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President Trump's administration has just formally started the transition process. He is now officially a lame-duck President. It is common for outgoing Presidents to grant pardons in this last phase of their presidency, while they still have the power to do so; Clinton is one of the more infamous examples.

The question which occurred to me: Can a President shield people not only from punishment but even from investigation and trial for federal crimes by granting a pardon proactively (a "prospective pardon") before any prosecution, let alone indictment, trial, sentence or punishment?

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  • Comments are not for extended discussion; this conversation has been moved to chat. – feetwet Nov 26 '20 at 20:43
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Yes.

The precedent is President Gerald Ford's pardon of his predecessor Richard Nixon in proclamation 4311 before any possible prosecution had started. The pardon was granted specifically to prevent the disturbance of "the tranquility to which the nation has been restored" by "the prospects of bringing to trial a former President of the United States" (emphasis mine).

It is noteworthy though that a pardon can be rejected by the recipient, and that there may be good reason to do so, because accepting one is an admission of guilt.1 In the words of the Supreme Court (Burdick v. United States, 236 U.S. 79 (1915):

There are substantial differences between legislative immunity and a pardon; the latter carries an imputation of guilt and acceptance of a confession of it [...].

(Again, emphasis mine.)

Proactively pardoning large swathes of current and former government officials, family members and other people connected to the Trump administration would therefore be a double-edged sword: It surely may save a lot of the money and headache coming with being the target of an (even unsuccessful!) investigation; but it may also amount to admitting that the Trump administration was essentially a criminal organization.


1 As always, things are a bit less clear-cut when one takes a closer look. Because I googled "prospective pardon" after the correct remark by JBentley I stumbled upon the entirely relevant and eminently readable Congressional Research Service reports on pardons. The first one is a "pardons FAQ", the second one is a more thorough legal exploration of what pardons actually do. The bottom line is that the Supreme Court and Federal Courts have edged away from a 19th century opinion (Ex parte Garland, 71 U.S. (4 Wall.) 333, 380-81 (1866)) which viewed a pardon as an all-encompassing expungement. Newer decisions (prominently, Burdick v. United States, 236 U.S. 79, 86 (1915) which I quoted) don't.

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    I belive that the statement in Burdick that a pardon "carries an imputation of guilt and acceptance of a confession of it" was mere dicta not binding precedant (as in that case Burdick did not object to the pardon on nsuch grounds), and that pardons have in fact been used in cases where it was alleged that an unjust conviction of an innocent person had occurred. – David Siegel Nov 24 '20 at 14:55
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    There is indeed a difference, but a pardon removes all legal effects of legal guilt, including, say licensing restrictions. I am not sure what the meaning of a legal guilt" with no legal effects might be. The classic maxim "there is no right without a remedy" seems relevant. Moreover acceptance of a pardon which says that it is to correct a unjust conviction does not carry any implication of a confession of guilt. I don't think that part of the answer is sound. – David Siegel Nov 24 '20 at 15:18
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    I believe that a pardon is grounds for expunging the related criminal record, but I am not absolutely sure of that. – David Siegel Nov 24 '20 at 15:32
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    Ford's pardon was not tested - no one brought charges against Nixon. – Azor Ahai -him- Nov 24 '20 at 18:53
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    How does one "accept a pardon"? And is accepting a pardon at all necessary? Can't defense just argue that any prosecution is moot given the existence of the pardon, irrespective of any formal response by the pardoned? (Note: IANAL, just curious) – RBarryYoung Nov 25 '20 at 16:21
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Questionable and Unsettled

First, I am not a lawyer, nor a constitutional scholar. but Ford's pardon of Nixon was never tested in court so there is no precedent here. Some would like to claim that the pardon was valid, but until there is a test, no one can really say.

The reason that it was never tested was that people were relieved to see Nixon go at the time and they (we) were happy to "move on".

Unfortunately, it set us down a path in which presidents think they have absolute immunity for anything they do while in office, which is a pretty dangerous idea.

I suspect that if Trump tries to issue such pardons, that they will be tested, and then we will get some legal (constitutional) clarity on the issue.

Philosophically, of course, it is a ridiculous idea.

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    @IMSoP, I don't know of any, but it is possible. There have been some periods of corruption in US history. Pardon means that the person suffers no penalty and the record of crime is erased. Clemency, on the other hand releases a person from prison, but leaves the conviction intact. The valid reason for pardons is that the court system isn't perfect and there have been many miscarriages of justice, so there is a possible "last resort" option in such cases. But it can be misused as can most things. See the "Scooter Libby" case for an interesting example. – Buffy Nov 25 '20 at 11:41
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    @JonathanReez, while described as a "pardon" that may more be a case of the federal government declining to bring charges for those not yet accused or convicted and actual pardons for those who were. But, again, IANAL. – Buffy Nov 25 '20 at 19:59
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    @dotancohen when Trump tweeted he could do just that, legal scholars were interviewed by many news outlets. The overall consensus was "probably no, but it will end up all the way to SCOTUS". – Davidmh Nov 26 '20 at 0:32
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    @Buffy Re "I maintain that if there was no conviction then there was nothing to pardon under the law." Not true, see fas.org/sgp/crs/misc/R44571.pdf, p.3: "George H. W. Bush granted “full, complete, and unconditional pardons” to several high-ranking officials who had either pleaded guilty, been convicted, or were facing trial." And Ford/Nixon. Also "The state of the person before and after [a pardon] remains completely unchanged" is most likely incorrect: Accepting a pardon is an admission of guilt, as I said in my answer (quoting the SCOTUS). – Peter - Reinstate Monica Nov 26 '20 at 15:58
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    @Buffy The legal profession tends to be a stickler for words in official documents, exactly in order to avoid the confusion which appears to ail you ;-). – Peter - Reinstate Monica Nov 26 '20 at 16:16
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The Constitution is purposefully vague. If it's not prohibited it's permitted... There is nothing in Article II, Section 2 that prohibits proactive pardons. The President's pardon power is limited only by the requirements that the offense be against the United States (so not a state conviction) and that the President cannot pardon impeachment.

Article II, Section 2 of the United States Constitution which states that the President "shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment". The U.S. Supreme Court has interpreted this language to include the power to grant pardons, conditional pardons, commutations of sentence, conditional commutations of sentence, remissions of fines and forfeitures, respites, and amnesties.

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