You have to explicitly tell the judge you are guilty. If you stand there proclaiming your innocence then no deal. That is the formality of the matter and probably there head-off appeals later where you claim innocence. But in the end the notion is if you accept a plea bargain then you are by definition legally guilty regardless of the actual truth.
While the person who accepts the pardon can say they are innocent the discussion here is if it imputes guilt regardless of what they say. Same as the plea bargain.
But the difference is — as far as I can tell, from what you’re saying — to accept the plea bargain, you have to explicitly say that you’re guilty, while you can accept a pardon while only ever patiently explaining that, no, you’re innocent.
Why the heck did you even mention the bit about plea-bargainers having to explicitly proclaim what those who accept pardons don’t?
Except that one of the fundamental purposes of the pardon power was understood to be to help innocent people who had been wrongly convicted. As Story said:
In many cases, convictions must be founded upon presumpions and probabilities. Would it not be at once unjust and unreasonable to exclude all means of mitigating punishment, when subsequent inquiries should demonstrate, that the accusation was wholly unfounded, or the crime greatly diminished in point of atrocity and aggravation, from what the evidence at the trial seemed to establish? A power to pardon seems, indeed, indispensable under the most correct administration of the law by human tribunals; since, otherwise, men would sometimes fall a prey to the vindictiveness of accusers, the inaccuracy of testimony, and the fallibility of jurors and courts.
What is difficult about this? Apparently I have to post this again:
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.
I’m curious, though: do you, personally, take that seriously? Like, even a little bit? That guilt is to be implied or inferred even though — unlike in the case of a plea bargain — innocence gets explicitly stated throughout, possibly by someone who’s accepting said pardon while literally at gunpoint?
Personally I do not think either a pardon or a plea bargain tells us anything about the actual guilt or innocence of the person getting one. Absolutely none at all.
As a legal matter the court doesn’t care what you or I think about it.
Generally speaking, you have not been “convicted” of a crime until a court enters a “judgment of conviction” (governed in federal practice by Rule 32). It usually happens after sentencing is imposed. In Arpaio’s case (at least according to the Ninth Circuit decision you linked to), the pardon was issued between the verdict and the judgment. So, the court entered a dismissal, not a conviction. That is, Arpaio was never “convicted” and so there was nothing to vacate.
Arpaio was relying on so-called Munsingwear vacatur, where an underlying judgment is vacated when it becomes moot while on appeal – usually when a party dies (this came up with Aaron Hernandez, where Massachusetts ended up getting rid of the doctrine, as I understand it). But in Arpaio’s case, there was no underlying judgment to vacate.
What do you think are the legal consequences of your reading of Burdick? I mean, maybe we’re all going in circles for nothing, assume you’re right, then so what?
I will explain why I thought to pose the question but since this is GQ I realize we probably cannot go far with this.
I read (somewhere, I forget now) some speculation that if president Trump loses in November that he might resign his office and then have now president Pence pardon him for everything. I was wondering if such a pardon could be challenged.
The only way I can imagine challenging a pardon is to try to do something that the pardon prohibits (like charge the pardonee with a crime). So it’s unlikely to ever be answerable.
There is a long history (going back to the 1860s, at least) of “blanket pardons” (i.e., pardons for “any and all offenses committed” during a time or in furtherance of some objective). I don’t know if they have been challenged on that, but then against both Garland and Burdick involved broad pardons and no one seems to have suggested that this was a problem (indeed, the whole Burdick effort relied on a pretty undefined pardon).
But I guess my question to you is, you keep pointing to Burdick and saying that accepting a pardon implies guilt and indicating that you think it would have significance to a state court, and I’m wondering what that would be.
Possibly the court could imply that accepting a federal pardon means a guy is to be locked up on state charges, while of course explicitly declaring that, no, he’s free to go.
We have seen people prosecuted in state and federal courts for the same action (e.g. the police involved in the Rodney King matter). The police were acquitted in state court but convicted in federal court. It was for a different crime but it was the same event.
It would seem to me that if you were in state court and you already admitted guilt as to the event at the center of the alleged crime then I have less to prove in the state court and therefore a better chance at getting a conviction.
You can no longer say, “I wasn’t there, I didn’t do that, that didn’t happen.”
Okay, I follow. I think the problem with that line of reasoning is demonstrated by Burdick himself – he was offered a pardon for any crime he may have committed in connection with anything the grand jury was going to ask him about (in the future). How can that possibly operate to demonstrate anything, much less an admission to any in particular? The same is true for any blanket pardon (and again, these go back at least to the 1860s).
Your thought makes more sense for a post-conviction pardon (but again a pardon for innocence is a specifically contemplated use, so that’s a bit of a bind). And then the question is: what is the preclusive effective of the prior conviction, more than the effect of the pardon.
I’m curious…can a president pre-emptively pardon someone? The president hires Thug-A and says, “I hereby pardon you of absolutely anything you may have done and will ever do as long as you are working for me.”
I mean, if blanket pardons are fine wouldn’t this be fine too? Sort of like the Pope absolving everyone before they went off on the crusades?
The only thing stopping the president from such a thing is the threat of impeachment and if the president knows that is no threat at all then why not?
I think it is generally accepted that you can only pardon past crimes (and not future crimes – I think that “continuing offenses” are a weird item and I don’t know). I don’t think this comes from any particular constitutional notion so much as the common law understanding of what a pardon “is”.
I would think that the biggest preventative isn’t impeachment of the president, but a reluctance by the criminal. If I were Thug A, I would be very reluctant to commit a crime on the hope that a pre-emptive pardon is effective since trying to prosecute me would be a pretty good way to test the issue (presumably, in this hypothetical, I’d just get issued a new pardon after each job or on some semi-regular basis; a pardon along with my paycheck).
The services don’t need to be criminal for it to be a High Crime, just using one’s office for personal gain is enough. But impeachment is solely a political action, so it’s whatever enough members of congress want it to be.