Is a pardon (&quot;Begnadigung&quot;) under German law possible before a final court sentence? I just read that under US law, the US president may pardon a person even before they have been sentenced, and even before they have been accused (see e.g. Ex Parte Garland, 1866). . I was curious about the legal situation in Germany. The German Basic Law (Grundgesetz), Article 60 says: (2) He (the Federal President) shall exercise the power to pardon offenders on behalf of the Federation in individual cases. However, I could not find any law that specifies what exactly is covered by the &quot;power to pardon&quot;. So my question: Can a pardon under Article 60 be issued before the offender has been sentenced? I did find an article by the Legal Service of the Bundestag, which says: Unter„Begnadigung“ wird eine Maßnahme verstanden, mit der eine rechtskräftige Entschei-dung beseitigt oder gemildert wird. My translation: &quot;Pardon&quot; refers to a measure which removes or mitigates a legally binding decision. Das Begnadigungsrecht des Bundespräsidenten, Anja Eiardt/Sarab Borhanian, 2007 So it seems to be accepted that a pardon is only possible after sentencing - but what is this based on? Is there some special law?
tl;dr: Yes, a pardon under German law is only possible for a final court sentence (or other similar sanctions, such as expulsion of a public servant). This is not written down explicitly anywhere. Rather, this rule, like most other rules around pardons, is a matter of historical convention. This is probably because the power to pardon itself is a historical convention (and considered by some to be a violation of modern legal principles), so it kind of stands &quot;outside of the law&quot;. Apparently the Begnadigungsrecht (power to pardon) mentioned in Article 60 of the Basic Law is not formally defined anywhere, rather the details are a matter of convention. However, there is a judgement by the Federal Constitutional Court (Bundesverfassungsgericht), &quot;Zur Frage der Justitiabilität von Gnadenentscheidungen&quot;, 2 BvR 552/63. The judgement gives some historical background for the power of pardon, and confirms that there is no formal definition. Additionally, the judgement says: Das Begnadigungsrecht, wie es das Grundgesetz in Art. 60 Abs. 2 kennt, besteht in der Befugnis, im Einzelfall eine rechtskräftig erkannte Strafe ganz oder teilweise zu erlassen, sie umzuwandeln oder ihre Vollstreckung auszusetzen. Es eröffnet die Möglichkeit, eine im Rechtsweg zustande gekommene und im Rechtsweg nicht mehr zu ändernde Entscheidung auf einem &quot;anderen&quot;, &quot;besonderen&quot; Weg zu korrigieren. The judgement explicitly mentions &quot;rechtskräftig erkannte Strafe&quot; (final legal decision or judgement) - so this explicitly confirms that the power of pardon is only for changing a (final) judgement. Similarly, the Bayerische Gnadenordnung, §5 says: (1) Der Gnadenweg darf nicht dazu dienen, die nach gesetzlichen Bestimmungen mögliche Anrufung des Gerichts zu ersetzen. Hierüber ist der Gesuchsteller gegebenenfalls zu belehren. My translation: The process of pardon shall not be used to replace court proceedings as given by applicable laws. An applicant for a pardon is to be informed about this when applicable. This, again, confirms that a pardon must not replace or inhibit a court judgement.
There is one context where this does happen. Common law judges have direct contempt power. This means that while a judge is in the courtroom presiding over a case, the judge can summarily punish someone with incarceration and/or a fine without a trial for &quot;contempt of court&quot; because the judge has personally observed what has happened. Contempt of court encompasses types of disorderly conduct that wouldn't otherwise be criminal conduct. In other contexts, the judge is just one more witness and would not be assigned to handle the case. so you can only get &quot;non-witness judges&quot; from out-of-state or another region. The lawsuit hasn't begun yet, and all of the possible, local judges saw it happen. As a practical matter, this is basically impossible. But there are procedures in cases where large numbers of judges a conflicted out of a case, for example, to get a judge from the next county over or another part of the same state.
As an example, POTUS does not undertake the entire pardon process on his own, instead they are preliminarily processed by the Department of Justice, which makes a recommendation. Only POTUS can "grant" the pardon, and we lack substantive information on how deeply he gets involved (does he just sign documents based on staff recommendations? does he do his own research?). I don't know what physical form Clinton's 450 pardons on January 20, 2001 took, but a president might use an autopen (Obama did use such a device). Questions have been raised and definitive answers from SCOTUS are lacking as to whether hand-to-paper signatures are demanded by the Constitution. DoJ at one point thought it was okay. This article lists the Constitutional functions which cannot be delegated: reporting to the Congress on the state of the Union; convening either or both Houses of Congress and adjourning Congress; signing and vetoing bills; receiving ambassadors and public ministers (recognition); appointing and removing ambassadors, ministers, and certain other public officers; nominating federal judges; and making recess appointments However, the Constitutional function of negotiating treaties or numerous functions as commander in chief of the armed forces is generally delegated, within the executive branch. Numerous statutory functions can be delegated (and Congress may say explicitly that some function can be delegated, in passing the law). The matter of implied power to delegate statutory function is the topic of a couple of centuries of litigation, but as an example in Williams v. United States, 42 U.S. 290 SCOTUS held that a law prohibiting the advance of public money in any case whatsoever to the disbursing officers of government except under the special direction of the President does not require the personal and ministerial performance of this duty, to be exercised in every instance by the President under his own hand. SCOTUS has not established bright lines regarding the extent of permissible delegation.
The short answer is &quot;yes&quot;. There is U.S. Supreme Court authority that supports this position, In particular, United States v. Laub, 385 U.S. 475 (1967), Cox v. Louisiana, 379 U.S. 599 (1965), and Raley v. Ohio, 360 U.S. 423 (1959), stand for the proposition that a defendant may not be punished for actions taken in good faith reliance upon authoritative assurances that he will not be punished for those actions. If the U.S. Department of Justice (or a U.S. Attorney with jurisdiction over the place the offense was committed) (hereinafter DOJ) says this, people who reasonably rely on that pronouncement can't be prosecuted until a different policy is announced and people who acted in reliance on the previous DOJ position are given a reasonable opportunity to change their conduct in response to the newly announced policy. The statement does have to be a publicly announced policy (or a policy personally communicated to the defendant or his counsel), and not just a de facto reality in terms of prosecutions not being brought in the past, or a secret, unannounced policy (or, for example, an unofficial and offhand statement of the U.S. Attorney General at a party that does not amount to a policy statement). Of course, the defense doesn't protect you if the DOJ says it won't prosecute if you do X, but you do X times Y which goes beyond the safe harbor created by the DOJ pronouncement. For example, the DOJ might say that they will not prosecute conduct involving marijuana offenses that is legal under state law, if it does not violate any other laws, and also meets certain conditions found in federal law (e.g. no offenses within 1000 feet of a school) that the DOJ chooses not to refrain from enforcing. But, if the DOJ then publicly says that it will start enforcing federal law without exceptions on July 1, 2021 and has rescinded its prior policy, a reasonable time in advance, then this defense ceases for conduct after that date. What constitutes reasonable notice would depend upon the facts and circumstances. The DOJ can also reach a binding agreement not to prosecute a particular instance of conduct by a particular person irrevocably in connection with plea bargaining type agreements, with respect to offenses of which the DOJ has jurisdiction (but not necessarily prosecutions by a different government such as a state government or the government of another country, for which the DOJ is not an authorized representative). For example, suppose that a mail carrier is killed by a resident of a home claiming to have acted in self-defense in Denver, Colorado. The DOJ could reach an irrevocable agreement with the resident to accept a plea bargain to a misdemeanor charge of not paying the tax due on the sale of the firearm from a non-compliant gun shop, dismissing forever the charge of murder of a federal post office employee. But that agreement would not bar the District Attorney in Denver from bringing murder charges twenty years later under state law prohibiting murder of human beings in the State of Colorado. For the defendant resident to prevent that from happening definitively, an agreement from the State of Colorado's District Attorney in Denver, or the Colorado Attorney General, would also be required.
How many indictments does it take for Donald Trump to be imprisoned? An unlimited amount. Imprisonment is usually authorized as a result of a conviction rather than from an indictment. Pretrial detention following an indictment but prior to a conviction is permitted, but discretionary in the judgment of the judge. Also, there is a right to post a judicially determined reasonable bond to obtain release from pretrial detention after one is indicted and before one is convicted in the vast majority of cases (including the ones that President Trump is facing). Can a person who is indicted, before running for president, become president? Yes. Indeed, the majority view of legal scholars (it is has never been tested in a real case) is that someone who is convicted and serving prison sentence can still become President if that is who the voters choose. What's the purpose of indicting Mr. Trump if indictments are only an accusation? An indictment is a pre-requisite to trying someone for a felony in federal court. To convict someone of a crime one needs to first indict them, then have a jury trial, and then have a jury unanimously vote to convict a person, before they can be convicted of a crime and sentenced for it. Even after conviction, there is a statutory (but not a constitutional) right to a direct appeal of that conviction to an appellate court. Also, an indictment is more than a mere accusation. An indictment in a determination of a grand jury that probable cause exists to believe that the person indicted committed the crime charged. In the federal court system grand juries are composed of 16 to 23 members and 12 members of the grand jury must concur in a decision to indict a defendant on a charge for there to be an indictment on that charge. This prevents people from enduring criminal prosecutions on charges that a majority of a grand jury finds are so baseless that there is not sufficient evidence to establish probable cause that the defendant committed that crime. The grand jury must base its decision to indict or not on actual evidence in support of the charges in the form of sworn witness testimony and exhibits, not just the allegations of the prosecutor. As a practical matter, the standards of professionalism in federal criminal prosecutions is so high that almost all charges sought by federal prosecutors from grand juries result in indictments on those charges (federal grand juries refuse to indict approximately one in 16,000 times). But, in state courts that use grand juries, which can't pick and choose only the best cases to prosecute, grand juries routinely refuse to indict defendants on a substantial share of charges brought to them by prosecutors (on the order of one in 20). One source notes: Statistical figures showing a higher prevalence of grand jury reluctance to follow the government in ages past are almost nonexistent. However, a table of felony arrests in New York County between 1900 and 1907 found on page 111 of the 1926 book The Prisoner at the Bar by Arthur Train provides some rare illumination. In those seven years, some 5,214 out of 57,241 people were arrested by the police on felony charges whom New York state grand jurors decided not to indict. Grand juries are especially likely to decline to indict defendants in cases involving celebrities, politicians, law enforcement officers, and other high profile cases with political implications. See also Kaeleigh Wiliams, &quot;Grand Juries Should Not Hear Police Misconduct Cases: Grand Juries will Indict Anything, but a Police Officer&quot; SLU Law Journal Online 79 (2021).
This is the cited article. Thankfully, the interviewee provided a scan of the police letter he received, so the rest of this question is relatively easy to answer. He was specifically charged with Störung der öffentlichen Ordnung (lit. Disturbance of the public order) persuant to &sect;&nbsp;81(1) of the Sicherheitspolizeigesetz, which reads (after putting it through Google Translate): Who by a behavior that is likely to arouse legitimate annoyance, disturbs public order, commits an administrative offense and is punishable by a fine of up to 500 euros, unless the behavior is justified, in particular by the use of a constitutionally guaranteed right , In the event of aggravating circumstances, instead of a fine, imprisonment can be imprisoned for up to one week, or up to two weeks for repeated offenses. This law is almost certainly constitutional as it specifically allows exercise of constitutional rights. Note this also includes human rights, as Austria has included the European Convention on Human Rights as part of its constitution. Given that, I'm guessing if the interviewee had wanted to, he would have had a decent shot at having this charge dismissed.
It is my understanding that he was charged under 18 USC § 1001 which gives a maximum sentence of 5 years under most circumstances. This is the absolute maximum; the judge is not allowed to give more than the law allows. Here are the federal sentencing guidelines. If you look in the guidelines, you'll see that the base offense level for this crime is 14. If there was a "substantial" interference with justice, the offense is increased by 3 levels. My guess is that they won't find this to be the case. There are several other adjustments that likely don't apply. Under the "Adjustments" section of the guidelines, it says: (a) If the defendant clearly demonstrates acceptance of responsibility for his offense, decrease the offense level by 2 levels. (b) If the defendant qualifies for a decrease under subsection (a), the offense level determined prior to the operation of subsection (a) is level 16 or greater, and upon motion of the government stating that the defendant has assisted authorities in the investigation or prosecution of his own misconduct by timely notifying authorities of his intention to enter a plea of guilty, thereby permitting the government to avoid preparing for trial and permitting the government and the court to allocate their resources efficiently, decrease the offense level by 1 additional level. It seems that the first one applies. The second one cannot apply in this particular case since the offense level was not 16 or greater. So the offense level would be reduced from 14 to 12. If you look at the Sentencing Table, you can see that an offense level of 12 has a recommended sentence of 10-16 months for someone with no prior criminal history. Also, this is in Zone C, meaning: the minimum term may be satisfied by... a sentence of imprisonment that includes a term of supervised release with a condition that substitutes community confinement or home detention according to the schedule in subsection (e), provided that at least one-half of the minimum term is satisfied by imprisonment. so it seems he would go to prison for at least half of that. But if the offense level was dropped just one more level, he would be in zone B, where probation with home confinement would be an acceptable sentence. But there's one more thing to consider: He's cooperating with investigations into other people. This allows a departure from the ordinary guidelines. Upon motion of the government stating that the defendant has provided substantial assistance in the investigation or prosecution of another person who has committed an offense, the court may depart from the guidelines. (a) The appropriate reduction shall be determined by the court for reasons stated that may include, but are not limited to, consideration of the following: (1) the court’s evaluation of the significance and usefulness of the defendant’s assistance, taking into consideration the government’s evaluation of the assistance rendered; (2) the truthfulness, completeness, and reliability of any information or testimony provided by the defendant; (3) the nature and extent of the defendant’s assistance; (4) any injury suffered, or any danger or risk of injury to the defendant or his family resulting from his assistance; (5) the timeliness of the defendant’s assistance. I have no idea where the Guardian got 6 months from. It's certainly possible that's part of the plea deal (although nothing says the judge has to impose the sentence that the prosecutor recommends as part of the deal), and maybe there are adjustments I'm not taking into account that would reduce the offense level further. I just now found a copy of the plea agreement. It specifies that the parties agree he will be sentenced under guideline §2B1.1(a)(2). This ordinarily is for offenses such as theft, property damage, forgery, or fraud. As far as I can tell, the government is just using this to get the sentence down, because there's no real relation to the crime he's accused of. Under that guideline, the base offense level is 6. The two level decrease for accepting responsibility puts it at an offense level of 4, with a possibility of a downward departure for cooperation. Regardless of whether or not there's a downward departure, this would have a 0-6 month sentence recommendation, which is the lowest available in the guidelines. This is also in Zone A of the sentencing table, meaning a sentence of just probation with no imprisonment or home confinement is possible.
It is reported that this is the result of new legal reasoning in German law. In the cases of Demjanjuk in 2011 and 2015 it was found that being a camp guard is enough to be found guilty of accessory to murder, even without specific evidence of a crime. In a more recent trial (Rehbogen) the prosecution used the same reasoning to charge and try a concentration camp guard.