Perjury and Pardons

I’ve read that accepting a pardon is an admission of guilt, and I feel like I’m maybe missing something; what happens if, say, I’m on trial for murder, and I testify under oath that I’m not guilty — that I didn’t kill the guy, that I’ve never met the guy, that I wasn’t even in that city on that night, and so on — and I’m found guilty and sentenced, maybe to death, only for the outgoing Governor or President to pardon me?

Could a prosecutor later make an ironclad case for perjury by pretty much just saying, here’s what he said under oath about not being guilty, and here’s him admitting guilt by accepting a pardon, period?

Or: is that not at all how this would work?

I’ve never liked the notion of “accepting a pardon implies guilt” in the first place. Suppose that I’m the President (or Governor or other relevant pardoning authority), and someone’s found guilty of something, but I genuinely believe that they didn’t do it. Surely, that’s exactly the sort of situation where I should pardon them, isn’t it?

I think this notion comes from President Ford’s pardon of Richard Nixon:

The reason this can’t happen is that, legally, accepting a pardon is not an admission of guilt.

Five myths about presidential pardons - The Washington Post

In 1915, the Supreme Court wrote in Burdick v. United States that a pardon “carries an imputation of guilt; acceptance a confession of it.” Over the years, many have come to see a necessary relationship between a pardon and guilt. Ford carried the Burdick quote in his wallet, defending the Nixon pardon by noting that it established Nixon’s guilt. More recently, MSNBC host Ari Melber taunted Arpaio by saying he had admitted he was guilty when he accepted Trump’s pardon.

But Burdick was about a different issue: the ability to turn down a pardon. The language about imputing and confessing guilt was just an aside — what lawyers call dicta. The court meant that, as a practical matter, because pardons make people look guilty, a recipient might not want to accept one. But pardons have no formal, legal effect of declaring guilt.

Indeed, in rare cases pardons are used to exonerate people. This was Trump’s rationale for posthumously pardoning boxer Jack Johnson, the victim of a racially based railroading in 1913. Ford pardoned Iva Toguri d’Aquino (World War II’s “Tokyo Rose”) after “60 Minutes” revealed that she was an innocent victim of prosecutors who suborned perjured testimony in her treason case. President George H.W. Bush pardoned Caspar Weinberger because he thought the former defense secretary, indicted in the Iran-contra affair, was a victim of “the criminalization of policy differences.” If the president pardons you because he thinks you are innocent, what guilt could accepting that pardon possibly admit?

I think you are wrong:

Burdick v. United States: (bolding mine)

Justice Joseph McKenna delivered the opinion of the Court in favor of Burdick. The Court ruled Burdick was entitled to reject the pardon for a number of reasons, including the implicit admission of guilt and possibly objectionable terms contained in a conditional pardon. As Burdick was entitled to reject the pardon, he was also entitled to assert his right against self-incrimination under the Fifth Amendment. SOURCE

It is hence contended by Burdick that the pardon is illegal for the absence of specification, not reciting the offenses upon which it is intended to operate; worthless, therefore, as immunity. To support the contention cases are cited. It is asserted, besides, that the pardon is void as being outside of the power of the President under the Constitution of the United States, because it was issued before accusation, or conviction or admission of an offense. This, it is insisted, is precluded by the constitutional provision which gives power only ‘to grant reprieves and pardons for offenses against the United States,’ and it is argued, in effect, that not in the imagination or purpose of executive magistracy can an ‘offense against the United States’ be established, but only by the confession of the offending individual or the judgment of the judicial tribunals. We do not dwell further on the attack. We prefer to place the case on the ground we have stated.

< snip >

This brings us to the differences between legislative immunity and a pardon. They are substantial. The latter carries an imputation of guilt; acceptance a confession of it. The former has no such imputation or confession. It is tantamount to the silence of the witness. It is noncommittal. It is the unobtrusive act of the law given protection against a sinister use of his testimony, not like a pardon, requiring him to confess his guilt in order to avoid a conviction of it.SOURCE

IANAL

In 2021, the 10th circuit court ruled otherwise

Does a circuit court overrule the Supreme Court? I don’t think so.

I don’t think there was anything for the 10th Circuit to overrule, because the Supreme Court never actually said that accepting a pardon is legally an admission of guilt.

Right, the circuit judge said the line in Burdick was a side comment but not part of the actual ruling. The ruling was that Burdick couldn’t be forced to accept a pardon.

Besides, does the state really see a difference between an admission of guilt and a guilty verdict? Judges don’t slap extra time on sentences because defendants were found guilty and thus were lying on the stand.

Right; accepting a pardon might be interpreted, by some, as meaning that the person was actually guilty, and that’s a reason why someone might choose to refuse a pardon. That’s what the Supreme Court was saying. And that interpretation, and decisions based on it, can exist even if the interpretation is incorrect.

As my cite made clear, these passages are dicta. Dicta is considered by later courts but does not constitute precedence because it applies specifically to that one case.

Dicta

Opinions of a judge that do not embody the resolution or determination of the specific case before the court. Expressions in a court’s opinion that go beyond the facts before the court and therefore are individual views of the author of the opinion and not binding in subsequent cases as legal precedent.

There’s a Twitter tag @badlegaltakes and it seems that about a quarter of the bad takes are those saying accepting a pardon is an admission of guilt.

There are plenty of pardons given to people who were convicted on bogus evidence, or where the prosecutor ignored evidence and withheld it from the defense. The Innocence Project was worked on hundreds of them. If a pardon is given to free an innocent person, they do not have to admit to guilt.

O/T: Youse people really need to be more careful with your thread titling. Thanks for the earworm! :laughing: