Can a presidential pardon proactively pardon contempt charges?

[Rhythmdvl]

Can a presidential pardon proactively pardon contempt charges?

Say an outgoing president grants a blanket pardon to a staff member for any deeds related to a particular activity.

A few months later, a new congress wants to hold hearings about the activity, ostensibly (and for the purposes of this hypothetical) for Truth and Reconciliation purposes. Assume for the moment that side issues of executive privilege do not apply, nor, via the pardon, do Fifth Amendment claims. The staffer still refuses to testify, and Congress moves to hold him/her in contempt.

Can the original pardon have been written to preclude contempt sanctions for refusing to testify?

[tullsterx]

Good questions. I’ve always wondered how Ford could pardon Nixon when he was never charged nor convicted.

[Really_Not_All_That_Bright]

@Gerald Ford

Now, therefore, I, Gerald R. Ford, President of the United States, pursuant to the pardon power conferred upon me by Article II, Section 2, of the Constitution, have granted and by these presents do grant a full, free, and absolute pardon unto Richard Nixon for all offenses against the United States which he, Richard Nixon, has committed or may have committed or taken part in during the period from July (January) 20, 1969 through August 9, 1974.

@The Founding Fathers

…and he shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.

Ford essentially pardoned Nixon of all offenses. The precedent was set (I think) by Andrew Johnson, who did more or less the same thing for those who fought or aided the Confederacy.

[Mike_H]

I would say no, the pardon does not cover the contempt, since that was not an act that had occured at the time the pardon was given. Even a blanket pardon that covers all acts, known and unknown, can only cover acts that have already occured. Otherwise, the pardon is a licence to commit a crime in the future, which I think is common sense would indicate is not what the framers of the Constitution intended with the pardon power.

[Really_Not_All_That_Bright]

@Mike_H

I would say no, the pardon does not cover the contempt, since that was not an act that had occured at the time the pardon was given. Even a blanket pardon that covers all acts, known and unknown, can only cover acts that have already occured. Otherwise, the pardon is a licence to commit a crime in the future, which I think is common sense would indicate is not what the framers of the Constitution intended with the pardon power.

Agreed- I’m fairly certain that the wording of each pardon includes a specific timeframe, anyway, and “for ever and ever” would get some legislative/judicial attention.

[Rhythmdvl]

I was thinking it would act similar to blanket immunity by the prosecution – very useful to compel testimony.

So a president who doesn’t want inside information getting out has the motive to withhold a pardon in hopes that the Fifth Amendment will offer enough protection against Congressional hearings.

I assume the presidential staff (assuming that the hypothetical testimony is of concern) are working out how to best use existing authority.

[Really_Not_All_That_Bright]

@Rhythmdvl

I was thinking it would act similar to blanket immunity by the prosecution – very useful to compel testimony.

So a president who doesn’t want inside information getting out has the motive to withhold a pardon in hopes that the Fifth Amendment will offer enough protection against Congressional hearings.

I assume the presidential staff (assuming that the hypothetical testimony is of concern) are working out how to best use existing authority.

From the DOJ:

2. Federal convictions only

Under the Constitution, only federal criminal convictions, such as those obtained in the United States District Courts, may be pardoned by the President. In addition, the President’s pardon power extends to convictions obtained in the Superior Court of the District of Columbia and military court-martial proceedings. However, the President cannot pardon a state criminal offense. Accordingly, if you are seeking clemency for a state criminal conviction, you should not complete and submit this petition. Instead, you should contact the Governor or other appropriate authorities of the state where you reside or where the conviction occurred (such as the state board of pardons and paroles) to determine whether any relief is available to you under state law. If you have a federal conviction, information about the conviction may be obtained from the clerk of the federal court where you were convicted.

[underlining mine]

I’m fairly certain that a Congressional contempt citation doesn’t count as a criminal conviction. Paging Gfactor…

[Bricker]

@Really_Not_All_That_Bright

From the DOJ:

[underlining mine]

I’m fairly certain that a Congressional contempt citation doesn’t count as a criminal conviction. Paging Gfactor…

The penalty for criminal contempt of Congress is an “offense against the United States.” There’s a discussion in Ex Parte Grossman involving criminal contempt of federal court, but the reasoning is applicable to Congress:

@Supreme Court in Ex Parte Grossman

Nothing in the ordinary meaning of the words ‘offenses against the United States’ excludes criminal contempts. That which violates the dignity and authority of federal courts such as an intentional effort to defeat their decrees justifying punishment violates a law of the United States (In re Neagle, 135 U.S. 1 , 59, et seq. 10 S. Ct. 658 ), and so must be an offense against the United States.
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If it be said that the President by successive pardons of constantly recurring contempts in particular litigation might deprive a court of power to enforce its orders in a recalcitrant neighborhood, it is enough to observe that such a course is so improbable as to furnish but little basis for argument. Exceptional cases like this if to be imagined at all would suggest a resort to impeachment rather than to a narrow and strained construction of the general powers of the President. [267 U.S. 87, 122] The power of a court to protect itself and its usefulness by punishing contemnors is of course necessary, but it is one exercised without the restraining influence of a jury and without many of the guaranties which the bill of rights offers to protect the individual against unjust conviction. Is it unreasonable to provide for the possibility that the personal element may sometimes enter into a summary judgment pronounced by a judge who thinks his authority is flouted or denied? May it not be fairly said that in order to avoid possible mistake, undue prejudice or needless severity, the chance of pardon should exist at least as much in favor of a person convicted by a judge without a jury as in favor of one convicted in a jury trial? The pardoning by the President of criminal contempts has been practiced more than three-quarters of a century, and no abuses during all that time developed sufficiently to invoke a test in the federal courts of its validity.

However, a President may not prospectively pardon offenses. Such a power would amount to the President having the ability to dispense with the laws. A presidential pardon can only affect acts committed up to the time the pardon was issued.

[Polycarp]

A (blanket) Presidential pardon (e.g., the A. Johnson/Confederates and Ford/Nixon examples cited) will have the effect of barring charges which might otherwise be laid in the future for offenses already committed (or alleged to have been committed). It does not exempt from prosecution for future misconduct.

Like this: In August, Sgt. Armstrong, serving in Intelligence at a detention center in Iraq and acting on what he honestly believes to be legitimate orders from his superior officer Col. Hardarse, subjects a suspected Al Qaeda terrorist to vigorous questioning regarding an alleged near-future terrorist act which he is believed to have knowledge of. In October, information of Sgt. Armstrong’s acts becomes public knowledge and results in a media uproar. In December, the President pardons Sgt. Armstrong for any and all acts committed at said detention center, precluding the Army CID/JAG charges about to be filed. In exchange, Sgt. Armstrong is to make a complete statement about conditions and intelligence-gathering activities at said center, and to cooperate fully with government agents investigating the same. Note that Sgt. Armstrong has not yet been charged, but has in fact committed an act which is believed to be a chargeable offense.

Now, discharged from service, former Sgt. Armstrong punches out former Col. Hardarse for ruining his Army career. Col. Hardarse presses charges. Sgt. Armstrong’s pardon does not apply; the offense was committed after the pardon.

A charge of contempt is made, among other irrelevant reasons, in relation to unjustified refusal to testify – the offense being the refusal. The offense happens after any pardon and may therefore not be covered by it.

[Gfactor]

What **Bricker **said. Specifically:

1. No such thing as a prospective pardon. While the pardonee does may be pardoned for acts for which he has been neither charged nor prosecuted, the acts must have already happened.

2. Criminal contempt counts. Civil contempt probably does not.

3. The effect of a pardon *could *be to deprive the witness of a Fifth Amendment objection. Can the President grant immunity from prosecution? - The Straight Dope But the problem is that the Fifth Amendment protects against compelled testimony that could subject the witness to prosecution by federal, state, or in some cases foreign (United States v. Gecas, 120 F.3d 1419 (11th Cir. 1997)) prosecution, and a pardon can only offer insulation against prosecution under federal law.

[The_Second_Stone]

I agree that a pardon can only be for acts already committed, which is what the question is asking. I agree for the reasons Bricker and Polycarp have given. A more interesting question is can the President pardon someone for federal civil contempt for, say, refusing to testify.

[Gfactor]

The United States Constitution confers upon the President the power to grant pardons for committing federal offenses.365 Even at common law, however, the effect of a pardon was necessarily limited to the punishment imposed for a criminal conviction and had no effect as to the remedial portion of a court’s order, because the remediation is necessary to secure the private rights of a private suitor.366 A pardon may, by logical necessity, only be granted for a completed criminal contempt.367 It may not interfere with private rights or measures taken by the courts to enforce those rights, such as coercive civil contempt.368 Power to pardon cannot take away the consequences of an act where private civil injustice is concerned. The President or Governor cannot pardon a husband/father who has been held in civil contempt for failing to pay child support, or a tenant who has been held in contempt for failure to pay his rent, or release an individual from the provisions of a restraining order already violated. The pardon only obviates the conviction and the punishment for the offense; it does not erase the fact of its existence.369 Acceptance of a pardon may imply a formal admission of guilt.370 A pardon based on an executive finding of innocence does not wipe out guilt. The executive has no power to set aside a finding of guilt, only to pardon.371 As with immunity from criminal prosecution, the executive’s pardoning power may not reach further than that which the sovereign as sovereign-and as creature of constitution-may grant or withhold.372 Under federal law, a presidential pardon may be granted before conviction for crime.373 Under New York’s Constitution, a governor’s pardon may only follow conviction for crime.374 Criminal contempt of court may be pardoned. Civil contempts of court are beyond the pardoning authority.

http://findarticles.com/p/articles/mi_qa3735/is_199804/ai_n8806140/pg_24

The issue of whether a certain contempt is either civil or criminal can be of great importance as demonstrated in the dictum of Ex parte Grossman,158 in which Chief Justice Taft, while holding for the Court on the main issue that the President may pardon a criminal contempt, noted that he may not pardon a civil contempt.

Article III. Judicial Branch | U.S. Constitution Annotated | US Law | LII / Legal Information Institute

You may recognize Ex Parte Grossman–it’s the case that Bricker cited a few posts upthread.