If at 11:59 on Wednesday, President Trump were to say “Oh yeah, I forgot. I hereby pardon the Tiger King, Joe Exotic”, would that be considered a legal pardon or is paperwork from the Department of Justice necessary?
Maybe I missed it in the small type, but that page looks to me aimed solely at people petitioning the President for a pardon.
It says nothing about the President spontaneously offering a pardon or what the President’s procedure should be. I can’t find that in a quick search, however.
I’m fairly certain that one of these applications wasn’t filled out for each draft evader before being pardoned by President Carter.
IANAL but I believe it takes a document with the President’s signature on it. The President can’t pardon somebody verbally.
I think the document would also have to identify who is being pardoned and what crimes or crimes they are being pardoned for (although the identification can be broad like “any federal crimes they may have committed in 2020”). The President can’t issue a blank pardon like Cardinal Richelieu.
On the one hand, verbal contracts are legally binding. On the other hand, a scribbled down pardon wouldn’t be much of a barrier either.
Not pertaining to Trump but I’ve always wondered about a theoretic scenario if a sitting president decided to just pardon everybody whom is was within his purview to pardon, I wonder if there would be any kind of challenges to something like that. I guess constitutionally speaking the president would be on firm ground with absolute pardon power it seems.
But a pardon isn’t a contract.
Even if a purely oral pardon is in principle valid - and I’m not aware of any reason why it wouldn’t be - in practice it would be very difficult for the beneficiary of such a pardon to prove that he had been pardoned. And, if he can’t establish the pardon with appropriate evidence, it won’t in practice prevent him from being charged, prosectuted,convicted or sentenced.
So I think we can say that, to be of any use, a pardon has to be properly documented. A president pronouncing pardon purely in an informal oral manner would be just trolling the people he was supposed to be pardoning.
Even with a written pardon there is no formal procedure that follows. There’s no stated requirement that the pardon must be announced in any way. Someone can show up in the future with a signed pardon dated during a president’s term. I’m sure it could be challenged but what do we do if the former president says it was signed at the time of the specified date.
If the authenticity of the pardon is challenged, ultimately the way to prove it would be to call the former President as a witness and have him say “yep, I signed that document on a day on which I was the President of the United States”. Or, I suppose, you could call someone else who was present on the occasion and who can testify from his own knowledge that, yes, it really was signed by the President on that date. (This is also, more or less, how you would prove that a parden had been given orally.)
This could be a pain — or worse than a pain, if the ex-President is unco-operative, unavailable or dead, and if other witnesses are reluctant or hard to find. Which is why you very much want your pardon to be done through the standard processes and in the standard form, so that it doesn’t look suspicious or irregular, and so invite challenges.
Without going into individuals, what happens if we have a former president who is willing to lie? What keeps this theoretical former president from selling his signature on pardons years after he leaves office and saying he signed them when he was president.
If the pardons have been delivered through the regular process, there’ll be government records of application, consideration, decision, etc to corroborate the document granting a pardon. If the DoJ is trying to prosecute you are you are attempting to frustrate this by claiming that you are the beneficiary of a hitherto unnoticed pardon, the DoJ is well-positioned to look into this. And if the hypothetical ex-president does take the stand to testifty that, yes, he signed your pardon while in office, he can be cross-examined as as to when and where he did that, how he came to do it, why the usual procedures were not followed and why the records are so deficient, all the while being pointedly reminded of the penalties for perjury. What do you think would be the going rate for getting an ex-President to subject himself to that? And what are the chanced that a court would find such testimony from an ex-President who is famous for being a stranger to truth, all that convincing?
It’s an amusing business plan, but I think not a very realistic one. I think the hypothetical ex-President could make a more dependable living by franchising his name to the sellers of cable ties, bibles and tinfoil hats.
Rather than relying on the court system, I think there would be a legislative response. Congress would enact a law saying any presidential pardon must be entered into the public record during the term of the president who issued it. While this law would be retroactive, it would not be a violation of the Constitution’s prohibition on ex post facto laws because it is not making anyone subject to any new criminal charges.
There’s nothing saying he can’t do both.
Since the president’s power to pardon is laid out in the constitution can congress enact a law that changed it in any way without it being an amendment?
I think so. This would not be putting any restrictions on the presidential power to pardon. It would just be defining how the pardons needed to be processed.
Any dispute as to the reality of a pardon being issued at the correct time would no doubt end up in the Supreme Court, which absent any other guidance would have to determine what makes a believable pardon. At that point, they can take either the wide view - “If the prez says it’s from his term, it’s a pardon”; or they can take the narrow view - “a document so sufficiently important needs more provenance than being produced from hiding long after the fact”.
Keep in mind a contract needs an exchange of quid pro quo; presumably any hint that the quo was a pardon, so cost a quid, would presumably result in bribery charges. There was an item in the news about a white house courtier being paid to convey someone’s request for a pardon - which I think skirts close to bribery. Again, such details are up to SCOTUS to sort out. My wild guess is they would prefer pardons should not be treated in a cavalier manner.
I suspect that declaring an amnesty for draft dodgers, for example, much like Nixon’s blanket pardon - is a matter never tested in court, so no rulings on its validity. Did Carter issue a pardon to all draft dodgers, or just declare an amnesty? ( “We promise we will not prosecute”) Plus, that pardon would be for a specific crime or crimes, failing to report for the draft. IIRC, it did not cover deserters?
It occurs to me, too - that congress could write laws to define the process and format of a pardon, just as they have to define the election process, etc. However, if the law in some way constricts the president’s power (eg. “must be announced 21 days before it is signed”, or “and must be presented to congress to become official”) then SCOTUS may likely rule it is violating the constitution. But I assume laying out the proper format and presentation of a pardon would not significantly restrict the president’s ability to pardon.
Note that the pardon process, like so much of government function, has up until now been a set of unwritten processes followed by custom. I suspect that, much like FDR’s violation of the 2-term custom, congress and the president may need to formalize many of these “gentleman’s agreements” into formal laws before violating them becomes the norm.
But if it was expressed to be retroactive, to apply to pardons previously granted by a President who has since left office and cannot now remedy any procedural defects, isn’t it in subtance an attempt to retroactively invalidate pardons which were constitutionally valid at the time they were granted? I can’t see the Supreme Court winking at that.
On the matter of “Yeah, I totally signed that back when I was President, really”, keep in mind that the President can only pardon things that have already happened. If someone commits a crime after a president has left office, there’s no way that president could ever have had the opportunity to pardon them.