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PaperclipPerfector  19d ago (text post)   30927 thread views

Culture War Roundup for the week of December 2, 2024

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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?

how a legal system would allow

The idea is that the highest elected office should be able to rein in abuses by prosecutors.

The American Presidential pardon is a Constitutional authority, which does not have Constitutional restrictions requiring charging or guilt.

Article II, Section 2, Clause 1:

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

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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