Will John Kerry pardon Hillary Clinton on January 20th? He can.

January 17, 2017 | Pilsner

[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.

[thoughtomator]

I’m going to point out the obvious and note that John Kerry will not be sworn in as President at any point in time so he will have no opportunity to exercise the powers invested in the office.

[Red Badger]

Yep!.................

[Hieronymus]

Well, I am a lawyer. ; )

I didn’t say it would be a good idea — just that he could.

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I enjoyed reading through your posts on the thread via your home page. They have been educational.

As to the other posts—you should have begun by notifying people that you are a lawyer. It might have save a lot of grief, though it would have resulted in a much shorter thread.

[CharlesWayneCT]

But the term “before he enter on the execution” does not mean “before he is recognized as”.

It is a “he can’t do anything AS president until he takes the oath”, not “he is NOT the president until he takes the oath”.

So yes, there is a period of time where he is the president but nobody can act as the president.

This was the same argument as to why the democrats in the senate couldn’t confirm Garland during the period of time when the previous 34 senators were removed from office, and the new 34 senators were sworn in.

[arrogantsob]

Your problem is that there is a duly elected president who would take office sans oath. Congress has already certified his victory so as soon as Hussein is removed by statute Trump is instantaneously president.

There is no issue here.