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Comment by lowkey_ | Hacker News Reader

> “If you commit insider trading on Kalshi, that can and will at some point be a federal crime. It is a federal crime,”

Am I misunderstanding? It seems like two different statements he always conflates.

If it becomes a federal crime at some point, it will become illegal from that point — you can't prosecute people for acts committed before they were crimes.

The only way that this could be a federal crime right now is if the government starts prosecuting it under existing laws without any changes. I don't see that as likely.

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IANAL, but my understanding is that they can make it a retroactive crime or clarify existing laws in ways that include prediction markets.

Don't assume safety.

Edit - was curious:

https://en.wikipedia.org/wiki/Ex_post_facto_law

So maybe not?

I'd love a judicial scholar's input.

IANAL but a proud American haha, and we're very specific on not allowing ex post facto laws per our constitution. It would be a huge avenue for abuse of power by the government against the people.

The caveat I added to my initial comment that you also mentioned was that they could try to find a relevant existing law and retrofit it, e.g. general securities laws, and say that this is a securities market and so this has always been illegal — but it's very unlikely and I doubt it would work. Far, far more likely that we pass explicit laws about this.

The executive branch executes laws (prosecutes crime) under its own interpretation of the law. It's the supreme court that determines if that interpretation is acceptable or fair. I.e. you could be prosecuted under an executive's interpretation of an existing law when the crime was committed and if the court deems it acceptable you could be found guilty by a jury. (In the USA)

They absolutely cannot make it a retroactive crime. This isn't so much con law as high school civics in the US.

A couple decades ago I would have agreed with you. But the United States today does not have rule of law, only the pretense of it.

“Retroactive” crime is as you say, ex post facto, and specifically disallowed by the US Constitution.

No, you cannot retroactively make something a crime as you have found.

That way lies madness.

If the govt could do that, they could arrest anyone, anytime simply by making whatever they did yesterday retroactively illegal.

It’s a federal crime once someone gets convicted for it. Without any precedent it will be up to the first case to lay out how existing law applies to new phenomena that may or may not be covered, depending on what a judge thinks of the arguments.

It is a federal crime, but one could be forgiven for assuming federal crimes committed by this administration will not be prosecuted while this administration is in power.

> one could be forgiven for assuming federal crimes committed by this administration will not be prosecuted while this administration is in power.

Nobody in this administration is going to be prosecuted no matter who is in power.

https://archive.is/TpLqO

A reasonable opposition party would declare the pardons invalid. Is that a valid interpretation of pardon power, does that undermine the legitimacy of our laws? Maybe, but not nearly as much as not punishing obvious and proud criminals does. That's the point of the rule of law, remember? It creates legitimacy, and therefore stability.

> A reasonable opposition party would declare the pardons invalid. Is that a valid interpretation of pardon power, does that undermine the legitimacy of our laws?

No, in the USA the pardon power belongs to the President. Only a constitutional amendment could invalidate pardons.

As we are finding out in real time, the President has the power to try to do a million things, legal or illegal, constitutional or unconstitutional, and then whichever ones don't get pushback defacto become actual powers. Throw something at the wall, if it sticks, then it's a Presidential Power. If it doesn't, there's no consequences. Just shrug and throw something else at the wall.

The President's pardon power is enumerated in the Constitution and has been litigated extensively.

https://constitution.congress.gov/browse/essay/artII-S2-C1-3...

Which ultimately doesn't matter. If the president tries to do something, and no court actually stops him, then it doesn't matter whether or not it's in the Constitution, whether or not it's written down in law, or whether or not it has been litigated in the past. He tried to do it, nobody stopped him, therefore he can do it.

We are finding out in real time that the president can actually do a lot of things, simply because nobody is stopping him.

If you want to prosecute someone who has previously been pardoned, then you'll have to figure out how to get the courts (that is, the people who would be doing the actual prosecuting) to ignore some of the highest rules by which they operate.

I'm not saying that that could never happen, but a) it sure sounds like an uphill battle and b) it's not the same thing as the president (one person) doing whatever they feel like regardless of the law.

I don’t think these blanket pardons are a good thing at all, but an amendment is needed to fix it.

We have somehow made it a habit to ignore the inconvenient parts of the constitution when they create problems, rather than going through the enumerated process to amend them. Yes, it’s hard to amend the constitution, but that’s the point!

Fair, but I don't think it's likely that SCOTUS would invalidate any of Trump's presidential pardons, assuming a future president decided to prosecute someone he pardoned. I doubt even the liberal members of SCOTUS would want to touch that.

Only a constitutional amendment could allow the executive to declare war, or regulate trade, or control funds, or countless other unenumerated or explicitly disallowed powers. But if those rules are broken, we should still follow the rule that says the executive is immune from punishment and can declare anyone else forgiven? If that's the case there's actually only one rule: the executive is king. You can wipe your ass with the rest of the constitution.

There would still be a valuable public record produced by the investigation and court proceedings. Going after pardoned criminals is absolutely something the next administration should do. (We have zero precedent for preëmptive and blanket pardons in our courts, for example.)

Ex Parte Garland was decided in 1866

“The power of pardon conferred by the Constitution upon the President is unlimited except in cases of impeachment. It extends to every offence known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken or during their pendency, or after conviction and judgment.”

Nobody is going to waste their time investigating crimes that can't be prosecuted.

You can't pardon violations of State law though. There may be plenty of offenses to go after. Vindictiveness is required at this point.

The current USA opposition party doesn't really do anything when they actually obtain power. They bark a lot when they're out of power, but as soon as they are back in power, they just go limp, forgive and forget, for the sake of unity or something.

I don't think he's saying people who do that right now will be prosecuted. I think he's just saying that it will become illegal so anyone doing it then runs the risk of being prosecuted.

> The only way that this could be a federal crime right now is if the government starts prosecuting it under existing laws without any changes. I don't see that as likely.

Fully agree, especially since Kalshi just caught one of the editors of MrBeast's videos red handed (he was betting on the "What words will MrBeast say in his next video" market with 100% accuracy) and while Kalshi banned the guy the DOJ has shown 0 interest in doing anything with that.

Schrodinger's felony

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