use it as much as they hate it when it is used "badly."
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Old 10th January 2021, 05:54 PM   #16
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Originally Posted by Thor 2 View Post
Trump's fragrant abuse of his privilege to grant pardons brings this to mind.
You hate Trump because he smells like freedom.
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Old 10th January 2021, 05:58 PM   #17
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Originally Posted by Thor 2 View Post
Trump's fragrant abuse of his privilege to grant pardons brings this to mind.

I just wonder why a head of state should be given this privilege. How did this come about and what is the reasoning behind it?
I'll say this. The laws defining presidential (and other) pardons requires drastic reform. Because as it stands, the implications are insane.
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Old 10th January 2021, 06:15 PM   #18
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Okay but here's the thing.

Richard Nixon - Pardoned/commuted/rescinded the convictions/sentences of 926 people.
Gerald Ford - 409
Jimmy Carter - 566 (not including the blanket pardon of Vietnam War draft evaders)
Ronald Reagan - 406
George H.W. Bush - 77
Bill Clinton - 459
George W. Bush - 200
Barack Obama - 1,927
Donald Trump - 94 (as of this post.)

Again where the political traction going to come from to get rid of something both sides have used this much?
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Old 10th January 2021, 08:21 PM   #19
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Originally Posted by Segnosaur View Post
Will this 'Judicial committee' be within government or outside of it?
It'd outside of the Government*. The Members are appointed by the State Services Commission, which itself is a non-partisan body outside of Government that is responsible for employing the people who are in roles throughout the State Sector. The Government has little say in who is appointed to what role.

Quote:
If its within government, then you run the same risk that you have now... it can be hijacked by a political party to advance its own agenda. If its outside government, then people may not like the fact that some extra-governmental organization is making such selections.
The fact that it is outside of the Government is deliberate so as to prevent the Government from Hijacking the system.

Quote:
And if it is a republican AG, what are the chances of them approving a left-wing judge, if one happens to be selected by the committee?
Well we don't have Republicans, so.....

However, refusing a nominee based on the nominee's political views would be illegal under our employment laws, which the Government and AG would need to follow.

Quote:
And who decides what a "pretty good reason" is? How is it enforced?
I haven't actually seen it happen because the Committee tends to have made sure that there are no skeletons in the closet so to speak. The closest I have seen, which was a different role, was that the PA who was selected for a cabinet minister was the wife of a senior member from an opposing party. There was a lot of trouble over whether it was within the Minister's rights to ask for her to be replaced. In the end, I believe she resigned to solve the issue.

The second issue I have heard about, again not with a Judge, was when the then PM suggested a person apply for a position and that person got it. There was a huge inquiry into if the PM had influenced the selection process.

Quote:
I don't think the process you're suggesting is necessarily a bad one, just that the same problem exists with the current system... you can't prevent judicial appointments from getting political at some point, if the people in charge are more interested in politics than the law.
By separating the politics from the system then it does help to keep the State Sector closer to neutral ground. The US literally biases its state sector and judicial system with each new President that comes in. We don't have that. With the politicians pretty much removed beyond the ceremonial parts, then there is no real way to create a political agenda in the state sector.

*I should note here that when we say "Government" we tend to be talking about two different things. When you use "Government" in the US then you are talking about all branches and aspects of the Government from the Legislature to the Park Rangers. When we talk about Government, we are talking only about the people of the party that currently holds the Treasury Benches, sits on Cabinet, and has the current PM. We aren't meaning the opposition parties nor the State Sector itself. So when I say it is outside of Government, it is not within the control of the political party that holds power, but it is a part of the State Services, and thus a part of the overall government structures. It's just that the Government (Party) has very little control over the State Services other than in giving them policies to enact.
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Old 10th January 2021, 08:43 PM   #20
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Any act or process which can have a profound impact should not be at the discretion of just one person. Giving an elected official the power of the pardon as exercised by himself only is to bestow a prerogative of a monarch.

And we've seen from drumpf, in spite of the relatively few number of pardons he's issued, a distressing trend. That his concerns are essentially not with redressing injustice, but with rewarding friends and accomplices in the furtherance of his own protection from implication in his illegality.

In this respect has the power of the pardon shown to be open to egregious abuse.
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Old 10th January 2021, 08:47 PM   #21
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Originally Posted by JoeMorgue View Post
Okay but here's the thing.

Richard Nixon - Pardoned/commuted/rescinded the convictions/sentences of 926 people.
Gerald Ford - 409
Jimmy Carter - 566 (not including the blanket pardon of Vietnam War draft evaders)
Ronald Reagan - 406
George H.W. Bush - 77
Bill Clinton - 459
George W. Bush - 200
Barack Obama - 1,927
Donald Trump - 94 (as of this post.)

Again where the political traction going to come from to get rid of something both sides have used this much?
But the vast majority of Obama's pardons were in his second term. As was Clinton's.

Also, it should be noted almost none or none of Trump's pardons came through the normal process of the pardon attorney's office.
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Old 10th January 2021, 08:59 PM   #22
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Originally Posted by JoeMorgue View Post
Okay but here's the thing.

Richard Nixon - Pardoned/commuted/rescinded the convictions/sentences of 926 people.
Gerald Ford - 409
Jimmy Carter - 566 (not including the blanket pardon of Vietnam War draft evaders)
Ronald Reagan - 406
George H.W. Bush - 77
Bill Clinton - 459
George W. Bush - 200
Barack Obama - 1,927
Donald Trump - 94 (as of this post.)

Again where the political traction going to come from to get rid of something both sides have used this much?
And In most states Governors have the power to pardon for state offenses. It's an old tradition.
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Old 10th January 2021, 09:00 PM   #23
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I think the power of pardnn needs to be refromed, but I don't think getting rid of it altogether is a good idea.
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Old 10th January 2021, 11:37 PM   #24
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Originally Posted by dudalb View Post
I think the power of pardnn needs to be refromed, but I don't think getting rid of it altogether is a good idea.

Agree.

1. Only a person who has been charged and found guilty of an offence should be eligible to receive a Presidential pardon, and only for that offence.

2. The DoJ Pardons office can recommend a pardon, which would then need to be ratified by a simple majority vote of both the House and the Senate before being sent to the President for approval or non-approval as he sees fit.

3. The President can ask the DoJ to recommend a pardon, and if they agree, the recommendation needs to be ratified by a simple majority vote of both the House and the Senate before being sent to the President for approval

4. No recommendation for a pardon should be allowed from election day to inauguration day..e. during the lame duck period.
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Old 11th January 2021, 12:11 AM   #25
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Originally Posted by smartcooky View Post
Agree.

1. Only a person who has been charged and found guilty of an offence should be eligible to receive a Presidential pardon, and only for that offence.

2. The DoJ Pardons office can recommend a pardon, which would then need to be ratified by a simple majority vote of both the House and the Senate before being sent to the President for approval or non-approval as he sees fit.

3. The President can ask the DoJ to recommend a pardon, and if they agree, the recommendation needs to be ratified by a simple majority vote of both the House and the Senate before being sent to the President for approval

4. No recommendation for a pardon should be allowed from election day to inauguration day..e. during the lame duck period.
No executive can pardon themselves or immediate family or individuals with quid pro quo possibilities.
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Old 11th January 2021, 01:12 AM   #26
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Originally Posted by Segnosaur View Post

Quote:
I think the principle of separation of political power and the legal system is good, and yet we have this anomaly. Another is the appointment of judges by political leaders.
Well, how else could you selected judges?
In other parts of the world judges are mostly chosen by their would-be peers based on merits after having worked themselves up the system. Courts are thereby self-sustaining and independent of political interests.

Right now in the EU, Poland is in hot waters precisely because they have begun having judges appointed by politicians. It does nothing good for the justice system.
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Old 11th January 2021, 01:16 AM   #27
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No one should be able to pardon anyone with even the slightest relation to himself or his/her actions in the past. I have no idea why this is even a discussion.

The pardon power as is it today is a travesty. A president could possibly pardon someone who killed his political opponent and people could do nothing about it other than being "concerned".

This unchecked pardon power has no place in a country which claims to exist under the rule of law.
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Old 11th January 2021, 01:24 AM   #28
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Originally Posted by dudalb View Post
I think the power of pardnn needs to be refromed, but I don't think getting rid of it altogether is a good idea.
I agree, it needs to be brought back to Wiltshire

As has been pointed out elsewhere in this thread, the power of pardon is very useful in cases where the courts either won't reverse verdicts (for example due to the fact that the defendants are not dead) or where the time taken to reverse the verdict would be unreasonable (for example it's clear that the person is innocent but it would take months or years for the case to make it through the courts).

If it's used to reward allies and bail out cronies then it's being mis-used IMO and Presidents doing this should be criticised. In these days of hyper-partisanship, it's likely that any criticism would be perceived as being partisan and therefore it would be devalued.
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Old 11th January 2021, 01:24 AM   #29
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Originally Posted by Tommok View Post
No one should be able to pardon anyone with even the slightest relation to himself or his/her actions in the past. I have no idea why this is even a discussion.

...
an argument could be made that the President should be able to protect him/herself from a hostile judiciary that is using their relations to put pressure on the Administration.
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Old 11th January 2021, 02:05 AM   #30
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Originally Posted by Thor 2 View Post
Trump's fragrant abuse of his privilege to grant pardons brings this to mind.

I just wonder why a head of state should be given this privilege. How did this come about and what is the reasoning behind it?
Legal Eagle, a legal commentator, reports that Hamilton suggested that the presidential pardon power existed to swiftly defuse tensions during a time of national crisis.

https://www.youtube.com/watch?v=JNZc9H54eBI

He gives the example of Johnson pardoning all Confederate soldiers following the Civil War.
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Old 11th January 2021, 06:25 AM   #31
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Originally Posted by acbytesla View Post
But the vast majority of Obama's pardons were in his second term. As was Clinton's.

Also, it should be noted almost none or none of Trump's pardons came through the normal process of the pardon attorney's office.
I don't see what difference either of those caveats is supposed to make.
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Old 11th January 2021, 06:36 AM   #32
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Originally Posted by The Great Zaganza View Post
an argument could be made that the President should be able to protect him/herself from a hostile judiciary that is using their relations to put pressure on the Administration.
An easy solution would be to elect presidents who aren't part of crime families.
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Old 11th January 2021, 06:37 AM   #33
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"We have to keep unfair thing X in place to counter unfair thing Y."
"Couldn't we just put more effort into fighting/combating unfair thing Y?"
"LOL no, because I really just want to keep X in place and needed an excuse."
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Old 11th January 2021, 06:38 AM   #34
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There's a difference between checks and balances and mutually assured destruction.

"The President has to be able to pardon people because some judge somewhere might go crazy on his relatives" is firmly in the latter.
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Old 11th January 2021, 06:49 AM   #35
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Originally Posted by JoeMorgue View Post
There's a difference between checks and balances and mutually assured destruction.

"The President has to be able to pardon people because some judge somewhere might go crazy on his relatives" is firmly in the latter.
Like how Batman carries around a piece of Kryptonite in case he ever decides he needs to murder Superman.
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Old 11th January 2021, 08:39 AM   #36
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Originally Posted by Thor 2 View Post
Trump's fragrant abuse of his privilege to grant pardons brings this to mind.

I just wonder why a head of state should be given this privilege. How did this come about and what is the reasoning behind it?
I am quite aware that Trump has been using his pardon powers incorrectly and stupidly.

After all, does anyone else recall how Trump discussed issuing a pardon to the famous boxer Muhammed Ali? Which was an odd thing for even Trump to do because Muhammed Ali was never convicted, therefore he did not need a pardon.

However, it is still a wise thing for people who are convicted wrongly/unjustly to have some sort of path to vindication, and that is what a pardon is supposed to be used for.
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Old 11th January 2021, 08:41 AM   #37
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Originally Posted by Crossbow View Post
I am quite aware that Trump has been using his pardon powers incorrectly and stupidly.

After all, does anyone else recall how Trump discussed issuing a pardon to the famous boxer Muhammed Ali? Which was an odd thing for even Trump to do because Muhammed Ali was never convicted, therefore he did not need a pardon.

However, it is still a wise thing for people who are convicted wrongly/unjustly to have some sort of path to vindication, and that is what a pardon is supposed to be used for.
My understanding is that there is a path. It's just that Trump bypasses it.
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Old 11th January 2021, 08:41 AM   #38
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Let's look at it this way.

If the Pardon power is based on the idea that it's "good" (legally, morally, Constitutionally, or some combination of the three) for the President to override the courts because they sometimes make mistakes and/or act vindictively shouldn't it work both ways?

Shouldn't, under this argument, the President be able to extra-judicially convict people of Federal Crimes?
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Old 11th January 2021, 08:42 AM   #39
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Originally Posted by slyjoe View Post
My understanding is that there is a path. It's just that Trump bypasses it.
The path is just tradition, it's not inherent in the concept.
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Old 11th January 2021, 08:44 AM   #40
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Originally Posted by JoeMorgue View Post
The path is just tradition, it's not inherent in the concept.
The path seems mostly procedural - I haven't looked it up recently but I thought there was pardon/clemency board that people actually send appeals to.

ETA: And I always thought you should have to state the crimes you are being pardoned for. No blanket pardons.
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