Could that bribery be pardoned?
Let’s face the reality. We’re not really talking about a president issuing a legitimate pardon during his term of office and the pardonee then hiding the document for two or three years before telling anybody he was pardoned. We all know that what really happened was that a former president issued a fraudulent pardon to somebody after leaving office and the two of them then lied and said the pardon had been issued two or three years earlier.
Nobody is saying former presidents have the authority to issue pardons after leaving office. This law would just be a way to stop that from happening while not openly accusing the former president of lying.
Probably. But again, depends on SCOTUS whether a pardon obtained by bribery should be valid (assuming POTUS had no part themselves - wink wink - in the quid pro quo.) Is accepting outside payment like that actually a bribe? (Is it technically a bribe?) I give it 50-50 whether a pardon obtained by bribery would be invalidated by SCOTUS. The logic I think would be that if X paid for a pardon, that pardon is a product of improper illegal conduct so invalid. A subsequent pardon for the act of bribery should be valid, but I assume both the giver and recipient of any emolument are equally guilty, so both need pardons… I’m going to guess the bribery pardons do not reverse the invalidation (if it is) of the original pardon. Once it’s bad, always bad. Then the POTUS needs to re-issue the original pardon without any consideration changing hands this time. And of course, he would need to still be POTUS when the problem was discovered. many pardons are issued in the last days, so no minimal opportunities for do-over.
A fun add-on question is if payments a decent while after the fact, with no evidence of prior arrangement, constitute bribery?
Is it actually a crime to sell pardons?
Legislation is needed, and has been proposed to require timely notice of pardons. That is critical to get out of the way. Remember that in cases where the issuance of a pardon is questionable such as the result of a quid pro quo agreement then the time the pardon was issued is critical. A president could issue pardons to people who have clearly bribed him but pre-date them to a point before having any contact with the pardonee. This is absolutely necessary to be done, and certainly not a constitutional issue since it would not limit the presidential pardon power in any way, it would merely define exactly what a pardon is.
After that, there may be constitutional issues regulating pardons further, though I think some further regulation is needed. Nobody can tell how the SCOTUS would rule on any of the hypothetical cases we discuss, the precedents cited are not strongly connected to this very unique governmental power.
Pardons are “official acts” and the President is a “public official,” so I think yes.
What’s stopping the president from just writing down a whole bunch of “I hereby pardon XXX for any and all federal crimes occuring on or before January 20th, 2020” notes (for family members, friends, himself,etc.), then keeping them in a locked safe for 15 years? Anything?
Menelaus “Pappy” O’Daniel, the governor of Mississippi pardoned the Soggy Bottom Boys in person and over the radio.
Right now, nothing. Obviously the wording needs improvement, but he can create pardon documents, and easily create supporting evidence that they were written down and signed while he was president.
Are you saying he issued pardons to specific individuals and then out the pardons in a safe? Or are you saying he wrote a bunch of signed pardons with a blank spot where the name could be filled in later?
In the first case, the question is why? Why would a president decide to pardon somebody and then keep it a secret?
In the second case, we’re back to the timeliness issue. Pardoning people is a power a president only holds while he is in office. Former presidents cannot pardon people. And I feel that includes partially filling out pardons while he’s in office to be completed after he leaves office. The pardon doesn’t exist until all of its essential elements are completed; the identification of the person being pardoned, the identification of the crime they are being pardoned for, and the signature which indicates the president officially took the action. In this scenario, the president only took two of these three actions while he was in office. The third action, which completed the pardon, wasn’t taken until after he left office. And that means the pardon was issued after he left office so he no longer has the power to issue pardons.
There are reports that the current president may have decided not to issue pardons to himself or family members due to the appearance of guilt and the ongoing impeachment process. Those may or may not be true, but the logic makes sense. Many people see the issuance of a pardon as implying guilt. It would sure nice to have the legal protections of one without the implications of it. A secret pardon that is revealed only when necessary would do that.
I think this distinction is only really relevant for pre-emptive pardons, where the potential prosecutor’s case (and evidence) may not be known, where the president thinks he (or his family) have a reasonable chance of getting away with anyway, without needing a pardon.
In this case, a public pre-emptive pardon may:
- indicate guilt for a crime that may have been otherwise adequately covered up
- Causes moral outrage, again for a crime that may not be able to be proven under a court of law.
A private pre-emptive pardon (locked away in a safe, with a president’s signature on it) has neither of these two drawbacks, assuming(???) it is equally legally valid. The pardoner/pardonee can theoretically just wait for the full scope of the DA’s investigation to be known, all the evidence laid out, wait for the trial to conclude with a guilty verdict, then spring the hidden “get out jail free” card. Moral outrage still occurs at that point, but the pardon may have been “wasted” otherwise.
As I said above Trump would issue himself a pardon and then turn around and deny he had needed a pardon. And his followers would believe him.
But moving beyond that, I don’t think appearing guilty bothers Trump. The only thing that ever bothers him are the consequences of doing wrong. As far as he’s concerned being able to commit crimes and then avoid the normal consequences for that by a self-pardon would be a great thing. He’d brag about how he was above the reach of the law.
It’s like when he cheats at golf. Other people win at golf by playing the game well. Trump wins at golf by being more powerful than the other players and forcing them to accept it when he cheats. And as far as Trump is concerned, that’s a legitimate win. Being so powerful that you can ignore the rules other people have to follow is winning.
LegalEagle has a relevant short (about 1 minute) video about this topic. Apparently there’s precedent that, unless the actual paper of the pardon has been served to the person in question, the pardon has not yet taken effect, and that a president can invalidate that pardon. But once it’s been served, it can’t be stopped. So that suggests that is what is required–the pardon being served.
(Given modern tech, I could see the paper part not being required, but still that it be served.)
[Moderating]
A reminder: We are in General Questions. While Trump is a president, he’s not the only one. Please keep your responses to what an arbitrary president, present or future, might do, not to what you think any specific one will actually do.
How does that work with posthumous pardons? Could a future president revoke the pardons of somebody like Susan B. Anthony, Jack Johnson, or Henry Flipper?
Are there other federal laws that tell the president how to issue pardons? I’m not aware of any but I may be wrong. The current process to request a pardon is a guideline and not required for a pardon to occur.
A pardon must be issued, delivered, and accepted to be effective (although I rather doubt LegalEagle is correct that Grant sought to revoke pardons issued by Andrew Jackson that had been sitting on a warden’s desk for… forty years.).
The treatment of the pardon by the courts as a “deed” suggests to me that it must be in writing, but that’s somewhat speculative.
The more basic point is that a pardon is essentially meaningless until you need to use it (perhaps, not unlike an immunity agreement). The “delivery” and “acceptance” requirements emphasize that you need to be able to produce and argue that you have a pardon if someone tries to prosecute you for something that you have been pardoned for. But, I’m not sure that there’s any real reason that a pardon needs to be publicly announced at all (especially a preemptive pardon).
Relatedly, it occurs to me that I have no idea who is responsible for determining the scope of a pardon – pardons can be conditional; they can be broad or narrow – does the court decide whether the pardonee has met any relevant conditions? I guess that has to be the way it works.