Open Mic for the week of 3/17/25
On this day, American politician Grover Cleveland, who was the first U.S. president to serve two discontinuous terms (1885–89 and 1893–97), was born.
There’s a phenomenon where someone writes an essay about this or that but someone else wants to discuss something that has not yet made it to the front page.
This is unfair to everybody involved. It’s unfair to the guy who wrote the original essay because, presumably, he wants to talk about his original essay. It’s unfair to the guy who wants to talk about his link because it looks like he’s trying to change the subject. It’s unfair to the people who go to the comments to read up on the thoughts of the commentariat for the original essay and now we’re talking about some other guy’s links.
So!
The intention is to have a new one of these every week. If you want to talk about a link, post it here! Or, heck, use it as an open thread.
And, if it rolls off, we’ll make a new one. With a preamble just like this one.
I mentioned these in the waning days of the last thread but I’m going to mention them again because they strike me as indicators for the summer and autumn:
From The Daily Mail: Labour minister ‘rubbished’ spy chief’s secret dossier on Wuhan lab leak theory during pandemic despite Boris demanding probe… to ‘avoid offending China’
And, on Sunday, the NYT published Zeynep Tufekci: We Were Badly Misled About the Event That Changed Our Lives
Lotta passive voice in that title, there.
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And we have a new constitutional crisis and it’s not even 8AM.
Donald Trump has announced that the pardons Biden handed out in his final days as president were not signed by Biden but were, instead, signed by autopen and Biden knew nothing at all about the pardons.
Given that Biden didn’t know about the pardons and that they weren’t “signed” by him, Trump has declared the pardons null and void.
How difficult is it for a contract to be annulled because the person who signed it was an elder who was non compos mentis? If that’s something that never happens, it should be easy to dismiss the claims that it applies to pardons.Report
Surely we could ask the former president….
I’m sure he can confirm.Report
As far as I know there’s no bar to a presidential pardon in the Constitution.Report
If Biden didn’t know about it and didn’t sign it… is it still a presidential pardon?
While reasonable people all know that the answer is “yes, because we believe that if Elon put a pardon for himself in the machine and pressed the button that it’d be a real pardon”, there are unreasonable people out there who think that an Elon Pardon that Trump didn’t know about and didn’t sign wouldn’t be a real pardon.Report
Here are the qualifications for holding the office:
“No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.”
Here is the pardon language: “…he shall have Power to grant Reprieves and Pardons for Offences against the United States…”
The language is unequivocal. Calling plain language “controversial” is nonsensical.Report
So you agree that Elon can put a pardon in the autopen machine without Trump knowing about it and it’s perfectly legit?
Because that’s the argument. Elon can put a pardon in the autopen machine without Trump knowing about it.Report
First of all, is this just Trump bloviating at 0300 or is he actually offering some evidence.
Secondly, yes.
If he has evidence of a crime, he should produce it and have the offender charged.Report
What if the special investigator comes back and says “I’m not sure we can try Biden… he’ll come across as an elderly man with memory problems”?
Because if that happens, it’ll be to the benefit of Trump’s argument.Report
So be it. He’s got no argument. The language of the Constitution (again) is plain. There is no signature requirement.
You think DJT personally signed all of the insurrectionist pardons?Report
That’s a good point too. I don’t think Carter signed a pardon for every draft dodger.
But, he did sign a document that pardoned a class of people. So he did sign/issue a pardon.
https://www.archives.gov/federal-register/codification/proclamations/04483.html
But I’m not sure you’ll get very far with the constitutional argument… the argument isn’t for a signature, its for proof that the President issued the Pardon and not a staffer.
I could theoretically back this concept if the President were to orally pardon someone by invoking a clear statement of intent publicly witnessed and validated.
Did that happen?Report
I believe that the J6 pardons were all a single document. I believe that he signed it on camera (there are pictures of him holding up the document having been signed).
But to address the fundamental point, I believe that the argument about the president issuing pardons is that the president has to issue them.
Not his staff. Not his best buddy. Not some guy who sneaks into the room with the autopen device and pushes a button.
If the argument that a guy who sneaks into the room with the autopen device and pushes the button has a legit pardon, I think that there are legitimate complaints about that argument and it’s not to the argument’s benefit for them to become (even more) public.Report
It’s worth pointing out that there is literally no requirement that pardons _even be signed_, only that the President has granted them. There is nothing, textually, stopping the president from just issuing them verbally. This is probably a bad idea, but there’s nothing stopping it.
This is because pardons are not laws.
They are merely affirmative defenses you can use in court. The best affirmative defense is indeed a signed document, but it’s not invalid if it is not.
Also, it is _completely insane_ that Jaybird has decided to talk about this as if it is some reasonable legal theory Trump can operate under. Is that hows it’s going to work, as we descend farther and farther into fascism and the executive keeps spewing more and more nonsense?
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For the record, it being an affirmative defense means it is the _court_ that decides if the pardons are valid, not the president or law enforcement. Trump can indeed direct the justice department to investigate and even charge, and the second they end up in court, in front of a judge, the lawyer for the defense will hand over the pardon and say ‘Here you go, the pardon. Say the words, judge’, and the judge will say ‘This case is immediately dismissed with prejudice. The defendant can go. Prosecution lawyers, stay here, I have to sanction you so hard literally everyone in your office who glanced at this case get disbarred.’Report
It’s worth pointing out that there is literally no requirement that pardons _even be signed_, only that the President has granted them
I agree! The question is whether someone who is not the president can give a pardon on the president’s behalf because it’s what the president would want.
Which… well, it’s not a slam dunk, is it?Report
This is JAQing off.Report
I don’t think that mocking the question is going to be a good play going forward.
I think that it signals the weakness of the position instead of its strength.
“Of course Biden directed the subordinate to issue these pardons and it’s offensive to imply that he didn’t! Trump is offensive!” is, at least, an argument that addresses the core issue.
“It doesn’t matter if Biden knew about the pardons that the autopen signed!” is not an argument that I’d want to defend.
Though I’d probably think that dismissing the issue entirely is the best play…Report
This is like asking the Jewish question in 1933. How about that? Trump is providing an answer for a question that was never asked.
Besides, as DavidTC pointed out below, there is no signature requirement.
If you want a real constitutional crisis, here ya go: https://www.axios.com/2025/03/16/trump-white-house-defy-judge-deport-venezuelans.Report
Addendum: if we’re going to treat every raving utterance on Truth Social as a constitutional crisis, we’re in for a long 4 years of very dull conversation on this site.Report
We’re entering some severe “diminishing returns” territory on the Hitler thing.
Isn’t there a Harry Potter reference we could use instead?
“The implication that the Imperius Curse was used to procure these pardons is preposterous!”Report
Whatever works for you, my friend.Report
You know, I actually typed this and deleted it in another post, but there is literally no way to invalidate a pardon if the president has granted it, and I mean the word literally literally.
For the harshest example, if a president grants a pardon at gunpoint, it is still a granted pardon and can be used. It cannot be revoked or invalidated. This may seem Obviously Wrong, but it is not.
The pardon power is almost entirely absolute, exempting only impeachment or state law violations. It used to be slightly restricted by the idea we could prosecute a president who misused it, like selling pardons, until the Supreme Court said no. So now, as long as it’s on a violation of Federal law, that presidential power is literally unchecked and absolute. It’s even uncheckable, after the fact, by the person who used it!Report
“How dare people in a discussion forum point out every level of what Trump is trying to do is complete and utter bullsh*t instead of just picking one!”
Gee, I don’t know, could it be that Trump _himself_ introduced two different arguments, one about the way they were signed, and one about Biden not knowing about them?
Could it be that this is, in fact, exactly how this administration operates, a gish gallop of nonsense that moves from one thing to another, constantly falling back from nonsense position to different nonsense position, and it’s worth pointing out preemptive how it’s _all_ nonsense from top to bottom, and in fact Trump not only does not have the legal power to question pardons, he does not even have the _ability_?
Could it be that is all extremely stupid?Report
Stupid enough for NPR to deal with them.
There’s also the NYT and BBC but, honestly, you’re not going to click on those any more than you clicked on the NPR one.
The issue isn’t “is the autopen sufficient for a pardon?” because OF COURSE IT IS.
The issue of “did Biden direct these pardons personally?” is troublesome because the possibility exists that he didn’t is a larger possibility than “and monkeys might fly out of my butt” due to Biden’s severe cognitive decline.
“There is no reason to believe that Biden didn’t know about these pardons” is a better argument when there is no reason to believe that Biden didn’t know about those pardons.Report
Co graduations then in drawing us into another Jaybird time suck that leads precisely nowhere.Report
Why are you taking his assertions at anything close to face value?Report
Why are you denying that Trump said these things?
“Um, I’m not?”
“Well, I’m now going to argue against you as if you were.”
Here’s a link to what Trump said.
If your argument is that we still don’t know whether Trump *ACTUALLY* said that or if he just had one of his staffers write it on his behalf, yes.
That is the fundamental argument here. Yes. Exactly.Report
I DECLARE BANKRUPTCY!!!Report
You arguing such bad faith sometimes.
You are uncritically assuming Trump is correct to say these pardons were done without Biden’s knowledge or consent – it’s the root of your “can Elon do this” digression.
So again – why are you assuming anything Trump says is true?Report
I don’t know that these pardons were done without Biden’s knowledge or consent.
I don’t know whether they were done with his consent or not.
I am agnostic on whether they were.
If Biden comes out and says “Oh, I’m the guy who directed my subordinate to press the button on these pardons”, that would clear everything up.
However, I do think that the question of whether Biden personally directed his subordinate to affix a signature is an interesting enough question that it is in everybody’s best interest to have the question cleared up.Report
And the what? He issued pardons. He made statements about them. He left. His successor wants to reign as a tyrant and you are in the weeds of whether he held the pen. Which gives creedance to the tyrant.Report
If someone snuck into the autopen room and put a pardon in the machine and pushed the button WITHOUT THE DIRECTION OF THE PRESIDENT TO DO SO, do you believe that this is a legit pardon?
Because that’s the debate being forced on us now.
“That’s an absurd question!” might be a good counter-argument but Trump is making the allegation that Biden’s staffers were running things and not Biden himself.
And I’m not sure that moral indignation will work as a tactic against people who do not recognize your moral authority.Report
No I don’t t believe that would be legit. I also don’t believe it happened just because one guy said so.Report
Okay. Not believing that that would be legit gets us to the core issue.
I don’t think it’d be legit either.
I also don’t think that Trump has any special knowledge about how the pardons came about.Report
No, Jaybird, it’s the debate _you_ are choosing us to have.
If you think it’s absurd, you had a chance to comment on that WHEN YOU INTRODUCED IT.Report
Unfortunately, it’s not just me choosing to have the debate. Apparently the White House press room is now involved.Report
Now that’s JAQing off.Report
This is probably one of those things that doesn’t constitute fraud prima facie as Trump seems to imply; *but* is probably one of those things that we either need to put very strict controls around verifying that the eSignature is executed directly by the Executive via a secondary validation – like video.
So, eSignatures could be a legitimate ‘tool’ for signing things, but the tool can’t be automated to the extent that we’re not sure that each and every signature was reviewed by the executive at the moment of signature.
To be clear, the signature can’t be ‘delegated’ to a batch of things… each thing has to be signed, the button has to be pressed each time by the person authorized to push the button.
Anything else is something we should put explicit checks around (if we haven’t already). So, I’ll wait for statements as to how the process is actually managed before passing judgement.Report
Yeah, how the process is actually managed is going to be really important here… because what the process actually is versus what people assume it is (to the extent that they’ve considered it at all) is likely to have very little overlap on the Venn diagram.
The process getting sunlight is probably to the benefit of everybody except the people involved with the process itself.Report
Pardons do not even need to be signed. Or even _written down_. They are not laws, they are affirmative defenses in court.
All they have to do is be ‘granted’ by the president.
And everyone seems very confused about this, thinking Trump can do anything about pardons. He cannot. He can say anything he wants, he can direct the justice department to investigate anyone he wants, even if pardoned for it. He can declare them invalid. Sure, he can do that.
And the defense will walking into court, or not even ‘court’ but the very first hearing in front of a judge, their lawyer will silently hand the pardon to the judge, and the judge will turn to the prosecution and says ‘Case dismissed with prejudice, and you are all sanctioned to the full extent I possible can, and I’m going to make you stand there while I write to the bar to have you disbarred’.
It is such incredibly obvious legal misconduct that it would be hard to conceive of a few months ago from government lawyers, but, hey, here we are. Should be funny as hell if it happens.Report
Sure, what’s the official record that Biden pardoned those people?
It’s the eSignature, no?
What’s the process to verify that Biden executed the eSignature and not a staffer?
As I said above, I’d be fine if Biden publicly read from a list all the people he’s pardoning… no signature required.
You guys are getting hung up on ‘THE SIGNATURE’ not what’s the process to validate that the President ‘granted’ these pardons?
Otherwise, what’s the ex-post facto defense in court that Trump privately pardoned me over the phone… as long as Trump – after he’s president – says he pardoned me privately over the phone.
It’s a lot like Trump claiming he declassified the documents in his heart as he was leaving the oval office.Report
There is basically nothing stopping that from happening. If you were trying to prosecute that person, you could maybe attempt to introduce doubt that had happen, like the defendant’s behavior later did not indicate they thought they were pardoned. But that evidence is very circumstantial, and, as I said, presenting a pardon is an affirmative defense, which means the prosecutor has to prove it _wasn’t_ issued.
It’s really hard for a prosecutor to prove that certain things were not said in private between two individuals if those two individuals are saying it was, and there’s no other record. I think that’s sort of obvious?
The classification of documents is a process laid out under the law, and Trump did not follow it. Until he does follow it, as President, they are classified.Report
The Office of Legal Council issued an opinion all the way back in 2005 on the topic of signing bills into law:
I think that we can similarly conclude that if Biden directed a subordinate to affix the President’s signature to a pardon, then that pardon is officially official and it’d be silliness to say that it wasn’t a real pardon.
“But what if Biden didn’t direct the subordinate to affix the signature? Like, what if the subordinate was acting on his or her own?”
“What part of ‘the president may direct the subordinate to affix a signature’ did you not understand?”
“I’m asking about a subordinate affixing a signature without having been directed.”
“WE HAVE ALREADY ESTABLISHED THAT THE PRESIDENT MAY DIRECT THE SUBORDINATE TO AFFIX A SIGNATURE!!!”
And so on.Report
Yes, but I was pointing out that he doesn’t even need to do that. Because pardons don’t even _need_ be signed. Bills need to be signed into laws, pardons do not. Just ‘granting’ them is enough. They are usually printed and signed, just like executive orders are printed and signed, but they have the exact same validity if they’re just…said.
The idea that the court is going to take an official government document issued and posted by the Executive Office of the President and represented by the government at the time as signed by the president, and allow that fact to be _debated in court_, is just utterly insane.
This not only is something the prosecution would have to prove (Because it’s an affirmative defense), but they’d have to have all their evidence before hand. Because this is otherwise a pre-trial dismissal that will be issued instantly from the bench.
By a very very angry judge.
And if they tell the judge that they have enough evidence to demonstrate that, what would actually happen is that the defense would just get a sworn statement from Biden that he did sign the thing. The End. It’s over.
This would probably make the judge _even angrier_ at the prosecution.Report
Yes, but I was pointing out that he doesn’t even need to do that. Because pardons don’t even _need_ be signed. Bills need to be signed into laws, pardons do not. Just ‘granting’ them is enough. They are usually printed and signed, just like executive orders are printed and signed, but they have the exact same validity if they’re just…said.
I agree with every word you’ve said here.
The pardons *ARE* all listen on the official Justice.gov website. All the t’s crossed and i’s dotted.Report
Probably should have Biden announce that he approved all those pardons while he’s still able to.
Also I strongly expect this was more Trump running his mouth than any sort of legal evaluation.Report
C-SPAN reports that Trump has announced that the JFK files get released TOMORROW.
He announces lots of stuff, though.
I’ll believe it when I see it.Report