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Friday, January 15, 2021

Can Trump pardon the rioters?

I took a day off to celebrate January 14. (It comes only once a year.) And now there is so much to discuss...! 
 
First question: Did the fascists conspire to kill or capture members of Congress? The obvious answer is yes, though a Trump appointee is trying to muddy those waters. I trust Biden will rectify that situation soon.
 
Let us accept as a given the obvious fact that the fascists were indeed on a murder mission. I will now focus on the question of whether Trump can pardon the insurrectionists. Various viewpoints have emerged. 

1. Impeachment prevents him. I made this argument in a previous post. Keith Olbermann offered the same argument in a recent video. 
 
The Constitution clearly says that the president has no power to pardon in cases of impeachment. Do those words mean that the president has no power to prevent impeachments? Or do they mean that the president has no power to pardon a crime which gave rise to impeachment
 
I vote for option #2. I stand with those who say that this president cannot pardon himself for inciting an insurrection, since that was the charge underlying the impeachment. I would further argue that the president cannot pardon co-conspirators in that crime. 
 
Will the Supreme Court agree? I honestly don't know. 
 
2. Since the District of Columbia is not a state, Trump has the power to pardon everyone who stormed the Capitol. That's the claim made here.  
“He can pardon either individual members or groups of people for any federal offense, period, full stop,” Professor Frank Bowman said. “From jaywalking on a federal street to treason.”

Capital University law professor Dan Kobil agreed with Bowman, saying there really aren't restrictions to his authority when it comes to federal offenses.

“The President has the authority to pardon any person who violated any federal laws on that date,” Kobil said.  “He could even pardon the bomb-makers.”
However:
And even if the President pardons the mob, individuals could still be prosecuted by states for violating laws before arriving in D.C.

“In each of those states there are criminal conspiracy statutes,” he said. “If the crime was planned, if there was an overt act, if there was wrongdoing, if a pipe bomb was made in those states and carried to D.C
So...is that it? Do we have to ferret out individual violations of state law in thousands of cases? I hope not. That approach seems very cumbersome.

3. Some say that Trump cannot pardon violations of the local criminal code of the District of Columbia. We now enter a surprisingly murky landscape. I can't find a straightforward answer to the question of whether a president has the power to pardon someone who (say) drops his trousers in the middle of Pennsylvania Avenue -- which, come to think of it, is pretty much the only way Rudy hasn't humiliated himself in recent weeks. 

DC's criminal code is not the same thing as the federal code. DC's code offers plenty of grounds for putting Trump's murder mob away for years. For example, the following comes from § 22–1805a. Conspiracy to commit crime.
(2) If 2 or more persons conspire to commit a crime of violence as defined in § 23-1331(4), each shall be fined not more than the amount set forth in § 22-3571.01 nor the maximum fine prescribed for the offense, the commission of which was the object of the conspiracy, whichever is less, or imprisoned not more than 15 years nor the maximum imprisonment prescribed for the offense, the commission of which was the object of the conspiracy, whichever is less, or both.
Seems pretty straightforward. Fifteen years sounds good. 
 
Now let us turn to Chapter 4. Assault; Mayhem; Threats. Lots of possibilities here:
 
§ 22–402. Assault with intent to commit mayhem or with dangerous weapon. (Ten years max.)

§ 22–403. Assault with intent to commit any other offense. (Five years.)
 
§ 22–404.01. Aggravated assault. (Ten years for a complete act; five years for an attempted act.)
 
§ 22–405. Assault on member of police force, campus or university special police, or fire department. (Ten years.)
 
§ 22–407. Threats to do bodily harm. (Six months.)

§ 22–405.01. Resisting arrest. (Six months.)

It is also against the law to incite violence with the District of Columbia. This law would apply to Rudy and to Trump himself. This brings us to...
 
§ 22-1322. Rioting or inciting to riot.
a) A riot in the District of Columbia is a public disturbance involving an assemblage of 5 or more persons which by tumultuous and violent conduct or the threat thereof creates grave danger of damage or injury to property or persons.

(b) Whoever willfully engages in a riot in the District of Columbia shall be punished by imprisonment for not more than 180 days or a fine of not more than the amount set forth in § 22-3571.01 , or both.

(c) Whoever willfully incites or urges other persons to engage in a riot shall be punished by imprisonment for not more than 180 days or a fine of not more than the amount set forth in § 22-3571.01 , or both.

(d) If in the course and as a result of a riot a person suffers serious bodily harm or there is property damage in excess of $5,000, every person who willfully incited or urged others to engage in the riot shall be punished by imprisonment for not more than 10 years or a fine of not more than the amount set forth in § 22-3571.01 , or both.
You may be interested to know that, in the case of a jury trial, a violent outsider would be judged by the fine citizens of the District of Columbia. They may not see the world the same way a QAnon adherent sees the world.
 
I would also note that Trump issued his pardons to Roger Stone and Michael Flynn before the events of January 6. (For God's sake, don't tell Trump!)
 
Bottom line: It all comes down to whether the President has authority to pardon local crimes in the District of Columbia. Anyone who tells you that the issue is straightforward is kidding himself or herself.

Comments:
You seem to have researched this more than I plan to, but what occurs to me is that the question is whether the offense is against the United States or the (local) government of the District of Columbia. The pardon power under the Constitution only applies to the former.
 
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