Wednesday, September 13, 2017

Kobil on Trump's First Pardon

Daniel T. Kobil
At the Columbus Dispatch, Prof. Daniel T. Kobil (Capital University Law School) says Donald Trump's first pardon (Sheriff Joe Arpaio) "set an incredibly low bar for the exercise of his clemency authority." In addition, many see it as "a dry run for politically motivated, pre-emptive pardons of illegal behavior by those in Trump’s circle who are currently being investigated by Robert Mueller in his probe of illegal collusion with Russia."

But Kobil argues "acceptance" of a pardon "operates as an admission" of guilt. So, Trump and Arpaio "cannot have it both ways."
Arpaio cannot be both innocent and excused for his crimes against the United States. According to the Supreme Court, acceptance of a presidential pardon constitutes a confession of guilt. That is why those who are wrongly convicted sometimes refuse to accept a pardon: their response understandably is that “I cannot be forgiven for something I did not do.” Indeed, the consequences of accepting a pardon may be an “even greater disgrace than [that] which it purports to relieve.” Burdick v. U.S. 236 U.S. 79 (1915). 
Kobil also sees "a slim possibility" that Arpaio’s pardon "could be invalidated by the courts" even though the Supreme Court "has construed the pardon power broadly." That is because the Court has also said that it cannot be used in a manner that would “otherwise offend the Constitution” or be “constitutionally objectionable.” See full editorial here.

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