3 Responses to “Stripped”

• #1

  Your Name's not Bruce?

  December 24, 2020 at 11:29 am

  Wouldn’t any pardon have to follow a conviction? Can you pardon someone in advance of their even being charged?

  Would not such pardons be an admission of illegal activity on the part of those being pardoned? (Not that Trump would care…)
• #2

  Screechy Monkey

  December 24, 2020 at 11:46 am

  YNNB,

  To answer your questions in order: No, yes, and “debateable but irrelevant in my opinion.”

  It’s well-established that pardons can precede a conviction or even a criminal charge. Nixon is the most famous example, but there are many. (Jimmy Carter gave a blanket pardon to Vietnam draft dodgers.)

  My recollection is that there’s a passing reference in some legal opinion that accepting a pardon is an admission of guilt, but that it’s dicta. A lot of legal scholars think it’s nonsense, as pardons are sometimes granted on the grounds of innocence, and nobody thinks that the recipient is “admitting” anything. It’s also not clear what such an “admission” would mean anyway – there are no criminal law consequences, since the pardon disposes of those. Are we talking about civil liability? I’m not aware of any authority to that effect. Or is it just a “moral” consequence? Because if so, courts don’t rule on that kind of thing, so it’s not really a legal question — each of us can decide for themselves whether accepting a pardon is an admission of anything, I suppose.
• #3

  Screechy Monkey

  December 24, 2020 at 12:04 pm

  Ah, found it. It’s Burdick v. U.S., a 1915 case where a newspaper editor invoked his 5th Amendment right and refused to testify before a grand jury regarding certain matters. Woodrow Wilson issued a pardon, for the express purpose of voiding the 5th Amendment protection so that the editor could be compelled to testify. He refused to accept the pardon, and was convicted of contempt.

  The Supreme Court vacated the conviction. Although many arguments were raised, the issue that the Court based its decision on was whether or not the witness could refuse the pardon, or if it operated automatically without his consent. They held the former, and noted that there were good reasons why someone might refuse a pardon:

  Indeed, the grace of a pardon, though good its intention, may be only in pretense or seeming; in pretense, as having purpose not moving from the individual to whom it is offered; in seeming, as involving consequences of even greater disgrace than those from which it purports to relieve. Circumstances may be made to bring innocence under the penalties of the law. If so brought, escape by confession of guilt implied in the acceptance of a pardon may be rejected, preferring to be the victim of the law rather than its acknowledged transgressor, preferring death even to such certain infamy. This, at least theoretically, is a right, and a right is often best tested in its extreme. “It may be supposed,” the Court said in United States v. Wilson,

  “that no being condemned to death would reject a pardon; but the rule must be the same in capital cases and in misdemeanors. A pardon may be conditional, and the condition may be more objectionable than the punishment inflicted by the judgment.”

  The part that usually gets quoted for the proposition that pardons imply guilt is this:

  This brings us to the differences between legislative immunity and a pardon. They are substantial. The latter carries an imputation of guilt; acceptance a confession of it. The former has no such imputation or confession. It is tantamount to the silence of the witness. It is noncommittal. It is the unobtrusive act of the law given protection against a sinister use of his testimony, not like a pardon, requiring him to confess his guilt in order to avoid a conviction of it.

  But as that was not really necessary to the decision, it’s of weak precedential value.

  Here is a 2018 WaPo piece explaining this and some other issues (including some authority for the proposition that conviction is not required).