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Notes -
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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