Lots of discussion lately about pre-emptive presidential pardons. I’m still not clear on the legal justification for letting them stand when the President putatively intends to hand them out like Halloween treats? What’s the precedent for these?
"In July, 1865, Mr. Garland received from the President [71 U.S. 333, 337] a pardon, by which the chief magistrate, reciting that Mr. Garland, ‘by taking part in the late Rebellion against the government, had made himself liable to heavy pains and penalties,’ &c., did thereby
‘Grant to the said A. H. Garland a FULL PRADON AND AMNESTY for all offences by him committed, arising from participation, direct or implied, in the said Rebellion, conditioned as follows: This pardon to begin and take effect from the day on which the said A. H. Garland shall take the oath prescribed in the proclamation of the President, dated May 29th, 1865; and to be void and of no effect if the said A. H. Garland shall hereafter at any time acquire any property whatever in slaves, or make use of slave labor; and that he first pay all costs which may have accrued in any proceedings hitherto instituted against his person or property. And upon the further condition that the said A. H. Garland shall notify the Secretary of State in writing that he has received and accepted the foregoing pardon.’
The oath required was taken by Mr. Garland and annexed to the pardon. It was to the purport that he would thenceforth ‘faithfully support, protect, and defend the Constitution of the United States and the union of the States thereunder; and that he would in like manner abide by and faithfully support all laws and proclamations which had been made during the existing Rebellion with reference to the emancipation of slaves.’"
From this ruling:
EX PARTE GARLAND | FindLaw
The first pre-emptive pardon under the current Constitution was issued by Washington, in relation to the Whiskey Rebellion:
Prior to that, under the Articles of Confederation, there had been a general amnesty for those who participated in Shay’s Rebellion:
If by “pre-emptive” you mean that the pardon applied to acts for which the pardon recipient has yet to be charged with or convicted of a crime, then yes there is ample precedent. Andrew Johnson pardoned thousands of former Confederate Officers in exchange for an oath to support and defend the Union. Jimmy Carter likewise pardoned thousands of draft avoiders, even though many had not yet been charged with a crime.
As @Czarcasm notes, Ex Parte Garland is the relevant Supreme Court case on the limitations on the pardon power. Generally, a President can pardon an individual (or group of individuals) for acts committed in the past which may lead to federal prosecution. The pardon does not need to specify the act or acts. The act must be in the past – a President cannot pardon for ongoing or future acts. It only applies to federal prosecution – the same acts may form the basis for prosecution by a state. And the pardon must be affirmatively accepted by the individual to be recognized by the courts.