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Let’s say in this hypothetical scenario the president of the United States tweets something like “don’t be surprised if I pardon anyone that puts to death repeat heroin and fentanyl dealers dealing in amounts larger than 50 pounds”

And then one vigilante does put to death someone dealing large amounts of heroin and fentanyl…the vigilante is prosecuted and convicted..the president then pardons them… upon seeing the pardon this occurs several other times where the president pardons other individuals who have done that…

Is this legal??

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    A much less dubious route to the same end would be a DoJ statement indicating their intent not to prosecute violent crimes against known heroin or fentanyl dealers. (Then post that to twitter, if desired.)
    – Michael
    Aug 9, 2022 at 21:15
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    @sleske Prosecutors have broad discretion with regards to what crimes they do (or don't) prosecute. For instance, city DAs and state AGs have used this discretion to de facto legalize possession of certain drugs (usually marijuana), or to decriminalize sex work. The example to this question, while probably legal, would doubtless have other political consequences (like Congressional hearings and possibly impeachment).
    – Michael
    Aug 10, 2022 at 6:27
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    @Michael: Interesting. In Germany, prosecutors only have discretion for minor crimes, for most major crimes there is a duty to prosecute (given sufficient proof etc.), and that duty cannot be overriden even by the DoJ (at least theoretically). Fascinating how legal systems differ.
    – sleske
    Aug 10, 2022 at 6:50
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    @sleske - even your neighbouring country is different! Cannabis etc are still illegal, technically, in the netherlands, but the "gedoogbeleid" (culture of tolerance?) policy means that no prosecutions happen for people in possession of them. It leaves a wierd gap where it's still illegal to cultivate cannabis, but not to own.
    – lupe
    Aug 10, 2022 at 7:20
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    The pardon for war criminal and mass murderer Eddie Gallagher might count under this.
    – pjc50
    Aug 10, 2022 at 15:37

5 Answers 5

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President Rodrigo Duterte of the Philippines did something similar to that. The major snag in the United States is, the President can only pardon federal crimes. Murder is almost always a state crime, out of the President’s hands. The governors would need to follow suit.

However, there is one exception: the District of Columbia is a federal territory, not a state. This means the President could pardon all murders in the capital city. In theory, he could subtweet a Supreme Court justice with, “Will no one rid me of this turbulent judge?” and then also pardon the murders of any member of Congress who tried to impeach him for it.

Practically speaking, though, people would not actually stand for that, no matter how clever the technicalities.

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  • @Davislor this is kind of what I'm getting at...creating a dictatorship via pardon...crazy!! Aug 12, 2022 at 2:03
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Yes. This is legal, even though it is highly unlikely.

There were very few, if any, instances of the federal pardon power being used this way historically, but it could happen, and President Trump, while he was in office, intimated that he might use the pardon power in this fashion. Realistically, it would be easier for the President to prevent someone from being prosecuted in the first place if the crime took place during his term, but he might pardon someone who committed the crime under a previous administration.

The fact pattern in the question: “don’t be surprised if I pardon anyone that puts to death repeat heroin and fentanyl dealers dealing in amounts larger than 50 pounds” doesn't sound very morally palatable.

But consider a slight variant of it which is much more plausible. Suppose that while running for office a Presidential candidate says:

don't be surprised if I pardon someone who was convicted of homicide in a previous administration for killing someone who had been using them as a sex slave in a human trafficking network, or killing someone who was in the process of raping them shortly before their divorce became final but was not allowed to assert a self-defense argument at trial because marital rape was legal at the time.

Now arguably that's different, because it doesn't induce someone to commit a future crime. But the President has broad discretion to make policy to de-emphasize certain kinds of criminal prosecutions in any case while in office even without the pardon power, and generally, this is not a basis for having a special prosecutor appointed at the federal level since there is no individualized conflict of interest.

Of course, the U.S. President can only pardon someone from a federal crime and can't pardon state crimes or criminal convictions from other countries. So, even if the President pardoned someone of a federal crime in this situation, the state in which the murders took place could prosecute the individual for murder unimpeded (constitutional double jeopardy considerations would also not bar a state prosecution following the federal prosecution).

Indeed, the vast majority of murder prosecutions are made under state law, and there are very few murders that take place which are beyond the jurisdiction of any U.S. state and any foreign country, that are in the jurisdiction of the U.S. government and covered by a federal homicide statute, in any year. As noted by @hszmv in a comment to another answer:

Federal Murder charges are a thing and can be prosecuted, but are normally reserved for murders that either involve federal government employees (especially if they are murdered because of the duties the performed in the course of their duty or the status as a federal employee) OR murders that occur on Federally Owned Property OR the Murder involved crossing state lines OR is in U.S. Jurisdiction but not in a territory or state jurisdiction (usually applies to some uninhabited territorial islands or U.S./International Waters).

Further, a pardon would not prohibit the victim's family for suing the murderer for wrongful death, and indeed, probably wouldn't prohibit them from using the murder conviction that was pardoned to conclusively establish liability in a civil case under the doctrine of collateral estoppel (I haven't researched that highly specific and technical civil procedure issue, however, but even if that wasn't possible, the murder trial transcript would be admissible in the civil case). A civil judgement for wrongful death was famously obtained against O.J. Simpson by the victim's family after O.J. Simpson was acquitted in a criminal murder trial.

This tactic would really only be helpful to a prospective defendant with respect to cases where there is not a parallel criminal offense under state law.

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    All murders in Washington DC are under exclusive federal jurisdiction so there's a bit of land where OPs proposal would work. Aug 10, 2022 at 7:19
  • Combining your pre-presidential statement idea and your comment about state-level convictions, it could be interesting to consider a case where a sitting governor is the presidential candidate making the statement. They could pardon crimes in their state while still in office, then pardon any federal follow-ups after successfully being elected.
    – DukeSilver
    Aug 10, 2022 at 17:02
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    @MerryMisanthrope This is completely wrong and if your civics class told you so I'm apologize for them on their behalf for their incompetence. See, e.g., the Department of Justice Pardon Office FAQ. web.archive.org/web/20171128231918/https://www.justice.gov/…
    – ohwilleke
    Aug 10, 2022 at 20:39
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    There's another problem here. It's generally accepted that pardons can't be granted preëmptively for future crimes, so whoever intended to undertake the action in question would have to trust that the President would actually follow through pardon them after the fact despite the inevitable political pressure not to do so. Aug 11, 2022 at 17:05
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    A presidential candidate did promise to issue pardons to anyone convicted of certain classes of crimes in the 2020 election (they lost).
    – smitop
    Aug 11, 2022 at 23:37
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No... because it would be rare for the President of the United States to have the power to pardon this person in the first place. Typically, crimes of this nature are prosecuted by the State or territory government and not the DoJ and Federal Government. The President can only pardon crimes which are prosecuted by the Federal Government as that is the Jurisdiction of the President. A crime prosecuted by the State can only be prosecuted by the Governor of the State that prosecuted the crime.

While Dual-Sovereignty allows both the state and the Federal government to prosecute the crime, due to the finite resources and the slower nature of Federal courts, the Feds will rarely if ever prosecute someone for a crime if the State has prosecuted them, regardless of the trial's outcome (if the State Court acquits, it's not enough to get the feds to try it again.).

Even under the rare circumstance that a vigilante took the life of a drug dealer and was prosecuted by DoJ and was then pardoned by the President of the United States, it is far more likely that the DoJ not bring the case, since the Attorney General (the guy who runs DoJ) would serve at the pleasure of the President. If it's the same "tough on drugs/crime" President as the one that is pardoning the future convict, it's much more likely that some executive order or conversation between the two would occur that would result in the DoJ exercising Prosecutorial Discretion and just not prosecuting the case in the first place.

Even if that specific scenario happens more than once in a single Presidency serving the most time in office possible, it does not make the matter legal. Pardons do not nullify laws, but rather the enforcement of them from the executive branch. The next POTUS might be tough on vigilantes and direct his DoJ to prosecute to them to the fullest extent of the law. The people who his predecessor pardoned got off, but that doesn't mean the new vigilantes will get off so easily.

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    "A crime prosecuted by the State can only be prosecuted by the Governor of the State that prosecuted the crime." Minor nit-pick. It is usually the Governor, but some states vest the authority in a board of pardons and paroles for something similar instead of the Governor. The scope of a Governor's pardon power in some states is also not as broad as the President's with some state pardon powers only extending to cases where there has been a conviction, for example.
    – ohwilleke
    Aug 9, 2022 at 23:47
  • It's not that rare, see for example the Travis McMichael etc. case... but certainly relatively speaking rare.
    – Joe
    Aug 11, 2022 at 5:02
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    @ohwilleke And at least one state requires the Governor to obtain consent before issue pardons and commutations, which would also hamper this attempt. In Massachusetts, pardons and commutations must be approved by the Governor's Council, a bizarre oversight body that also approves judicial appointments. Aug 11, 2022 at 16:59
  • @AndrewRay Nothing terribly bizarre about it. A bit like the Council of State in some European countries and probably modeled on it.
    – ohwilleke
    Aug 11, 2022 at 19:10
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Yes, if the murders are carried out by the US military whilst not on US soil

Killing drug dealers in a firefight is legal - but executing them whilst they're in custody is not. The military personnel who do this or authorise this have committed a war crime. On US soil, of course the relevant state has authority instead. Off US soil, officially the relevant country has jurisdiction (if it's not done in international waters), but standing US policy is that US military personnel are only subject to US law, so they would be subject to appropriate action by a US military court. This was formally instated by President GW Bush with the Military Commissions Act of 2006.

The President's power of pardon doesn't just apply to federal crimes - it also applies to military crimes. William Calley was released under house arrest by President Nixon after being convicted of being responsible for the My Lai massacre, although he was not pardoned. More recently though, President Trump granted full pardons to four Blackwater security guards who massacred Iraqi civilians, and to two officers and an NCO who murdered or executed captives and civilians. In the latter case, two of the men had not yet been tried, but were preemptively pardoned without having to stand trial.

So there is clearly precedent for pardoning people who carry out executions as part of the military, and this would apply equally well to drug dealers.

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  • Not sure why this was getting voted down. Seems like a useful addition to the other answers, and an angle they hadn't considered. Since the downvoters did not comment, we can only guess at their motives. No one got convicted for killing Bin Laden, either, but if they had been, the President would have been within his rights to pardon them.
    – JamieB
    Aug 10, 2022 at 17:53
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    @JamieB I wouldn't argue that anyone should have been convicted for killing Bin Laden - that was a regular military operation. But execution of prisoners in custody is something else.
    – Graham
    Aug 11, 2022 at 9:33
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If the murders are federal crimes, then yes. The president's power to pardon for federal crimes is unlimited except in cases of impeachment.

However, most murders are prosecuted at the state level, so this is not feasible in practice. The president cannot issue pardons for state crimes.

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  • @hszmv didn't post their answer until after I started writing this; it's much more detailed than mine.
    – Someone
    Aug 9, 2022 at 18:31
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    To clarify for your AFAIK, Federal Murder charges are a thing and can be prosecuted, but are normally reserved for murders that either involve federal government employees (especially if they are murdered because of the duties the performed in the course of their duty or the status as a federal employee) OR murders that occur on Federally Owned Property OR the Murder involved crossing state lines OR is in U.S. Jurisdiction but not in a territory or state jurisdiction (usually applies to some uninhabited territorial islands or U.S./International Waters.).
    – hszmv
    Aug 9, 2022 at 18:43

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