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Does the U.S. Constitutional power of the President to pardon extend to crimes not yet committed?

I know Ford gave Nixon a blanket pardon, but he did so for acts that (might have) been committed in the past.

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    Possible duplicate of Can Clinton be pardoned without being charged or convicted? – BlueDogRanch Nov 16 '16 at 3:17
  • @BlueDogRanch If this question is a duplicate, it suggests what may be a new question: can the president pardon you for future crimes (which by their very nature may or may not occur)? – Patrick87 Nov 16 '16 at 4:21
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    Indeed: though my gut says that that power only refers to past acts, I can't point to any non-intestinal evidence, so IMO this question is unanswered. – user6726 Nov 16 '16 at 6:10
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No.

The relevant provision of the United States Constitution is Article II, Section 2, Clause 1 which states in the pertinent part:

The President . . . shall have Power to Grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

The correct conclusion flows pretty directly from the definition of a "reprieve" and a "pardon", both of which, in the ordinary senses of these words refer to granting forgiveness for acts that have already occurred.

One of the leading cases on point which supports this view is Ex parte Garland, 59 U.S. (18 How.) 307, 380 (1855), which states:

The power thus conferred is unlimited, with the exception stated. It extends to every offence known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken, or during their pendency, or after conviction and judgment. This power of the President is not subject to legislative control. Congress can neither limit the effect of his pardon, nor exclude from its exercise any class of offenders. The benign prerogative of mercy reposed in him cannot be fettered by any legislative restrictions.

Despite its antiquity, this case remains good law and has been applied repeatedly in subsequent cases (although few on the right of a President to pardon future crimes which just hasn't come up).

Other Observations

The President's pardon power is limited to federal crimes, so no President may pardon or commute a state or foreign conviction.

The nature of the pardon power, if any, with respect to state and local crimes is governed by each respective state constitution and varies rather considerably.

The power in the U.S. Constitution is broader than that is some state constitutions. For example, the corresponding provision of the Colorado Constitution, applicable to convictions entered by the state of Colorado, does not allow crimes to be pardoned prior to a conviction.

Article IV, Section 7, of the Colorado Constitution provides:

"The governor shall have the power to grant reprieves, commutations and pardons after conviction, for all offenses except treason * * *."

The History Of The Pardon Power

One of the most thorough and up to date reviews of the scope and nature of the federal pardon power can be found in the law review article, Todd David Peterson, "Congressional Power Over Pardon and Amnesty: Legislative Authority In The Shadow of Presidential Prerogative" 38 Wake Forest L. Rev. 1225 (2003).

In particular, it has an interesting historical overview of the power at pages 1228-1235 (pagination and footnotes omitted):

The President's pardon power derives from the authority that had been invested in English kings since the end of the first millennium. Although the King possessed plenary power to grant pardons, over the years Parliament imposed specific limitations on the pardon power in order to avoid perceived abuses. For example, the Habeas Corpus Act of 1679 made it an offense for any person to imprison an English subject outside of the country and, in order to avoid an evasion of the writ, Parliament prohibited the King from granting a pardon for violation of the statute. Nevertheless, English courts frequently took an absolutist view of the King's pardon power. Thus, in Godden v. Hales, the Lord Chief Justice upheld a royal pardon on the ground that the Kings of England were absolute sovereigns; . . . the laws were the King's laws; . . . the King had a power to dispense with any of the laws of Government as he saw necessity for it; . . . he was sole judge of that necessity; that no act of Parliament could take away that power.

The Parliament, however, persisted in its efforts to rein in the pardon power and, in 1700, adopted the Act of Settlement, which stated that "no pardon under the great seal of England [shall] be pleadable to an impeachment by the commons in Parliament." This limitation was enforced against the King, although it did not apply to pardons granted to relieve punishments imposed after the impeachment of an official. The royal pardon prerogative was imported into the American colonies whose charters gave the leaders substantial authority to pardon offenses.

At the Constitutional Convention of 1787, neither the Virginia plan nor the New Jersey plan contained a pardon power. Nevertheless, at the insistence of Charles Pinckney, Alexander Hamilton, and John Rutledge, a pardon clause similar to the English Act of Settlement of 1700 was added to the draft constitution. Thus, the first report of the Committee on Detail proposed that the clause read: "He [the President] shall have power to grant reprieves and pardons; but his pardon shall not be pleadable in bar of an impeachment."

The issue of legislative control over the pardon process was addressed directly by an amendment proposed by Roger Sherman of Connecticut. James Madison's journal notes that "Mr. Sherman moved to amend the power to grant reprieves and pardon' so as to readto grant reprieves until the ensuing session of the Senate, and pardons with consent of the Senate.'" George Mason argued that the Senate already possessed too much authority, and the proposed amendment was rejected by a vote of eight to one.

The convention did approve a motion to insert "except in cases of impeachment" after pardon and remove the words "but his pardon shall not be pleadable in bar." Luther Martin then sought to limit the President's power to grant pre-conviction pardons by inserting the words "after conviction," following the words "reprieves and pardons." Martin, however, withdrew his motion after James Wilson argued that "pardon before conviction might be necessary, in order to obtain the testimony of accomplices." Edmund Randolph then offered an amendment to exclude "cases of treason" from the pardoning power. This proposed amendment was defeated, although its exclusion was later to prove controversial. Thus, although the framers realized that the pardon power was subject to potential abuse by the President, they declined to place any limitations on the President's pardon power or grant the legislature any authority to check potential presidential abuses.

The debates following the convention's passage of the Constitution reveal more about the framers' views on the pardon power. In the Federalist 74, Alexander Hamilton attempted to respond to the criticism that the President could pardon his accomplices in a case of treason. Hamilton acknowledged that "there are strong reasons to be assigned for requiring in this particular the concurrence of [the legislative] body or of a part of it." Hamilton argued, however, that the reasons against such legislative authority outweighed any in its favor: "[i]t is not to be doubted that a single man of prudence and good sense, is better fitted, in delicate conjunctures, to balance the motives, which may plead for and against the remission of the punishment, than any numerous body whatever." In particular, Hamilton argued, in the case of large scale seditions that attracted significant popular support, we might expect to see the representation of the people tainted with the same spirit, which had given birth to the offense. And when parties were pretty equally matched, the secret sympathy of the friends and favorers of the condemned person, availing itself of the good nature and weakness of others, might frequently bestow impunity where the terror of an example was necessary.

Thus, Hamilton argued not only that the power was properly reposed in the President, but that it would be dangerous to grant such power to Congress.

Finally, Hamilton argued that it was appropriate to grant the President pardon power in order to ensure that the authority could be exercised with appropriate dispatch:

"In seasons of insurrection or rebellion, there are often critical moments, when a well timed offer of pardon to the insurgents or rebels may restore the tranquility of the commonwealth; and which, if suffered to pass unimproved, it may never be possible afterwards to recall. The dilatory process of convening the Legislature, or one of its branches, for the purpose of obtaining its sanction to the measure, would frequently be the occasion of letting slip the golden opportunity. The loss of a week, a day, an hour, may sometimes be fatal. If it should be observed that a discretionary power with a view to such contingencies might be occasionally conferred upon the President; it may be answered in the first place, that it is questionable whether, in a limited constitution, that power could be delegated by law; and in the second place, that it would generally be impolitic before-hand to take any step which might hold out the prospect of impunity."

There was little debate about the pardoning power during the state ratifying conventions. George Mason continued to argue that the power should not be given to the President. An opponent in New York suggested that pardons for treason should not be allowed without congressional consent. Ultimately, the Constitution was adopted without any express limitation on the President's pardoning power.

The Supreme Court has on a number of occasions discussed the general scope of the pardoning power. For the most part, with exceptions to be discussed later, these decisions contain broad dicta concerning the unfettered nature of the President's power and the inability of Congress to impose any legislative restrictions on it. For example, in United States v. Wilson, the Court held that a pardon must be pleaded in order to be effective. Chief Justice Marshall wrote that the [C]onstitution gives to the [P]resident, in general terms, "the power to grant reprieves and pardons for offences against the United States."

As this power had been exercised from time immemorial by the executive of that nation whose language is our language, and to whose judicial institutions ours bear a close resemblance; we adopt their principles respecting the operation and effect of a pardon, and look into their books for the rules prescribing the manner in which it is to be used by the person who would avail himself of it. Marshall further defined the pardon as an act of grace, proceeding from the power entrusted with the execution of the laws, which exempts the individual, on whom it is bestowed, from the punishment the law inflicts for a crime he has committed. It is the private, though official act of the executive magistrate, delivered to the individual for whose benefit it is intended, and not communicated officially to the court.

In Ex parte Wells, the Supreme Court considered whether the President could grant a conditional pardon in the form of commutation of a death sentence to a sentence of life imprisonment. The Court noted that pursuant to the Pardon Clause, the President has granted reprieves and pardons since the commencement of the present government. Sundry provisions have been enacted, regulating its exercise for the army and navy, in virtue of the constitutional power of [C]ongress to make rules and regulations for the government of the army and navy. No statute has ever been passed regulating it in cases of conviction by the civil authorities. In such cases, the President has acted exclusively under the power as it is expressed in the [C]onstitution.

The Court noted, however, that "[t]here are also pardons grantable as of common right, without any exercise of the king's discretion; as where a statute creating an offence, or enacting penalties for its future punishment, holds out a promise of immunity to accomplices to aid in the conviction of their associates. When accomplices do so voluntarily, they have a right absolutely to a pardon . . . ."

Thus, at least in dicta, the Court recognized Congress's authority to regulate clemency in the military and to adopt statutes granting immunity for cooperation in a criminal investigation.

In Ex parte Garland, the Court spoke in sweeping dicta about the exclusive power of the President over pardon and amnesty. In Garland, the Court considered the issue whether a former Confederate senator would be permitted to be a member of the Supreme Court Bar without taking the statutorily required oath that he had never voluntarily given aid or comfort to the confederacy. The petitioner had received a presidential pardon and argued that the pardon exempted him from the requirements of the oath to which he could not truthfully subscribe. The Court held that it was "not within the constitutional power of Congress thus to inflict punishment beyond the reach of executive clemency," and therefore, the petitioner was entitled to membership in the Bar. In the course of the opinion, the Court broadly defined the President's pardon power:

"The power thus conferred is unlimited, with the exception stated. It extends to every offence known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken, or during their pendency, or after conviction and judgment. This power of the President is not subject to legislative control. Congress can neither limit the effect of his pardon, nor exclude from its exercise any class of offenders. The benign prerogative of mercy reposed in him cannot be fettered by any legislative restrictions."

In Ex parte Grossman, the Court considered whether the President's pardon power extended to criminal contempts of court. The Court upheld the President's power to issue such pardons based on the history of royal pardons for contempt in England. The Court also looked to the long history of presidential pardons of criminal contempts of court. In responding to the argument that a presidential pardon of contempt of court would interfere with the ability of the federal courts to protect their own decrees, Chief Justice Taft noted that the Constitution provides a number of powers to the branches which give them the ability to check the other branches of government. With respect to the pardon power, the Court stated: "[t]he executive can reprieve or pardon all offenses after their commission, either before trial, during trial or after trial, by individuals, or by classes, conditionally or absolutely, and this without modification or regulation by Congress." The Court also noted that the President exercised the pardon power without any significant judicial check on his pardoning authority:

"It is a check entrusted to the executive for special cases. To exercise it to the extent of destroying the deterrent effect of judicial punishment would be to pervert it; but whoever is to make it useful must have full discretion to exercise it. Our Constitution confers this discretion on the highest officer in the nation in confidence that he will not abuse it. An abuse in pardoning contempts would certainly embarrass courts, but it is questionable how much more it would lessen their effectiveness than a wholesale pardon of other offenses. If we could conjure up in our minds a President willing to paralyze courts by pardoning all criminal contempts, why not a President ordering a general jail delivery?"

In Biddle v. Perovich, Justice Holmes wrote an opinion for the Court in which he upheld the President's conditional pardon of a convict sentenced to death on the condition that his sentence be commuted to life imprisonment. Justice Holmes suggested a different rationale for the pardon power than Chief Justice Marshall had enunciated early in the 19th century. Rather than being a private act of grace that must be accepted and proffered to the court by the one pardoned, Justice Holmes saw the President's pardon as serving public policy ends:

"A pardon in our days is not a private act of grace from an individual happening to possess power. It is a part of the Constitutional scheme. When granted it is the determination of the ultimate authority that the public welfare will be better served by inflicting less than what the judgment fixed. . . . Just as the original punishment would be imposed without regard to the prisoner's consent and in the teeth of his will, whether he liked it or not, the public welfare, not his consent, determines what shall be done."

  • "If we could conjure up in our minds a President willing to paralyze courts by pardoning all criminal contempts..." - some of us may now find that easier to conjure than Chief Justice Taft would have expected. (I don't think the current President would, but it is not completely out of the question.) – Martin Bonner Nov 28 '18 at 10:59
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'Pardons' are for past offences. The relevant power for future offending is 'prosecutorial discretion', which would be under the control of the relevant officials at the time of the offending. So you definitely can't, on your last day in office, give someone a prospective get-out-of-jail-free card, because you can't bind your successor in office.

Prosecutorial discretion is generally not subject to judicial control (i.e. you can't sue a prosecutor to force them to prosecute a person for a crime), but is subject to political control, i.e. are you going to re-elect a politician who prospectively declares that person X can violate the law with impunity? (Well you might or you might not, it's up to your judgment as a voter.)

Note that the executive can't control civil (as opposed to criminal) court processes. So, suppose the President pardons D for shooting a Senator (I'm trying to think of an example of a federal offence, but I'm not too familiar with US law). The Senator could still sue D for damages for battery in a civil court, and there's nothing anybody in the executive branch can do about that.

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