August 15, 2018
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Five myths about presidential pardons

AP | BDN
AP | BDN
In a file photo President Gerald Ford reads a proclamation in the White House on Sept. 9, 1974 granting former president Richard Nixon "a full, free and absolute pardon" for all "offenses against the United States" during the period of his presidency.
Brian C. Kalt, The Washington Post

President Donald Trump is in a pardon frenzy. Last month, he dispensed absolution for boxer Jack Johnson and pundit Dinesh D’Souza, and this past week — before pardoning Alice Marie Johnson at the request of Kim Kardashian West — he declared that he can even pardon himself. A White House official told The Washington Post that Trump is now “obsessed” with pardons, his new “favorite thing.” The pardon power is the most kinglike power our presidents have; they can apply it whenever and to whomever they like. Still, many misconceptions surround this constitutional perquisite.

Myth 1: You must be charged and convicted before you can be pardoned

Social media discussions about Trump and his pardons are rife with errors, with hundreds of commenters believing that only people convicted of a crime can be pardoned. “Must go to trial & *be convicted* before pardon can be offered,” reads one such tweet. Another taunts, “@realDonaldTrump hey dummy, you have to be CONVICTED OF A CRIME before you can pardon…yourself.” After all, some state governors are limited in this way.

Presidents are not. Most pardons are funneled to the president through the Justice Department’s Office of the Pardon Attorney, which considers applications only from people who have already served their sentences. But presidents can, and do, bypass that process. In Ex parte Garland, the Supreme Court settled the question of pre-emptive pardons. The justices in that 1866 case decided that while pardons could reach only past acts, the pardon “may be exercised at any time after [the act’s] commission, either before legal proceedings are taken or during their pendency or after conviction and judgment.”

Even before Garland, President Abraham Lincoln (among others) pardoned dozens of people — including alleged traitors — pre-emptively. More recently, President Jimmy Carter pardoned hundreds of thousands of Vietnam draft evaders, including those who had not been charged or convicted. And, most famously, President Gerald Ford pardoned President Richard Nixon, who had not yet been charged with anything.

Myth 2: Nixon resigned only after Ford promised to pardon him

As Seymour Hersh wrote in 1983, many of those involved in the transfer of power from Nixon to Ford “still assume that there was a deal of some kind.” After Ford’s death, other commentators expressed similar sentiments. “We must conclude that the pardon was Nixon’s idea, not Ford’s,” declared Timothy Noah in Slate.

It is true that Nixon’s chief of staff, Al Haig, had asked Ford a week before the resignation to pardon Nixon. But Ford was noncommittal. Fearing that Haig might have taken this as tacit agreement, Ford called him in the presence of witnesses to say he had not committed, and would not commit, to pardoning Nixon. Two months later, in response to a House panel’s question about a possible quid pro quo, Ford recounted the timeline and assured the panel that “there never was at any time any agreement whatsoever concerning a pardon to Mr. Nixon if he were to resign and I were to become president.” If Ford, an honorable man by all accounts, flat-out lied to the House committee, there is no proof of it. Seventeen years later, Ted Kennedy presented Ford with a Profile in Courage award, not for cutting a sleazy deal but for making a brave decision that probably cost him the 1976 election.

MYTH 3: President Barack Obama pardoned Chelsea Manning and Oscar Lopez Rivera

After facing criticism for his pardon of Arizona Sheriff Joe Arpaio, Trump retweeted Fox News contributor Katie Pavlich’s reproach that Obama had pardoned Manning, “a traitor who gave U.S. enemies state secrets,” and Lopez Rivera, “a terrorist who killed Americans.” Post columnist Charles Lane also criticized the Lopez Rivera action in a piece headlined “This is the Obama pardon you should be mad about.”

But these were commutations, not pardons. A full pardon provides absolution; it ends and/or pre-empts any punishment for an act. A commutation merely mitigates the punishment; it leaves a criminal conviction in place but reduces the consequences. Obama shortened Manning’s sentence from 35 to seven years and Lopez Rivera’s from 70 to 36 years. Both were freed, but they are still convicted felons.

MYTH 4: Pardons are only for guilty people; accepting one is an admission of guilt

In 1915, the Supreme Court wrote in Burdick v. United States that a pardon “carries an imputation of guilt; acceptance a confession of it.” Over the years, many have come to see a necessary relationship between a pardon and guilt. Ford carried the Burdick quote in his wallet, defending the Nixon pardon by noting that it established Nixon’s guilt. More recently, MSNBC host Ari Melber taunted Arpaio by saying he had admitted he was guilty when he accepted Trump’s pardon.

But Burdick was about a different issue: the ability to turn down a pardon. The language about imputing and confessing guilt was just an aside — what lawyers call dicta. The court meant that, as a practical matter, because pardons make people look guilty, a recipient might not want to accept one. But pardons have no formal, legal effect of declaring guilt.

Indeed, in rare cases, pardons are used to exonerate people. This was Trump’s rationale for posthumously pardoning boxer Jack Johnson, the victim of a racially based railroading in 1913. Ford pardoned Iva Toguri d’Aquino (World War II’s “Tokyo Rose”) after “60 Minutes” revealed that she was an innocent victim of prosecutors who suborned perjured testimony in her treason case. President George H.W. Bush pardoned Caspar Weinberger because he thought the former defense secretary, indicted in the Iran-Contra affair, was a victim of “the criminalization of policy differences.” If the president pardons you because he thinks you are innocent, what guilt could accepting that pardon possibly admit?

MYTH 5: The law on self-pardons is clear

Trump announced on Twitter that “I have the absolute right to PARDON myself,” prompting a raft of legal scholars to confidently weigh in. Laurence Tribe, Richard Painter and Norman Eisen wrote in The Post, “The Constitution specifically bars the president from using the pardon power to prevent his own impeachment and removal.” On the other side, scholars such as Jonathan Turley and Richard Posner have agreed with Trump, noting the Constitution’s seeming lack of limits when it gives the president “Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.”

But the law simply is indeterminate here. This is an unsettled legal question with colorable arguments on both sides; all we can say is that a president could try to pardon himself, and that it might or might not work.

In my opinion, the best reading of the Constitution suggests that a self-pardon would be invalid. (I first wrote against self-pardons in the Yale Law Journal in 1996 and have returned frequently to the subject since then.) But saying what you think a judge should do is very different from knowing what a judge will do, even if you think you can see a unanimous Supreme Court decision in your crystal ball.

Brian C. Kalt, a law professor and the Harold Norris Faculty Scholar at Michigan State University, is the author of “Constitutional Cliffhangers: A Legal Guide for Presidents and Their Enemies.”

 


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