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Trump’s Clemency Does Undermine The Rule Of Law, Yes

Finally we have a Guardian headline that is actually true:

Donald Trump’s use of clemency undermines the rule of law

This is entirely true. What’s being missed here is that this is the point of clemency. That system of the law is a mill that grins slow and grinds small. And there are times when the process – or perhaps the end result – is notably unfair.

The law, in all its majesty that is, results in a grossly inequitable outcome. To which there is a solution, simply short circuit the law.

This can be done, has been done, in two different ways. One is to introduce the concept of equity. Essentially, and lawyers please don’t shout too hard at this description, look, this is unfair, please judge this not on processes, actions, details, but is this overall result fair?

The UK even used to have a Court of Equity (from memory, abolished in the 19th c, absorbed into the appeals process I think?) and the concept does still live on. By the details of the law, the written stuff, yer bank to rights matey but this is so obviously unfair that off you go, free and clear.

The other way to do it is clemency. Allow that legal process to run its course then have someone review at the end. Hmm, that’s unfair, innit? So, off you go again. We can also call it mercy and all sort of other things but most systems of law have something like it. Pardons, commutations of sentences, they’re all aspects of the same idea.

That is, justice is not best served by a rigid and firm application of all the details that lawyers and legislators can come up with. Justice, in the end, being a human consideration of just desserts and we peeps don’t always work to such rigid processes in determining that.

So, sure, Trump’s clemency decisions are a short circuiting of the law. The thing to understand being that they’re supposed to be, they’re about justice, not the law.

Of course, it’s entirely open to start shouting that Trump’s decisions aren’t justice but that’s another matter, isn’t it?

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1 year ago

The law should mean what it says, and the Prez knows less about a case than the judge and jury do. But American chief executives have the power to set aside Guilty verdicts (not reverse Not Guilty verdicts) in cases of flagrantly unjust results (and formerly for cash to the Clinton Family Foundation).

Comparing Trump’s 26 pardons to Obama’s 1,927, the only surprise is that Trump does not support people Mueller prosecuted for routine violations based on their support of Trump, hoping to wrangle testimony against Trump.

1 year ago
Reply to  Spike

Hadn’t realised Barmy’d pardoned so many.

Of course, what the Guardian seems to dislike is the skin colour and sex of those Trump pardoned.

John B
John B
1 year ago
Reply to  Boganboy

The principle of Papal Infallibility was applied to the US Presidency for the duration of the reign of His Holiness Barry I, then removed once his papacy ended and the heretic took over.

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