11th January 2021
As we enter the last ten days of this presidential term one of the matters being widely discussed is the extent and nature of presidential pardons generally, and the possibility of a ‘self-pardon’ in particular.
This blog has already looked at the general issue – and on the self-pardon issue in particular, it seems to me to be a logical and legal absurdity.
But this post is about a related issue, which has not yet featured prominently in the debate about pardons: regardless of whether any power to pardon, can a pardon be revoked?
Would it be open to an incoming president to revoke the pardons of President Trump, including any (purported) self-pardon?
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From first principles, and from a United Kingdom perspective, such a revocation would seem possible.
The power to pardon is, in the United Kingdom, part of the royal prerogative.
And just as no parliament can bind another, it would appear no sovereign can do so either.
The crown can make – and unmake – any treaty whatsoever.
The crown can bestow honours, which in turn can be ‘cancelled and annulled’ by the crown.
And so if these exercises of the royal prerogative are analogous, then it would appear that the sovereign could rescind a pardon – for example if it were wrongly made.
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Turning to the United States, there are two examples of revoked presidential pardons.
In 1869, we are told by the Congressional Research Service, ‘after outgoing President Andrew Johnson issued but did not deliver a pardon, incoming President Ulysses S. Grant revoked the pardon, and a federal court upheld the revocation’.
The case report is here, where you will see that the judge stated in passing:
‘The law undoubtedly is, that when a pardon is complete, there is no power to revoke it, any more than there is power to revoke any other completed act.’
More recently, in 2008 President George W. Bush revoked a pardon he had himself granted, because of an outcry.
The New York Times then reported ‘when Mr. Bush granted Isaac Toussie, 37, a pardon earlier this week, the president and his advisers were unaware that the elder Mr. Toussie had recently donated $30,800 to Republicans. Mr. Bush took the extraordinary step of rescinding the pardon on Wednesday after reports about the political contributions.’
Again, the pardon had not been delivered.
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In both of these precedents the revocation was possible because it had not been completed – the procedural equivalent of dashing to the post room to intercept a letter before it is actually sent out.
Neither of these precedents therefore are directly on the point of whether a pardon, once completed, can be revoked.
The opinion of the judge in 1869 is not binding for, among other things, that was not the issue which the court was being asked to determine.
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So how would a modern court approach the issue?
In most circumstances, the effect of a pardon would be immediate: a person would be released from their sentence and so on.
And once that person has been relieved from their punishment, then any revocation would raise practical and other issues as to what would happen to the pardoned person.
One can see why it would be unfair that such a pardon was revoked, just as no person should not be punished twice for the same offence.
But what about a (blanket) pardon that is intended to pre-empt any possible prosecution?
Procedurally, the person who (purportedly) received the pardon would (presumably) raise the pardon as a bar to any proceedings.
The court would then (again presumably) examine the (purported) pardon (as in 1869), and if the pardon was valid then there would be would be a bar on the prosecution.
It would be – almost literally – a ‘get out of jail free’ card, which the person would raise in front of a judge.
(Of course, if it were known that a pardon had been given then a prosecution would normally not be brought in the first place – but, if it were brought, this is procedurally how a pardon would act as a bar on any prosecution.)
So, now imagine two fascinating possibilities.
First, imagine a court not accepting such a presented pardon at face value – and applying anxious scrutiny whether such a pardon (even if correct in form) had been within the powers of the president.
And second, imagine a court presented with two formal instruments – one purporting to grant a pardon, and another purporting to rescind it (like the cancellation and annulment of an honour, which reverses an otherwise completed act).
The first of these (delicious) legal puzzles would not be a revocation, of course, but an inquiry as to the legality of an instrument.
The second possibility, however, would require a court to review the possibility of a revocation of a pardon.
We would then see whether the 1869 dictum was a correct statement of the law.
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The straight answer to the question at the head of the post is, as always with interesting legal questions, ‘we do not know’.
An approach from first principles points (at least for me) in one direction, but the precedent of 1869 (although it is not binding) points firmly in the other direction.
But given the lack of binding authority, it cannot be assumed casually that if a pardon – or self-pardon – is granted by President Trump that it is absolutely beyond the reach of revocation.
We may still get more constitutional excitement from the Trump presidency.
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If this ended up in the Supreme Court (and that Court found in favour of President Trump pardoning himself), could the issue of the appointment of last Justice become an issue which a future President could tackle?
That said, if the Supreme Court did find that the self pardon was “illegal”, the irony would almost be too much to bear.
Even if he is able to pardon himself, preposterous though that may seem, and even if such a pardon cannot be revoked the nature of the man is such that before too long after 20th January he will commit some other offence which by then will be unpardonable.
Presumably the pardon will employ the future conditional tense and be worded as generously as the one in “Blackadder”:
a pardon for anything whatsoever, including murder, adultery, or dismemberment of a friend or relative [signed by] both popes.
“if it were known that a pardon had been given then a prosecution would normally not be brought in the first place”.
Could there be a (political) case for pushing ahead with a prosecution anyway, getting a conviction and in effect forcing the pardon to be applied? In effect to say to the country “yes, this person is guilty of a specific crime and is only going free because of a Presidential pardon”.
Or would this be seen as wasting court time?
If there was a sincere belief that the pardon was invalid or had been revoked, such a prosecution would not appear to be an abuse of process
Surely by accepting a pardon you are admitting guilt?
You would thinks so, but not necessarily.
I hope I’m wrong, but if accepting a pardon implies admitting guilt, then does the 5th amendment mean that a pardon cannot be revoked as the act of accepting the now purportedly revoked pardon would be self-incrimination?
The relevant part of the 5th amendment to the US constitution is:
“nor shall be compelled in any criminal case to be a witness against himself”
(https://constitutioncenter.org/interactive-constitution/amendment/amendment-v)
I don’t see that either accepting a pardon or its revocation after being accepted would breach this.
In fact, I’m not even sure that pardons are “accepted”. They are given, and that’s that.
I would have thought that the jeopardy for Trump in self-pardoning would be in finding it necessary to give it to himself, not in then accepting it.
Burdick v. United States, 236 U.S. 79 (1915)
“This brings us to the differences between legislative immunity and a pardon. They are substantial. The latter carries an imputation of guilt; acceptance a confession of it. (…) It is the unobtrusive act of the law given protection against a sinister use of his testimony, not like a pardon, requiring him to confess his guilt in order to avoid a conviction of it.”
The concept of admission of guilt becomes a bit murky (to me at least) in the case of a pre-emptive pardon for crimes which may have been committed (Nixon style).
Would it be a blanket admission? Could the recipient of such a pardon choose *not* to admit guilt for a specific alleged crime? They may be happy to admit guilt and benefit from the pardon for say tax offences, or bribery, but would draw the line at admitting (to use an extreme example) child abuse, and would want to defend their name in court and be found not guilty.
I expect politics rather than law will determine how Trump is treated.
However, assuming that Trump pardons himself for any crimes he has committed prior to the pardon, unless it is the last thing he does as president, there may be crimes that occur (or which a court could interpret as having happened) between the pardon and the inauguration of Joe Biden.
It is worse than that. As understand it, a presidential pardon does not excuse all crimes, only federal crimes. But the same facts might be offence under both federal law and state law, so a person in receipt of a presidential pardon (even if the pardon is granted, and remains effective to prevent liability under federal law) could still be tried and punished for state crimes.
All this talk of pardons brings to mind Ralph Fiennes as the unhinged Amon Goeth in Schindler’s List, and his random exercise of absolute power over life and death. “I pardon you.”
I agree; a presidential pardon only covers federal offences. It doesn’t apply to offences under the laws of the states.
So in order for the pardon to be in effect you have to admit to the crimes at a federal level. I assume at a State level this a be used against you. If you don’t admit to the crimes at federal level are you then subject to prosecution at a federal level?
That is odd. My starting point would be that, particularly in a criminal law setting, gifts from the state are like gifts from Greek gods. They cannot be taken back. Just like Kassandra’s gift of prophesy couldn’t be taken back, only made worthless, I would assume that, absent special circumstances (e.g. bribery), pardons and sentence-reductions cannot be undone.
As for pre-emptive pardons, it might be worth noting how that fits in the Dutch system. Under Dutch law, a prosecution in that kind of situation would almost certainly be considered an arbitrary prosecution (just like a prosecution that violates an established condonement policy), and declared inadmissible on that basis.
Speaking of Dutch law: The Pardons Act 1987 allows pardons only for people who have actually been convicted. It allows for conditional pardons, which automatically fall away if the person doesn’t follow the conviction, but it doesn’t say anything about revoking a pardon otherwise. Also worth noting: art. 122 of the constitution distinguishes between pardons and amnesty. Amnesty (obviously) doesn’t require a conviction first.
In the case to which you provided a link “one Jacob De Puy and the petitioner were convicted of having rescued spirits from the custody of a revenue officer of the United States”. If only someone could be accused of rescuing a frozen turkey from Tesco!
As you said, the opinion of the judge did not touch on whether a pardon being a deed could be revoked after delivery as it would then be complete.
On reading it seems clear that the issuing of a pardon is to nullify (as a whole or in part) the sentence passed on conviction of a crime. It follows that a pardon that cannot specify which conviction it attaches to cannot be valid. A ‘pardon’ that absolves an individual of punishment for any future conviction would simply put that individual above the law, which is unconstitutional?? Straying from your headline question but in Trump’s case it may be the key point.
David
Could you please clarify something for me?
When a person is ‘pardoned’ by the President, I’m assuming the pardon relates to crimes committed for which that person was previously convicted?
I’m also presuming that pardon does not and cannot apply to that person in advance for any crimes of which they may be accused/charged/convicted.
If the President was to issue a blanket, non-specific pardon for himself, for any past misdemeanors, is that not an admission of guilt?
Why would anyone pardon themselves if they had nothing they believed was deserving of a pardon?
And if that pardon was intended to apply to the future, does that not signify ‘intent’?
Why else would anyone think a blanket pardon, applicable to future misdemeanors, might be required?
Of course I may have completely misunderstood what might or might not be within his powers of ‘pardon?
PK
I wonder what the definition of ‘delivered’ can mean in the case of a pre-emptive pardon.
Can a pardon be delivered before a conviction? As until the point that you are convicted you have nothing to be pardoned for. Are you not innocent until proven guilty?
As a previous commenter has noted, any future treatment of Trump for misbehaviour in office is likely as much a political matter as legal. But I do wonder if a blanket pardon is even valid. Have any such pardons been issued before?
I know it’s only Wikipedia but “in 1974 ,.. Ford granted to Richard Nixon, his predecessor, a full and unconditional pardon for any crimes that he might have committed against the United States as president.”
When it is working well, Wikipedia provides its sources so one can judge for oneself. Here is the text of the pardon that Ford granted to Nixon: https://www.fordlibrarymuseum.gov/library/speeches/740061.asp
“I, GERALD R. FORD, President of the United States, pursuant to the pardon power conferred upon me by Article II, Section 2, of the Constitution, have granted and by these presents do grant 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 or taken part in during the period from January 20, 1969 through August 9,1974.”
That is, a blanket pardon for unspecified offences within an limited period. As far as I am aware, its validity or scope was never tested in court.
Is there an US equivalent of the UK principle, that:
“ And just as no parliament can bind another, it would appear no sovereign can do so either.”
Or is this a fundamental difference between our legal frameworks?
I would think that that is a general principle of public law throughout the world. If public authority X has power Y under superior law Z, it cannot exercise Y in a way that cannot be undone by X in the future. To achieve that result, you’d have to amend Z.
Obviously, there are limits to that principle, like the doctrine of legitimate expectations. In the area of criminal law, there’s the doctrine of nulla poena sinen lege as well, which would generally forbid increases in punishment that have retroactive effect. But apart from that, the Bundestag cannot make a law that the Bundestag cannot unmake, and neither can the US Congress or the Japanese Diet, as far as I know.
Fascinating question & answer. Thank you.
Perhaps a foolish follow-up question, but is there a meaningful (legal) difference between the pardon being issued and being delivered?
The two previous cases both involved revocation before delivery, and the pardon referred to as “complete” only upon delivery, but such a distinction seems meaningless in a modern context, especially for a prospective pardon, where there is nowhere particular for it to be delivered.
There is an interesting analysis of the concept of a pardon in the decision of the Privy Council in Att.-Gen. of Trinidad and Tobago v. Phillip [1995] 1 A.C. 396. Other interesting authorities on the topic are R. v. Foster, 79 Cr.App.R. 61, CA, and R. v. Secretary of State for the Home Department, ex p. Bentley [1994] Q.B. 349, DC.
See, in particular, Foster at (in the QB report, [1985] QB 115) at p 130 per Watkins LJ
At least for English law, is there not a strong legitimate expectations (eg Coughlan, Paponette, etc) regarding advice to revoke a grant of Mercy? Miller II/Cherry certainly makes clear that advice leading to exercise of the prerogative power is justiciable and can be void when without reasonable foundations. I don’t know the answer, but I think it is possible there are circumstances where a pardon could not be revoked without reasonable grounds to sustain it.
I’d look at it differently. A pardon can only be granted for a known crime. Arguably only for something if which a person has been convicted, because why else would a pardon be necessary?
The kind of pardon which I’ve seen suggested is more an immunity from prosecution and not a pardon at all. I think it’s arguable that it’s not a valid exercise of power to issue a blanket immunity for unspecified crimes which a person may otherwise be charged with in the future and which may not even have come to light at the time the ‘pardon’ was issued, ultra vires.
On the impopssibility of a ‘proleptic’ pardon for crimes which have yet to be committed (ie granting immunity in advance), see R (Pretty) v DPP [2002] 1 AC 800 (HL), para 39 per Lord Bingham of Cornhill
The two questions I would have asked here, have been asked here; and answered in rather interesting ways.
Reading more closely, I fear that the most interesting answers are unmentionable and best left undiscussed by the respectable legal professionals who offer commentary here.
I have no such inhibitions, as my answers are the personal opinions of an unqualified and uneducated layman.
Firstly, the possibility of a ‘general pardon’ for all possible offences that may (or, indeed, may not) have been committed: I do not think that a prudent president would want to see the Nixon pardon challenged in the courts!
The composition of the United States Supreme Court is such that a Republican protected by a ‘general pardon’ would probably see the court reject the argument that a pardon can only apply to a specific offence that could lead to conviction and punishment.
But who ‘wins’ from that, when an incoming President who was swept into office on the rallying cry of “Lock her up!” might well deliver on his promises, without regard to evidence, and the outgoing president needs to protect their political associates?
Look at both sides’ interests, there: it is a thoroughly revolting intellectual exercise to so.
Nevertheless, I would like to see the law tested in the courts.
As for the second point that engages my curiosity – pardons covering Federal offences, but not protecting a defendant prosecuted by the States: take a closer look at the Mueller investigation, and at prosecutions brought against Trump associates elsewhere. There seem to be a lot of State-led prosecutions in there, where one might have expected Federal charges.
A particular point to note: crimes committed by and against banks tend to be prosecuted by the New York AG; crimes against the markets, which are the remit of the SEC, especially so.
Sanctions violations fall within the remit of the Office of the Comptroller of the Currency, and you would expect this to be a matter for a Federal court; but some of these prosecutions, too, are pursued by the AG’s office in New York.
Money-laundering prosecutions are even more complex, in terms of who has jurisdiction; but this, too, is often prosecuted in and by New York.
There is a reason why I mention sanctions and money-laundering: not only are they pursued, often, by the New York AG; but they have extraterritorial reach – and the banking authorities in other jurisdictions have very, very compelling reasons to cooperate, and to pressure their governments into cooperating with the court in New York.
If there is any truth, at all, in the rumours about Russian money or material assistance turning up in US politics in general, and any individual’s business affairs in particular, or in overseas political affairs that might touch on prominent figures in the Mueller investigation, then everyone involved could find themselves in New York’s courts, with no hope of protection by a Presidential pardon, nor from fleeing overseas.
Interesting stuff, if you’ve ever worked in a bank, or in commercial property transactions in Mayfair.
If you don’t, then count your blessings: and please don’t feel left-out!
…Have a consolation-prize of a question: can a Presidential pardon protect an individual residing overseas from extradition into the US, to face trial on charges brought by the New York Attorney General?
Can a Presidential pardon protect a fugitive from justice, residing in the US, from extradition to face charges in London?
In the case of Trump pardoning the contractors accused of killing Iraqi civilians, there is the extra dimension of the pardon violating US obligations under the Geneva Convention.
https://www.reuters.com/article/us-iraq-blackwater-un/trump-pardon-of-blackwater-iraq-contractors-violates-international-law-un-idUSKBN294108
Glenn Kirschner, a former US Federal prosecutor argues that a Trump self-pardon would – amongst other things – unbalance the Executive branch against the Judiciary,
See https://www.youtube.com/watch?v=6ndg0PqXyeU&ab_channel=GlennKirschner
It would appear, if you follow the UK system, that the right to Pardon, or revoke a Pardon or treaty belongs to the Office and not the individual.
However, i’ve never really understood how the US ended up with Presidential Pardons, surely a safer system would have seen the President appeal to a Supreme Court with a recommendation of Pardon or Commutation based on a case for national expediency of mercy.
That all the power is vested in one person, that opens the door to corruption, even the forward planning of criminal acts by a Government with the intent to pardon and thus avoid prosecution. So Clinton, Trump or any other president could employ personnel to commit fraud, corrupt and election or lie under oath with the fixed intent of pardoning them after the fact.
This to me, would appear contrary to the intent of the founding fathers, whose aim was to put in place a system free from corruption.
Further, following the example of a Monarch was one of the very reasons why the US broke away from the UK. George III held all power, didn’t listen, States had no Parliamentary representation, thus abandoning those old ways, and adopting the ideas of the ancient Greeks, Romans, and more recent writers like Algernon Sidney, John Locke, Maddison, etc would make more sense.
From a purely subjective moral standpoint, i doubt many people can look at this and feel it is either right, set’s a good example to the world, or denotes the indicators of a well thought out democratic Government.