President Trump pardoned Joe Arpaio before the former Maricopa
County sheriff’s sentencing.
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.” June 7, 2018 at 6:00 a.m. EDT President
Trump is in a pardon frenzy. Last month, he dispensed absolution
for boxer Jack Johnson and pundit Dinesh D’Souza, and this past
week, 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 No. 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.
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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 preemptive 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 —
preemptively. 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 No. 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.
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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 No. 3
President Obama pardoned Chelsea Manning and Oscar López 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 López Rivera, “a terrorist who killed
Americans.” Post columnist Charles Lane also criticized the López
Rivera action in a piece headlined “This is the Obama pardon you
should be mad about.”
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But these were commutations, not pardons. A full pardon provides
absolution; it ends and/or preempts 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 López Rivera’s from
70 to 36 years. Both were freed, but they are still convicted
felons.
Myth No. 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.
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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 No. 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 like 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.”
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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.
[CORRECTION: A previous version of this story said that
Trump had pardoned Alice Marie Johnson. In fact, he commuted her
sentence.]