At the outset, let me say I post this because there is talk–as there has been for a long time–about The Future of Hillary. And now I’ve seen an end-game scenario, “Even if H is convicted of , President Obama will pardon her [because {y}].”
And then they mention Ford and Nixon.
So: this thread is not anything but: what is a pardon? Moral issues and the veridical “truth” of any adjudicated crime aside, I always thought, like first comes marriage and then babies, first comes legal guilt and then comes pardon.
What did Ford pardon Nixon for?
And, If it was an ad hoc get of jail beforehand pass of immunity, then: isn’t there something called “immunity?” And why didn’t they use that word, politically unpleasant but, um…legal? Which leads to in fact,
what the heck is a pardon"; and it’s corollary
3)"what the heck is 'a promise of ‘immunity’? People get it if in a deal if they promise to provide something better for the prosecution. And outside of daily courts (i.e. Nixon and whatever apocalyptic H scenario du jour,*)Hollywood in 24, I remember, always had an ever more heinous action confessed to but not yet doneby a terrorist if she were given “a promise of immunity,” usually hand-signed by The President.
*Just noticed a “(heh)” moment of unintentional pun on de jure.)
ETA: I stupidly forgot to mention the variation of that endgame scenario, which really prompted the query: “Before the [FBI can say boo|the shit hits the fan for jail time] O wil pardon her, just like F and N.” That’s the language/precedent I’d like to get clear on of immunity vs. pardon.
Ford forgave Nixon for any and all illegal activities, known or unknown, that Nixon may have executed. IOW, Nixon could never be charged for any crime. Ford’s logic was that Nixon had suffered enough by being forced out of office. The country had little to gain by dragging Nixon through the courts for eons. The USA should simply move forward.
It’s the “unknown” part that doesn’t fit into my understanding of “pardon,” and wonder if any other pardon in US jurisprudence has that.
I’m aware of the logic, history, and political realities of the time–and what you have said is perfectly accurate–and actually remember living through them quire well.
The nature and scope of Ford’s pardon of Nixon has long been considered problematic by legal scholars. There is no precedent for pardoning someone for unspecific—indeed, unknown—crimes.
But there is no effective way to review the scope of a presidential pardon in our system.
The pardon covers all possible federal crimes that Nixon may have committed while in office.
Pardons have a long history of being an exclusive power of governments; the idea being that if the government can charge and prosecute you for a crime, then the government can also decide not to do that, or decide to undo it later. Pardons can be specific (Bob Smith is pardoned for crime X). They can be general (Bob Smith is pardoned for any crimes he might have committed.) They can be granted after someone is convicted and sentenced or before they are even investigated, as was the case with Nixon’s. They can apply generally, as the blanket amnesty for draft dodgers did. They can also be granted posthumously. Generally, the President’s power to grant pardons, commutations, and amnesties for federal crimes is held to be absolute, deriving from the pardons clause that President Ford cites in his order. (The one exception is that the Constitution does not allow the President to grant pardons in cases of impeachment.)
A promise of immunity is a deal negotiated with a prosecuting authority and typically requiring the approval of a trial judge. Or a fictional device in a movie.
BTW, if Nixon had been impeached and removed, Ford could have still issued the preemptive pardon, since impeachment merely disqualifies you from the office, but it does not prevent your being charged criminally in court for your actions. The President cannot pardon from impeachment, but he can from common criminal chaged.
Ah. Well they shouldn’t call them “pardons” in that case, cause nothing anywhere legally has been stipulated “something that can, by the definition of the word ‘pardon,’ be pardoned”–ie a crime.
But OK, not for the first time is language used in special ways in law, versus plain meaning. But it’s been drilled into me, as a good citizen, that you are innocent [of any crime] until proven guilty, and that, darnit, legally innocent people don’t get an equally legal, and powerful thing, called a pardon. It’s cognitive dissonance.
And as far as I know, the only legal tribunal Nixon ever faced was none. He was blameless, in the narrow legal circumstances, which thank God apply, or should, to us too.
I suppose distinguishing between the draft dodgers and Nixon would narrow don the issues here, but more generally: can anyone cite other cases where the pardon was “do not investigate,” ie, not only is there nothing to see here, there never will be (because there never was, I could add).
Consider the case of an overzealous legislature which criminalizes wearing purple socks. If you were the executive of such a jurisdiction, and you have no moral qualms about purple socks, you might not want to burden the criminal justice system with such idiotic prosecutions. So you might pardon anyone as soon as they are charged for wearing purple socks, or issue a blanket amnesty for purple sock wearers. In both cases, the people concerned have not been convicted of anything, but you have successfully used your powers as a check on legislative and prosecutorial power.
Ok. “Charged” at least is closer than “guilty” or “trial over.”
Now another legal word/thing: amnesty. Wearing purple socks, having certain drugs, are statutory crimes and can be actually adjudicated crimes (preceded by some notice of the State, charge, police knock on the door, any form of which I will accept as “adjudication.”) This is getting into philosophy here, but obviously if the tree doesn’t walk to where someone is in the forest, no one hears it fall–so amnesty applies to what I am calling “statutory crimes” crimes in definition.
When I walk up to the police station after amnesty is declared, and dump my socks or crack, the State “notices”–which is part of the deal which is called amnesty.
I know I sound a little like the comics in the graveyard scene discussing suicide law, but amnesty differs from this Pardon of [null set]: the State is saying to a citizen something important about something it recognizes as existing. Which at least makes sense.
Sure there is: by charging someone who’s received a pardon, and arguing that the purported pardon exceeds the President’s pardon power.
Suppose instead of nice ol’Jimmy Carter, the Dems had run a super vindictive SOB against Ford, and won.
President SOB’s first act on takin office is to instruct the Attorney General to charge Nixon with conspiracy, burglary etc.
Nixon gets hauled into Federal Court and waves the Ford pardon at the judge and says the judge had to dismiss the charges.
The US Attorney stands up and says, “It is our position that the presidential pardon power is limited to cases where the individual has been charged and convicted. The President cannot pardon for an inchoate allegation that had never been tested by the courts. The purported pardon from President Ford is not authorized by the Constitution and the United States has the right to charge the accused and have the charges determined by this Honourable Court.”
The Federal Court judge in that case would have to rule on the validity of the pardon.
If Congress passed a law forbidding purple socks (say, in a former administration and the Prez signed it), and then Obama declared that he will not enforce that law, is that a proper “pardon” under the Constitution? Would the current Congress be within reason to impeach him for it?
Can the President decline to enforce any other law, using the logic of “pardon under the Constitution”? Various current Republicans in Congress have, from time to time, made impeachment noises because, they say, Obama isn’t enforcing the laws. (e.g., that time he delayed some employer mandate under ACA for a year.) How is that substantially different from declaring a blanket pardon in the case of the Purple Prohibition law?
No, it would not have to, necessarily. It could, as it does in some constitutional matters, say that it does not have the authority to review the question of whether the pardon is valid.
In any case, the key word in what I said was “effective.” It’s very unlikely that any presidential administration is going to seek to limit the president’s pardon power.
It’s more like a use of prosecutorial discretion than an actual pardon. Congress can impeach people for whatever the hell they feel like. Whether it’s within reason is up to the voters to decide in the next election.
All prosecutors have discretion to determine how they will focus their resources. President Obama, for example, has decided that it’s not worth spending time prosecuting marijuana offenses in states where it has been made legal at the state level. The President in that case is working through his role as the chief law enforcement officer of the federal government, not his pardon powers. Of note is that a future President can reverse this policy, but pardons are not reversible.
