Premature Presidential Pardons: When exactly is “too early”?

Still from Steven Spielberg’s film “Minority Report”

In the science fiction film “Minority Report”, Tom Cruise plays a U.S. law enforcement officer who detects and prevents “future crimes” with the aid of advanced technology. In this scenario, cyber-soothsayers “see” people commit future crimes, and these would-be perps are pursued and arrested before they can actually commit their foul deeds. In this fictional universe, it’s anyone’s guess whether the president of the United States could pardon the would-be criminal.

Meanwhile in our very real and time-locked world, prosecution necessarily follows commission of the offense. The real question then is whether our president can pardon people before we have reliable proof that they committed particular offenses. This is a timely question, given recent reports that President Donald J. Trump is contemplating pardoning people for offenses that they may not have committed. Article 2, Section 2 of the U.S. Constitution allows the president to pardon almost anyone for offenses against the United States.

Randall Hill (AP)

Some say the answer can be found in a U.S. Supreme Court Case, Ex Parte Garland, decided just after the end of the Civil War.

“The Executive can reprieve or pardon all offenses after their commission, either before trial, during trial or after trial, by individuals, or by classes, conditionally or absolutely, and this without modification or regulation by Congress.” 
Ex parte Garland, 71 U. S. 333, 380 (1866) (see also, Ex parte Grossman, 267 U.S. 87, 120 (1925)).

But this passage from Ex parte Garland does not address the question of how we can know an offense has been committed.

Technology not currently available to the president.

It is also worth noting that this passage is not the holding of the case and is merely dictum. The holding of a case is the rule of the case. Dictum is a bit of information written “in passing” (that is, stuff that is not necessary to establish the holding of the case). The distinction between holdings and dicta is crucial because the holding becomes the law while dicta does not have the force of law. Therefore it is wrong to state that Ex parte Garland “ruled” or “stands for the proposition that” pardons are effective even before convictions.

From “Introduction to Legal Analysis, Weight of Authority, and Dicta” by Professor Njeri Mathis Rutledge, https://www.slideshare.net/kdouat/introduction-to-legal-analysis-sources-law-dicta

The pressing issue is whether a pardon covers potential offenses. I argue it does not because even if we were to wrongly treat the dictum of Ex parte Garland as holding, the language clearly states that a pardon only works on “offenses after their commission”. And how are we to know whether a pardon was granted after commission of an offense if we aren’t sure whether said offense occurred at all?

Ex parte Garland held that Congress cannot punish a person for a crime for which the person has been pardoned. In that case, President Johnson had granted amnesty to attorneys from the secessionist South but one of them was found to have violated a federal statute demanding an oath of allegiance to the United States, and was therefore denied a license to practice law before the U.S. Supreme Court. The court ruled that denying him that law license for violation of the oath statute constituted a punishment, and since the attorney had received amnesty from the president for his oath-breaking, the so-called punishment of being denied a law license could not be imposed on the attorney. This ruling was not based on the above-referenced dictum.

A more recent Supreme Court case reinforces the need for there to be evidence of commission of an offense before a pardon can be effective. Burdick v. United States, 236 U.S. 79 (1915) held that a pardoned person must accept the pardon, thereby admitting to having committed an offense, and that the pardon cannot be forced on a person unwilling to accept it.

A pardoned person must press one of these two buttons.

Furthermore, Burdick confirms that the dictum in Ex parte Garland does not constitute law. “In our view of the case it is not material to decide whether the pardoning power may be exercised before conviction.” Burdick, 236 U.S. 79, 87 (1915). If this question had already been decided in Ex parte Garland, the court would not have phrased this statement in this way. Instead the court clarifies that it has not yet ruled on whether the pardoning power may be exercised before conviction.

Turning back for a moment to the distinction between holding and dicta, it is disturbing to read lawyers make the mistake of confusing the two. Here is a relevant excerpt from a letter to the editor published in the New York Times: “The leading Supreme Court case is Ex parte Garland (1867). Justice Stephen J. Field, writing for the Court in a 5–4 decision, held that the president’s pardoning power is ‘unlimited,’ and ‘It extends to every offense known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken, or during their pendency, or after conviction and judgment.’” Gettler, Thomas G., Constitution Allows Pardons Before Conviction, December 28, 1987, published January, 1988 (emphasis added).

A pardon effective before a conviction would also tend to damage the fact-finding process of investigatory and judicial proceedings, thereby working against the need to know what offense was committed and by whom. The case files and records often lead to discovery of additional offenses, often committed by previously unknown offenders. Even something as fundamental as criminal investigation can get thrown under the bus by an overly-liberal pardon power. Imagine Columbo not getting a chance to say, “Just one more thing …”

The U.S. Department of Justice guidelines make it clear that a pardon should not erase or expunge the record of a conviction. “While a presidential pardon will restore various rights lost as a result of the pardoned offense and should lessen to some extent the stigma arising from a conviction, it will not erase or expunge the record of [a] conviction. Therefore, even if [a person is] granted a pardon, [the person] must still disclose [their] conviction on any form where such information is required, although [the person] may also disclose the fact that [they] received a pardon. In addition, most civil disabilities attendant upon a federal felony conviction, such as loss of the right to vote and hold state public office, are imposed by state rather than federal law, and also may be removed by state action. Because the federal pardon process is exacting and may be more time-consuming than analogous state procedures, [a person] may wish to consult with the appropriate authorities in the state of [their] residence regarding the procedures for restoring [their] state civil rights.” Pardon Information and Instructions, Office of the Pardon Attorney (USDOJ) Retrieved July 27, 2017.

Alexander Hamilton makes it clear in The Federalist 74 that it is “the remission of the punishment” and not the remission of the burdens of a criminal trial that the pardon power addresses.

Reproduced from Columbia University’s “Alexander Hamilton” webpage at http://c250.columbia.edu/c250_celebrates/remarkable_columbians/alexander_hamilton.html

Hamilton also states that the pardon power was created to counter the “severity” of the criminal punishments of his time. Much of that severity has been softened over time with judicial opinions and passage of civil rights laws that afford greater protections and fairer procedures to criminal suspects and convicts. And whatever residue of severity is left behind these days, it amounts to little without a conviction. There is much to be said for an interpretation of the pardon power that would limit its exercise to shielding convicts from the punishments of criminal convictions, and not stray into the field of potential crimes.

Suggested Reading:

Burdick v. United States, 236 U.S. 79 (1915).
Ex parte Garland, 71 U. S. 333, 380 (1866).
Pardon Information and Instructions, Office of the Pardon Attorney, U.S. Department of Justice.
Ronald L. Goldfarb, No Premature Pardons, Washington Post, Dec. 8, 1987.