No matter your opinion on Holder ...

Discussion in 'Too Hot for Swamp Gas' started by wgbgator, Aug 29, 2013.

  1. GatorBen
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    GatorBen Well-Known Member

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    It actually makes some sense.

    If you could (and I guess by not prosecuting, you're saying you would) pardon the person for that offense and be completely within the law in doing so, why should you have to go through the pointless step of first getting a conviction to then throw it out?
  2. MichaelJoeWilliamson
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    MichaelJoeWilliamson Well-Known Member

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    Makes no sense. Prosecutorial discretion has the danger of being arbitrary, capricious and dangerous.

    One cannot simply choose which laws one wants to pursue.

    Change the law.

    As usual, Obama think his administration is above the law.
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  3. MichiGator2002
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    MichiGator2002 VIP Member

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    That broad of an interpretation of the executive pardon power, and treating it as flowing out to DOJ without Obama even picking up a pen, would effectively grant supra-legislative authority, beyond even line item veto, to the executive branch to nullify any or all bills from Congress affecting a criminal statute. Congress could pass a law mandating penalty X for crime Y, the President could sign it... and then just ignore it because of an expanded reading of his pardon power that skips "meaningless steps".
  4. MichaelJoeWilliamson
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    MichaelJoeWilliamson Well-Known Member

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    Tellingly

  5. wgbgator
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    wgbgator Sub-optimal Poster Premium Member

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    I'd think it would take more than 2 states legalizing it (and being quasi-legal in a few others) to make a change on that. The Federal statute/classification of marijuana is probably going to be akin to the DOMA of weed, something that will fall when the momentum is there.
  6. GatorBen
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    GatorBen Well-Known Member

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    The pardon power is written as one of the broadest powers in the Constitution and is a near plenary power. The only limits are that it be a federal criminal case and not affect impeachment proceedings.

    Heck, Brett Kavanaugh, who is not exactly a liberal jurist (and will almost certainly be on the SCOTUS shortlist for the next Republican president) articulated almost this exact argument, if anything a broader one, in his In re Aiken County opinion last week (the NRC / Yucca Mountain decision):

    (I've omitted Kavanaugh's citations, but this discussion is at pages 13 through 19 of the Aiken County opinion available here: http://www.cadc.uscourts.gov/internet/opinions.nsf/BAE0CF34F762EBD985257BC6004DEB18/$file/11-1271-1451347.pdf)
  7. MichaelJoeWilliamson
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    MichaelJoeWilliamson Well-Known Member

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    IOW, lead from behind.
  8. MichiGator2002
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    MichiGator2002 VIP Member

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    It is nearly plenary, but that is in its application. It is still... a power to pardon. The "meaningless steps" of 1) Congress duly enacted a criminal statute, 2) a President signing it, 3) a prosecutor charging it, 4) a jury convicting on it, 5) a court sentencing it... are not skippable, no sir. Not without reading the pardon power as effectively nullifying separation of powers where it pertains to the criminal law.

    The pardon power and prosecutorial discretion do not come from the same legal source nor do they serve the same legal purpose. And regardless, there is no constitutional authority making the pardon power delegable or assignable, so nothing Holder does of his own judgment can benefit from it. He couldn't pardon Rich or the FALN terrorists by himself, and there is no reason to think Clinton could have said "Eric, just use your best judgment". But this reading of the power basically stands on the premise Obama can do that, but also on the equally faulty premise that sidestepping enforcing the law and applying the judicial process is a valid application of a power that only operates at the conclusion thereof.
  9. GatorBen
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    GatorBen Well-Known Member

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    Look at Kavanaugh's citations, I think you'll find them interesting. It's largely an originalist argument that cites, amongst other things, Federalist 47, Motesquieu, and Jefferson's actions in ceasing prosecution on the Sedition Act cases.

    But basically each of these arguments is going to run up against the Supreme Court's statement in Nixon that "the Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case." (It's for this reason that the passage of a criminal law that passes constitutional muster only authorizes rather than mandates prosecutions under that law, and Kavanaugh asserts that the Executive can disregard a law purporting to require prosecutions as an unconstitutional encroachment on Article II prosecutorial discretion.)

    The President absolutely can decide to delegate executive prosecutorial discretion to a subordinate executive agency, and the Congress cannot mandate that the Executive prosecute a criminal statute. The pardon power and prosecutorial discretion are very nearly the broadest of the executive powers, because they are the very core of what the executive branch does.
  10. MichiGator2002
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    MichiGator2002 VIP Member

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    The pardon power and prosecutorial discretion are two entirely independent juridical concepts, at least as far as the constitutional language but I would also say historically, even English common law roots predating the US, the difference between a crime not being charged and a conviction being pardoned or sentence commuted.

    I am also pretty uncomfortable from a professional responsibility standpoint. Sort of like 95% of John Morgan ads, if no rule specifically covers something that sounds like a shady overreach of the spirit of the thing, maybe one should be added.
  11. asuragator
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    asuragator Well-Known Member

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    Yes, discretion can be arbitrary, capricious, and dangerous, but the very meaning of the term allows prosecutors to decide which laws to pursue or not. The reality as it is lived is that prosecutors can simply choose...as prosecutors/AG's have done throughout history.

    Look at how we extend discretion down to individual police officers out on patrol, who are in many ways on the lowest rung of the bureaucratic hierarchy. They have wide discretion about which laws to enforce or not in terms of arresting people, writing a ticket, giving a warning, or just doing nothing.

    Of course there are normative expectations about what the public might want or about what is fair and permissible in the distribution of justice but even if controversial or widely against public opinion, such discretion is certainly within the realm of power provided such positions.
  12. asuragator
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    asuragator Well-Known Member

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    I think the moral of the story is we are not very comfortable with the idea that our system gives so much decision-making power to individual officials in which this can easily be abused (as mj notes arbitrarily and/or with caprice).

    Yet our system could not and would not function if the presumption were that all laws must be enforced simply because they are law. If that were the case, we'd have to take away plea bargains, police would be compelled to make arrests for any and all violations of the law, and prosecutors would have to prosecute every violation. In other words, taking away discretion means a full court press on all violations of the law. And no one in their right mind wants that...not that it could happen anyway.
  13. MichaelJoeWilliamson
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    MichaelJoeWilliamson Well-Known Member

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    I agree with your point, on a general, macro level. For example, the prosecutors in the Zimmerman case initially used discretion to conclude there was no probable cause to bring charges. That they changed their mind is also an example of discretion. But no one suggested that just because they used discretion *in this case* that prosecutors everywhere will change the way they pursue future shooting incidents.

    See the difference?

    The Obama Administration has decided, apparently fairly arbitrarily, that they will not go against the laws of two state regarding medical marijuana, even though the law requires them to do so. And even though I agree that federal and state pot laws are over the top and are in dire need of modification, this practice makes me very uneasy.

    Why?

    Several reasons. First, as a result of this announcement, pot industries will crank up in Washington and Colorado. That is fine. What if the next person sitting at DoJ decides to start enforcing the law? BOOM there goes the industry and these folks will likely find themselves facing federal felony charges. But that is not my chief concern.

    What if the next head of DoJ decides *this* particular business in Colorado is a political enemy of the sitting President and goes after that particular business and no others? This is the danger of the arbitrary application of discretion for an overall law, as opposed to individual discretion of a particular case.

    Once again Obama is leading from behind and puts his administration above the law.
  14. wgbgator
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    wgbgator Sub-optimal Poster Premium Member

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    I guess you could see it that way. Gradualism certainly isnt sexy. But its not like having states (rather than Fed Gov) leading the way on issues is entirely antithetical to what many people like yourself consider the ideal way to do things.
  15. wygator
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    wygator Well-Known Member

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    Actually, this post is spot on. When decisions about which laws to enforce are reduced to political calculation, we really don't have laws.

    Only when laws are consistently enforced can we trust our government. When law enforcement is left to capricious whims of different administrations, you actually encourage distrust of the law at the minimum, and lawlessness at the worst.
  16. MichaelJoeWilliamson
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    MichaelJoeWilliamson Well-Known Member

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    The states should indeed lead the way. Which is what is happening. The federal Government should have never got into drug legislation, especially regarding pot. Which means a real leader would lead the way to eliminate the federal laws regarding pot (and alcohol and tobacco too) and step out of the way.
  17. GatorBen
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    GatorBen Well-Known Member

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    Couple of points:

    "even though the law requires them to do so" - it doesn't actually, the law allows them to prosecute offenders without requiring it. There's a pretty good argument that Congress couldn't require them to do so even if they tried (that's one of the overarching themes of the discussion I posted), but as it stands now the law doesn't try to anyhow.

    "First, as a result of this announcement, pot industries will crank up in Washington and Colorado. That is fine. What if the next person sitting at DoJ decides to start enforcing the law? BOOM there goes the industry and these folks will likely find themselves facing federal felony charges." - Which is the exact same thing you risk if you actually changed the law, because there's the risk that it will be changed back in the future. Either way you're betting on the future regulatory (and enforcement) climate.

    "What if the next head of DoJ decides *this* particular business in Colorado is a political enemy of the sitting President and goes after that particular business and no others? This is the danger of the arbitrary application of discretion for an overall law, as opposed to individual discretion of a particular case." - While tough to prove, you have the remedy of a selective prosecution defense, essentially arguing under Equal Protection that others similarly situated have not been similarly prosecuted and the prosecution was brought for a Constitutionally improper purpose (typically either membership in an identifiable group or as retribution for exercising a constitutional right).
  18. MichiGator2002
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    MichiGator2002 VIP Member

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    With a little hard work, maybe we'll get some real "states leading the way" that renders this thread and many others that touch on questionable use of federal power moot. <3 Article V :)
  19. MichaelJoeWilliamson
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    MichaelJoeWilliamson Well-Known Member

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    Very interesting. Did not know that. Be interested to hear what Michi and Law have to say regarding this.

    This is a false equivalency. If regulations change prohibit the sale of a substance, current businesses cannot be charged for retroactively selling it while it was legal. They can be forced to stop selling, but not be charged for selling it in the past. However, under current law, those businesses CAN be charged for growing and selling pot, even if Holder says he will not enforce the law.

    Perhaps. But who is going to give the jailed owner his business, his reputation and his money back? Also, one wonder how well this will work in the IRS scandal?
  20. GatorBen
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    GatorBen Well-Known Member

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    Enjoy the dive into the disputed meaning of the "Take Care Clause" that you're asking for here. :laugh: It's an issue that hasn't been explored a lot, and you wind up tracing from the history of nolle prosequi up through modern prosecutorial discretion, but it's generally taken for granted that the law doesn't require the executive to proseucte every offender who falls within its contours (in part because you would create a giant mess if you did, probably in equal part because that's just sort of always been the executive power throughout history).

    As a historical matter, underenforcement or nonenforcement of statutes with which the administration has a policy disagreement is fairly rampant (for instance DOJ Antitrust does absolutely nothing under some presidents, quite active under others, etc.), this is just a higher profile example because typically you have the scenario where people affected more or less know the government isn't enforcing certain statutes and not the administration announcing that it won't prosecute.

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