Are Presidential Pardons an Admission of Guilt?

This unfortunately is being repeated by the twitterocracy to hopeful liberals seeking to find solace after the controversial, highly unusual and potentially impeachable, pardon of Sheriff Joe Arpaio.

Soledad Obrien, Norm Ornstein, The Jester, John Aravosis, Kyle Griffin, all people i follow on twitter and generally trust to share accurate information, repeating the claim that accepting presidential pardons is an admission of guilt and that by doing so Arpaio is paving the way for thousands of civil suits. Unfortunately this is not true.

Most of the reasoning behind people pushing this, other than anger and an attempt to find solace in yet another indefensible act, is loosely based off their understanding of the the cases Burdick v. United States (1915) and United States v. Wilson (1833). Or, in some cases their understanding of the rumored understandings of President Gerald Ford‘s opinion of these cases.

Here are some of the articles being cited…

LA Times piece that cites Susan Block from GU Law saying “Accepting a pardon is an admission of guilt. And even if the president can pardon [him-] or herself, it can only be for federal offenses.” (tho no case law or constitutional citations are included, just her title)

NYT opinion piece from 2007 on Scooter Libby… which makes several errors, main ones discussed in next section.

Why this is Bullshit…

  1. Confusing “imputation of guilt” with being an actual legal component to the process. Public assumption, accusations, implications don’t hold water in terms of legal proceedings. The legal right to reject a pardon based on the fact that a person (Burdick, Wilson or otherwise) feels it would appear as though there’s a pretense, imputation, liability, religious/moral cost, or otherwise, does not mean that by accepting the pardon they are legally admitting guilt.

From Burdick v. US.

This brings us to the differences between legislative immunity and a pardon. They are substantial. The latter carries an imputation of guilt; acceptance a confession of it. The former has no such imputation or confession. It is tantamount to the silence of the witness. It is noncommittal. It is the unobtrusive act of the law given protection against a sinister use of his testimony, not like a pardon, requiring him to confess his guilt in order to avoid a conviction of it.
It is of little service to assert or deny an analogy between amnesty and pardon. Mr. Justice Field, in Knote v. United States, 95 U.S. 149, 153 , 24 S. L. ed. 442, 443, said that ‘the distinction between them is one rather of philological interest than of legal importance.’ This is so as to their ultimate effect, but there are incidental differences of importance. They [236 U.S. 79, 95] are of different character and have different purposes. The one overlooks offense; the other remits punishment.

2. Confusing dicta with holdings. Basically within the decisions of Burdick and Wilson… there’s quite a bit of discussion. Some of it is of questionable importance and coherence, but let’s take this completely out of context, ignore the paragraph that follows the one below, and derive meaning from these three sentences alone…

This brings us to the differences between legislative immunity and a pardon. They are substantial. The latter carries an imputation of guilt; acceptance a confession of it.

Okay… this is an excellent example of why the dicta, derived from the latin obiter dictum, or “by the way”, is both an explanation and justification for the court’s holdings but are not binding decisions, rulings, findings or holdings of the court. Now granted, these decisions were written a long time ago, and there’s some blurry language, but there is simply no holding that identifies a legal component to the acceptance of a pardon.

3. Presidential Power.

Can a president add conditions to pardons? Certainly. Singular discretion in offering a pardon is a privilege unique to the president. The historical procedures for granting a pardon, such as going through a DOJ review process, were clearly ignored in this case. Again, that’s the privilege and prerogative of the president. And in the past certain presidents did require an admission of guilt as a condition for receiving a pardon. Again, that’s the privilege and prerogative of the president.

Here are Donald J. Trump’s rules governing petitions of executive clemency. Which as presidential historian Andrew Rudalevige puts it “not binding on the president, of course,”

So does the constitution make it clear? Not really. Broad and vague.

he shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment. (Article II, Sec. 2)

and US Code is pretty clearly broad on the matter.

§ 1.1 Submission of petition; form to be used; contents of petition.
A person seeking executive clemency by pardon, reprieve, commutation of sentence, or remission of fine shall execute a formal petition. The petition shall be addressed to the President of the United States and shall be submitted to the Pardon Attorney, Department of Justice, Washington, DC 20530, except for petitions relating to military offenses. Petitions and other required forms may be obtained from the Pardon Attorney. Petition forms for commutation of sentence also may be obtained from the wardens of federal penal institutions. A petitioner applying for executive clemency with respect to military offenses should submit his or her petition directly to the Secretary of the military department that had original jurisdiction over the court-martial trial and conviction of the petitioner. In such a case, a form furnished by the Pardon Attorney may be used but should be modified to meet the needs of the particular case. Each petition for executive clemency should include the information required in the form prescribed by the Attorney General.
§ 0.35 General functions; delegation of authority.
Under the general supervision of the Attorney General and the direction of the Deputy Attorney General, the following-described matters are assigned to, and shall be conducted, handled or supervised by, the Pardon Attorney but subject to the limitation contained in § 0.36 of this chapter.
(a) Exercise of the powers and performance of the functions vested in the Attorney General by §§ 1.1 through 1.8 inclusive of this chapter.
(b) Performance of such other duties as may be assigned by the Attorney General or the Deputy Attorney General.
[Order №1012–83, 48 FR 22290, May 18, 1983, as amended by AG Order №3464–2014, 79 FR 54188, Sept. 11, 2014]
§ 0.36 Recommendations.
The Pardon Attorney shall submit all recommendations in clemency cases through the Deputy Attorney General and the Deputy Attorney General shall exercise such discretion and authority as is appropriate and necessary for the handling and transmittal of such recommendations to the President.

There’s a ton more stuff on that goes into presidential authority and the wide discretion historically afforded to presidents on the matter, from the federalist papers to supreme court cases and endless academic literature, for those interested.

End of the day…

There is simply no constitutional or legal basis for the claim that presidential pardons are an admission of guilt. Pardons do not require an admission of guilt, and any requirement of such is at the sole discretion of the president, and any imputation of such is at the discretion of the individual, and carries zero legal weight.

It doesn’t matter how many retweets it gets or how bad you want it to be true…..There is no admission of guilt involved in the pardon and for reasonable people, those who respect both the judiciary and the rights of all citizens, this should make the entire deal that much more outrageous.

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