Opinion Forum

Presidential Pardons

January 14th, 2009

Kevin posted an article on presidential pardons at Preemptive Karma. It made me think about President Bush’s recent revocation of a pardon the day after he granted it. In Article II, Section 2, the Constitution gives the president absolute “…Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.” But if the power to grant a pardon is absolute, is not the pardon immune from revocation? George Lardner, Jr. has a column in The Washington Post today on the power to “unpardon.” Seems the issue comes down to whether the pardon has been delivered–and how it was delivered. There’s a history of court precedents, and it looks like it might go either way, assuming the revocation is tested in court. Should be interesting.

Articles written by Tom Carter
Tags: Law
Categories: History, News, Politics | Comments (7) | Home

7 Responses to “Presidential Pardons”

Kevin | January 15th, 2009 at 12:15 pm

Seems to me that an absolute power to grant pardons and reprieves also implies an absolute power to withdraw the same. The power is vested in the office, not the pardon. Which is why I don’t have a problem with Bush withdrawing a pardon. It just seems to me to be consistent with the premise of his authority.

Justice, in the legal, conventional sense, has nothing to do with it. By it’s very nature a pardon cuts legal justice out of the loop entirely (or to whatever degree the particulars of the pardon stipulate). So it seems to me to stand to reason that conventional legal justice would have no role in a withdrawn pardon.

I fully understand what makes people uncomfortable with the very notion of withdrawing a pardon. It’s a sort of double-jeopardy in reverse. But it makes little sense to me to expect conventional understandings of justice to apply to one side of the equation when they so clearly don’t apply to the other side – the granting of the pardon in the first place.

Tom | January 15th, 2009 at 1:01 pm

I guess it’s really kind of an interesting mind game. If a pardon is granted under an “absolute” power, isn’t it then immune from any kind of action that would revoke or cancel it? On the other hand, since a president has absolute power to grant it, why wouldn’t he have absolute power to revoke it?

From Lardner’s article, the precedents seem to focus on the question of whether the pardon was delivered, and how, and maybe whether it was accepted. That implies that once delivered, or whatever is required to make it final, then it can’t be revoked.

Sounds like a lot of mental gymnastics. I think you’re right that conventional understandings don’t apply. Anyway, it’s going to be interesting to see how it plays out.

Kevin | January 15th, 2009 at 2:43 pm

Well, I’m no legal scholar but I have a hard time seeing how the Supreme Court – should such a case ever reach them – could justify denying a president the power to revoke a pardon at will.

This seems to me to come down to a “the lord giveth and the lord taketh away” situation. That’s why I used the royal prerogative analogy in my post.

It’s a very curious thing that the Founders allowed to be enshrined in our Constitution. I can’t think of any other example where a power Constitutionally vested in the office of the presidency isn’t fully passed on to the next president. Pardon’s are, to my knowledge, the sole presidential power which future presidents can’t touch.

Kevin | January 15th, 2009 at 2:49 pm

Hmmm… it just occurred to me to wonder if this might not be at the root of why Nixon asserted (to Frost?) that a president is functionally a king for the duration of the term of office.

Tom | January 15th, 2009 at 4:29 pm

The power to grant reprieves and pardons certainly does approach kingly powers. Just proves that even Nixon wasn’t always wrong!

To me, this is another fascinating exercise in parsing the framers’ words and their intentions. It seems that once a pardon is granted (however that’s defined), it becomes irrevocable by its very nature. I don’t see an equivalent power to revoke a pardon.

Not being a legal scholar, either, I have no idea how this will come out. What little I know of the precendents seems confused, so some new law may be made if this ever gets to the Supremes.

rjjrdq | January 15th, 2009 at 10:23 pm

All the scum Bush has pardoned is enough to turn the stomach of even the most cynical, yet the two Border Patrol heroes Ramos and Campeon continue to rot in jail. He withdrew one pardon? Whoopee…

Tom | January 19th, 2009 at 8:02 pm

President Bush commuted the sentences of Ramos and Campeon on Jan 19. That will get them out of prison in a couple of months, but it doesn’t erase their convictions. In other words, they weren’t pardoned.

The conviction and imprisonment of these two Border Patrol officers was a travesty, and Bush should have pardoned them long ago. Shows how far a politician of either party will go to pander to a specific constituency.