Tuesday, December 08, 2020
Five Questions About The Pardon Power-- with answers!
Remember that one time when President Obama took some of the people who had received clemency out to lunch at Busboys & Poets in DC? Yeah, that happened. And it seems like a long time ago.
As you might imagine, I am fielding a lot of calls these days about the limits of the Constitutional pardon power. Today, I am going to throw out eight of those questions, and then provide some answers!
1) Can someone get a pardon even if they haven't been convicted yet?
The answer to this one seems pretty clear: Yes. We have some historical examples of this, the most prominent one being the pardon that President Ford gave to President Nixon. More recently one of President Trump's pardons went to Matthew Golsteyn, who was charged but not yet convicted of premeditated murder at the time of the pardon.
Also, at the Constitutional Convention, this point came up. On August 27, 1787, it was moved and seconded to add the words "after conviction" to the pardon clause, but the motion was withdrawn. So... the Framers rejected that idea.
Note: My source on the Constitutional Convention is Max Farrand's "The Records of the Federal Convention of 1787." Here, volume 2, p. 422.
2) Can someone get a pardon if they haven't even been charged yet?
There is less grounding here than for post-charge but pre-conviction pardons, since this possibility was not explicitly discussed by the framers. The Ford/Nixon precedent looms large here, though, as does the broad mandate of the pardon power. Also, in an 1866 case (Ex Parte Garland), the Supreme Court said that a pardon may be given for a crime "at any time after its commission...."
3) Can someone get a pardon for crimes not yet committed?
This is over the line. The pardon clause says that the president "shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment." It's most reasonable to read this reference to "offenses" as offenses that have already been committed. (The plain language of this provision also limits the pardon to federal crimes). See also Ex Parte Garland.
4) Can the President pardon himself?
Now, that's a hot question! A memo from the DOJ's Office of Legal Counsel during Watergate briefly mentioned that this would be improper, since a self-pardon runs against the general legal principle that one cannot judge their own case.
I disagree, for two reasons.
First, a broad, unrestricted Constitutional power is going to win out over common-law precepts. In the four-and-a-half decades since the OLC memo was issued, presidential power under the Constitution has expanded while the sway of common law precepts has waned.
Second, in a way this DID come up at the Constitutional convention. Edmund Randolph moved to create an exception to the pardon power for treason. In making his argument, he said (quoting Madison's notes here, which were not a transcript): "The president himself may be guilty. The Traytors [sic] may be his own instruments." The amendment was rejected. Farrand, Volume 2, p. 626.
In other words, the framers expressly considered the fact that the president may be the guilty party needing pardon-- and declined to limit that power.
5) Can Congress limit the pardon power?
I'm pretty sure that some members of Congress want to do exactly that. But such an effort would fail in the courts.
Once again, the men who wrote the Constitution talked about this. They considered giving the Senate control over pardons, and rejected that idea, too, leaving it solely in the hands of the executive. Farrand, Vol. 2, p. 627.
There is a theme here: Those who wrote the Constitution intentionally chose to make it a broad and unchecked power.
And that will end up mattering if this ever comes before the Supreme Court.
Want more? Check out this thorough and accurate YouTube video.
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Didn't President Ford's pardon commission for Vietnam draft evaders provide clemency for people who had been neither convicted nor charged? (Addressing question #2.)
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