Can a President issue a full pardon with a condition that the person being pardoned will suffer a penalty if she/he talks about certain events and/or people-A pardon with a non-disclosure agreement built in?
Apparently, yes.
From here: Conditional Pardon – Pardon and Parole
If there is a condition to the pardon, then apparently the pardon does not take effect unless the prisoner accepts the condition. To use the OP’s example, if the pardon was offered with a condition of non-disclosure attached to it, then the pardon would not take effect until the prisoner accepted the non-disclosure condition.
I have no idea if non-disclosure can be a valid condition for a pardon.
It seems yes. Called a conditional pardon and is fine as long as the following is followed:
EDIT: Ninja’d
To tell the truth, I was expecting the answer to be “Of course not!”.
I don’t see why not. An NDA does not obstruct a legal investigation (it can’t). Demanding that the person does not talk to the FBI would be an illegal condition and thus not allowed.
[On preview I see that others have already answered the question about whether conditional pardons are allowed, but I’ll leave my post anyway.]
Yes, presidents can and have granted conditional pardons. In fact, Washington was the first to do so, so it’s not a recent development.
The interesting question is whether a president could issue a pardon incorporating a non-disclosure agreement like you posit. To my knowledge, no president has tried so far so no court has been in the position of interpreting whether such a condition is valid but I’d be happy to be corrected on this point.
One professor argues that courts should decline to uphold the conditions of a pardon if the grant of the pardon “shocks society’s conscience” or if it violates the constitutional constraints on a president’s authority, such as if the president gave a pardon to someone only if the person agreed not to practice a particular religion. The article is really just one guy’s opinion, but it gives a reasoned view that perhaps a court should not subject a pardoned person to a president’s unconstitutional conditions even if it otherwise upheld the pardon.
https://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=1434&context=californialawreview
I would also question whether a pardon issued by a president for the corrupt purpose of covering his own misdeeds would or should be upheld in a court. There is nothing written in the constitution that suggests a corruptly-granted pardon like this is any less valid than any other pardon but I think I saw a law review article on this once. Unfortunately, I can’t find it by googling. The article below notes that President Bush (I) pardoned some people in the Iran-Contra affair for reasons that may have included covering his own keister but I’m not aware of anyone challenging the legitimacy of those pardons on that or any other basis. The potential for corruption in the pardon process just seems to be part and parcel of the power.
https://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1287&context=ilj
An NDA cannot obstruct a legal investigation, and it cannot be used to stop someone from answering questions under oath…but can it be used to stop any deals between the prosecutor and the pardonee, since he is under no legal obligation to accept any deals made?
If the pending deal is, in effect, “Bob, testify against your co-conspirator Abe, and I agree to only charge you with misdemeanor federal mopery,” then yes. The president’s pardon removes the threat of prosecution, and frees Bob to say, “Nah, I’m not taking that deal.”
Of course, Bob can still be compelled to testify and can’t plead the Fifth, since his acceptance of the pardon removes self-incrimination from the picture. But Bob no longer needs to cooperate.
Me too. And I still think that is the answer to the question as asked.
It’s been established that the president can grant a conditional pardon, but is a conditional pardon a “full pardon?” My understanding is that a full pardon means that it’s as if the person never committed the crime. If the person retains some conditional obligation after the pardon, isn’t the pardon less than full?
I am not qualified to argue with a law dictionary but I am not sure that is correct. Or at least there is some nuance being missed here.
As illustrated by the recent pardon of sheriff Joe Arpaio by Trump the judge refused to vacate the conviction:
I was wondering about this.
Can’t Bob claim he is still in jeopardy from state laws and still plead the Fifth?
So person A gets a pardon with a condition and is released from prison. Five years later the condition is violated. Then what? He goes back to jail? What if the sentence was for only 3 years? Is it up or did the clock stop?
And keep in mind the scene from 24 where that crazy bitch gets Palmer to pardon her for killing Jack in the future would do nothing to keep her from being arrested. Seeing how murder is a state crime and all.
Yes. But as with any invocation of the Fifth Amendment, he may have to explain to a judge what basis his apprehension of criminal liability has. Still, if he is compelled to testify in federal court over his Fifth Amendment objection concerning state law liability, that testimony cannot be used against him. (Murphy v Waterfront Commission).
This was my thought - what sort of condition could be attached?
I can see one “if you keep your nose clean for 5 years, you are pardoned”. But that rather implies that the pardon - the erasure of the criminal record - takes place in 5 years, not immediately. I don’t see how a pardon, conditional or not, could be revoked. It would be like a civil suit - “we award the plaintiff a million dollars provided he never visits Nevada again.” What, then 30 years from no you could have to pay back the $1M?
Or is a condition immediate - “you’re pardoned if you tell us where the rest of the money is…”?
Another factor : if a pardoned individual wanted a job, could an employer refuse to hire them because of the pardoned offense? So few people are pardoned, and employers have so much power to quietly refuse a job to a candidate for no stated reason, that this probably has rarely come up. Still, the primary impediment to having a felony on one’s record is getting a job. You don’t generally need a gun to get by, and rarely is the right to vote more than a meaningless bit of theater. (your vote almost never will ‘count’).
If someone were pardoned of a fraud conviction, and wanted to work at a bank, would the bank be able to justify not hiring them because of the fraud conviction?