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?
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.
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.
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.
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.
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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