Does the President have authority to grant clemency for a state conviction?

Here is the government’s own answer:

No.  The President’s clemency power is conferred by Article II, Section 2, Clause 1 of the Constitution of the United States, which provides:  “The President . . . shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.”  Thus, the President’s authority to grant clemency is limited to federal offenses and offenses prosecuted by the United States Attorney for the District of Columbia in the name of the United States in the D.C. Superior Court.  An offense that violates a state law is not an offense against the United States.  A person who wishes to seek a pardon or a commutation of sentence for a state offense should contact the authorities of the state in which the conviction occurred.  Such state authorities are typically the Governor or a state board of pardons and/or paroles, if the state government has created such a board.

Solve for the equilibrium!

I thank J. for a relevant pointer.


A pardon does not matter when dealing with impeachment, both explicitly as noted in the quote, and implicitly.

Only Congress determines who is removed from office, and that determination is a political one. Even if the president were to pardoin himself, Congress has the complete authority to remove him from office, even for the crimes that will no longer carry a criminal penalty.

After all, the only punishment associated with impeachment is removal from office.

Much ink was spilt this week on whether Trump could order (one way or another) federal investigations halted, and whether then a Republican Congress would then act. Perhaps there are betting lines on those.

But federal risks are not secret, and state opportunities are understood.

This is why I'm glad he's president. We're so close to having a precedent that when a president overreaches he's sued or indicted by state attorneys general. And goes to state prison or is kicked out of office.

Inch by inch we move to a system where exit is an option. If the federal government is locked into paralysis because states will sue or indict, we've reached nirvana. California can make its socialist paradise, Texas can get rid of abortion clinics, and Americans can choose which system to live in. God bless the USA. We can stop shouting and sort ourselves into our preferred system, with the overarching loyalty to the union.

I would not mind a few restrictions on the Executive, but I think a national system and identity is important.

And of course we don't want even more differing standards on everything from organic carrots to airlines.

"We’re so close to having a precedent that when a president overreaches he’s sued or indicted by state attorneys general. And goes to state prison or is kicked out of office."

A president is almost certainly immune from criminal prosecution while in office. Especially in state court.

Here is a law review article by a prominent liberal discussing it.

Government prosecutors, as we know them today, did not exist when the Constitution was adopted.

What constitutional authority (federal or state) do they have to independently prosecute anybody, much less a sitting President?
Grand Juries are supposed to do the indicting, but they have been totally neutered by professional prosecutors.

A President is probably immune from criminal prosecution for conduct connected to the carrying out of his office while in office. There is no precedent to suggest that he is immune from al criminal prosecution and good evidence that he is not, from case law.

But state law only matters on subjects where it is not pre-empted by federal law, which is a real but increasingly narrow jurisdiction.

Would an a Federal pardon preempt a state's prosecution? Even if the pardon was specific to the offense the state charged it would seem to preclude Federal preemption? And I cannot imagine any presidential pardon donefor purposes of quashing an investigation specifically listing the crimes pardoned...

I really do not think that any law has been violated here that is not already widely violated by a significant portion of the senior political class already. For example the Logan Act has been violated so often it is a farce.

For a pre-emption argument, the argument is that the state law is without effect. The question of pardon doesn't come into play because the argument is that the act was not criminal.

So state officials cannot for example use the state criminal code to prevent federal officials from carrying out duties required by federal statute or regulation.

"with the overarching loyalty to the union."
A house divided against itself can not stand. believe that government can not endure permanently, half socialist, and half capitalist or half abortionist and half non-abortionist.

There's a well-established doctrine (going well back to the 1800s) that federal officials are immune from state prosecution for acts within the scope of their federal duties. It's called federal officer immunity and essentially, the federal government can remove the state prosecution from state court to federal court and the move to dismiss the charges. As far as I know, it's never been applied to a president, but I have little doubt that courts would apply the doctrine quite liberally. The potential for mischief if one allowed such prosecutions is pretty obvious.

The potential for mischief if one allowed such prosecutions is pretty obvious.

There be trees obstructing them from getting what they want. Who gives a rip about the Lorax or St. Thomas More. Cut down them trees.

If a majority of the House and 2/3 of the Senate vote for impeachment, he's out of office no matter what grounds (if any) are presented and whether they are factual or not. He could appeal to the Supreme Court, but they probably wouldn't touch the case because it's a political question. Congress could literally impeach the President on the grounds of "we just don't like you".

Actually, "we don't like you" was basically the grounds president Rousseff was impeached. If she were as charismatic as her predecessor, friend and benefactor, former President Lula, she probably would have been spared, but her personality was deacribed as harsh and overbearing.

'He could appeal to the Supreme Court, but they probably wouldn’t touch the case because it’s a political question.'

There is no way for the then ex-president to appeal his impeachment. The process of impeachment is quite clearly laid out, and has been followed multiple times in American history.

'Congress could literally impeach the President on the grounds of “we just don’t like you”.'

Of course - it is one of the explicit parts of the system of checks and balances. It is also why the only penalty associated with impeachment is removal from office. 'Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.' Article I, Section 3, Clause 7

If Trump were to pardon everyone (including himself, though that is untrodden ground), then he would not have to worry about being 'subject to Indictment, Trial, Judgment and Punishment, according to Law.' There is a reason why so many rich criminals in European countries love to be elected to the legislature, where they enjoy absolute immunity from prosecution while holding office - the Russians most definitely adopted this trick after the Soviet Union imploded.

Personally, I think the president cannot actually pardon himself (though it is certainly an open question), but he can pardon absolutely everyone else he wishes - though if he were to pardon himself, that would certainly be prima facie grounds for impeachment.

It matters for two reasons.

1) It allows him to impede the investigation by pardoning (or suggesting he will pardon) co-conspirators who would otherwise cooperate in order to reduce their sentence.

2) If he's looking into the rules around pardons for his friends, family, and himself. It should increase our prior belief that he's aware of significant criminal wrongdoing. That should increase the probability of impeachment.

Once someone is pardoned they can no longer invoke the Fifth Amendment privilege.

Sure they can, a pardon is only for a specific crime not a blanket immunity from all prosecution. They could claim they are afraid questions might reveal some other crime they are guilty of that they were not pardoned for therefore they will invoke the 5th. Even if this claim is not sincere, there's nothing courts could do to force their testimony.

That depends on the scope of the particular pardon. Courts certainly can do something to force testimony from someone improperly claiming the fifth- they hold the person in contempt and throw him in jail until he changes his mind.

I guess it depends on how broad the pardon power really is. Can the President issue a blank pardon that covers any crime a person might have ever committed up to a particular point? If police find Jared Kushner killed a girl in a national park 30 years ago they can't charge him if Trump gives him a blank pardon to try to frustrate the Russia investigations?

I suppose you're right in that a huge blanket of pardons might mean prosecutors could carry on an investigation without worrying about the 5th...but that to me still seems to limit what can be done. For example, actual court trials have to be conducted under a time frame, there may simply not be enough time to collect evidence via cross examination and in any case prosecutors are not well skilled at conducting investigations in that manner. They are well skilled at building cases against one or a few 'little people' and use them as leverage to get testimony at larger people in a conspiracy. I don't see how any prosecutor wouldn't see a sudden spurt of blanket pardons of a large number of people by Trump as anything other than a way to hamper an investigation.

If Kushner killed a girl 30 years ago, he must have been one bloodthirsty 6 year old.

Kushner wouldn't need a blanket pardon from any and all crimes to take away his ability to assert the 5th regarding matters relating to the Russia investigation. You can't refuse to testify about a particular matter (Russia collusion) based on an a completely unrelated matter that's not the subject of the investigation (murder in park 30 years ago). A pardon that covered something like "all offenses charged or prosecuted by Special Prosecutor Mueller, or committed within the jurisdiction of his office" would be enough here. Or he could use the Nixon precedent of specifying a time period: "a full, free, and absolute pardon unto Richard Nixon for all offenses against the United States which he, Richard Nixon, has committed or may have committed or taken part in during the period from January 20, 1969 through August 9, 1974."

States' Rights.

Did you know that Crooked Hillary is not next in line for the presidency?

Now that you mention it, I did know. But for me the interesting thing is that Hillary Clinton even crossed your mind in this context.

Perhaps this is you:

I think that is kind of brain-dead, but maybe I am supposed to pretend it's not. You know, to give you a path to personal renewal.

What's not to like? Telling millions of us we're irredeemable and deplorable? Benghazi video tape lies? Her running the bimbo character assassination squad for her rapist husband? Running a private server (likely got Amb. Stevens killed) and not going to prison as would you and I would? Selling the State Department for $300 million dollars? Giving the Russians weapon's grade uranium while Russians doubled Willie's speaking fees? Etc?

Fait enough. I hated Hillary like the Patton hated Nazis.

When Is see moron stuff like you post, the phrase "Hillary-worshiping imbecile" flits into my brain-dead brain.

In conclusion, cuck you, brother.

Lulz. You go girl!

Telling millions of us we’re irredeemable and deplorable?

MRAs, alt-right, white nationalists, the friggin KKK. She didn't say irredeemable, but millions of you were deplorable, and they were generally the ones who gave Trump the GOP nomination.

Benghazi video tape lies?

The State Dept. repeated what the CIA told them, sometimes people are mistaken.

Her running the bimbo character assassination squad for her rapist husband?

Somehow I doubt you're a big supporter of women who don't trust their husbands, or who publicly repudiate them.

And really? "bimbo character assassination squad"? It sounds a lot like you're calling the women "bimbos" at the same time as you're complaining that Clinton character assassinated them.

Running a private server

Dumb, but not unusual or illegal.

(likely got Amb. Stevens killed)

You likely have no clue what you're talking about.

Selling the State Department for $300 million dollars? Giving the Russians weapon’s grade uranium while Russians doubled Willie’s speaking fees? Etc?

More debunked conspiracy theories.

Fait enough. I hated Hillary like the Patton hated Nazis.

Ironic comparison considering that Trump has literally appointed neo-Nazis.

In conclusion, cuck you, brother.

You were worried that people wouldn't realize you were alt-Right?


Translated -> I am a tribalist and my tribe includes feminists, therefore if you support equal rights in family court, or ever mention workplace death stats or criminal sentencing disparities by gender, you are deplorable.

"the friggin KKK"

Meanwhile, here is your vanguard stabbing people:

But not even Trump's appointees have figured out how to "lock her up" without incurring scotus kicking them in the teeth.

If any of this were true what accounts for the lack of an indictment from the Dept. of Justice now that Trump and Sessions have had 6 months to do things right?

Telling millions of us we’re irredeemable and deplorable? Benghazi video tape lies?

Lies? The guy who attacked the consulate said he did so in reaction to the video. Years before Benghazi erupted in riots of the Prophet Mohammed cartoons requiring soldiers to kill people and getting soldiers killed and that was when Kadaffi was running the country.

Selling the State Department for $300 million dollars? Giving the Russians weapon’s grade uranium while Russians doubled Willie’s speaking fees?

If any of this was important to you and people like you then you would have elected someone who wasn't selling out his country for his own gain every chance he got. You don't get to use these lines ever again.

Uranium thing is, surprise, yet another lie.

I'd have more respect for trolls like Dick the Butcher if they just said "look Hillary just rubs me the wrong way so I reject her". Instead lie after lie must be piled up....the reason they hit you with a kitchen sink of complaints about Hillary is that they know should you actually try to go deep on any of them they couldn't stand up.

you tell em , comrade...i mean buddy

"Why do you even think about Hillary" is a leftist meme that is incredibly dumb because anything Trump does needs to be weighed against the counterfactual. Not that you've thought about this, since you are repeating this meme created by some leftist turd.

because anything Trump does needs to be weighed against the counterfactual.

I feel like we got maybe 3 months into the Obama administration where Obama was at fault for everything. Wall Street executives paying bonsuses while getting TARP bailouts were his fault...even mentioning that TARP happened under Bush got the response "Bush isn't President anymore".

Now six months in and we still are hearing about Hillary emails even though Hillary was never even President!

No, things *do not* need to be weighted against a counterfactual, because counterfactuals don't happen. Thus they are subject to whatever biases you impose on them.

You don't have to be a leftist to see this tiresome reasoning for what it is, "what about-ism" that obfuscates what Trump is: a highly damaging president worse than any (who actually existed) in recent memory.

Indeed... a better way to phrase Thomas's assertion would be:

"Any criticism of Trump must be weighed against whatever imaginary hypothetical I come up with of what would now be happening had Clinton won...of course there is no objective test that can measure whether or not my claims have any accuracy so just take my word for it"

I am sure that any violations of New York state law by President Trump

Will be excused by a pardon from Governor Cuomo.

And, if it happened in New Jersey, by Chris Christie.

All this pardoning goin' on

We need a little Law'n'Order.

I take it this is plan C after the Fusion GPS and Comey-Mueller gambits fail.

it really is shocking how much success the left is having at pushing these nonsense stories. Having a captive media does help tremendously. The right needs to think hard about what to do here, but a few suggestions : (1) no more finding of any sort for liberal arts education, (2) investigation of the media, much like 'investigation' of finance in the last administration, (3) investigation of Facebook wrt. Anti-trust to keep them in line.

Trump keeps these "nonsense" stories in the headline by constantly talking about them with the media. On infrastructure day, he only talked about Russia. On make it in America day he only talked about Russia.

The problem is that any discussion about health care, trade, infrastructure, taxes, budget is of necessity excluding Trump because he knows nothing about them, so the focus is on whoever is pushing free lunches for conservatives and Republicans and whoever is saying TANSTAAFL. Trump can't stand it when the media isn't talking about him.

I also thought it was mostly smoke and no fire, but the Don Jr business sold it to me. Out of curiosity, that doesn't strike you as strange? Perhaps it *was* merely a gambit, if so, they stumbled on something.

The problem with draining the swamp is the filth revealed.

Meanwhile, Samantha Power has been subpoenaed for allegedly unmasking Trump associates in NSA intercepts.

She was the UN ambassador. A real scandal in which the state security apparatus may have been used against political opponents, not dissimilar to using the IRS to dry up GOP domination before the 2010 elections.

Whereas Trump has been accused - without evidence - of working with Putin to screw America's democracy, the Democrats were Putin.

"GOP donations"

The vast Obama conspiracy to find out that Trump was talking to the Russians.

Better look for some Russians under your bed Bill. Who knows what they will do.

Nothing to hide. As to what they will do, I understand they opened a secure line for Kushner direct to the Kremlin. Why would they need to do that when they had not even taken office.

I am not supposed to ask that question. I know. Just take it on faith.

"Why would they need to do that when they had not even taken office."

Because the senior members of your political party were actively engaged in an illegal espionage and leaking operation to selectively release information to damage Trump?

Someone should file suit. Sounds like a solid case. Obviously these innocent "unmasked" men were harmed.

So why don't they go after damages?

You probably should review the federal regulations on this subject before making the claim. Not likely to get that on Fox News.

"After Senator Tony Avella, a Democrat from Queens, filed a complaint last year about one such app,, the department began investigating the business.

Senator Avella said he first became aware of the issue after he was approached by a pet groomer who ran a licensed boarding center in his district and was upset with DogVacay’s practices"

sounds like trump is pretty boned

About once every week or two - Tyler ends a post with the statement 'solve for the equilibrium!'

Can somebody - in language a layperson might understand - explain what he means by this?


Equilibrium is the balance that opposing forces settle on after a series of adjustments. So saying "solve for equilibrium" just means to figure out how things will shake out once everybody has had their say.

In this case, it looks like Trump can probably pardon his way out of any conceivable federal, but not state, crime. So, state attorney generals will probably try to prosecute him at some point. Unless he does something to anger congressional republicans, in which case impeachment might short-circuit that process. Of course, things won't stop there, and any future Democratic presidents will find themselves being prosecuted by Republican AGs. I think the equilibrium Tyler wants us to solve for is the US becoming ungovernable, but he's tricky so who knows.

I would hope we settle at a nicer equilibrium, not looking for paragons who have never even hired a babysitter without filing a W-2, but not picking veterans of hundreds (or thousands!) of civil suits either.

Someone normal would be fine.

Too complicated for this readership, probably, I will try to simplify and translate: I would hope (talking about the hundreds of now-young people who will one day take or be elected to federal political jobs) at a nicer equilibrium (some future time where the gotcha games of unbridled prosecutors abandoning their oaths of justice for partisan attacks is the opposite of 'nicer' in this phrase) not looking for paragons who have never even hired a babysitter without filing a W-2 (this is an alt-right meme to which you are referring, notice how critical the alt-right is of childless leaders in Europe who seem not to care about the generational consequences of their actions), but not picking veterans (the only veteran being referred to is Trump, and it is a good reminder that he has lived in a stew of ultimately fruitless litigation since - well, there was a movie in the mid-1960s where John Wayne was doing cowboy-like things in Alaska and looking for a wife, so let's say since the days when John Wayne was playing the role of a man looking for a wife) of hundreds (or thousands!) (it is likely that there were less than one lawsuit per deal but several lawsuits - not the eminent domain ones, but the employee ones - may have been class actions, so you cut yourself some slack there by reaching for thousands, but not unmerited slack, from a lawyerly point of view - I don't know if you are a lawyer or not, but still) of civil (almost no American, much less anyone who does not have the fortune to be American, remembers that civil liability is much more prevalent than criminal liability - well in the context of divorce, that used to be a staple of Johnny Carson's "humor": divorce jokes, I mean - sorry to go off on this one little word, but if anybody with half a brain thinks people like Obama or Trump, or for that matter dopey Joe or Mike (not the guy I would have picked, but a solid choice nonetheless), have ever felt the temptation to commit a financial crime, well, the people who think that are clueless) suits either. (I have nothing to say about 'suits either', except to note that in musicological theories about the great symphonies of yesteryear, it is not unknown for a symphony in one of the less frequent keys to end in a key - in the last few chords - that is not the same key as the rest of the symphony, but could have been. A short tour of the non-Mozartian keys covered by Wikipedia (that is, to approximate, keys with four or more sharps or flats), particularly with reference to Mahler, will not bypass at least one example. "Someone normal would be fine." There are very few times in civilization where someone normal has been fine in positions of leadership: England for a few generations after the people who thought the Glorious Revolution was actually glorious had grown old: some states in old weird America, the place Dylan sings about, when our grandparents were young: Russia in 1880 or so, the world of Maugham's Pacific tales in the first decades of the last century, Canada, Australia, New Zealand. Botswana for a while there, but no longer: and who can forget Gottshcalk's Night in the Tropics, back when the tropical islands in question were, while not rich, at least not poor, because of the fruitfulness of the climate?

I was wrong on North to Alaska - it is a 1960 film, much earlier than I thought. As for the reference to Mahler symphonies, there are only ten or so, and the chord/tonic changes I referred would necessarily occur on the last 2 pages of the orchestral score: have at it, there are only 20 (ten times two) pages of orchestral score to go over or dream about, and not that much music to remember, if you remember how all the Mahler symphonies end: if you care about this one specific thing. I know you don't: there are far-from-town fields near where you live, and skies to look at with their individual clouds, some of them very beautiful or amusing: and much more of greater interest. Still, Mahler was a fairly interesting composer - much more interesting if you knew him in person and if you remember the way he conducted when he was in a good mood - sadly, he did not conduct as well when he was in a bad mood, but who remembers that now?

I remember 3 or 4 musicians who remembered Mahler at his best. He lived so long ago and they still call him a modernist. Perspective: their average grandchild is now, not just a grandparent (I know plenty of people born in the 1970s who are grandparents, most of them far too young to have a grandparent Mahler's age), but, to be more accurate, an 'older 'grandparent (generally speaking, that means older than 75 for an unusually healthy grandparent and over 70 for a grandparent with normal health). I remember this: Mahler sounds better on the old Victrola when you remember that he is one of the ancients: his mistakes have long been forgiven, under the ancestral rains over the buildings that stood where new pleasant clean houses, with healthy green trees in the yards, now stand. His symphonies are not modernist anymore. The way the scores sometimes change keys in the last moments is breathtaking, it almost makes you wish you had played in an orchestra every day of your life, although of course that would not be what one would want, due to the fruitfulness of the climate; and no, if you have read this, I don't think anybody will ever again get the refund they deserve after that evening they went to hear Mahler conduct and he was in a bad mood; they might have been disappointed, but that was long ago, and who remembers that now? Well, I remember, obviously, but that is not all that important.

By the way, this was long after Mahler retired, but I could have, in fact, gotten my money back that one time the conductor was in a bad mood. (Not Mendelssohn, but close - it was a rainy day all along the East Coast).

In this case, it looks like Trump can probably pardon his way out of any conceivable federal, but not state, crime. So, state attorney generals will probably try to prosecute him at some point. Unless he does something to anger congressional republicans, in which case impeachment might short-circuit that process.

Hope springs eternal here.

Tyler's quit posting on Brexit for the time being.

The ending of the In Laws where the Falk character and the Arkin character -both Democratic voters, as any Bayesian could tell you - jump from helicopters (paid for by others) wearing tuxedos (paid for by others) to the sound of a hired orchestra (paid for by others) is instructive. The instructive part - the Falk character and the Arkin character would have been Remain and anti-Trump, last year. All that money spent on velvet Elvises and helicopters - Sad! (I think the actual quote from the movie was So Sad!, but this is 2017, and we have the advantage of retrospective - as Schopenhauer - or was it Kierkegaard - used to say, there is red tape in the jungle, and then there is its opposite. Well, probably not Kierkegaard or Schopenhauer since there has been an allusion to Jungles - maybe John Stuart Mill or James Fitzjames Stephens, both having read Robinson Crusoe in childhood - and not, the Fitz part of James Fitzjames Stephens is not a sign of civilization).

the last 20 syllables were a pastiche of Idylls of the King. If you remember that nice PBS show Anyone for Tennyson, there you go.

the ending of the In Laws was, in fact, morally dubious. But it was just a comedy.

Thanks for the responses!

Oh Tyler, you sweet boy.

It's only been six months, and literally nothing has happened, but you've already gone through these stages: (1) The election was hacked (2) Trump is not really President (3) Trump in fact colluded with the Russians to ensure his fake victory (4) This is an impeachable crime and (5) There is ironclad proof of this (6) His impeachment has basically already happened (7) Now we just have to figure out the pardoning rules.

Makes me wonder what you'll be spewing in six months when we're still at the point where literally nothing has happened, as we are today.

I'm glad you "lean libertarian"!!

It could actually be this bad:

I am not there yet, but I recognize the possibility.

Some verified turd on twitter said so. See you in 6 months, chump.

In that worst case scenario, the FBI is slow because they are working on the most important case in US history.

I will admit also that the best case scenario could be true. Kushner's letter to Congress today could be completely true and accurate. In that case, the FBI investigations are just grinding slowly to produce no indictments.

The Watergate investigation took over a year to generate actionable results, so give it some time!

All seven Watergate burglars had pled guilty or been convicted at trial by January 1973, just 7 months later.

Go quintuple your money.

I dream to see Bannon, Manafort and Sessions in jail
these people love the white race but hate America and most of the people who live in it

Nothing new or ground breaking here. This has been the unquestioned black letter law for two centuries.

Comments for this post are closed