POLICE
The recent flurry of pardons and commutations by former president Joe Biden and President Donald Trump has been quite a topic of debate and confusion for those in and out of the law enforcement profession. Who can a president pardon? What are the limitations? Can a person refuse to accept a pardon or commutation? Can a president pardon himself? Is accepting a pardon an admission of guilt?
For law enforcement much of the concern is regarding the commuting or pardoning of hardened criminals as well as the hope that crime fighters convicted in the anti-police hysteria of recent years could be given relief from the questionable trials, conviction, and prison sentences they have endured. Much of the confusion today stems from the simple fact that media and the talking heads are often wrong either intentionally, or through sheer ignorance, or too often both.
First, whatever power “kings” or other rulers had in the past is irrelevant since the Constitution is America’s controlling document and in Article 2 it gives the President broad powers in regards to federal law. The Supreme Court over the decades has described limits and powers in that Article to make it a more clearly defined exercise of power. First, it gives the President power in federal cases only. State laws and civil suits are outside of the powers of the chief executive’s pardon. Thus, those wondering if a President of the United States can intervene on behalf of an officer charged and convicted in state court need to understand that is the bailiwick of a governor not the president.
Accepting a pardon is NOT an admission of guilt in spite of what the media thinks. If you believe you are innocent and offered a pardon and the president thinks you were unjustly convicted, say, in a court system like Washington, D.C., with its one-party jury pool and limited judiciary, it would make no sense to say that a pardon implies guilt being accepted by the recipient, it simply means only that a court has ruled someone guilty. The case pseudo-experts like to quote actually said a guy could refuse a pardon because he would have had to testify in court without the Fifth Amendment’s self-incrimination rights, and the discussion about implying guilt was not in the ruling only in the discussion or “Dicta!” In another case, interestingly, the court ruled you cannot refuse a commutation and need to get out of prison whether you want to or not.
While a pardon restores your rights, it doesn’t erase your conviction, nor does it shield you from civil suits, seizure and forfeitures, or protect you from other prosecutions for crimes other than the ones pardoned. This is where a great deal of concern and confusion comes in about a preemptive pardon on uncharged crimes. This is an unresolved issue to many but its history goes way back. Andrew Johnson gave one to a former Confederate Senator named Augustus Hill Garland and Congress tried to disbar him and all lawyers who served as Confederate officials. The Supreme Court heard the case (Ex parte Garland) and ruled that a person cannot be punished by Congress once they have received a pardon for that specific crime from the president. So it would appear, in spite of all the hollering, that Biden’s broad pardon of folks will stand as did Jimmy Carter’s preemptive pardon of the Vietnam-era draft dodgers.
However, remember that a preemptive pardon takes away your Fifth Amendment privileges regarding the potential offense pardoned, doesn’t protect you from state prosecution for state laws, future crimes, or civil proceedings. Whether state prosecutors follow up on any of the current controversy waits to be seen. But for those in law enforcement angry at the perceived injustice of state and local prosecutions of men and women serving and protecting their communities and hoping a new administration will focus on either commuting or pardoning those convicted, it is important to understand what rights a president has and the restrictions on such powers. Governors are given such pardon powers according to each state’s constitution and laws and it would often need to be a change in those offices that would be necessary for relief.
Regardless of the actual effect of the pardons on the recipients, I believe it creates a sense for society to reevaluate how we have been conducting the business of prosecution. Witch hunts and show trials will become a thing of the past and some pardons will bring a new awareness to the American mind, an example of which is two D.C. Metro Police officers President Trump discussed in his initial press conference who had little chance for acquittal in an emotionally charged anti-cop trial. Hopefully, the constant fear of prosecution for merely doing your job will become a thing of the past and whatever we may think about the recent tidal wave of pardons and commutations, the ripple effect may prove to be a long-term good.
