THE PRESIDENTIAL PARDON POWER
Ivan Hoffman, B.A., J.D.
The right of a president to grant pardons for crimes against the United States is set forth in the Constitution, in Article II, Section 2. It states that the President…
shall have Power to Grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.
It is clear that that power is limited to federal crimes and does not apply to state offenses.
The pardon power is broad based, extending to every federal crime and every federal criminal proceeding even if no charges have yet been filed. In his pardon of Richard Nixon, President Ford proclaimed:
Now, Therefore, 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.
Several questions arise and some, but not all of those are:
Can a president pardon himself?
If a president pardons someone and by doing so, intends to obstruct justice, is that a valid exercise of the pardon power?
What is the effect of state criminal cases on the pardon power?
Can A President Pardon Himself?
The Department of Justice has taken the position in a 1974 memorandum that a president cannot pardon himself or herself. The premise for this position is that no one can be a judge of his or her own guilt or innocence. However, should the president declare himself or herself to be temporarily unable to perform his or her duties under the 25th Amendment, the vice president would then become temporarily president and could grant the president a pardon. Once the temporary disability was “over,” the original president could resume his or her office and be free of the crime charged.
Furthermore, the history of the Constitution suggests that, because the Founders were very careful to avoid any of the abuses of monarchy that the colonies rebelled against (you all remember “no taxation without representation” for example), allowing a president to pardon himself or herself for crimes he or she may have committed (both before and after assuming office) would appear to be the exercise of kingly powers and thus unlikely to be consistent with the Founders’ intentions.
What further seems problematical for a president in such a situation is that the legal effect of accepting a pardon is to admit the underlying offenses which can then to be the basis for impeachment proceedings since a president can be impeached for “Treason, Bribery, or other high Crimes and Misdemeanors” and a president cannot pardon someone, including himself or herself, in cases of impeachment.
However, even if a president cannot pardon himself or herself, Congress may be able to grant a pardon to the president because, the argument would go, this action does not usurp presidential pardon powers under the Constitution because the president cannot pardon himself or herself. Whether Congress has this authority is legally unsettled.
On the face of the Constitutional grant of powers, it appears that the pardon power is absolute, with no restrictions except as discussed above. However, the open legal question is whether if, in the exercise of this power, a president intends by doing so to thwart further investigation into criminal activities and in so doing obstruct justice, does this void the pardon or otherwise subject the president to legal vulnerability? And the same question arises if the president holds out the possibility that a defendant might get a pardon if the defendant does not go to trial, does not reveal certain facts or otherwise behaves the way a president would like.
By “legal vulnerability” I mean whether, by doing so, a president can be impeached or convicted of a crime. Or both.
Obstructing justice is an impeachable offense. This charge was one of the charged levied against both President Nixon and President Clinton when they were impeached. And it may also be that offering pardons to defendants in exchange for favorable acts on their part would constitute obstructing justice. In the Nixon impeachment, that was exactly one of the grounds for impeachment. The charged stated in part:
endeavouring to cause prospective defendants, and individuals duly tried and convicted, to expect favoured treatment and consideration in return for their silence or false testimony, or rewarding individuals for their silence or false testimony.
In the case of Ex Parte Grossman, 267 U.S. 87 (1925), the Supreme Court indicated that such conduct on the part of the president could be the basis for impeachment.
Any claim that a president, despite abusing his or her pardon power, could not be subject to impeachment would be to claim that the president is above the law. That brings us to the dictatorship or monarchy that the Founders sought strongly to avoid.
The issue of whether such actions by a president would also constitute a crime lead to discussions about whether a president can be indicted. This, however, is beyond the scope of this article.
This legal question requires a bit of explanation so bear with me.
The Fifth Amendment sets forth in part that no person “shall be subject for the same offence to be twice put in jeopardy of life or limb;”
Thus the Fifth Amendment protects a party from being subject to prosecution for the same offense after being acquitted. It also protects a party from being again prosecuted for the same offense after conviction. Thus, overall it protects a party from being prosecuted more than once for the same offense.
However, the Tenth Amendment states in part that:
“powers not delegated to the United States … are reserved to the States respectively, or to the people.”
In the law, and codified in the Tenth Amendment, there is a concept called “dual sovereignty.” Within the context we are talking about, this doctrine means that the states retain power to prosecute for a crime even though the federal government also has the right and may have also prosecuted for the same crime. It means that both the state (or indeed multiple states) and the federal government have the right to prosecute an individual even though there was only one criminal activity and the facts that form the basis for the crime are exactly the same, provided that the individual’s criminal activity violates the statutes of both (or multiple) jurisdictions. The underlying legal theory is that that activity has violated the laws of both (or all) jurisdictions and thus that activity has resulted in two (or more) separate offenses. It is not the same offense being twice prosecuted for the same crime. Thus the dual sovereignty principle has been found not to violate the “double jeopardy” clause of the Fifth Amendment.
Gamble vs. United States
As of this writing, this is a case pending before the Supreme Court. The short version of the facts: Gamble was convicted in Alabama state court of illegal possession of a firearm. The federal government later brought a prosecution also for illegal possession of a firearm based on the same set of facts. Gamble claims on appeal that such conduct violates the Fifth Amendment clause against double jeopardy.
Among the arguments presented by those advocating abolishment of the “dual sovereignty” doctrine is that when the doctrine was first developed, it had not been determined that the states were bound to the same standards as the federal government under the Constitution. This principle was finally resolved when the Supreme Court decided that the Fourteenth Amendment made the Constitution and its amendments binding on the states. Thus, the argument goes, if the federal government, under the Fifth Amendment, cannot prosecute twice, prosecution by the federal and state governments for the same criminal activity should also be prohibited since the Fifth Amendment is binding on the states. In other words, for purposes of this claim, since the state is bound to follow the “double jeopardy” clause of the Fifth Amendment, and since the federal government could not violate that clause, neither should the states be allowed to do so. The same argument would apply if it were the federal government who first tried the defendant and thus the states would be prohibited from again doing so for the same criminal activity.
How Does All This Affect The Pardon Power?
The claim could be that if the “dual sovereignty” doctrine was overturned and thus there could not be 2 or more prosecutions by different jurisdictions for the same offense, a pardon, even though limited to federal offenses, would have the effect of pardoning the defendant for the state offense as well since the state would be prohibited from proceeding with its own prosecution. So even though the pardon power is limited to federal offenses, that the states could not separately proceed would have the effect of making the pardon applicable to state offenses. Note: some states have their own laws related to double jeopardy but I have avoided that discussion to keep this article from going too far into the “weeds.”
Now of course this claim requires 2 separate jurisdictions proceeding or attempting to proceed against a defendant for the same offense. If the federal government deferred prosecution to the state, then there would likely be no claim under the “dual sovereignty” doctrine since there would not be 2 separate prosecutions. Any state conviction likely could not be reached by the pardon power.
These are all “iffy” legal questions with far-reaching implications. Look for further developments.
Copyright © 2018 Ivan Hoffman. All Rights Reserved.
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Ivan Hoffman has been practicing intellectual property law for over 45 years and has written extensively about that topic. (www.ivanhoffman.com).
This article is not legal advice and is not intended as legal advice. This article is intended to provide only general, non-specific legal information. This article is not intended to cover all the issues related to the topic discussed. You should not rely on this article in any manner whatsoever and you should not draw any conclusions of any sort from this article. The specific facts that apply to your matter may make the outcome different than would be anticipated by you. This article is based on United States laws but the laws of other countries may be different. You should consult with an attorney familiar with the issues and the laws of your country. This article does not create any attorney client relationship and is not a solicitation.