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Comment by jeremysmyth | Hacker News Reader

President Obama has the power to issue a posthumous pardon of Mr. Swartz (even though he was never tried or convicted).

This kinda says it all. He can't be pardoned, having never been convicted. While there are many good and beneficial things that can be done, this one is impossible.

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The least he could do is remove Carmen Ortiz, his prosecutor, from office:

https://petitions.whitehouse.gov/petition/remove-united-stat...

Not true: Ford pardoned Nixon even though Nixon was never impeached, tried, or charged criminally for anything.

In that case, Ford pardoned Nixon to prevent a trial, where a conviction was still possible. In this case, there will never be a trial, and hence, no possibility of a conviction. It's a well-meaning sentiment, but a pardon is not applicable here. Better to lobby against the laws Swartz was accused of violating.

Nixon's acceptance was seen as a admission of guilt. I am not sure it would be wise to petition for a pardon, not only for a crime that may not have been committed, but for a crime that many at this site feel should be legal behavior.

He can be pardoned without being convicted:

http://www.slate.com/articles/news_and_politics/explainer/20...

but I don't think he should be, it really solves nothing in this case.

That Slate article doesn't say what you think it says.

A pre-emptive pardon can only be issued for someone in danger of being convicted of a crime; it is essentially a grant of immunity. A dead defendant who was merely charged with a crime can never be convicted of the crime, so a dead defendant cannot be pre-emptively pardoned.

They have to be alive.

In the USA, the power of presidential pardon includes the power to offer amnesties. And amnesties certainly can be given to people who have never been convicted.

Pardon = the defendant is forgiven his crime and released from prison, but the fact of being guilty of the crime remains, i.e., the defendant is forgiven for his bad acts.

Amnesty = the defendant is cleared of legal guilt for the crime and the fact of having committed the crime is also cleared, i.e., it is as if the defendant never committed a crime at all.

Pre-emptive amnesty is more simply referred to as "immunity."

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