Hypothetical question regarding presidential pardons and self-incrimination

Suppose a US President issues a blanket pardon to Joe Schmoe for any and all federal crimes Joe may have committed while in the employ of the government.

A federal prosecutor realizes that Mr. Schmoe may be an important witness to other crimes. He subpoenas Schmoe to testify and starts asking questions. Schmoe replies that he will exercise his rights under the Fifth Amendment and decline to answer.

The prosecutor, being intelligent and well-educated, points out that Mr. Schmoe accepted the president’s pardon, therefore is not in jeopardy of conviction, and therefore has no need of the Fifth’s protection, so he must answer. The witness replies that the pardon only covers federal crimes, and his testimony may incriminate him on state crimes.

Does Mr. Schmoe have to answer? If he does, can his testimony in federal court be used as evidence in a state trial?

According to my extensive legal education, aka Law & Order reruns, a person may be offered immunity from prosecution in order to require his testimony on other, more important crimes. I seem to recall that a person can be unwillingly granted immunity to force testimony, but am not 100% certain.

I don’t think “blanket” pardons are possible. Nina TOTENBERG: The president does indeed have broad, but not unlimited, pardoning power. The Constitution gives the president the power to grant pardons, quote, "for offenses against the United States* except in cases of impeachment**." So he can’t pardon himself from impeachment, can’t pardon anyone from state charges. And most, but not all, constitutional law experts believe he cannot pardon himself on federal charges either.*https://www.npr.org/2017/07/27/539825453/the-presidential-pardon-power-what-are-its-limits (emph mine.)

and later on she said; In the current circumstance, President Trump could pardon any of the individuals under scrutiny in the Russia investigation. And that would make life very difficult for investigators, depriving them of their leverage to get at the truth. Nina Totenberg, NPR News, Washington

I’m obviously not a constitutional expert, but I’m pretty sure a president, who can’t even keep a legal team, is on pretty shaky ground here.

Ford gave Nixon a blanket pardon

https://en.wikisource.org/wiki/Proclamation_4311

The President might have to pardon Joe for contempt of court, for refusing to answer. I.e. Joe is pardoned for crimes he might have committed, Joe gets hauled into court to testify against someone else, refuses to testify (for any reason or no reason), the judge finds Joe in contempt, the President then pardons him for his contempt charge.

I wonder if double jeopardy would then prevent him from being convicted for contempt again if the prosecution tries to force him to testify again. Obviously this would all be in federal court.

IANAL.

Regards,
Shodan

Is contempt of court a crime, and something that can be charged?

Yes and yes. It is in fact what Trump pardoned Joe Arpaio for.

Well, only if it’s criminal contempt, which is pretty unusual. Most of the time civil contempt is enough to get people to behave.

But let’s assume for this case that the pardon-granting president is out of office at this time, and there is no love lost between his successor and Mr. Schmoe.

Your OP says -

So, either negotiate a plea deal with immunity, or plead the Fifth.

Regards,
Shodan

That isn’t an answer to the question. I want to know if the witness can be compelled to testify under the circumstances laid out in the OP. If it helps, assume state prosecutors are not willing to negotiate any immunity.

How does that work?
Presumably he simply can’t get up on the stand and refuse to answer any and all questions.
So I presume he would have to be able to articulate for the judge what laws he expects his evidence implicates himself it?
Careful questioning should be able to get the necessary answers without producing incriminating details.

Otherwise, any reluctant witness could claim jeopardy on anything.

Then whether he has been pardoned for federal offenses or not doesn’t matter. If his answers might incriminate him in a state court, then he cannot be compelled to testify against himself. Maybe the judge would rule that the state prosecutors couldn’t use his testimony, and then he could be compelled.

But you may not be compelled to testify against yourself in one court if the answers could be used against you in a different court.

Killing a chicken inspector is a federal crime. Joe Schmoe and Jane Blow, working together, steal a car and drive over to kill a chicken inspector. The President pardons Joe for the killing. Joe is hauled into court and questioned about the affair. The prosecutor asks Joe how he and Jane got to the scene of the crime. Joe refuses to testify. The judge rules that he has to, and he says “we stole the car”. The state prosecutors arrest Joe for auto theft. The instant the prosecutors introduce evidence that Joe confessed to stealing the car in open court, Joe has been compelled to testify against himself.

He can if his answers may tend to incriminate himself.

That would probably be worked out with the prosecutors ahead of time, where either they avoided any questions that would elicit incriminating answers, or by giving him immunity (or a plea bargain for a reduced sentence) in return for his testimony.

Now lots of criminals are stupid, and either don’t wait for their lawyer to come up with that kind of a deal, or blurt out something incriminating in response to a legitimate question.

But yes - if there is no deal in place, and the prosecutor asks Joe “where were you on the night of March 29, 2018?” and Joe says “I refuse to answer on the grounds that it may tend to incriminate me” the judge will meet with Joe in chambers and find out if Joe’s assertion of his Fifth Amendment rights is kosher. And if Joe says “I don’t want to confess to stealing a car - I only got pardoned for killing Colonel Sanders” that cannot be used against him in any court.

IANAL. Perhaps a real one will stop by and correct me. Come to think of it, I haven’t seen Bricker around for a while. He is always good in these kinds of threads.

Regards,
Shodan

Is Murphy v. Waterfront Commission, 378 U.S. 52 (1964) still on point? From it, at 77-79:

Now that case dealt with guys under a state grant of immunity, still refusing to testify—and getting found in contempt—because they were worried that their testimony could be used by the Feds. Assuming it’s still good law though, I don’t see why the same logic couldn’t be used to bar a state court from using at trial, testimony given by a witness in federal court under a federal grant of immunity. As the opinion states a few lines later,

Murphy, at 79.

I too await Bricker’s opinion on the hypo.

How much does he have to tell the judge about his motives for committing pleading the Fifth? The judge is not his lawyer, and isn’t bound be confidentiality, or is she?