The Supreme Court and the president’s pardon power
By Amy Howe
on Jan 1, 2021 at 3:38 pmCorrection appended.
The Constitution gives the president the power “to grant Reprieves and Pardons for Offenses against the United States, except in Cases of impeachment.” In the days before Christmas, President Donald Trump used this power to pardon or commute the sentences of over 40 people, including Paul Manafort, Trump’s former campaign manager; Charles Kushner, the father of Trump’s son-in-law and adviser, Jared Kushner; Roger Stone, who was convicted by Special Counsel Robert Mueller of obstruction of justice and other crimes; and four men who were convicted of killing Iraqi civilians while working as contractors for the private security firm Blackwater.. With just under three weeks remaining in Trump’s term, there could be more pardons on the horizon – and Trump has asserted that he has the “absolute right” to pardon himself.
The Supreme Court has made clear that, subject to the exception for impeachment, the president’s power to grant pardons is “unlimited,” with virtually no oversight or limiting role for Congress. In Ex parte Garland, which involved President Andrew Johnson’s pardon of a lawyer who had served in the legislature of the Confederacy, the court indicated that the president’s pardon power covers all federal offenses. The president can issue a pardon at any point after a crime is committed and before, during or after criminal proceedings have taken place. The president cannot, however, pardon someone for future crimes. A pardon covers both the offender’s conviction for the crime and the sentence for that crime.
In Burdick v. United States, the Supreme Court addressed the case of a newspaper editor who declined to testify before a grand jury, invoking the Fifth Amendment, even after the president pardoned him. Burdick declined to accept the pardon, and he was held in contempt for refusing to testify. The question before the Supreme Court was what effect, if any, the unaccepted pardon had. The court ruled that a pardon becomes effective only if it is accepted. The court also compared immunity, granted by Congress, and a pardon, explaining that the differences are “substantial.” Unlike immunity, the court reasoned, a pardon “carries an imputation of guilt; acceptance a confession of it.”
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https://www.scotusblog.com/2021/01/the-supreme-court-and-the-presidents-pardon-power/
