2

What would happen if the identity of an individual named in a presidential pardon could not be ascertained with certainty, but several people have a strong claim to being the named individual?

For example, two convicts who happen to share the same unusual name (say, "Ebenezer Q. McGillicuddy") independently petition the president for a pardon. The president issues a blanket pardon for the past crimes of "Ebenezer Q. McGillicuddy" but does not include further details that would indicate to which petitioner he is referring (such as enumerating those past crimes). He then dies before he has an opportunity to clear up the confusion. Records indicate that the president had seen both petitions, but do not reveal further evidence to disambiguate the pardon.

How would this scenario play out in the legal system? Presumably both convicts would proceed on the assumption that the pardon applied to them and try to invoke it to their benefit (e.g., demanding release from prison, if still incarcerated). The convicts' respective prosecutors may contest this, pointing to the ambiguity of the wording of the pardon. But then what?

  • If the matters went to court, would the cases possibly/necessarily be joined or would they be tried independently?
  • In such a court case, is it the convicts or the prosecutors who have the onus of proving that the pardon was (in)valid with respect to the given convict?
  • If the cases are tried independently and both judges side with the prosecutors, would this absurd result be grounds for further appeal (since the president obviously meant the pardon to apply to at least one of the petitioners)?

I can imagine that similar cases of uncertain identity of beneficiaries may come up from time to time in financial and estate law, but in those cases it's always a question of allocating or dividing some contested property among the claimants, and awarding both claimants sole ownership of the property is not an option. But a pardon is not property; it can't be divided between the claimants, but there is also no reason (that I can see) why it would need to be awarded to only one or the other; pardoning one person doesn't exclude the possibility of also pardoning the other. So perhaps different rules apply.

2

You can inspect some samples of such orders here. This is Obama's last set of pardons, which contains just names of 64 persons pardoned, so there is a possibility of there being more than one Miriam Ortega who was convicted of a federal crime. Inclusion of "formerly known as" and a.k.a. information nails down the individual to some extent. The document does not indicate what the crimes are. The 330 communations have names and a registration number, which nails down who the person was. Another Obama pardon is here, and is much more detailed (docket numbers, courts, dates etc) and is pretty unambiguous. Likewise, Trump's pardon of Flynn is pretty unambiguous, likewise his pardon of Susan B. Anthony for illegal voting (150 years ago).

The Obama end-of-term bulk pardon document (64 individuals) is a bit unusual in that we can see what document POTUS provided, whereas the Bush end of term pardon had 2 individuals for commutation and 20 pardons, and we can't see the documents (surely they exist somewhere), but the DoJ website gives enough detail as to the crime, court and date that there should be little question of identity.

The pattern so far has been that (contemporary) presidents all process such requests through DoJ, meaning that there is probably a sufficient paper trail. But it remains constitutionally possible for POTUS to simply issue a document analogous to the final set of pardons by Obama with just a list of names.

The constitutional bare-bones is that the offense has to "have been committed" (POTUS cannot immunize against future acts, just future prosecutions for past acts). If a POTUS pardons "Joe Bloe" without specifying who said person is, more than one person could potentially claim immunity. Then the courts would have to inquire into the "original intent", possibly seeking additional evidence from said POTUS. There is no legal precedent that establishes the standard of proof that would be required, since this question has not come up. I expect that the standard would end up being stricter that "more likely than not", since a ruling that Bloe1 is pardoned precludes a ruling that Bloe2 is pardoned, so they really have to get it right.

2

How would this scenario play out in the legal system?

  1. Prosecutor brings charges against EQM or tries to use that conviction to enhance a subsequent conviction.

  2. Defendant EQM raises the pardon as a defense.

  3. Prosecutor responds that the pardon was intended to cover EQM Prime, not EQM.

  4. The Court holds an evidentiary hearing to determine whether the President intended to pardon EQM Prime or EQM.

  5. The Court decides who the President intended to pardon based upon the evidence presented at the hearing, and rules accordingly.

The burdens of proof are tricky. Usually affirmative defenses have a preponderance of the evidence burden on the proponent of the defense, but sometimes the defense must be disproved beyond a reasonable doubt. I don't know that part of the law well enough to know without lots of research and the outcome might not be uniform across the U.S.

To my knowledge, there has never been a case that got this far in which the true identity of the beneficiary of the pardon was ambiguous. It is possible, but a vanishingly rare possibility. Almost always, someone gets a pardon by asking for it and determining whether EQM or EQM Prime asked resolves it, or a reference to the crime resolves it. If the Court concludes that both asked the same President to be pardoned for the same crime (e.g. if the same crime was committed jointly by father and by son who is named after father and doesn't use Jr. day to day) and the Court concludes that the President was probably confused and didn't realize that there were two requests from different people and not one, the judge would probably give them the benefit of the doubt and treat both as pardoned as that would still reflect the President's intent.

0

Most pardons are addressed to the President by the person seeking the Pardon and thus there would be a seperate document trail for each of the two seekers and this would be a moot issue. Additionally, there is an office in the DOJ that specifically deals with Pardons (Office of the Pardon Attorney (OPA)) that prepairs recomendations to the president for Pardons for federal crimes and works closely with the Attorney General and the President on this specicfic matter. While the President can and often does issue pardons without consulting the office or against the office's advice, it is his perogative. Additionly, the pardon would specify which offenses the recipient would be pardoned for (There's also a communtation of sentance, which doesn't nullify legal guilt for the crime, only mitigates a sentance for the crime.). Pardon's can also be broad or narrow in who recieves them, but presumably the AG and OPA would have a hand in drafting and writing the pardon even if they disagree. In these matters, they can advise but the President can ignore their advice or even tell them to grant a pardon without the recipiant making a request for a pardon, in which case they would just write the pardon up for the President.

Since it can be broad, and covers lessening the sentance, a president who is against the death penalty may commute the sentance of all federal death row inmates to life without possibility of parole. Additionally, the Pardon is only for federal crimes. A seperate pardon would need to be issued for any state level crimes by the governor of cooresponding state.

If the President names one "Ebenezer Q. McGillicuddy (A)" who filed an independent pardon, it would be written to the President but sent to OPA first, who would read it, review the case, and make a recomendation to AG and POTUS before POTUS issues a pardon. "Ebenezer Q. McGillicuddy (B)" might do the same thing, but there are at least two other people who can tell which person POTUS is pardoning based on communications with him and the fact that one of them likely wrote the pardon AND the crimes of the two people would likely never be similar.

Final note, the difference between a Pardon and a Commutation is thus:

Pardons are basically the Government saying "Yes, you did the thing we prosecuted you for BUT we were wrong to prosecute you and thus we will all act like you never got prosecuted for the crime."

Commutations are basically the Government saying, "Yes, you did the thing we prosecuted you for AND we were right to prosecute you for that thing, but we were wrong to ask for such a harsh sentance from the court (or the court was wrong in sentencing you to a harsh sentance despite our request for a lighter sentance) so we're modifying your sentance for the crime to a lesser one.

1
  • My question assumes that the identity of the pardonee is unclear, so we would have to assume that the crimes in question are either the same or that the pardon is a blanket pardon for past crimes and so does not specify the exact crimes. I'll revise the question to make this clearer. In any event, the constitution prescribes no particular form for the pardon, so the president is theoretically free to tweet a 140-character pardon without consulting the AG and OPA.
    – Psychonaut
    Dec 2 '20 at 14:49

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.