Let’s say there is someone who has allegedly committed numerous crimes but hasn’t been indicted yet for any of them.
Can the president issue a blanket pardon saying, “Person-X is hereby pardoned of any and all federal crimes committed in the past” or does the president need to list each crime being pardoned?
That’s what Ford did for Nixon.
My understanding is that a pardon has to be accepted and if accepted it implies guilt.
Acceptance, as well as delivery, of a pardon is essential to its validity; if rejected by the person to whom it is tendered, the court has no power to force it on him. United States v. Wilson, 7 Pet. 150.
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There are substantial differences between legislative immunity and a pardon; the latter carries an imputation of guilt and acceptance of a confession of it, while the former is noncommittal, and tantamount to silence of the witness.
Did Nixon ever formally accept his pardon or was it more a notice to prosecutors to not bother so they didn’t?
How can you “accept” a pardon for “things I may or may not have done”?
Also, if acceptance is an admission of guilt can that help state prosecutors assuming the person also broke state laws?
A former student of mine came to Canada after getting his draft notice. There was a warrant for his arrest (his father looked into it). After Carter pardoned all draft dodgers, his father checked again and the warrant had been quashed. There was no need to accept guilt. In fact he hadn’t been formally charged with anything yet.
Augustus Garland’s pardon was “for all offences by him committed, arising from participation, direct or implied, in the said Rebellion” which is somewhat narrower than the blanket pardon that Ford gave Nixon, but seemingly broader than the pardon Andrew Johnson issued to all Confederate soldiers “for the offence of treason against the United States, or of adhering to their enemies during the late Civil War”.
The challenge to the effect of Garland’s pardon led to pretty broad language about the scope of the pardon power.
Yes. Ford’s pardon of Nixon pardoned him for any Federal offenses he may have committed between this date and that - which happened to be the entire time that Nixon had served as President.
I see no reason to think that a blanket pardon wouldn’t be valid. If you actually had to enumerate crimes, you could just copy/paste the federal code into the pardon. There you go, enumerated for you.
As I noted above, a pardon carries an implication of guilt and that might matter in state trials.
A federal appeals court has rejected former Arizona Sheriff Joe Arpaio’s bid to wipe out a judge’s guilty finding that preceded President Donald Trump’s pardon of Arpaio in 2017.
The 9th Circuit Court of Appeals ruled Thursday that Arpaio is not entitled to have the guilty verdict on a misdemeanor contempt-of-court charge vacated because it has no legal significance in the wake of Trump’s pardon.
SOURCE: Court won't let Trump pardon void guilty verdict against Arpaio - POLITICO
Granted that came after a conviction but illustrates the point that a pardon does not clear one of guilt…just punishment for that guilt.
If a pardon had to enumerate crimes then the person who was pardoned is presumed guilty of those crimes. Note again that the supreme court said a pardon had to be accepted…a person could choose to not accept a pardon to avoid the imputation of guilt.
But a blanket pardon sweeps all of that under the rug. Certainly president Ford got away with doing this but I wonder if someone could have challenged him on it in court?
Is there any timeline required? Presumably the person who is blanket-pardoned could accept part of the pardon, and would do so only as necessary to avoid prosecution.
Ford also controlled the Justice Department for the next 2.5 years, which means that there was no one to try to challenge the pardon for a while. Sure, his successor could have dredged it up, but he made the (likely correct) political calculation that no one would want to reopen those issues after a few years.
That calculation may or may not apply to future blanket pardons. For example, if a blanket pardon is made shortly before a president from another party assumes office.
I’m not sure that’s right. The primary difference between a “pardon” and “clemency” is that a pardon does “clear one of guilt,” at least in any legal sense. As the Supreme Court put: “A pardon reaches both the punishment prescribed for the offence and the guilt of the offender, and when the pardon is full, it releases the punishment and blots out of existence the guilt, so that, in the eye of the law, the offender is as innocent as if he had never committed the offence. If granted before conviction, it prevents any of the penalties and disabilities consequent upon conviction from attaching; if granted after conviction, it removes the penalties and disabilities and restores him to all his civil rights; it makes him, as it were, a new man, and gives him a new credit and capacity.”
The Arpaio case isn’t a deviation from this. The appellate court points out that Arpaio was never “convicted” in the formal sense of the term. Because there was no conviction, there was no conviction to vacate. And because Arpaio was never “convicted”, there can be no future consequences of that verdict. (Indeed, the pardon plays almost no substantial role in the matter).
ETA: I mean, one of the traditional functions of a pardon was for people who were convicted despite being innocent. Your proposition puts those people in a real bind.
There’s this:
Justice Field’s language must today be regarded as too sweeping in light of the 1914 decision in Carlesi v. New York .292 Carlesi had been convicted several years before of committing a federal offense. In the instant case, he was being tried for a subsequent offense committed in New York. He was convicted as a second offender, although the President had pardoned him for the earlier federal offense. In other words, the fact of prior conviction by a federal court was considered in determining the punishment for a subsequent state offense. This conviction and sentence were upheld by the Supreme Court. Although this case involved offenses against different sovereignties, the Court declared in dictum that its decision “must not be understood as in the slightest degree intimating that a pardon would operate to limit the power of the United States in punishing crimes against its authority to provide for taking into consideration past offenses committed by the accused as a circumstance of aggravation even although for such past offenses there had been a pardon granted.”293
And, again, see post #3 quote from Burdick v. United States that a pardon imputes guilt rather than absolving one of it.
Does “imputed” guilt carry any legal weight, or is that just SCOTUS waxing philosophical?
IANAL but the way I read it is that accepting a pardon is also admitting guilt of the thing for which you were pardoned.
I think it’s pretty clearly the latter. If you read Burdick (which is about the ability to reject a pardon), the Court is discussing why someone might reject a pardon:
Indeed, the grace of a pardon, though good its intention, may be only in pretense or seeming; in pretense, as having purpose not moving from the individual to whom it is offered; in seeming, as involving consequences of even greater disgrace than those from which it purports to relieve. Circumstances may be made to bring innocence under the penalties of the law. If so brought, escape by confession of guilt implied in the acceptance of a pardon may be rejected, preferring to be the victim of the law rather than its acknowledged transgressor, preferring death even to such certain infamy. This, at least theoretically, is a right, and a right is often best tested in its extreme.
(Burdick, of course, is about a newspaper editor rejecting a blanket pre-conviction pardon that was intended to force him to testify about his sources without implicating the 5th Amendment. I don’t get the sense that his concern was the infamy of imputed guilt).
Edit: Burdick, too, was too receive a broad blanket pardon for “all offenses against the United States which he, the said George Burdick, has committed or may have committed or taken part in in connection with the securing, writing about, or assisting in the publication of the information so incorporated in the aforementioned article, and in connection with any other article, matter, or thing concerning which he may be interrogated in the said grand jury proceeding.” It would be somewhat impractical for that to carry a legally-relevant stigma of guilt regarding the specified “crimes”.
I’ve never understood the notion that a pardon is an admission of guilt. Suppose that I’m the President, and I know of someone accused or convicted of some federal offense, but I genuinely believe that he didn’t do it. In such a case, shouldn’t I pardon that person? And if I should pardon a person in such a case, shouldn’t the recipient of any pardon be granted the benefit of the doubt that his was such a case?
Especially if the pardon is pre-conviction. In that case ISTM that presumption of innocence is the ruling doctrine. A post-conviction pardon is a different matter, but even there one possible reason for a pardon is that the pardonner is convinced the conviction was an error. Although it is not quite the same as vacating the original conviction. I think the latter is what happened with the Central Park five.
I think the notion is why accept a pardon if you are innocent?
The flip side of this is a plea bargain. If you accept a plea bargain one of the things you must do is stand before the judge and admit your guilt. It does not matter if you are really innocent because, the way the courts seem to think, an innocent person would go to trial and prove their innocence rather than accept a plea bargain.
These seem like two sides of the same coin to me.
Okay, but: if I were actually innocent of a particular crime, and expressly said so — and I got offered a pardon by someone who flatly said “hey, maybe someone out there will claim I’m implicitly suggesting guilt, but I can assure you: I explicitly believe this guy to be innocent” — is there any reason I couldn’t stand up and proudly declare, “like I’ve been saying all along, I’m innocent,” right there in the same sentence as me accepting that pardon?
Sure. So what? A completely guilty person could do the same. Where does that leave us?
Well, you mentioned the plea-bargain bit, pointing out that “one of the things you must do is stand before the judge and admit your guilt. It does not matter if you are really innocent” — and, to draw a distinction between that and this, I wanted to ask: unlike the plea-bargainer, can a guy who accepts a pardon stand to and, uh, just keep stating that, in point of fact, he is really innocent?