Can a Presidential pardon be rescinded by another President, Congress or the courts?
IANAL but I would say no. A person who has been pardoned is legally innocent. Rescinding their pardon would effectively be declaring them to be guilty again. I’d say this would violate the principles of due process, bills of attainder, and double jeopardy.
A pardon cannot be rescinded once it has been accepted by the pardoned individual. Potentially it could be overturned by a court if it was found to be deficient in some way.
Not only can they not be rescinded, but they could be for sale beginning next year.
What if the sentence is commuted?
I’m not sure this logic holds. A pardon can be issued before the pardoned person is convicted or even charged, so it is, at least in theory, conceivable that a pardon is granted (which blocks prosecution) and then revoked again (which removes the obstacle to prosecution and thereby makes it possible for the pardonee to be tried the first time, but still with presumption of innocence and all that). But as to the result, I agree that a pardon, once accepted, is irrevocable. If it hasn’t been accepted by the pardonee, it’s ineffective anyway.
[Moderating]
This is not appropriate for FQ. If you want to complain about politics, take it to another forum.
Could a pardon be made conditional, like a parole? “I, president Chronos, hereby pardon Derek Nocue, so long as he never knowingly comes within 500 feet of Jane Smith”?
Pardoning someone is letting them completely off the hook, while commuting the sentence is just reducing the sentence without actually changing their status.
So if a felon was pardoned, it changes their status- they’re no longer a felon legally speaking. But if their sentence is commuted, it means they’re still a felon, but their sentence is much shorter or non-existent.
I would think that both are rather final- if someone’s no longer a felon, that’s a sort of non-rescindable change of state. Similarly, if the sentence was commuted, it’s a question of serving the changed sentence. Changing both back would presumably require some sort of due process.
A condition precedent (the pardon becomes effective only as soon as a condition is met) is surely possible; there’s tons of precedent for that. Your example would be a condition subsequent (the pardon becomes effective immediately but ceases to apply as soon as a condition is not met anymore). I’m not aware of
precedents here, but I’d say that would amount to rescinding a pardon, which is not possible.
United States vs. Wilson addressed conditional pardons. However, the condition appears to specify the pardon applies only to a particular crime. Text of the decision here. I don’t have the patience to read and comprehend it right now.
Speaking of conditional pardons. Ford conditionally pardoned Vietnam-era deserters. (Carter later pardon draft resisters.) The condition required them to do 2 years of public service.
I’m not coming up with all that great of ideas as how they could be rescinded. Maybe someone faked/lied about their 2 years service but got pardoned. It was later found it and the pardon rescinded. Something like that?
Rescinding a pardon would essentially be issuing a presidential directive that someone is convicted of a crime, if the pardon was after the conviction. The consitution allows (gives) the president the right to pardon, but says nothing about the ability to rescind a pardon. If that power is not explicitly granted, presumably it does not exist.
A purchased pardon is still a pardon. Whether you can question the motives or prosecute the seller is a question for a different forum, I presume. But… the recipient is pardoned. The consitution puts no limits or conditions on the power of pardon - except it applies to federal crimes, and it cannot be used for “cases of impeachment”. (Or civil liability cases since they are not “crimes against the United States”)
I have asked and obtained Mod’s permission to ask the following question:
But what if a hypothetical future President were corrupt, and took payment to issue a pardon? Could that pardon be revoked? Hypothetical question, not implying that any specific current candidate ever would do such a thing.
A pardon might be an admission of guilt from the person who accepts it.
Burdick v. United States
Justice Joseph McKenna delivered the opinion of the Court in favor of Burdick. The Court ruled Burdick was entitled to reject the pardon for a number of reasons, including the implicit admission of guilt and possibly objectionable terms contained in a conditional pardon. As Burdick was entitled to reject the pardon, he was also entitled to assert his right against self-incrimination under the Fifth Amendment.
Although the Supreme Court’s opinion stated that a pardon carries “an imputation of guilt and acceptance of a confession of it,”[1] this was part of the Court’s dictum for the case.[3] Whether the acceptance of a pardon constitutes an admission of guilt by the recipient is disputed. In Lorance v. Commandant, USDB (2021) the 10th Circuit Court of Appeals ruled that “there is no confession and Lorance does not otherwise lose his right to petition for habeas corpus relief for his court-martial conviction and sentence. The case was remanded for further action not inconsistent with the court’s opinion.”[4] - SOURCE
This is what critics commenting on TV have been saying - but basically, a pardon is forever. The issue becomes whether a president can be prosecuted for accepting a bribe, and the consensus seems to be the recent decision made that very difficult if not impossible.
Interesting. The Atlantic used this very premise for a recent article:
Imagine a simple hypothetical designed to highlight the key constitutional clauses that should have been the Court’s starting point: In the year 2050, when Trump and Biden are presumably long gone, David Dealer commits serious drug crimes and then bribes President Jane Jones to pardon him.
Is Jones acting as president, in her official capacity, when she pardons Dealer? Of course. She is pardoning qua president. No one else can issue such a pardon. The Constitution expressly vests this power in the president: “The President … shall have Power to grant Reprieves and Pardons for Offenses against the United States.”
But the Constitution also contains express language that a president who takes a bribe can be impeached for bribery and then booted from office: “The President … shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other High Crimes and Misdemeanors.” And once our hypothetical President Jones has been thus removed and is now ex-President Jones, the Constitution’s plain text says that she is subject to ordinary criminal prosecution, just like anyone else: “In cases of Impeachment … the Party convicted shall … be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.”
It’s interesting to compare the status of a Presidential pardon with other things enshrined in the Consitution. E.g., law students are regular taught a list of a dozen+ exceptions to free speech such as threats, slander, conning someone etc. You can’t buy a grenade, a land mine, etc. despite the 2nd amendment. Even the double jeopardy clause can be overridden in cases such as when the defendant is later found to have bribed/coerced a jury. (This happened in a John Gotti case, for example.)
Basically nothing is really absolute. So why not a pardon? E.g., SCotUS might rule that, like a bribed jury decision is invalid, a bribe for a pardon isn’t a “real” pardon. If so, then rescinding ensues.
I would assume (IANAL) that a pardon is like unto a jury verdict. Having been decided, issued and accepted, there’s no going back. I.e. if a jury finds Bob “not guilty” then even if video surfaces of Bob doing the deed, he cannot be retried. Similarly, if Bob is officially pardoned, he is no longer able to be charged. Full stop?
(I assume however there’s an exception for a jury verdict if the defendant actively interferes with the jury?)
I suppose too, recent TV commentators have mentioned that a presidential pardon is the equivalent of giving immunity to prosecution. With no jeopardy of prosection, the perp no longer has the option of “pleading the fifth” if compelled to testify, in related cases, civil suit, or grand jury proceedings.
This would be patently unfair if the pardon football could be yanked away arbitrarily once the person was on record testifying to their acts. (Prosecutorial immunity, AFAIK, is conditional on truth and cooperation but otherwise is permanent.)