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I am specifically thinking of the McCloskey Couple who had their week of fame/infamy in the summer of this year. When circuit attorney Kim Gardner issued charges against them, Missouri Gov. said he would "certainly pardon them" on multiple occasions, and even had a press conference with the McCloskey's attorney.

Given that -- what is the point of Kim Gardner's prosecution? Is it just grandstanding? And why would the McCloskey's waste their own time and money in court; if they have the guarantee of a pardon, why not just let the prosecutor do her thing and get the pardon if her prosecution succeeds.

Although Gardner's prosecution failed abysmally, and so did her subsequent appeal; I still think its an interesting principle, why would a prosecutor do anything if they know it will be overwritten by the head of the executive anyways.

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    Accepting a pardon means accepting you're guilty. Or at least that's the interpretation some give to the fact that pardons can be rejected. Technically courts have only ruled on this last matter though (pardon rejection). – Fizz Feb 10 at 17:00
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    Actually Fizz is on point. The McCloskey's would need to defend themselves. After all, if they were not found guilty, or acquitted, not only would they not need a pardon, they would not be guilty. If, OTOH, they were found guilty then they would need the pardon. But what if the governor changed his mind, or public sentiment built to the point of it being a detriment to his political career to pardon... leaving them hanging in the wind. As a prosecutor, if I felt sure of a win and the defendant's guilt, then I prosecute, regardless of the executive's statements of intent. – CGCampbell Feb 10 at 17:26
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    @Fizz: No, accepting a pardon does NOT mean admitting guilt. Many, if not most, pardons are given because the person was wrongfully convicted - or at least the person granting the pardon thinks so. Or thinks a large part of the public thinks so, so the pardon would be popular. See for instance the granting of posthumous pardons. – jamesqf Feb 10 at 17:41
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    @Joe W: I don't see how. Suppose you are an ordinary person - that is, not poor enough to qualify for a public defender, but not rich enough to make paying lawyers a trivial matter. You're accused of a crime you didn't commit, and will be forced to bankrupt yourself to pay for a defense, even if you're pretty sure that defense would produce a not guilty verdict. In such a case, accepting a pardon means you can avoid having to spend the rest of your life on the streets. – jamesqf Feb 11 at 18:22
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    @Joe W: Sure, but that negative impact seems likely to be much smaller than the negative impact of losing your house & all your savings to defense attorneys. – jamesqf Feb 12 at 1:33
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Simply put because a promised pardon isn't a pardon yet. Promising a pardon could just be an act to try and prevent the prosecution without an actual intent to carry through with it due to various political reasons. Also after the trial and possible conviction the pardon could be withdrawn due to evidence revealed at the trial itself that makes a pardon unfeasible.

This is also ignoring the fact that it is a prosecutor's job to enforce the law by prosecuting people who violate it and not be concerned if later that person is pardoned by the head of the government.

In the end while the pardon is promised there is no way to know if it would actually be given until after a conviction is secured.

As a side note if the head of government decides to not issue a preemptive pardon (one issued before a trial/conviction) it is possible that by the time the trial ends and the conviction is handed down they may no longer be in power to issue the pardon. Though I think situations where this occur are not frequent and would only likely happen in a long drawn out trial.

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  • I think preemptive pardons are possible in most states, not just federally. Those don't require a conviction beforehand. However the governor was clearly hedging his bets (see quote in my answer), and so didn't issue or even promise one of those preemptive pardons. – Fizz Feb 11 at 14:22
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    @Fizz but the fact remains that a promised pardon isn't a pardon yet. On top of the other factors cited in this answer, there is also the possibility that the prosecution might still be underway when the governor leaves office, and that the governor might not have the opportunity to fulfill the promise beforehand, or might simply neglect to do so. Whether the governor may grant a preemptive pardon does not particularly change this analysis because the governor has not actually done so. – phoog Feb 11 at 14:57
  • @Fizz The point was just because a pardon is promised doesn't mean it would actually be delivered if it would be politically inconvenient to do it. It could just be a threat to keep prosecution from happening in the first place. – Joe W Feb 11 at 15:00
  • @phoog Good point I added that to the answer. – Joe W Feb 11 at 15:02
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    Joe W: to Fizz's comment, though, perhaps you should rephrase the last paragraph. It does seem to imply that a preemptive pardon is impossible, even though that is not the only interpretation, and it does not appear to be the primary point of the paragraph. You might more simply say that there is no way of knowing whether it would actually be given until it is actually given. Although that assumes that preemptive pardons are possible in Missouri, which I do not know to be the case. – phoog Feb 11 at 15:03
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Pre-conviction pardons aren't allowed in Missouri. The Governor's authority to grant reprieves, commutations, and pardons is derived from the Constitution of Missouri, article IV, section 7 which provides that the Governor may grant reprieves, commutations and pardons, after conviction, for all offenses except treason and cases of impeachment.

Given the twists and turns of the judicial and political processes, the current Governor may or may not still be Governor, if and when there is a conviction in this case. So the threat to pardon isn't a certainty. This uncertainty (as well as the fact that the Governor could change his mind with changing political winds, for example, post-Capitol riot) is the reason for the defendants to still mount a vigorous defense.

Also, while a pardon removes the legal consequences of a conviction, it can't heal the damage that the defendants suffer to their reputations if they are convicted.

And, a pardon doesn't completely preclude the possibility that they could be prosecuted for a federal civil rights violations notwithstanding the pardon. A pardoned conviction could encourage a federal prosecution post-pardon, while an acquittal, while not a double jeopardy bar, would decrease the likelihood of federal prosecutions to attempt a second attempt at a conviction.

A prosecution sends a message to voters about the prosecutor's stance regarding the rule of law. If a conviction is obtained that symbolically validates the prosecutor's interpretation of the law as applied to the facts with a stamp of approval from a jury of ordinary people in Missouri.

If then the defendants are pardoned, this creates a campaign issue for the DA or anyone else challenging the Governor issuing the pardon in a future election that the Governor does not respect the rule of law, and is not a law and order candidate, at least when right wing white people are involved. Such an attack could be particularly effective if the sentence imposed by the judge following a conviction is a mild one that does not seem unfair or disproportionate. The political cost of actually pardoning someone who has been convicted is greater than the political costs of discouraging a prosecutor from prosecuting someone with a threat that the defendant would be pardoned if convicted.

It also provides cover to the prosecutor is someone ever alleges that his disproportionately prosecutes poor non-white defendants (as almost all prosecutors do) by showing that the prosecutor was willing to prosecute right wing, upper middle class defendants for crimes (realistically never a basis for a successful lawsuit but a potentially potent political attack). This appearance of fair mindedness could bring him future bipartisan political support when seeking re-election or when seeking a future elected or appointed political office (e.g. to show that this prosecutor is even handed when seeking a judicial office).

It also sends a message to other similarly situated white right wing gun rights activists that their conduct will be prosecuted too, if the engage in it, recognizing that they might not have the same favorable press coverage and political allies to pardon them too, since pardons are extraordinary. Nipping future misconduct in the bud with a threat of prosecution made credible by pursuing it even in the fact of a promises pardon could deter future crime.

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    There's the possibility that a governor promised a pardon under the assumption that the defendent is mostly an upstanding citizen who made a mistake. And the trial shows to the world that the defendent is actually an evil scumbag. The governor might very well withdraw his pardon - both because it suddenly is politically infeasible, but also because the reasons for the promised pardon are gone. – gnasher729 Feb 14 at 0:08
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Well, obviously in this case the prosecutor (who was then barred by a judge from pursuing the case themselves) had actually made this a campaign promise, so that's a pretty obvious reason to go through with it:

Circuit Judge Thomas Clark II on Thursday dismissed Circuit Attorney Kim Gardner and her entire staff, saying campaign fundraising emails Gardner sent to constituents that alluded to Mark and Patricia McCloskey's case "raise the appearance of impropriety and jeopardize the defendant's right to a fair trial," The Associated Press reported.

The ruling means Gardner can no longer oversee McCloskey's prosecution. Instead, a special prosecutor will have to be selected to take over. [...]

[Judge] Clark wrote: "Ms. Gardner has every right to rebut criticism, but it appears unnecessary to stigmatize defendant – or even mention him – in campaign solicitations, especially when she purports to be responding to others. "In fact, the case law and Rules of Professional Conduct prohibit it," Clark added.

The dismissal of the prosecution team from this case was upheld on appeal. The case could still be tried by a special prosecutor, if one were appointed.

As for why some prosecutor would follow up on their campaign promises... for the same reason some politicians introduce bills they know will be defeated on a vote etc.

As for "why would the McCloskey's waste their own time and money in court"... Well, you can't be sure if the governor is going to go through with it, since (like any good politician) he did predicate his promise on hearing "all the facts":

Asked whether he would consider a pardon if charges were filed, Parsons said, "I think that’s exactly what would happen."

"Right now, that’s what I feel," he said. "You don’t know until you hear all the facts. But right now, if this is all about going after them for doing a lawful act, then yeah, if that scenario ever happened, I don’t think they’re going to spend any time in jail."

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    I am baffled by the unexplained downvotes on this answer. It brings to light important context that casts the case cited in this question in an entirely different perspective. – phoog Feb 11 at 15:14
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    My guess is because it is making assumptions about the motives behind the persons actions. – Joe W Feb 11 at 18:02

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