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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).
Can someone explain how exactly a preemptive pardon works? I'm struggling to understand how a legal system would allow someone to be forgiven for a crime they haven't been charged or found guilty of yet?
The idea is that the highest elected office should be able to rein in abuses by prosecutors.
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The American Presidential pardon is a Constitutional authority, which does not have Constitutional restrictions requiring charging or guilt.
Note that pardons and reprieves are two different concepts here. A reprieve is probably closer to your concept, but the rule of law issue is the lack of relevant restrictions to it's use.
In the American political tradition, due to Constitutional supremacy, Constitutional authorities can only be checked by other constitutional authorities. In areas of shared jursidiction this allows contestation (i.e. the President is the only constitutional authority to be the Commander in Chief of the military, but the Legislature has the constitutional authority to regulate the military), but in areas without shared Constitutional jurisdiction the branch without Constitutional authorization cannot infringe on the constitutional authority of the branch with it.
In this case, the Constitution clearly demonstrates there is a limit (cases of impeachment), and even an alternative (Reprieves), which indicates that the authors considered the merits of limits, but the limit of 'must be charged or found guilty' is not one of them. As the President doesn't have a constitutional limit on pardons, and the Constitution does not allow Congress to restrict pardons, there is no legal basis for restricting the execution of the highest law's explicit authority.
I don’t think the crime needs to be charged to be pardoned, but I do think it needs to be specified. Look at the text of the constitution, it refers to the pardoning of offenses, not the pardoning of persons. You should have to specify the offense.
It doesn't say the president has to state the particular offenses in question. And so he doesn't.
"Which offenses?" "All of them." Seems possible given how simple that statement in the Constitution is.
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This is just codifying the clear pre-existing precedent, only broken by the Democrats themselves, if not prosecuting members of the previous administration. Funny that, after breaking that unwritten rule, they now seek to re-implement it themselves.
SBF deserves to be pardoned, too. Unconscionable that some autistic kid who made very dumb decisions running a crypto business in a sector full of scammers and fraudulent businesses, whose victims didn’t even lose any money (even if some missed out on hypothetical gains) should be sentenced to 25 years in jail, more than almost all violent criminals, rapists, homeless psychopaths and others who are an actual threat to civilized society. High sentences for “white collar crime” are just a way to try and manipulate the demographics of the prison population and make leftists who hate rich people happy.
5 years would have been more appropriate, if you’re a VC who can’t do basic due diligence + can’t think twice about giving huge money to a bunch of kids for their crypto business you deserve to lose it.
SFB took a swing at the king, Dollars, and missed. Trump just threatened 100% tariffs against BRICS for the same potential transgression. Don’t create a competitor to the dollar built on fraud is my take.
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Nah. SBF straight up embezzled money. Lots of other crypto exchanges went down because they made dumb decisions, and their executives didn't get jailed. SBF stole customer funds and gambled with them. That's a crime. Making idiotic loans like the CEOs of Voyager and Celsius did isn't. Given the volume of money he stole, 25 years is pretty appropriate.
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SBF made a mockery of the financial system. That is a bigger offense against the United States and civilized society than all but the worst gangbangers.
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Eh, I could see this argument making some amount of sense for generic bankmen (who both value their own time highly and are likely to be cut off from reoffending opportunities by even moderate prison terms and non-prison punishments such as professional bans). If you are a Shkreli, spending your best 10 years behind bars may not be a prospect that is worth any number of billions in your account. In the case of this particular Bankman, who by all accounts was really an idealist with an agenda beyond lining his pockets, the logic of deterrence, which says keep the expected value of the crime negative, requires greater punishment. If he really thinks he is saving the world if he succeeds, and his value function looks a lot more like his understanding of saving the world than like hedonism-maxxing for himself as a bag of meat and bones, the natural cap of hedonic saturation is blown off and he presumably needs to be threatened with a lot more personal suffering to bring the expected payoff of would-be imitators below zero (at least as long as we can't punish criminal effective altruists by mass incineration of mosquito nets or farming more shrimp).
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He didn't make a dumb decision, he embezzled the customer funds into his own accounts and then gambled with them. It was straight up theft of billions of dollars.
If you believe various studies of how people value their own life, thefts of over $10 million should basically be considered the equivalent of murder.
Hmmm:
If I put 10 ounces of gold in a safe deposit box, and then the bank owner steals 5 ounces and loses it at a casino, but the price of gold triples, the bank still stole from me, even if the bank owner claims that I didn't lose any money since value of my assets are greater now than when I put them in the safe deposit box.
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This seems like conflating two things:
I think most right thinking people would agree with the former, but I'm not sure what's the rationale for the latter.
Agreed on SBF, I buy the interpretation of the situation as "intentionally bad risk management intersected with unintentionally bad accounting", and while this does merit punishment, 25 years seems ridiculous. High profile cases like this and Shkreli's seem to end up influenced by some people just not liking the guys.
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I thought the worst thing he did was take money out of people's accounts that were on the exchanges. "invest at your own risk" makes sense, but it seemed like this was more akin to "put money in a bank at your own risk".
I still mostly agree that 25 years might be too long for that (or even the 18 years he is likely to actually serve). But 5 feels a little too encouraging towards moral hazard problems. I think SBF himself would say he'd gladly take the same risks again if the downside was only 5 years in prison.
That's the thing. SBF would gamble the entire Earth on double or nothing with 51% odds, because of the positive EV. Now he's in prison for 25 years. It's not a coincidence. He knew he was gambling, and he lost.
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I think this would be a huge unforced error by the Biden administration, inviting comparisons to Nixon. If Team Trump prosecutes a member of Team Biden and he gets acquitted, it makes Team Trump look bad. If Team Biden starts accepting pardons left and right, it makes them seem like a pack of crooks.
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Ever closer grows the day that the elite are de jure, rather than de facto, completely legally free to do whatever they want to everyone else.
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a market exists for this https://polymarket.com/event/will-biden-pardon-sbf-this-term
This would not be without precedent. Trump pardoned literal conmen for things way worse than Hunter had done and no one noticed or cared. The pardon is one of the few examples of unalloyed power of the president. No fan of Biden, but both sides abuse this.
can you give us some names, please?
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Is there any indication that Biden would actually, like, do this? I don't really see what his motivation would be, even if it's not the case that he's preemptively pissed at the Democratic establishment for pushing him out. (which may well be the case!)
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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.
"I don't recall that." Sudden onset amnesia would become an epidemic among former staffers.
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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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The way I read it -the pardon becomes irrevocable when it is accepted and finalized. If it is not yet accepted, the next president should be able to rescind at will. Or at least declare that all non rejected pardons are considered accepted in full with conditions and everything
The severability of pardons is something that the president decides not the person being pardoned.
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Crimes are real, and people in high places commit them. But prosecuting them is reactive, and prosecutorial discretion lends itself to petty political witch hunts. Trump supporters, of all people, should realize this.
What would be gutsy and genuinely salutatory would be for Biden to offer broad, blanket pardons of controversial figures on both sides. And it would be helpful for Democrats: they wouldn't spend the next four years chasing down crimes, real or imagined, that don't really matter (compared to other issues) and that don't help them win elections.
No, we shouldn't. What we should realize is that the system has been used against us, legitimately or illegitimately, and so now it needs to be used against them as well. If the ways that federal, state, social and corporate power have been used against Red Tribe were acceptable, then they remain acceptable when we use them against Blue Tribe. If that cannot and will not be allowed to happen, then that is valuable information that we would do well to confirm before considering where we go from here.
If in fact the situation is one where Blue Tribe is fundamentally unwilling to accept application of their own rules against their interests, then this fact needs to be made common knowledge.
This is a fine argument for just desserts, but not for escalation. Their own methods, sure, but a lot of this is far beyond.
What escalations do you perceive?
You’re not nearly stupid enough to make that comment stick.
Try me. We have a rule here: speak plainly. If you think "a lot of this is far beyond", then lay out which things you're talking about and why, and then we can discuss it.
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Sulla was so bad that Marius must take every measure and seize every power to save the Republic, otherwise the Optimates will keep winning forever. This can't have dire consequences down the line.
Meh. The blues are pretty much guaranteed to lose a kinetic tribal conflict, so it's far from a worst case scenario.
I'd say this is a pretty strong assertion, of the sort that should really have some evidence provided to back it. For one, why don't you think the blues will be able to retain control over "kinetic" government institutions?
I mean, the Texas border standoff shows that federal control of kinetic institutions is far from unlimited(theoretically both sides were supposed to take orders from Joe Biden- in practice, neither of them did), and there’s simply very few blues in kinetic positions. There’s a lengthy history of federal law enforcement- much much more willing to crack skulls than the actual army- not being willing to get into it with antigovernment extremists.
From a geographic perspective, as well, maintaining control over enough kinetic institutions to win a civil war is a far taller order for blues than reds. The navy is the most liberal branch of the armed forces and it’s also the least useful for this. To win, blues need to maintain a continuous line of supply over hostile terrain to large inland cities that can serve as a base for controlling the hinterlands well enough to launch offensives against red states- if they fail at this very infantry intensive task, then they don’t have a victory condition. Without Denver it’s basically impossible for the blues to reconquer the heartland.
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Unlike a lot of people here on both sides (apparently), and despite my ostensible respect for violence as a necessary component of politics, I am not fond of war.
It would be better for everyone involved if that could be avoided.
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A fair point. Now offer your plan for how the powers we've seen turned against Red Tribe can be reliably leashed in the future. Tell me how we get back to a trustworthy media ecosystem. Tell me how we end systemic discrimination in education and employment against non-Blues. Tell me how we get the FBI to stop breaking the law to persecute Republicans, and then breaking it the other way to protect democrats. Tell me how we lock up cancel culture for good. Tell me how we solve the thing where the general Blue population believes that they have an inalienable right to lawless violence against perceived Reds without consequence or retaliation.
The system whereby we share power with Blues cannot survive the abuses we have seen. It has to go. One of the best ways to convince Blues of that fact is to use it against them, forcing them to fight back against it themselves out of self-preservation. This does not even require breaking laws in the way that they repeatedly have done, and continue to endorse doing. Merely enforcing the letter of the law will, I think, be more than sufficient.
Octavian. The Red vs Blue distinction must become meaningless. Frankly Trump is already some way there with the amount of Democrats he has made switch sides.
But really, the only way to end the war is to win a victory that is incomprehensible to its own paradigm. Using the system to prosecute the other side in retaliation isn't enough. The system must be destroyed and remade to such a degree it is unrecognizable.
Abolish the CIA and turn its role over to the DoD. Turn the FBI into a statistics department. Obliterate the DoE with extreme prejudice. Collapse the entire education Ponzi by making student loans forgivable in bankruptcy. End the Fed.
Afuera. Afuera. Afuera.
And don't stop there, create two new institutions for every one you destroy.
But I wouldn't even attempt to prosecute the people staffing the old decrepit system. Just let them go. Ignore them. Make their protests a meaningless antiquated impotent gesticulation that has no effect or meaning.
It's a high bar, but I genuinely think that short of this, you are locked in an endless struggle that ends with the death of the Republic. There can't be any reds and blues anymore.
That’s an extremely counterproductive idea as stated if the goal is to attack schooling industry. It would be a huge boon to schooling industry if these were dischargeable. Instead, what you need to do is to stop the federal government providing the loans.
Actually it wouldn’t. One reason that admitting thousands upon thousands of people into institutions of higher education is that no matter how poorly they do, the college gets paid. If that were no longer true, if students were no longer money buckets, then they’d either have to do without students or retool to provide value to their students. That means more practical education and lower costs. And obviously no bank is going to back a dischargable loan for “activism studies” because the student won’t be able to pay for it.
Yes, and that’s why making them dischargeable doesn’t make sense. The schools are paid up front. The loan payments are made to Federal Government. If you allow the loans to be discharged, the schools don’t lose a penny, and it’s the taxpayer who bears the cost.
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His point is that the college already got the money, so they don't care if the loan is dischargeable or not. The one on the hook if the student is allowed to default is the government, not the university.
Most student loans are from the government, not from private banks. And the government doesn't make a risk/profit calculation before lending you the money.
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Why not both?
I don't even mind the FedGov providing loans, as long as it's directly linked to something FedGov cares about. Right now you can dispose of a loan by working for a nonprofit, or, say, a public school teacher, which creates a very specific incentive. Cut all of those general-purpose incentives out, and make it so that if you want the federal government to loan you money for education, it's because you're going into military service, or you're going into shipbuilding, or you're going to go work for the three-letter-agencies we haven't abolished, or w/e.
Otherwise, you can get your loan from a bank, and it will be dischargeable through bankruptcy, and they will evaluate it on the likelihood that you can pay it off. (No, I don't object to people getting a PhD on Aristotle's conception of the good life who will go on to earn $80k/year teaching at a mid-tier university, but the federal government doesn't needing to be footing the cost, and neither do the banks. That's what special interest scholarships are for.)
Frankly, I think this is less an "attack" on schooling than something that is likely to fix it (although it would be perceived as an attack).
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Why not allow them to be discharged in bankruptcy, but require the schools to cosign the loans?
That would work too.
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But that’s saying that to destroy the enemy, we have to destroy ourselves.
It’s a bit like the school I mentioned once in the UK where, to avoid religious conflicts between children, everyone is forbidden from praying and all meals are vegetarian. I grew up Church of England. I resent having to give up my religious practices because newcomers are causing trouble. I don’t want to stop the Culture War, I want to win it, at least in my local area.
I agree with this otoh.
Yes. The Populares must cease to exist. Because they only exist in their opposition to the Optimates, and vice versa.
You must transition from the 2 story state to the 1 story state.
You deserve a better, longer reply but to be brief, I don’t think this is true. There are real, concrete issues at stake: who is allowed into the country, who is allowed to control cultural bottlenecks like Twitter or academia, the relative privileges and duties of men and women, whether we need to destroy our economy with unilateral green policies, and so on.
Tony Blair actually tried what you suggest: he began mass migration to, in the words of his advisor, “rub the Right’s nose in diversity and render their arguments out of date”. But I consider myself a British nativist populist. If you attempt to render the Culture War irrelevant by flattening the differences between natives and newcomers, I lose by default. So I can’t back that. This is what I mean when I say I want victory not peace.
Another example would be transgenders vs TERFs. There are currently irreconcilable differences between the TERF wish for single sex spaces without men, and the trans wish to be invited into single sex spaces for women. You can render this conflict irrelevant by ceasing to consider women as meaningfully different from men, or considering trans ‘women’ as equivalent to women, but either is a loss for the TERF faction.
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But as Corvos raises, to go from a two-tier society to a one-tier society does not necessarily mean that Populares becomes Optimates. Rather, Optimates must become Populares. This is why people have railed against communism and similar ideologies in the past, because all they really accomplished was leveling everyone in certain societies down to a level that was objectively sub-par.
I think class is something that might be impossible to eradicate. Even the Soviet Union stratified into proletarians and intellectuals. Classes must always exist in any human civilization. The best you can do is to keep resentment from building up in the first place.
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Oh, see, upon reading your initial response I thought your point was that the endgame is approaching, the knives are coming out, and there's nothing to be done for it but live accordingly and start shrinking one's personal circle of concern to that which might be preserved. And I'd have agreed.
Now it seems that you think this plan will actually work to somehow put the cat back in the bag. I really don't think so.
Game over, man. Game over!
Why would the game be over? The game has barely even started. Do you think, if this last election had gone the other way, that would have been game, set, match? Would the Death Star have appeared in orbit and engaged primary ignition?
If Trump dies tomorrow, the Culture War will go on. If Blue Tribe jails Elon, the Culture War will go on. If another pandemic breaks out, the culture war will go on. And as I was arguing ten years ago, I argue today: Red Tribe is not only going to win, but is clearly going to win. The question is how and at what cost, but all the plausible costs seem acceptable to me.
I will again reiterate, for our audience, that I, for one, do not think it's "clear" at all, that you have not provided sufficient evidence to back this claim, and that from what I have seen, if any tribe is "clearly going to win," it's Blue.
This is true, I have repeatedly refused to lay out my evidence, publicly or to you. You have claimed I'm lying, and I have agreed that by refusing to provide the full evidence behind my claim, your interpretation is reasonable.
On the other hand, you have a well-established reputation of advocating suicidal despair or mass murder, and so detailed discussions of the mechanics of rebellion with you or with the public generally are probably not a good idea.
We've just had an election. My prediction was that Trump was going to win. What was your prediction?
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How are people pulling up old comments from themselves and others like this? Perhaps that was an especially memorable blogpost, for you, but people also link to old comments from five year old culture war threads.
I trolled through the posts on thing of things, searching for my old handle till I got a hit, and worked it from there... I was pretty sure that conversation was one of the last I had on that blog, so it wasn't that hard to work through posts until I found it.
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Well, damn.
Helluva paragraph, hoss. I've been having that argument for years and only wish I had yours to build on. Thank you for being around.
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My God, that was you? I've had that conversation in the back of my mind for most of this decade.
Actually tried to look up "Veronica D" recently. Anyone have a clue?
And then people wonder how Superman gets away with putting on a pair of glasses.
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