Curious about 5th and pardon

Discussion in 'Fred's House of Pancakes' started by bwilson4web, Nov 25, 2020.

  1. bwilson4web

    bwilson4web BMW i3 and Model 3

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    For @hill. My understanding is someone who turns 'states evidence' to avoid prosecution, also loses their 5th amendment protections ... they have to give evidence and failure to do so subjects them to contempt of court proceeding. So does the same mechanism work for those given a pardon?

    I am less interested in prosecution of the guilty than illumination of their and associates behavior. If the associates are not explicitly pardoned, they and should remain at risk.

    Bob Wilson
     
  2. fuzzy1

    fuzzy1 Senior Member

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    Those who turn 'states evidence', are doing so under conditional deals, and giving up certain protections are conditions of the deal. If the state decides or court rules that you aren't holding up to your end of the deal, then the deal is voided and they can return to prosecution.

    Full pardons don't come with conditions. At least, not any conditions from the state. From the pardon issuer, OTH, ...

    Pardon issuers can also issue lesser, limited pardons, or sentence commutations, or ...
     
  3. tochatihu

    tochatihu Senior Member

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    Roger Stone was commuted, leading to musings that a Prez pardon is just not the right thing when Prez is involved in the matter. Too close to a selfie.

    That line of reasoning was silenced (apparently) with Flynn.
     
  4. ChapmanF

    ChapmanF Senior Member

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    Michael Conway, former counsel, U.S. House Judiciary Committee, seems to think that "under the 1915 Supreme Court opinion in Burdick v United States", one who accepts a pardon makes "an admission that he was guilty of the crimes for which he has been pardoned."

    I haven't read that opinion, and Conway's piece was the first I ever heard of that argument, so I'm not sure what to make of it. Interesting thought though.

    I have, earlier, heard it argued that being pardoned removes your fifth-amendment shield against giving testimony that might tend to incriminate you, as you are already shielded against any prosecution for it.
     
  5. hill

    hill High Fiber Member

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    Not remembering my studying Fed Criminal procedure ... but hearing Flynn had been pardoned ... yet hearing he's still wanting to have his plea withdrawn? That's a pretty narrow issue & may have come up before ... but with tons of honey do's on the dry erase board - it ain't going to get solved by yours truly.
    ;)
    .
     
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  6. ChapmanF

    ChapmanF Senior Member

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    It is a pretty interesting opinion.

    It also contains a delicious line I might just find occasion to use someday:

    "There is plausibility in the contentions; it disappears upon reflection."
     
  7. fuzzy1

    fuzzy1 Senior Member

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    I remembered Joe Arpaio's acceptance of a pardon short-circuited his efforts to get his conviction vacated. That is another indication that accepting a pardon, does have some legal consequences:

    "Within days of Trump’s 2017 pardon, Arpaio asked U.S. District Court Judge Susan Bolton to wipe away his misdemeanor conviction.
    Bolton refused, saying the pardon may have spared Arpaio from any punishment but did not “revise the historical facts” of his case."

    If Joe Arpaio loses his pardon that would be great news ... for Arpaio

    "A federal appeals court has refused to expunge the criminal record of former Maricopa County, Ariz., Sheriff Joe Arpaio after President Trump pardoned him during his first year in office. ...
    "The district court’s judgment dismissing Arpaio’s criminal proceeding with prejudice and denying vacatur of the finding of guilt is affirmed," Judge Jay Bybee wrote in the ruling. "Because Arpaio’s challenges to the district court’s finding of guilt are moot, we do not address them."

    Appeals court refuses to throw out Joe Arpaio's guilty verdict after Trump pardon | TheHill

    I'm not remembering anything specific to the 5th Amendment. But considering that a federal pardon doesn't preclude state criminal actions, to which Trump may be facing, it seems to me that 5th Amendment rights could still be an issue.
     
  8. tochatihu

    tochatihu Senior Member

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    @ChapmanF is correct - the art of trolling is wasted on the sophomoric.
     
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  9. ChapmanF

    ChapmanF Senior Member

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    Wait—I was right? What did I say?
     
  10. Mark57

    Mark57 2021 Tesla Model 3 LR AWD

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    You said . . . .

    LOL. j/k
     
  11. ChapmanF

    ChapmanF Senior Member

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    I've realized that the thing I find most delicious about that line is that it is a very early (1915!), but plainly recognizable, statement of the Dopeler effect.
     
  12. Mark57

    Mark57 2021 Tesla Model 3 LR AWD

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    eeeeeeeEEEEEEEEEEEOOOOOOOOOOooooooooooo
     
  13. ETC(SS)

    ETC(SS) The OTHER One Percenter.....

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