Most famously Richard Nixon received a pardon by Ford immediately after his resignation but before any prosecution. Also, it’s any federal law, the exception is impeachment and nothing else.
So, pardons can very much apply before conviction or even prosecution. They may not pardon someone for something that hasn’t happened, but as long as there in office when the crime is committed that’s more a technical issue.
After President Gerald Ford left the White House in 1977, close friends said that the President privately justified his pardon of Richard Nixon by carrying in his wallet a portion of the text of the Burdick decision, which stated that a pardon carries an imputation of guilt and that acceptance carries a confession of guilt.[6] Ford made reference to the Burdick decision in his post-pardon written statement furnished to the Judiciary Committee of the United States House of Representatives on October 17, 1974.[7] However, the reference related only to the portion of Burdick that supported the proposition that the Constitution does not limit the pardon power to cases of convicted offenders or even indicted offenders.[7][8]
> pardons can very much apply before conviction or even prosecution
Is this really the case? Has this specific situation ever been ruled on by the Supreme Court? Burdick v. U.S. doesn't address "pre-pardons" or blanket pardons. Nixon was never prosecuted or tried.
The court ruled they could reject a pardon given before prosecution thus avoiding the need to testify about someone else. It would be a moot point if the pardon was invalid.
Presidents can pardon classes of people. Carter pardoned all people guilty of evading the draft during the Vietnam War. So Trump could pardon everyone involved in certain companies or involved in a specific act.
This feels like a stretch, I don’t think it’s a pardon they are after. Pardons don’t really work like that.
TikTok I think was going for more of a shock factor. Maybe even without talking to Trump they have credited him as restoring it, might seem weird for him to “go back on it”.
Trump issued a statement saying that he would issue an executive order after he became president that retroactively would dismiss any fines which satisfied both TikTok and the app hosting providers (Apple, Google).
The President can offer pardons for criminal matters. However, he is required to uphold laws passed by Congress, particularly bipartisan ones affirmed by the Supreme Court.
For example, why would the President have a veto power if he can simply post-facto ignore laws they pass?
He's only accountable to Congress (SCOTUS also affirmed that) and good fucking luck ever getting the required votes to remove him from office. He can do whatever he wants with impunity.
SCOTUS pointed out that they weren't crimes committed by Trump. We then saw the political prosecutions of Trump backfire spectacularly in a way that strongly suggests that the balance of the US population agreed with the SCOTUS call that the prosecutors didn't have a case that Trump had to answer for.
There’s a bit of a “live by the sword, die by the sword” situation going on here.
Presidents can’t just ignore a law categorically (although they regularly do, e.g. DACA, DOMA, etc.) On the other hand, presidents can certainly decide not to prosecute a particular entity under a particular law. That’s the heart of the executive power versus the legislative power.
Here, Congress wrote an extremely specific law that applies basically to one company. Which isn’t impermissible. But it’s also not clear to me that Congress can insist on immediate enforcement of that law without crossing effectively usurping the executive power and directing the President to prosecute a specific company at a specific time.
Technically, the President + Executive can do whatever they want, including prosecute parts the Executive!), until the President is either impeached or replaced by election or incapacitation.
Technically yes. But what I mean is that, even in terms of the spirit of the law, the situation is a bit murky, because Congress effectively wrote a law that requires the executive to prosecute a specific company on a specific deadline.
That's actually one of the reasons the president has a veto. If the president doesn't want the law to pass, then there isn't much point in passing it unless Congress makes a show of force with the 2/3rds majority, which is also the majority needed to remove him from office.
Similarly, one of the reasons the president has a pardon power is because he doesn't have to enforce those federal offenses. E.g. imagine that a president without pardon power instead offers "plea deals"/settlements for a $1 fine or concocts vacuously lenient house arrest enforcement.
The original constitution basically accepts that there is very little you can make a president do, and it instead formalizes what would otherwise be a gray area (it does have plenty about what he can't do). Some of this has changed over time especially as the judicial branch has granted itself more power.
The entire system is built on checks and balances. For instance even a simple district attorney can choose to effectively nullify laws within his jurisdiction by not prosecuting violations - something that has regularly happened in contemporary times. Even the final check - the lone juror - can also nullify laws by similarly choosing to acquit alleged violations regardless of the evidence.
You could obviously create a far more functional system but it would probably be far less stable. The reason you have all these checks and balances, from top to bottom, is that the Founding Fathers were obsessed about the risks imposed by both a tyranny of the majority and a tyranny of the minority. And non-enforcement of something effectively comes down just a continuation of the status quo, making it difficult for any group to [openly at least] impose their will on others.
You're not wrong but the only real recourse for an executive that fails to uphold the laws created by Congress is an impeachment in the House and conviction in the Senate.
Theoretically that's true but in practice there is ample precedent for Presidents refusing to enforce specific laws. In one instance (DACA) the Supreme Court ordered a President to continue a previous President's official policy of not enforcing certain laws against certain people!
Don’t confuse the oath of office for a binding agreement. The president is supposed to uphold the law, but they are only held accountable by impeachment.
“Trump v. United States, 603 U.S. 593 (2024), is a landmark decision[1][2] of the Supreme Court of the United States in which the Court determined that presidential immunity from criminal prosecution presumptively extends to all of a president's "official acts" – with absolute immunity for official acts within an exclusive presidential authority that Congress cannot regulate[1][2] such as the pardon, command of the military, execution of laws, or control of the executive branch.”
It obviously irrelevant whether the law was bipartisan or not, and the Supreme Court never "affirmed" the law--it denied a preliminary injunction.
As to upholding laws passed by Congress--just two days ago, Biden did his last round of student debt forgiveness, bringing the total up to $188 billion.
I’m not trying to “both sides” this. I’m just saying that the standard you’ve articulated for how promptly the president needs to act on a law like this isn't the standard we apply in practice. The government tries to reach deals like this in lieu of enforcement actions all the time.
no, the president can pardon individuals convicted of a criminal law, which is not at all what you describe here