MDlaxfan76 wrote: ↑Thu Jan 14, 2021 2:45 pm
Thanks I was adding in the factor of having been pardoned, whether by Pence or Biden or 'self-pardon'...how does that effect taking the 5th in a criminal proceeding, how does it effect in an Impeachment trial? I'm guessing the Impeachment is the same, he can do whatever he wants, the Senators can judge...
Adding in a pardon would change the equation considerably. A Pence pardon would be valid, though word is now unlikely given the way T**** has treated Pence of late and the seriousness of T****'s crimes last week. A Biden pardon will NEVER happen. Sounds like a self pardon is possible. We'll know soon enough.
If Pence pardons T****, the first question is what (federal) crimes are covered. Obviously T**** wouldn't be federally prosecuted for any such crimes so the issue of the 5th wouldn't come up there. If the pardon is broad and does not mention specific crimes, the permissibility of its breadth would only be tested if a federal prosecutor brought an indictment. Some commentators say pardons have to specifically mention the crime the pardon covers, and that a blanket pardon is ineffective. A court would have to decide that issue. If the pardon covers everything, then T**** walks (indictment dismissed). If it doesn't, he can be prosecuted and would have 5th A. rights.
In short, if a pardon covers the crime, there will be no prosecution and the 5th A. issue won't come up. If a pardon doesn't cover a crime that gets charged, T**** would be able to take the 5th.
Similarly, with a self pardon, the feds would need to indict T**** for the constitutionality of a self pardon to be tested. I assume the courts would regard that as a unique threshold issue which almost certainly would go up to the U.S. Supreme Court, though it is possible the trial court could reject the self pardon defense and move on to the trial in which case T**** would be able to raise the self pardon on appeal if convicted. But for that to happen, the appellate courts, including SCOTUS, would have to reject an interlocutory appeal. I don't think that would happen.
If state crimes are charged, T**** still has 5th A. rights as to those crimes regardless of a Pence or self pardon.
In an impeachment trial, if Pence has pardoned T**** for the Jan. 6 events, I think T**** would have to testify. He'd have no 5th A. rights. The one caveat is local D.C. crimes. Would they be covered by the pardon? In other words, are they "federal crimes" covered by the President's pardon power? I've seen talking heads on TV say "yes" to that. That's my gut feeling as well, but I'm not sure. A twist is that if the "local D.C." issue isn't clearly decided by the courts already, then the Senate might allow T**** to take the 5th to preserve those rights.
A self pardon would present interesting issues at an impeachment trial. T****'s lawyer would have to argue the pardon covers the Jan. 6 events to which the House managers might respond, OK, then T**** has to testify. T****'s lawyers might then say T**** still should be able to take the 5th if there is any uncertainty as to whether the pardon covers local D.C. crimes. Could T**** be required to take the stand at his impeachment trial and forced to take the 5th in front of the Senate and before a national TV audience? In theory, yes, if the 50 D Senators and at least one R Senator votes for that.
(We'll assume for now that Roberts will preside and that Harris won't vote, but there seems to be a question as to whether Roberts will preside since the Constitution says the Chief presides when the "President" is tried. Depending on when the trial starts, T**** may not be president so will Roberts preside? My guess is he will, but we shall see.)