Hi
Are presidential pardons reversible by a subsequent incumbent president? Has this ever occurred?
I look forward to your feedback.
No and no. I don’t know of any process that can affect a presidential pardon or commutation.
No, not revokable. At least, it’s never been done, and unlikely to ever be tried. Precedent from state-level is against it.
No limits are given in the Constitution except:
- only for Federal Crimes
- not allowed for impeachment.
The original delegates to the Constitutional Convention considered exempting Treason, but decided against it. Specifically considered ‘What if the President was involved in or encouraged the Treason?’ and decided that impeachment would cover that. (Alas, doesn’t look like that works in practice.)
The original delegates also considered allowing Congress to override pardons, but voted against that too.
There are records of their debates on these issues. And the Supreme Court is known to give some consideration to what the ‘original intent’ of the legislators when debating & passing a law.
That would be equivalent to passing a guilty sentence on an innocent person. Fortunately, the president doesn’t have that power.
NYS has fairly recently begun granting conditional pardons* which can be revoked - but they aren’t full and unconditional pardons to begin with. As far as I can tell, there’s nothing prohibiting a president from issuing conditional pardons , but that would most likely be the only way a pardon could be revoked. I have read that pardons can be revoked in the time period between when it is granted and when it’s delivered, but I suspect that’s purely theoretical and has never actually happened.
Don’t worry. Idiots like Dinesh Disouza are likely to break the law soon and get thrown in jail again, anyway.
It’s never been done or attempted.
The clause reads
A textualist like myself would say that the President has the power to grant pardons, not to grant or withdraw them. But that is based on the idea that the Constitution says what it means. Other schools of interpretation - Heaven only knows.
Like I said, no President has ever tried it.
Regards,
Shodan
If a president did try it, you can be absolutely certain that it would end up in the SCOTUS. And I’d bet good money that a court would stay the “unpardon” until a decision was handed down.
Both those things are true. I was talking more about the principle on which the Supremes would base the decision that they would eventually hand down.
Ford’s pardon of Nixon was not universally welcomed, but Carter and Clinton never tried to undo it. If they didn’t try with a pardon of that significance, I can’t imagine circumstances where another President would try it. Dinesh D’Souza and the coke-smuggling grandmother don’t rise anywhere close to the level of pardoning a President, so why would the next President risk a Constitutional crisis? Especially if it’s Pence, or if it’s 2021. Or even 2025.
Regards,
Shodan
Previous presidents did not even attempt to reverse pardons for two obvious reasons. One that the ability to do so is not found in any established law. Two is that they obeyed the unwritten norms of proper presidential conduct. Even Nixon. He tried nudging them aside, but when that didn’t work he acceded to grinding of the mills of punishment.
None of this would be binding on a president who flouts these unwritten norms, and who has the support of Congress so that impeachment is never in the offing. Anything would be possible.
I’m not sure that SCOTUS would even take the case. The affected individual would, I presume, be the only one with standing to present it. Pursuing it on principle wouldn’t get far. The ruling could equally be a political one. If Congress won’t stand against a president of the same political party, an equally partisan court would be equally unlikely to.
The personal is political, as the women’s movement has said for decades. This now applies in Washington more than ever before. No predictions about future behavior without solid legislation and case law are worth the sand they are built on. Maybe not even with written precedent. Precedent ain’t what it used to be.
Of course the affected individual would be the only one with standing. And he or she would have nothing to lose by challenging it. But I think the courts would have to resolve it, else it would become a means of retribution every time the WH changed parties.
I respecftfully disagree - I don’t see on what basis a pardon would be reversible.
Reversing a pardon would be not unlike a bill of attainder. Once pardoned, a person is no longer convicted. Only a court can convict them after that, and then double jeopardy would apply.
(Which I guess depends what you think a pardon is… That would be the kind of hair-splitting the Supreme Court would have to do. Is a pardon a modification of a conviction/sentence or a removal? If a modification, then yes. If a removal, then no you cannot undo it. I think our historical understanding of a pardon is a removal of a conviction - it is forgotten, not covered up. It would be analogous to giving a gift and then taking it back. Once freely given, it is the recipient’s property, you cannot arbitrarily retrieve it. I don’t think there is any precedent anywhere in the history of common law of reversing a pardon, nor is there any understanding that it is reversible. )
Whatever the historic understanding of a pardon is, that is not how a pardon works in U.S. federal law today. A pardon does not “remove” a conviction. It removes or prevents the punishment associated with it. The conviction is not “forgotten.” The recent Arpaio threads and case illustrate this nicely.
*Whatever the historic understanding of a pardon is, that is not how a pardon works in U.S. federal law today. A pardon does not “remove” a conviction. It removes or prevents the punishment associated with it. The conviction is not “forgotten.” The recent Arpaio threads and case illustrate this nicely.
*
Respectfully disagree. This is not how I recall how pardons worked and I have dictionary.law.com backing me up. Ergo (per dictionary.law.com), “[Pardon] - to use the executive power of a Governor or President to forgive a person convicted of a crime, thus removing any remaining penalties or punishments and preventing any new prosecution of the person for the crime for which the pardon was given. A pardon strikes the conviction from the books as if it had never occurred, and the convicted person is treated as innocent. A pardon is distinguished from “a commutation of sentence” which cuts short the term; “a reprieve,” which is a temporary halt to punishment, particularly the death penalty, pending appeal or determination of whether the penalty should be reduced; “amnesty,” which is a blanket “forgetting” of possible criminal charges due to a change in public circumstances”. I hope this clears things up a bit.
I agree with your point but not the wording. Accepting a pardon amounts to an admission of guilt so a pardoned person is not innocent.
Edit with more info:
In 1915, the Supreme Court indeed said, of pardons, that “acceptance” carries “a confession of” guilt. Burdick v. United States (1915). Other courts have echoed that since.
I wouldn’t be surprised if it was a double jeopardy problem, though. Sure, they’ve been found guilty, while the pardon forgave them of the sentence. So how could they be made serve the sentence again without that being effectively being punished again for the same crime?
I don’t think the textualist interpretation works on its own, because having the ability to grant something always necessarily includes the ability to not grant something. But the double jeopardy problem seems a slam dunk.