Hacker News Reader

Comment by toomuchtodo | Hacker News Reader

These are strong feelings. I can appreciate strong feelings. I would also keep in mind that there are only 20k to 30k total ICE agents in the entire country (as of this comment). The federal government may not rein them in, but there are enough other humans on US soil to do so. They can also be pursued for the rest of their lives using documentation and evidence after this administration ends, so collecting and preserving that historical record will be important and relevant work.

In the interim, protect yourself and your community.

View on HN

Trump will pardon them of all federal crimes. If they are charged by the state, they will use jurisdiction removal and/or supremacy clause to squash it from jeopardy in the state court. Even in the unlikely event both of those fall through, it will take years to wind through that process, and by the time that happens the case will be so cold prosecution cannot follow through (see prosecution of Lon Horiuchi).

The only chance any of them see justice is if the US is invaded. Even in a Nazi/SS scenario, only about 0.03% of the SS were convicted and very few of those the rank and file are analogous to the ICE on the street.

If you mean extra-judicial punishment, then the chance of that is also zero. The bravest we have representing us is on the street, and even of those all they did was shout "murderer" then back off and let their friend bleed out when the police said they were not allowed to render aid. So basically it is safe to say of those of us speaking who were not on the street already, that we would do even less than that.

Best case scenario is the people vote "lets not do that again" and we actually don't. But in no case do the murderers actually find accountability.

> Trump will pardon them of all federal crimes. If they are charged by the state, they will use jurisdiction removal and/or supremacy clause to squash it from jeopardy in the state court.

Removal doesn't change the substantive law applied, only the venue of the trial. Supremacy Clause immunity will be litigated, of course.

> Even in the unlikely event both of those fall through, it will take years to wind through that process, and by the time that happens the case will be so cold prosecution cannot follow through (see prosecution of Lon Horiuchi).

The majority of the delay in the Horiuchi case was the 5 year gap between the events and state charges being filed. If state charges are filed in this case, I don’t see much likelihood there will be that kind of delay first.

>only the venue of the trial.

The venue moving to a federal court, for a person federally considered pardoned of all federal jeopardy, seems like a problem.

IANAL but I don't see why a federal pardon wouldn't be binding on a federal court when the pardon is for the exact thing being considered (or possibly, a la Hunter Biden, pardoned of everything a federal criminal court could ever consider).

The president can only pardon crimes against the United States. Even if removed to federal court, state charges remain state charges and the judge & jury must follow state laws. Only the venue changes, with the intent being that the federal judge will potentially serve as a more neutral arbiter.

Hmm... this is far outside my domain but apparently there has been no litigation deciding on this yet[].

  While no court has conclusively decided this issue, precedent and the structure of the Constitution dictate that answer is “no.” The availability of an immunity defense arising under federal law does not change which sovereign is prosecuting the offense. The president may not pardon such offenses even when they have been removed to federal court. This stands in sharp contrast to convictions under the Assimilative Crimes Act, 18 U.S.C. § 13, which allows federal courts to incorporate state criminal law to cover acts committed on federal land not otherwise covered by federal law (for example, a domestic assault that takes place on a military base), and which may be pardoned by the president. Those are federal offenses—“against the United States”—because the federal statute borrows the law of the state surrounding the federal enclave, and they are prosecuted by the Justice Department. The charging documents themselves arise under federal law for purposes of Article III.

Your and their argument is compelling, but so is the counter argument IMO. Seems like something that might be tested at some point. If you have any further citations where a court has decided on this would love to look over it.

[] https://www.lawfaremedia.org/article/state-prosecutions-of-f...

> The venue moving to a federal court, for a person federally considered pardoned of all federal jeopardy, seems like a problem.

Its not. A federal pardon Constitutionally can only affects federal offenses, not state offenses. That Congress has created a mechanism by which federal courts may try some state offenses does not convert them into federal offenses.

> IANAL but I don't see why a federal pardon wouldn't be binding on a federal court

Because the Constitution doesn't give the President the power to pardon anything but offenses against the federal government. It is the sovereign against which an offense is alleged, not the court in which it is tried, that matters.

Yes you and your sister comment are claiming it is only a venue change. A couple points

(1) Per my response to your sister comment[] the inapplicability of federal pardons to cases removed federal courts hasn't actually been decided by the courts. Some scholars seem you are right, although so far I've done the favors for both of you by pulling up the most readily available citation I could find since you furnished none of your own.

(2) Even if you are correct, you are merely moving my goal post of my OG comment claim, which was that there could be jurisdiction removal, to one where you are suggesting it doesn't matter and the goal post is now whether a pardon applies in the case of jurisdiction removal. I find this a doubtful position, as there is a reason why the feds are often desperate to get their cases pulled into federal court, it can't be for nothing.

[] https://news.ycombinator.com/item?id=46561006

> I find this a doubtful position, as there is a reason why the feds are often desperate to get their cases pulled into federal court, it can't be for nothing.

The reason is the perception that, in times of high state-federal friction (which is when most attempted state prosecutions of federal agents, and therefore both removal and Supremeacy Clause immunity cases occur) state judges are more likely act with bias against the federal government and federal agent defendants. It’s not because of the fedeal pardon power (which has never been an issue in such cases, as you yourself implicitly note) magically becomes applicable.

There's also an economy of justice concern, since it usually cuts out a couple levels of appeal on federal questions, (instead of trial court, state intermediate appellate court, state supreme court, federal circuit, and US supreme court, the chain is just trial court, federal circuit, US supreme court) and these type of cases always involve federal questions (every case where removal is an issue due to a federal officer being involved is also a case where the parameters of Supremacy Clause immunity are going to be an active issue, and there are possibly other federal issues involved.)

Reply on news.ycombinator.com