Tuesday, January 12, 2021
Q: Does accepting a pardon imply guilt?
A: Not necessarily!
The idea-- often tossed around right now-- that accepting a pardon implies guilt does have some historical precedent. In the 1915 case of Burdick v. United States, the United States Supreme Court did say that accepting a pardon carries a confession of guilt. But more recently, the Court has cut the other way.
In a deeply troubling 1993 opinion in a capital case, Herrera v. Collins, the Court held that a federal prisoner could not pursue a writ of habeas corpus solely on the basis of actual innocence. In the course of reaching that conclusion, the court noted that their bar to habeas did not mean, “however, that petitioner is left without a forum to raise his actual innocence claim. For under Texas law, petitioner may file a request for executive clemency.” The Court then went on to assert that under British law, clemency “was the only means by which one could challenge his conviction on the ground of innocence,” and that “Our Constitution adopts the British model and gives to the President the ‘Power to grant Reprieves and Pardons for Offences against the United States.’” Their message was clear: at least in some cases, clemency is an allowable forum for innocence claims.
Eugene Volokh has noted some other reasons to think that pardoning may be consistent with innocence: the federal statute that allows compensation for the wrongfully convicted allows pardon to be a basis for such a claim, and the DOJ’s own guidelines for clemency don’t create a bar but rather assert that “Persons seeking a pardon on grounds of innocence or miscarriage of justice bear a formidable burden of persuasion.”
So can President Trump pardon himself while proclaiming innocence? Well, yes, all he has to do is sign a pardon warrant and bleat about being unfairly persecuted. But when the rubber hits the road-- which would come if he is ever charged in federal court and he raises the pardon as a defense-- the arguments above will come into play.
