Unpacking Presidential Pardon Powers

Can A President Pardon Himself?  Unpacking Presidential Pardon Powers

“Justice is indiscriminately due to all, without regard to numbers, wealth, or rank” (John Jay)

Hunter Biden’s legal problems increasing and there is mounting evidence that Biden family members, including President Biden, may have been involved in committing numerous crimes from money laundering to accepting bribes.  As a result, a lot of people are speculating on whether the President can pardon not only his family members, but also himself.  So, I thought we should look at the President’s pardon powers.

The President’s pardon powers are spelled out in the Constitution, Article II, Section 2, Clause 1 “he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.”  As can be seen a President’s pardon power is exceptionally broad, some would say almost all encompassing.  However, there are some limitations.

Unwanted Pardons.  A President cannot pardon a person who doesn’t want to be pardoned.  Sounds counterintuitive that a person wouldn’t accept a pardon, but it has happened.  One reason may be that accepting a pardon implies the person committed a crime, just can’t be held liable for the crime.  Another, maybe the person charged is challenging the constitutionality of the law, which requires a court to rule on the issue.  Regardless of the reason, a person can refuse a pardon and when they do, the pardon is not valid.[i]

Federal versus state law.  Presidential pardons apply only to violations of federal law.  If the President grants a pardon to a person who violates both federal and state law the person can still be prosecuted for violation of state law.  Of course, a Presidential pardon given to a person who violated only state law has no affect because federal law was not involved.[ii]

Can a President issue preemptive pardons.  Yes, yes he can.  A preemptive pardon is one given at anytime before a conviction and protects the person from investigation, indictment, and trial.  It effectively stops all investigative and legal action against the person even before they start.  A President can grant a pardon any time after the alleged crime occurred.

Preemptive pardons have been given in the past.  The most recent was when President Nixon resigned, Vice-President Ford became President Ford and granted “a full, free and absolute pardon unto Richard Nixon for all offenses against the United States which he, Richard Nixon, has committed or may have committed.” This action proved controversial but was not challenged in the courts on constitutional grounds.  I’d guess that one reason preemptive pardons are not challenged is the Supreme Court’s ruling in Ex Parte Garland, 71 U.S. 333 (1866) held that a presidential pardon may be given:

“to every offense known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken or during their pendency, or after conviction and judgment.”

Though an old case, it remains good law today and clearly holds that preemptive pardons are constitutional.  Further, the Supreme Court’s latter rulings on the extent of presidential pardon power remains consistent with their holding in Ex Parte Garland.

Blanket Pardons. This is where the President issues a pardon to a group of people who participated in a crime.  Thought the Supreme Court has not addressed this issue, there are two times, that I am aware of, in the past that Presidents have issued “blanket Pardons.”  On Christmas Day in 1868, Andrew Johnson pardoned all former Confederates who fought against the United States in the Civil War.  In 1977, a blanket pardon was issued by President Jimmy Carter when he pardoned most people who evaded the draft during the Vietnam War.

Though consistent with the language of the Constitution, this practice has been criticized, but not challenged in the courts.  One of the reasons for the criticism is that some interpret the language of the Constitution to require individual pardons, however, that language does not appear anywhere in the Constitution.

Pardoning Family Members and Close Associates.  You may think it unseemly to pardon family members and close friends, but it falls within the language of the President’s pardon powers.  Trump pardoned his former National Security Advisor Lt. General Flynn after Flynn pled guilty to two charges of lying to the FBI.  Additionally, in his final hours as President, Bill Clinton pardoned his half-brother Roger Clinton.  Roger was convicted in 1985 for conspiracy to distribute cocaine and distribution of cocaine.  Pardoning family and friends may be controversial, but it falls well within a President’s constitutional pardon power.

Can a President Pardon Himself?  The only correct answer at this time is – maybe he can and maybe he can’t.  It seems counterintuitive that a person can pardon himself.  However, until the Supreme Court addresses the issue no one really knows.

In 1974 Nixon was facing almost certain removal from office through the impeachment process and liability for crimes he may have committed once he was removed.  In a memo dated August 5, 1974, Mary C. Lawton, Nixon’s acting Assistant Attorney General, Office of Legal Counsel delivered a legal opinion to Nixon that a President cannot pardon himself.  She believed that notwithstanding the language of the Constitution, the common law doctrine – that was in effect at the time the Constitution was adopted and remains in effect today – “that no one may be a judge in his own case” prevents a President from pardoning himself.  Brian C. Kalt, a noted legal scholar on the Constitution agrees.

On the other side of the coin is Judge Richard Posner (7^th Circuit Court of Appeals (retired)) who is without doubt one of the top experts on constitutional law disagrees. He believes, based on the language of the Constitution, that a President can pardon himself.

Both Judge Posner and Professor Kalt’s positions find significant support from those knowledgeable on the Constitution, constitutional law, and the Supreme Court.

In any event, as pointed out by Ms. Lawton, there is a workaround.  The President can declare himself temporarily unable to carry out the duties of the Office of the President under the 25^th Amendment.  The Vice President then becomes acting President and can pardon the President.  After the pardon, the President could resume his position as President.  However, this would still not prevent the President from being removed through the impeachment process for the simple reason that impeachment is explicitly excluded from a President’s pardon powers.  However, it would preclude the President from being tried for crimes he committed that were pardoned.

Nixon chose a different method.  Knowing it was all but certain he was going to be removed from office through the impeachment process he decided to resign.  Once Vice President Ford became President, Ford pardon Nixon for all crimes he may have committed.

If you’re interested in my opinion, I believe a President can pardon himself.  It may be unwise and would certainly be unethical, but I believe the Constitution grants him that power.

Can a President pardon future crimes?  That’s a hard no.  Back to Ex Parte Garland. A President can issue a pardon at any point after a crime is committed, even if the President does not know what the actual crime was.  A presidential pardon is effective only as to past crimes and has no effect on crimes committed after the date of the pardon.

To summarize, a President can pardon anyone for anything with two known exceptions and one unsettled issue:

• A President cannot pardon anyone impeached or anyone removed through the impeachment process;
• A President can only pardon a person for federal law violations. He cannot pardon anyone for state law violations;
• My opinion notwithstanding, whether a President can pardon himself is an unanswered question and will remain so until the Supreme Court address the issue.

[i] See: Burdick v. United States, 236 U.S. 79 (1915).

 

[ii] See: Gamble v. United States, 587 U.S. ___ (2019).

 

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