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Proposed Presidential Pardon

The Hon. Joseph Biden
The White House
1600 Pennsylvania Avenue N.W.
Washington, D.C. 20500

Dear Mr. President,

Kindly sign and date this Pardon for Elizabeth Holmes. Under the Eighth Amendment to the United States Constitution (Cruel and Unusual Punishment), we should never imprison women who are mothers of infant children for white collar crimes in the 21st Century; it is clear that the lives of Elizabeth and her children will be irreparably harmed by imprisoning Elizabeth Holmes; it is also inevitable that a Presidential Pardon of Elizabeth Holmes will be granted in the fullness of time by some future President (failing your intervention at this time) based on the inhumanity of her confinement to a prison; and this instrument enables you to extend the Presidential Pardon Power to state law crimes for the first time in the history of the United States.
Sincerely,
Gary L. Wolfstone
Seattle Trial Lawyer

Pardon of Elizabeth Holmes, Theranos CEO
“President Joseph Biden hereby grants a full and unconditional pardon, in solido across the board, to Elizabeth Holmes, for any and all criminal actions, conduct or transactions which are proscribed by federal law and for any and all identical or similar or co-extensive criminal actions, criminal conduct or transactions which are proscribed by state law.

“This full and final pardon extends to and includes any and all criminal actions, conduct or transactions which arise out of or are connected with the exercise of any and all instrumentalities of interstate commerce, including but not limited to emails, faxes, wires, interstate travel, international travel, electronic voice or image or video or internet or telephone or television or radio communications within the United States or beyond the borders of the United States.

“Specifically, and without limiting the generality of the foregoing, this full and final pardon extends to and applies to all criminal laws of any State of the United States and any federal laws of the United States.

“The person who is pardoned by this document, Elizabeth Holmes, shall have the right, and is hereby granted the right, to remove any state court prosecution to a United States District Court for all pre-trial and trial purposes and is ultimately guaranteed the right to have this pardon reviewed by the United States Supreme Court. Jurisdiction exists based on federal question jurisdiction.

“Elizabeth Holmes, who is pardoned unconditionally by this document, shall have the Constitutional right to allow the trier of fact – whether judge or jury – to read and review this document before, after and during any investigation, grand jury proceedings and prosecution and appeals.

“The separate sovereignty of the states doctrine is not absolute, and the separate sovereignty doctrine does not apply generally to pardons granted by the President of the United States and it does not apply specifically to Presidential pardons of conduct arising out of or connected with the exercise of instrumentalities of interstate commerce.

“Severability. The state and federal pardons granted herein are severable. If the state pardon is invalidated, the federal pardon nonetheless remains in full force and effect.

“Signed by Joseph Biden, President of the United States:

X____________________________________DATED:_______________”

Legal Authority by Gary L. Wolfstone
The Presidential Pardon Power can be and should be interpreted to permit the United States President to pardon any offence under federal law and also simultaneously to pardon the same offence under state law when the pardon in question seeks to pardon a crime arising out of and connected with the exercise of instrumentalities of interstate commerce. That result is the only possible legal and logical result – after all, partial justice is itself an injustice.

If a Presidential Pardon were followed by a prosecution and conviction and a prison sentence in a state court, then that Presidential Pardon shall have been a meaningless gesture. Due process of law – i.e., fundamental fairness – requires a full pardon in solido across both federal and state law. Any other interpretation would render the Constitution a bundle of contradictions.

The Dual Sovereignty doctrine does appear at first blush to preclude using the Presidential Power to pardon both federal and state crimes. Supreme Court Justice Felix Frankfurter put this issue in “states’ rights” terms in Bartkus v. Illinois, 359 U.S. 121 (1959), writing “it would be in derogation of our federal system to displace the reserved power of the States over state offenses by reason of prosecution ... by federal authorities beyond the control of the states.” Unfortunately, that decision can be misapplied, misconstrued and misunderstood to mean that a President can never simultaneously pardon federal and state offences.

Contrary to the conventional wisdom – i.e., the print and broadcast media wisdom which is commonly accepted uncritically without the benefit of analytical thinking – I submit that this Wolfstone version of a Presidential Pardon acknowledges that the Constitution provides and intends a "grant" of power and not a "limitation" of power. The founding fathers who drafted the U.S. Constitution did not include any express prohibition in our Constitution about pardoning "state law offences" so it is clear that they leave open the "possibility" that I am now offering as a "reality" in the above provided Pardon for Elizabeth Holmes. This Wolfstone version of the Presidential Pardon specifies that the criminal conduct sought to be pardoned is arising from and is connected with the exercise of instrumentalities of interstate commerce (the Commerce Clause) which is within the domain of the federal government.

The Originalism and Textualism in Today's Supreme Court
Looking ahead, it is inevitable that the Wolfstone Version of the Elizabeth Holmes Pardon will eventually reach the United States Supreme Court and face the originalism and textualism analysis that the Justices are utilizing as a Constitutional methodology in recent opinions. Indeed, Justice Kagan has recently said: "Now, we are all textualists!" Mr. Wolfstone asks: "What is originalism and textualism and what are its justifications?"

Taken at its highest level of generality, originalism means that federal judges interpret Constitutional provisions in accordance with their original public meaning at the time of ratification. Justice Breyer, who recently stepped down, did not agree with originalism and was more inclined to weigh risks and harms when interpreting the Constitution. Some scholars would say that Chief Justice John Roberts is not a true originalist. Justifications for originalism run the gamut from Natural law to Consequentialism to Natural Rights. Scholars trace orginalism back to Judge Bork (who was not confirmed when he was nominated to sit on the Supreme Court) and of course to Judge Antonin Scalia. Justices Kavanaugh and Barret are originalists, Justice Clarence Thomas is a textualist who looks for an historical analogue, and Justices Alito and Gorsuch are originalists (with Alito describing himself as a practical originalist).

Does originalism and textualism provide judges with more predictable results? The question of consequences makes a difference if we are concerned with with expectations and stability in ordering our affairs. What interpretations and what timing are we looking at (2nd Am 1791 or Due Process from the 14 Am 1868)? Where do we find mens rea when defining "threats" for 1st Am freedom of speech purposes? What role does stare decisis play? How do we utilize Justice Barret's tool of liquidation.

Personally, I agree with the law school professor who said that we adopted a written Constitution as a guideline to preserve personal liberty and not as a guideline for a democracy. The United States Constitution constrains government to provide for and lock in individual liberty.

Let's look at the following historical analogue: If an orginalist and textualist interpretation of the Constitution (Article IV, Section 1, clause 2)(the infamous fugitive slave law clause which Secretary of State Daniel Webster used to prosecute run away slaves between 1850 and 1865) can set aside state law (illegally contravening manumission granted by an abolitionist or free state) so that slavery is preserved and protected in a slaveholding state, then the Presidential Pardon Power can also pardon or set aside state criminal law for offenses arising out of and connected to the use of instrumentalities of interstate commerce which are prohibited simultaneously by state and federal law. Logically, the latter and the former are analytically one in the same thing. Just as the fugitive slave clause (Article IV, Section 1, clause 2) is explicitly written in the United States Constitution (and was used to contravene state law), so too the Presidential Pardon Power clause (Article II, Section 2, clause 1) is explicitly written in the United States Constitution (and can be used to contravene state law). Thus, the Supreme Court should acknowledge and validate not only the historical experience of Article IV, Section 1, clause 2 but also acknowledge and validate the present day experience of Article II, Section 2, clause 1.

Indeed, the Compromise of 1850 (engineered by Senators Henry Clay and Daniel Webster in the context of a movement to bring California into the Union as a non-slave holding state) delayed the onset of the Civil War for ten years by empowering the Secretary of State to prosecute fugitive slaves. Daniel Webster resigned his Senate seat to accept the job of Secretary of State and undertook those prosecutions. There was no Department of Justice in our government until 1865 so the office of Secretary of State was responsible for federal prosecutions. Slavery on American soil is America's original Sin, but the historical activation, application and experience of Article IV, Section 1, clause 2 nonetheless supplies the Court with the necessary originalism and textualism that it so highly values in order to validate the Wolfstone version of the Presidential Pardon.

Many lawyers are seriously deficient in their knowledge of United States history, so I will briefly assume the role of professor for their benefit: Henry Clay was a United States Senator in Kentucky. Obviously, Henry Clay's constituency was pro-slavery, but Clay was looking for a compromise to save the Union. Henry Clay sucessfully persuaded Daniel Webster, a Massachusetts United States Senator, to joint venture with him to pass the Compromise of 1850 (together with Stephen Douglas and John C. Calhoun). Several delicate issues (in addition to admitting California as a non-slave holding state) were affected concerning Texas, Mexico, and the Territories of New Mexico, Nevada, Arizona, and Utah, and slave trade was abolished in Washington, D.C. although slavery was permitted. Most significantly for our history lesson, the Fugitive Slave Act was passed, and the Fugitive Slave Act made the fugitive slave clause in the Constitution (Article IV, Section 1, clause 2) enforceable in federal courts. Thus, the explicit language of a Constitutional "power" was "activated" and used to contravene state law (manumission) to return escaped slaves to their points of origin. For example, Anthony Burns, a fugitive living in Boston, was one of many who were captured and returned to slavery. Free blacks were also captured and sent to the South for enslavement on the authority of the Fugitive Slave Act. Thus, the Union was preserved for another ten years, but federal law was used to contravene state law. See https//:www.pbs.org/wgbh/aia/part4/4p2951.html

Prior to the Wolfstone Pardon hereinabove, the U.S. Supreme Court would have undoubtedly analyzed the Presidential Pardon in the context of the Separate Sovereigns Doctrine which provides that where there are two sovereigns and two laws then there are two offences. In other words, the federal prosecutor and the state prosecutor would be described as operating in concurrent criminal jurisdictions so that the same act can constitute an offence against both. Thus, in adopting the Constitution, the states have “split the atom of sovereignty.” See Gamble v. United States, 139 S.Ct. 1960 (2018)(Fifth Amendment – construing the Double Jeopardy Clause).

I have no argument with federalism or the Separate Sovereignty Doctrine; however, those doctrines do not and should not apply to Presidential Pardons which pardon crimes arising out of the exercise of instrumentalities of interstate commerce. The Presidential Pardon Power included in the U.S. Constitution is a special case and should not be consigned to the scrap heap of history by allowing a misapplied and misconstrued version of federalism to deny a full legal pardon which expressly invokes and rests upon the Interstate Commerce Clause of the United States Constitution.

This Elizabeth Holmes Pardon will ultimately yield a Supreme Court decision — based on originalist and textualist reasoning — which announces once and for all that the Wolfstone version of the Presidential Pardon Power is valid, binding and enforceable in accordance with its terms. It only remains for the President of the United States to pick up his or her pen and sign the dotted line.

Attribution; Source; Reference Moore v. Harper (2023) Grutter v. Bollinger (2002) National Constitution Center Counterman v. Colorado (2023) The Modern History of Originalism Bostock v. Clayton County (2020) District of Columbia v. Heller (2008) NCC (Rosen) Broadcast on August 03, 2023 Sherif Girgis, “Living Traditionalism,” N.Y.U. L.Rev (2023) New York State Rifle & Pistol Association Inc. v. Bruen (2023) Joel Alicea, “Originalism and the Rule of the Dead,” National Affairs (2022) Sherif Gergis, “Dobb's History and the future of Abortion Laws,” SCOTUSblog (2022) Anastasia Boden, “Discourse: Irrational Basis,” Pacific Legal Foundation, (August 2022) J. Joel Alicea, “The Moral Authority of Original Meaning,” N D Law Review (2022) Anastasia Boden, “Supreme Court's Sidestep Leaves Native Kids Without Answers"

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Gary Wolfstone
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Gary Wolfstone
Seattle trial lawyer
Seattle personal injury lawyer

Gary Wolfstone
Seattle trial lawyer
Seattle personal injury lawyer

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Gary Wolfstone
Seattle trial lawyer
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Gary Wolfstone
Seattle trial lawyer
Seattle personal injury lawyer