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President Trump's administration has just formally started the transition process. He is now officially a lame-duck President. It is common for outgoing Presidents to grant pardons in this last phase of their presidency, while they still have the power to do so; Clinton is one of the more infamous examples.

The question which occurred to me: Can a President shield people not only from punishment but even from investigation and trial for federal crimes by granting a pardon proactively (a "prospective pardon") before any prosecution, let alone indictment, trial, sentence or punishment?

Peter - Reinstate Monica
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3 Answers3

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Yes.

The precedent is President Gerald Ford's pardon of his predecessor Richard Nixon in proclamation 4311 before any possible prosecution had started. The pardon was granted specifically to prevent the disturbance of "the tranquility to which the nation has been restored" by "the prospects of bringing to trial a former President of the United States" (emphasis mine).

It is noteworthy though that a pardon can be rejected by the recipient, and that there may be good reason to do so, because accepting one is an admission of guilt.1 In the words of the Supreme Court (Burdick v. United States, 236 U.S. 79 (1915):

There are substantial differences between legislative immunity and a pardon; the latter carries an imputation of guilt and acceptance of a confession of it [...].

(Again, emphasis mine.)

Proactively pardoning large swathes of current and former government officials, family members and other people connected to the Trump administration would therefore be a double-edged sword: It surely may save a lot of the money and headache coming with being the target of an (even unsuccessful!) investigation; but it may also amount to admitting that the Trump administration was essentially a criminal organization.

1 As always, things are a bit less clear-cut when one takes a closer look. Because I googled "prospective pardon" after the correct remark by JBentley I stumbled upon the entirely relevant and eminently readable Congressional Research Service reports on pardons. The first one is a "pardons FAQ", the second one is a more thorough legal exploration of what pardons actually do. The bottom line is that the Supreme Court and Federal Courts have edged away from a 19th century opinion (Ex parte Garland, 71 U.S. (4 Wall.) 333, 380-81 (1866)) which viewed a pardon as an all-encompassing expungement. Newer decisions (prominently, Burdick v. United States, 236 U.S. 79, 86 (1915) which I quoted) don't.

Peter - Reinstate Monica
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    I belive that the statement in Burdick that a pardon "carries an imputation of guilt and acceptance of a confession of it" was mere dicta not binding precedant (as in that case Burdick did not object to the pardon on nsuch grounds), and that pardons have in fact been used in cases where it was alleged that an unjust conviction of an innocent person had occurred. – David Siegel Nov 24 '20 at 14:55
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    @DavidSiegel There is a difference between legal guilt and moral/ethical/social/psychological and all kinds of other guilt. The way I read it, once the legal remedies are exhausted nothing in the world can lift legal guilt -- not even a pardon. (The pardon may expunge the moral, psychological, social etc. guilt though.) – Peter - Reinstate Monica Nov 24 '20 at 14:59
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    There is indeed a difference, but a pardon removes all legal effects of legal guilt, including, say licensing restrictions. I am not sure what the meaning of a legal guilt" with no legal effects might be. The classic maxim "there is no right without a remedy" seems relevant. Moreover acceptance of a pardon which says that it is to correct a unjust conviction does not carry any implication of a confession of guilt. I don't think that part of the answer is sound. – David Siegel Nov 24 '20 at 15:18
  • @DavidSiegel Really all legal effects? What about your criminal record? I.e., somebody looks up my conviction: It is still there, right? (Followed by a pardon.) – Peter - Reinstate Monica Nov 24 '20 at 15:26
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    I believe that a pardon is grounds for expunging the related criminal record, but I am not absolutely sure of that. – David Siegel Nov 24 '20 at 15:32
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    @DavidSiegel And I would also suggest that a pardon issued in order to correct a failure of the judicial system is somewhat lacking a full satisfaction. It's not that the conviction has been made null and void (the way a successful appeal would); it's rather that the President or Governor acknowledge that it was a failure, and put a band-aid on it. Of course a welcome and much-needed and substantial band-aid, but a patch nonetheless. – Peter - Reinstate Monica Nov 24 '20 at 15:33
  • @DavidSiegel Regarding the criminal record, the first google hit points to a not-quite-authoritative discussion (which unsurprisingly says "depends on the state" ;-) ): https://www.criminaldefenselawyer.com/pardoned-offense-same-having-record-expunged.htm... more authoritative here : https://www.justice.gov/pardon/pardon-information-and-instructions – Peter - Reinstate Monica Nov 24 '20 at 15:36
  • While the Nixon's case you quote undoubtedly shows that the pardon can indeed be bestowed proactively, Is there any proof/confirmation that such pardon would indeed "shield people not only from punishment but even from investigation ..." as asked by the question? I.e. does this "proactive" pardon have the same weight as the regular one? – Dan M. Nov 24 '20 at 17:58
  • @DanM.: If you pardon Smith, but Smith had some unsavory business dealings with Jones, then an investigation of Jones might well involve an investigation of Smith. – Kevin Nov 24 '20 at 18:24
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    Ford's pardon was not tested - no one brought charges against Nixon. – Azor Ahai -him- Nov 24 '20 at 18:53
  • @AzorAhai-him-, I think you are correct in that and might want to expand it to an answer. There is dispute about the issue, I believe. – Buffy Nov 24 '20 at 19:33
  • If accepting a pardon implies guilt, but provides protection only against federal charges, could a mass-pardon backfire? – Nat Nov 24 '20 at 23:32
  • @Nat Because federal offenses are often tied to state offenses, to which one would practically confess? "Screw the bribery, we get him though the bookkeeping!" (A bit like Al Capone.) – Peter - Reinstate Monica Nov 24 '20 at 23:56
  • @Peter-ReinstateMonica: Haven't looked closely at it, just your answer notes that there's an implication of guilt while another notes that there's only protection against federal charges. Presumably the implied guilt would be specifically to whatever federal charges the pardoned might've otherwise been charged with, such that it doesn't necessarily follow that they're pleading to crimes a state might pursue, though, at first glance, it seems like there'd be a significant liability incurred, as it'd seem like a state prosecutor could use the confession to federal offenses as evidence.. right? – Nat Nov 25 '20 at 00:00
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    @Nat There is a Library of Congress publication discussing pardons in depth, https://fas.org/sgp/crs/misc/R44571.pdf. As our discussion suggests, it's a bit muddled. – Peter - Reinstate Monica Nov 25 '20 at 11:36
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    How does one "accept a pardon"? And is accepting a pardon at all necessary? Can't defense just argue that any prosecution is moot given the existence of the pardon, irrespective of any formal response by the pardoned? (Note: IANAL, just curious) – RBarryYoung Nov 25 '20 at 16:21
  • @RBarryYoung NAL either but I believe so yes, at least by convention. – Azor Ahai -him- Nov 25 '20 at 19:53
  • @RBarryYoung I would disagree that "accepting a pardon" is necessary and constitutes an admission of guilt under modern practice, and would side with those who consider Burdick to be dicta. Oregon reached a contrary conclusion in a 2013 case. – ohwilleke Nov 25 '20 at 22:30
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    @RBarryYoung The literature seems to agree on that requirement: "As historically understood, the only requirements for a valid pardon are that (1) the President grant it and (2) the recipient accept it." (From the Congressional FAQ, https://fas.org/sgp/crs/misc/pardons.pdf.) The form of the acceptance is probably even less defined that the form of its issuance. – Peter - Reinstate Monica Nov 25 '20 at 22:34
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    @RBarryYoung "No formal acceptance is necessary to give effect to the pardons" but "a court takes no notice of a pardon unless it is pleaded or in some way claimed coram judice by the person pardoned", Burdick v. US 236 US 79, 86 (1915). At some point, one might have to chose between introducing the pardon to defend against indicment, or punishment. Before double jeopardy attaches, it might not be advisable to do anything. – tiwo Nov 26 '20 at 03:31
  • @AzorAhai-him- To test such a thing, the case would eventually end-up at the supreme court, which is presidentially appointed, correct? That sounds like a major can of worms. – Mast Nov 27 '20 at 11:30
  • @Mast Well, justices are confirmed by the Senate, which is at least one barrier against being some crazy person looking to expand the power of the exec. The other defense is their life terms, they can't be removed by the next Republican president for having "betrayed" Trump. That said, I have no idea whether the justices Trump and McConnell rammed through are particularly big fans of exec power or not. – Azor Ahai -him- Nov 27 '20 at 15:26
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Questionable and Unsettled

First, I am not a lawyer, nor a constitutional scholar. but Ford's pardon of Nixon was never tested in court so there is no precedent here. Some would like to claim that the pardon was valid, but until there is a test, no one can really say.

The reason that it was never tested was that people were relieved to see Nixon go at the time and they (we) were happy to "move on".

Unfortunately, it set us down a path in which presidents think they have absolute immunity for anything they do while in office, which is a pretty dangerous idea.

I suspect that if Trump tries to issue such pardons, that they will be tested, and then we will get some legal (constitutional) clarity on the issue.

Philosophically, of course, it is a ridiculous idea.

Buffy
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  • Have there been any other pardons before charges have been laid (whether tested in court or not)? And how does the constitution define a pardon, that allows it to even be considered possible? As to your last sentence, I personally find the concept of presidential pardons themselves "a ridiculous idea", but they evidently exist! – IMSoP Nov 25 '20 at 10:05
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    @IMSoP, I don't know of any, but it is possible. There have been some periods of corruption in US history. Pardon means that the person suffers no penalty and the record of crime is erased. Clemency, on the other hand releases a person from prison, but leaves the conviction intact. The valid reason for pardons is that the court system isn't perfect and there have been many miscarriages of justice, so there is a possible "last resort" option in such cases. But it can be misused as can most things. See the "Scooter Libby" case for an interesting example. – Buffy Nov 25 '20 at 11:41
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    @IMSoP yes, Vietnam deserters were pardoned, even those against which no charges were laid at the time – JonathanReez Nov 25 '20 at 18:07
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    @JonathanReez, while described as a "pardon" that may more be a case of the federal government declining to bring charges for those not yet accused or convicted and actual pardons for those who were. But, again, IANAL. – Buffy Nov 25 '20 at 19:59
  • To take the idea to a ridiculous extreme that bolsters you point, could a president proactively pardon himself for issues that may instigate future prosecution? – dotancohen Nov 26 '20 at 00:02
  • According to the Wikipedia article, the pardon was rather unpopular. – Acccumulation Nov 26 '20 at 00:20
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    @dotancohen when Trump tweeted he could do just that, legal scholars were interviewed by many news outlets. The overall consensus was "probably no, but it will end up all the way to SCOTUS". – Davidmh Nov 26 '20 at 00:32
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    @Buffy - It was literally a pardon, here's the text. – T.J. Crowder Nov 26 '20 at 09:53
  • @T.J.Crowder, well, let me refer you to this and note the commentary at the bottom of the page. – Buffy Nov 26 '20 at 12:08
  • @Buffy - LOL, just looking at the link address makes me suspect you're referring to Carroll's "When I use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean — neither more nor less.’" :-D (Though following the link, I don't see it, but I can't see the Disqus comments.) – T.J. Crowder Nov 26 '20 at 12:12
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    @T.J.Crowder, let me follow up on the above. In the US we have the concept of "innocent until proven guilty", meaning in a court of law. Until there is a conviction the party is innocent. Thus there is nothing to pardon. The state of the person before and after remains completely unchanged. The statement of DOJ and DOD was simply that people won't be pursued in future and pending charges will be dropped. But they were, under the law, still considered innocent. – Buffy Nov 26 '20 at 12:13
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    @Buffy - Of course. I'm not sure what you're trying to say...? All I pointed out was that Carter's action was indeed a pardon (specifically a prospective pardon), not merely "described" as one. It doesn't magically make anyone guilty. Any specific individual would have to be tried and found guilty -- at which point, Carter's pardon would apply to them. (And that being true, it wouldn't be in the public interest to bring such a case in the first place -- thus the DOJ position.) But apologies if I'm missing your point. – T.J. Crowder Nov 26 '20 at 12:24
  • @T.J.Crowder, I'm saying that the word "pardon" is being misused and given an "extra-legal" meaning here. It wasn't a pardon in the legal sense. It was an order to "stand down" given to the federal government, for which Carter had authority. The words used seem to imply something that it was not. As an actual pardon, however, it only applied to those who had already been convicted, and that wasn't prospective. For those people their records were cleared and they were released from prison if still there. For everyone else it has a completely different, "not pardon", meaning. – Buffy Nov 26 '20 at 12:35
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    @Buffy - I'm afraid that interpretation is at odds with the text of the pardon, which quite clearly calls out two separate classes of people being pardoned. Using the numbers from the text: (1) people who may have committed the relevant offenses (a prospective pardon), and separately (2) people convicted of having done so. – T.J. Crowder Nov 26 '20 at 13:02
  • @T.J.Crowder, only if you accept two completely different meanings for the word "pardon". I maintain that if there was no conviction then there was nothing to pardon under the law. The statement misuses the language to make a political statement. Not an uncommon thing. I probably can't convince you, sorry. – Buffy Nov 26 '20 at 13:14
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    @Buffy - You might be persuaded by this FAQ [warning: PDF] from the Congressional Research Service "Can the President issue a so-called “prospective pardon”? // With respect to crimes committed prior to the issuance of the pardon, it appears the President can issue a pardon before any criminal proceeding against the pardon recipient has been initiated." It then goes into the case law on the topic and the opinion of the DOJ Office of Legal Counsel that "...throughout the Nation’s history, Presidents have ... – T.J. Crowder Nov 26 '20 at 13:28
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    ...asserted the power to issue pardons prior to conviction, and the consistent view of the Attorneys General has been that such pardons have as full an effect as pardons issued after conviction.”. I trust both the CRS and the OLC to use the proper term. If that doesn't persuade you, though, we'll just have to leave it there; we both have other things to do, and it's just semantics in any case. :-) – T.J. Crowder Nov 26 '20 at 13:30
  • @T.J.Crowder, again, only if you accept that "Pardon" means (at least in part) "Promises not to prosecute now or in future". And it stands, of course, until someone challenges it. And, again, the Nixon "pardon" was never challenged, but for political reasons. Never being tested in any court means that it is not a precedent for any court. – Buffy Nov 26 '20 at 13:35
  • And, sometimes such things (as in the Vietnam case) are are a recognition that the law itself is flawed in some way. – Buffy Nov 26 '20 at 13:45
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    @Buffy - The CRS and OLC both seem perfectly happy to accept the prospective aspect as part of the legal meaning of "pardon" at least with respect to presidential pardons. I -- like you, according to your comment above -- am not a lawyer. They are, so I defer to their expertise on the issue. I don't what your issue with it is, but we're not making any progress and I worry we've already generated more heat than light though that has never been my intent nor do I think it's been yours, so I'm stopping now. We just disagree, which is fine. Be well. :-) – T.J. Crowder Nov 26 '20 at 13:52
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    @Buffy Re "I maintain that if there was no conviction then there was nothing to pardon under the law." Not true, see https://fas.org/sgp/crs/misc/R44571.pdf, p.3: "George H. W. Bush granted “full, complete, and unconditional pardons” to several high-ranking officials who had either pleaded guilty, been convicted, or were facing trial." And Ford/Nixon. Also "The state of the person before and after [a pardon] remains completely unchanged" is most likely incorrect: Accepting a pardon is an admission of guilt, as I said in my answer (quoting the SCOTUS). – Peter - Reinstate Monica Nov 26 '20 at 15:58
  • @Peter-ReinstateMonica, once again, this is semantics. What you call it and what it is can be different. The situation would be the same if DOJ had simply decided not to continue the prosecution for whatever reason. Innocent until proven guilty is the key idea here. You can call it a pardon or you can call it a Buick. It remains the same. No conviction, no offense. And these pardons were pretty corrupt in any case. – Buffy Nov 26 '20 at 16:09
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    @Buffy The legal profession tends to be a stickler for words in official documents, exactly in order to avoid the confusion which appears to ail you ;-). – Peter - Reinstate Monica Nov 26 '20 at 16:16
  • Some things are untested because they really are unknown, but some things are untested because the result is blindingly obvious. For decades the GPL was in that state until somebody was dumb enough to try it. – Joshua Nov 27 '20 at 22:36
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The Constitution is purposefully vague. If it's not prohibited it's permitted... There is nothing in Article II, Section 2 that prohibits proactive pardons. The President's pardon power is limited only by the requirements that the offense be against the United States (so not a state conviction) and that the President cannot pardon impeachment.

Article II, Section 2 of the United States Constitution which states that the President "shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment". The U.S. Supreme Court has interpreted this language to include the power to grant pardons, conditional pardons, commutations of sentence, conditional commutations of sentence, remissions of fines and forfeitures, respites, and amnesties.

Shawn A.
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