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Does the Presidential power to pardon include the power to avoid any consequences?

Consider this hypothetical situation:

An extremely rich individual (a US citizen) gets involved in a sordid love affair, and winds up charged and convicted of murdering his mistress on Federal property. The evidence is incontrovertible and totally convincing. All appeal options have been exhausted, and the individual is about to start his long prison sentence.

The US President is nearing the end of his second term. He suddenly issues a complete pardon to the rich murderer with immediate effect. No explanation for the pardon is given.

The pardon is within the Constitutional powers of the President, and clearly is in effect.

A few weeks later, the pardoned rich individual explains to the press that he simply paid the President $25,000,000 to issue the pardon. He offers recordings of the negotiations, (which started at $15,000,000 but were bargained up by the President to $25,000,000), proof of payment, etc.

The President happily confirms all this, referring to the payment as a Golden Parachute.

Do these admissions in any way invalidate the pardon? (My guess, no)

Are there any possible legal consequences for the President, either before or after the end of his term?

  • Presidential pardons do not cover state prosecutions. I don't know enough to work that into a full answer though. – Michael McFarlane Jul 15 at 21:03
  • @MichaelMcFarlane: The OP specifically stated that the crime was committed on "Federal property"; if no state has jurisdiction otherwise, then the question remains relevant since the pardon can in fact excuse the entire crime. – ShadowRanger Jul 15 at 23:06
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There are 2 separate issues here: what happens to such a President and what happens to the person who has been pardoned.

What happens to the person who has been pardoned?

While at least one attempt at reversing a pardon has been discussed in recent history (Clinton's pardon of Mark Rich), there is no case of a pardon that has been reversed without the wishes of the person who was to be pardoned.

There were 2 SCOTUS cases which decided that a pardon is a form of clemency rather than an act of overturning a judgement.

  • United States v. Wilson, 32 U.S. (7 Pet.) 150 (1833) established that if a person does not accept a conditional pardon, then it is not in effect.
  • Burdick v. United States, 236 U.S. 79 (1915) decided that if a person does not accept an unconditional pardon, then the pardon is not in effect. Burdick specifically did not want to accept the pardon because his contention was that accepting it would be tantamount to admitting guilt and would strip him of his 5th amendment right to not incriminate himself.

There is very little case law surrounding the understanding of the power to pardon, so it may help to simply list the relevant instances of considerations and available opinions.

Both (fmr President) Nixon and (fmr Sec of Defense) Weinberger were pardoned without ever being tried for the crimes for which they were pardoned.

Even after Burdick v US, the issue of whether a pardon does amount to a formal admission of guilt remains controversial (i.e., not fully settled legally).

In Nixon v US (not to be confused with the more famous US v Nixon), the court referred to Black's Law dictionary, rather than to the previous 2 opinions, to state that a pardon does not overturn a "guilty" judgement but rather provides a clemency.

It is established that all punishments (jail time or fines), that one would receive for the crime, would not be applied if the person is pardoned.

However, it is not established, for example, if the the presumption of guilt that goes with the accepting of a pardon

  • counts as a "strike" for the purposes of "3 strike" laws (because of no precedent);
  • would result in a requirement to continue registering as a sex offender in case the crime was a sex crime (because of no precedent).

The current DOJ FAQ states that a pardon removes "civil disabilities" such as restrictions on the right to

  • vote
  • hold state or local office
  • sit on a jury

It is widely claimed that a President cannot pardon anyone for state crimes. However, as far as I know, it's never been attempted.

The current interpretation of the US Constitution's Supremacy Clause is that states cannot interfere with the proceedings of the Federal government. So should a President attempt to pardon anyone for a state crime, it would (almost certainly) result in a court challenge. Any claims, that the outcome of such a challenge would result one way or another, are (by definition) nothing but a speculation.

Further, if a pardon does remove the civil disability of not being able to hold a state office, then it does remove punitive consequences of some states' laws. Which may potentially bolster the claim that a President may pardon a state crime. But again, this is a pure speculation and there are plenty of good arguments to be made against such a possibility.

What happens to the President who has taken a bribe?

That having been said, no official act performed by a President is automatically reversed if the act is found to have been done corruptly (in exchange for a bribe or any other personal consideration contravening his oath of office).

However, the Congress has the enumerated power to impeach a President and remove him from the office if he is found to have taken a bribe. Removing him from the office does not, in itself, reverse any of his official actions (including the ones performed corruptly).

The Congress, however, does not have the power to reverse pardons. Nor can it create such a power with a legislature. For Congress to gain such a power would require a constitutional amendment.

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  • Comments are not for extended discussion; this conversation has been moved to chat. – Dale M Jul 15 at 4:51
  • Liked this answer, but wanted to caveat that it's very doubtful that overtly corrupt pardons would be honored, even if nothing in the Constitution explicitly forbids them, or provides a mechanism to overturn them. See lawfareblog.com/… – Rivers McForge Jul 15 at 15:33
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Bribery of public officials is in itself a crime (18 USC § 201), for both the giver and the recipient:

(b) Whoever—

(1) directly or indirectly, corruptly gives, offers or promises anything of value to any public official...

(A) to influence any official act; ...

(2) being a public official or person selected to be a public official, directly or indirectly, corruptly demands, seeks, receives, accepts, or agrees to receive or accept anything of value personally or for any other person or entity, in return for:

(A) being influenced in the performance of any official act; ...

shall be fined under this title or not more than three times the monetary equivalent of the thing of value, whichever is greater, or imprisoned for not more than fifteen years, or both, and may be disqualified from holding any office of honor, trust, or profit under the United States.

In the scenario as described, both the former president and the murderer would most certainly be guilty of this crime; and if the murderer had only been pardoned of the murder, they could be prosecuted for the bribery.

However, any corrupt president worth their salt would realize this and would just issue a blanket pardon to the murderer instead (as Gerald Ford did when he pardoned Nixon for "all offenses against the United States which he... has committed or may have committed or taken part in".) It is even conceivable that a corrupt president could also attempt to pardon themselves for any crimes, though legal scholars are divided on whether a president’s pardon power extends to themselves.

The most likely legal consequences for the ex-president, then, would be a federal bribery trial after they were out of office, including a potential Supreme Court ruling on whether a president can self-pardon. It seems likely, however, that the murderer would be free and clear, at least as far as federal charges are concerned.

EDIT: Emilio M Bumachar raises a good point. If the president can only pardon people for past acts, then a prosecutor might make the argument that the pardon was an inherent part of the act of bribery, and so wasn't "in the past" when the pardon was issued, invalidating the pardon. On the other hand, the statute pretty clearly states that the offense of bribery (on the president's part) is the acceptance of the money, not the commission of the corrupt official act. This is the sort of thing that lawyers get paid the big bucks to hash out.

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    This is pretty much what George HW Bush with Weinberger. This actually removed the prosecutor's ability to compel Weinberger to cooperate in building a case against anyone else. So a similar situation may happen if a blanket pardon is granted to the hypothetical murderer. Once he has no reason to cooperate, he can go so far as to completely recant any of his previous statements. Since he would be pardoned already, he could not be investigated for it anymore. – grovkin Jul 13 at 7:00
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    Hey hey hey! Don't you remember expending money is a form of speech? The poor guy was merely expressing his opinion :-P – einpoklum Jul 13 at 13:04
  • @grovkin Would not Weinberger then be stripped of Fifth Amendment rights? He can not cite the Fifth Amendment as a reason to not testify when he holds a blanket pardon. – emory Jul 13 at 15:32
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    Is the bribery concluded by the time the pardon is granted, and hence can be pardoned? Or is the pardon part of the bribery? – Emilio M Bumachar Jul 13 at 16:25
  • @emory if it ever got to trial and he was a witness, probably. But to get to a trial there would have to be an investigation. And without the key witness, the investigation was pretty much dead. – grovkin Jul 13 at 19:27
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The power of the president to grant pardons for federal crimes is absolute, under the Constitution, although the Supreme Court also has the absolute power to rule that that power does not include the power to issue shockingly corrupt pardons (one would have to imagine a totally different Supreme Court from the current one issuing such a ruling). The power of the president and Congress to pack the Supreme Court and overturn such a ruling is likewise absolute. And finally, the power of Congress to impeach and remove a president is absolute. Were this hypothetical to come to pass, impeachment and removal is the most likely outcome.

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    Comments are not for extended discussion; this conversation has been moved to chat. – feetwet Jul 13 at 20:29

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