Posted on 01/17/2017 9:36:46 PM PST by Pilsner
How could John Kerry pardon Hillary Clinton? After all, it is the President of the United States, not the Secretary of State, who is empowered by the Constitution “to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” Art. II, Section 2, United States Constitution. Secretary of State John Kerry will not be President of the United States on Friday, so how could he pardon Hillary Clinton?
The incumbent President’s term expires, and Donald Trump’s Presidency begins, at noon, on January 20th. XXth Amendment, Section 1, United States Constitution. But Donald Trump will not enter on the Execution of his Office” until ”he shall take the following Oath or Affirmation:—‘I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States’.” Art. II, Section 1, United States Constitution.
Who is President during the interval between noon and the completion of the oath? In a monarchy the period between the death of one monarch, and the crowning of a successor, is an “interregnum” or interval between reigns, and technically the land is without a government during that time. In the nuclear age, the Constitution was amended to exclude the possibility of an interregnum, and insure that there will always be an acting President. When the a new term begins without a qualified President, the Vice President elect is first in line: ”if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified….”XXth Amendment, Section 3, United States Constitution. Of course Mike Pence will not take the oath of office as Vice President until Donald Trump has taken the oath as President, so he will not be the acting President during the interval. On its face it might appear that the XXth Amendment authorizes the “Vice President elect” to act as President automatically, but all executive officers of the United States must first take an oath to support the Constitution. Art. VI, United States Constitution.
During that interval between noon and when Donald Trump takes the oath and qualifies as President, the Constitution provides that “Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President,…” XXth Amendment, Section 3, United States Constitution. Congress has so provided by that “the Speaker of the House of Representatives shall, upon his resignation as Speaker and as Representative in Congress, act as President.” 3 U.S. Code § 19(a)(1). Of course Speaker Ryan will not have resigned his Speakership, and from Congress, and taken the Presidential oath before Donald Trump takes the oath. Next up, the President pro tempore of the Senate, who “shall, upon his resignation as President pro tempore and as Senator, act as President. 3 U.S. Code § 19(b). Orrin Hatch isn’t quitting his day job, and rattling off the Presidential oath at breakneck speed just to be acting President for a few seconds.
So, with the incumbent’ term expired, neither the President elect, nor the Vice President elect, having qualified by taking their respective oaths of office, and neither the Speaker of the House of Representatives, nor the President pro tempore of the Senate, having become acting President by resigning, and taking the Presidential oath, Congress has provided that “the officer of the United States who is highest on the following list, and who is not under disability to discharge the powers and duties of the office of President shall act as President: Secretary of State,…” 3 U.S. Code § 19(d)(1).
Cabinet officers appointed by the President do not serve fixed terms, but at the pleasure of the President. When one presidential term expires, cabinet officers remain in office until they resign, or are fired.. There is no need to renominate them if the President elect wants them to remain in office -- they remain in officer during the new term, until resigning or being fired.
Donald Trump has nominated Rex Tillerson to replace John Kerry as Secretary of State, but that nomination is not expected to even be voted on until next week. President Donald Trump may of course fire John Kerry, but President elect Donald Trump has no formal power over John Kerry, either before the incumbent President’s term expires, or during the term to which Trump was elected, until Trump qualifies by taking the Presidential oath.
During that interval, between noon, and when Donald Trump completes the Presidential oath, John Kerry “shall act as President”(3 U.S. Code § 19(d)(1).) and may bestow a Presidential pardon on Hillary Clinton, or anyone else he pleases.
Do I expect him to? Of course not. But the past year has seen a number of significant political events that I did not expect.
>> I don’t think that Trump could get sworn in early while there is another standing President.
I’m thinking the swear-in has an effective date.
In my financial dealings with the U.S. govt, transactions have an “effective” date which now makes more sense given your comments.
I’m sure that’s a matter of state law.
Anyway: Trump will take the oath before the public ceremony begins. Thus, he will become President exactly at noon, fully empowered to execute the office.
This entire thread is idiotic and bizarre.
Al Haig, is that you?
Well, that would be a huge LOL in history then. Kerry, thinking that he has the authority to pardon Hillary, does so. Then, he finds out that Trump has already been sworn in. Such FUN!
The Supreme Court has already ruled numerous times on issues like this, most recently in National Labor Relations Board v. Noel Canning , finding unanimously, that a technical interregnum during which there is no practical time for an official to act does not constitute a valid exception case either Constitutionally nor statutorily.
As far as the US Constitution is concerned, there is ZERO practical lapse between the administration of one President and the next.
Give it up.
The Supreme Court has ruled on these questions in several cases. There is no practical lapse in the SCOTUS interpretation of US law between one administration and the next.
the biggest favor Obama could do for Trump would be to pardon Hillary.
It's also nonsense from the perspective of case law. The Supreme Court has ruled on questions like this several times, and each time they've made the same finding: a slight theoretical lapse in time between two Constitutional or statutory events does not constitute a sufficient cause in law for the exceptions to be allowed. John Kerry will not be "acting President" under any definition the Supreme Court has ever considered valid.
Has Hillary even applied for a pardon?
How many Political Pundits and Lawyers can dance the minuet on the head of a Campaign Map push-pin?
Can they still do this while playing “Mother-May-I” and “Simon-Says”?
If a Bureaucrat falls in the forest, can we “Shoot-Shovel-Shutup” without having to do an Environmental Impact Study?
Questions, so many questions!
No. Legally bullshit. For one thing, Kerry won’t be Secretary of State at that point. For another, he also can’t have Presidential authority without also having taken the Oath of Office.
Reread amendment 20. You got it wrong. If there is an acting President, it would be Paul Ryan. But I don’t think anyone would try to find out. they are still trying to figure out who was President between Mar 4 and 5 1849 because Zachary Taylor wouldn’t take the oath on Sun Mar 4. Supposedly the President pro Tempore of the Senate David Acheson was “President for a day” because that was the order of succession then
Check the Presidential Succession Act. Paul Ryan would have to resign his seat in the Congress to become acting president. Al Haig was right.
The Presidential Succession Act was different in Zachary Taylor’s day.
Too many assumptions. Even if some of this were correct, the House Speaker would still have to be offered the position before turning it down.
Try running that argument through a federal court and see how far you get.
If you and and every other Freeper posting posting blather about how the job has to be offered to, and turned down, by the Speaker, or President pro tempore, before the Secretary of State gets a chance to act as President, and/or that the Secretary of State has to take the Presidential oath before acting as President, would bother to read the XXth Amendment, and Presidential Succession Act, you would see that the power to act as President devolves to the Secretary of State automatically, instantly. The Amendment and law were crafted so that if the Soviets nuked the President and Vice President, the remaining US Government would have an official who was acting President, without any delay for consultation, resignation, oath taking, and the like. In the event of a prolonged interval without a duly elected President, who has qualified by taking the oath, the Speaker, or President pro tempore, may resign, take the Presidential oath, and become acting President ahead of the Secretary of State, but until they do the Secretary of State is also acting President.
if so apply tar, and feathers liberally until lurch, obozzo, and the bunch wear feathers for years
Also false, in the United Kingdom and the other Commonwealth Realms the powers of office pass to the new monarch immediately upon the Demise of the Crown. There is no gap. "The King is dead. Long live the King!" represents the legal fact that the transfer of power is instantaneous. While there are legal formalities to follow, up to and including the Coronation. The Crown has passed from one monarch to the next.
The same applies to the Presidency. Barack Obama ceases to be President at Noon EST on 20 January 2017. Donald Trump becomes President at Noon on 20 January 2017.
He has to take the oath, but he is already President at that moment. Lyndon Johnson became President when John Kennedy died, not when he took the oath.
The oath is a requirement, yes, but in an emergency the President can act if there is no time to take the oath, as long has he does so within a reasonable time frame.
personally I believe if Hillary is not indicted immediately as an obvious violation we have not changed anything and our country is a sham..no one can have a private server for classified work period..nothing more is needed, what some nuance to study..no criminal activity deserves justice, and if the elite are let go the elite need to get kicked to the curb before we are war to preserve their status quo
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.