Scrutinizing Preemptive Pardons
/By: Joel E. Gordon
The founding fathers of the United States of America set up a republic comprised of three equal branches of government to provide checks and balances over authoritarian rule. The concern was that when executive authority is absolute then a king is born. Preemptive pardons facilitate exactly what our forefathers designed a system to prevent.
Can a US president pardon US citizens who have not yet been convicted of a crime? Is a "preemptive" pardon in conflict with the Fourteenth Amendment's Due Process Clause which guarantees procedural due process as to determination of guilt or innocence thereby violating this rightful opportunity?
A pardon, which is the use of executive power to help its recipient to avoid punishment, is granted under Article II of the U.S. Constitution. Under the Constitution, the president’s clemency power extends to all federal criminal offenses – except impeachment. The president’s clemency power does not extend to a civil, state, or local offense. This begs the question of whether a Presidential pardon means that the recipient is acknowledging that he or she is guilty of their original charge(s).
In the 1833 case of United States v. Wilson, the Supreme Court ruled that a pardon could be rejected by the convict. According to the landmark Supreme Court case Burdick v. United States - 236 U.S. 79 (1915), accepting a pardon "carries an imputation of guilt and acceptance of a confession of it. Due to the findings in the 1915 case, Burdick v. United States, it seems as though accepting a pardon is, in fact, admitting guilt. In Burdick the appellant was offered a pardon but declined it, also refusing to testify in criminal court. The opinion of the case given by the justices seemed to uncover that 1) a pardon can be given before a conviction and sentence; 2) a pardon can be refused, and 3) acceptance of a pardon implies acceptance of guilt. This precedent clarifies that a pardon is not a magical exoneration but a legal acknowledgment of culpability.
The more recent preemptive pardon of Richard Nixon is largely considered as his admission to guilt for crimes he committed due to his acceptance. In fact, President Gerald R. Ford for many years after leaving office in 1977, carried in his wallet a scrap of a 1915 Supreme Court ruling. A pardon, the excerpt said, “carries an imputation of guilt,” and acceptance of a pardon is “a confession of it.
When someone receives a presidential pardon, it restores a variety of the rights that were lost due to the pardoned offense. However, if someone refuses a pardon it simply will not take effect. It’s important to understand that there are major differences between legislative immunity and a pardon such as... The acceptance of a pardon imputes guilt, while legislative immunity does no such thing.
In Lorrance v. Commandant, USDB, the 10th circuit found that accepting a pardon does not confess to anything and does not preclude the recipient from petitioning for habeas corpus relief from his or her court-martial conviction and sentence thereby ruling that a presidential pardon does not denote innocence or change an existing conviction. Rather, it represents forgiveness so when one accepts a presidential pardon, he or she is not admitting guilt or waiving habeas rights. It remains unseen as to whether or not our Department of Justice will petition the Supreme Court to get a final answer. But make no mistake; a pardon was originally intended to absolve someone from the consequences of an actual offense or crime.
If preemptive pardons are deemed to be lawful then what's to prevent another President from preemptively pardoning their cabinet members insulating them from any breach to the rule of law and giving full and complete status to being effectively "above the law" and free from any consequence?
I believe that preemptive pardons if not ultimately halted by the Supreme Court will set a very dangerous precedent; especially if the sole purpose is to circumvent the law to begin with. On the verge of our country's 250-year anniversary, I will place my trust that the great American experiment will be on track to endure as our brilliant founding father’s intended it to be.
Joel E. Gordon, BLUE Magazine’s Editor-in-Chief, is a former Field Training Officer with the Baltimore City Police Department and is a past Chief of Police for the city of Kingwood, West Virginia. He has also served as vice-chair of a multi-jurisdictional regional narcotics task force. An award winning journalist, he is author of the book Still Seeking Justice: One Officer's Story and founded the Facebook group Police Authors Seeking Justice. Look him up at stillseekingjustice.com
