If Trump were to pardon himself, would that be an admission of guilt?

[cyclonefence]

From the Washington Post, an article from last year by Eugene Volokh:

1. In 1915, the Supreme Court indeed said, of pardons, that “acceptance” carries “a confession of” guilt. Burdick v. United States (1915). Other courts have echoed that since.

2. On the other hand, a pardon has historically been seen as serving several different functions, one of which is protecting people who were convicted even though they were legally innocent.

https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/08/26/is-accepting-a-pardon-an-admission-of-guilt/?utm_term=.431509768c90

He goes on to quote at length from Justice Story, writing in 1833, citing many instances (some very complicated) where accepting a pardon should not be seen as admission of guilt. It seems to me that none of these exceptions would apply to Trump's situation.

Have Trump's legal eagles talked to him about the implications of a self-pardon? I would imagine they have, but I guess the real question is whether Trump would take their advice seriously--and whether acknowledging guilt would have any effect at all on his staying in power (assuming Dems don't take over both houses).

[Proud Liberal Dem]

1. I'm not a lawyer

but how exactly could you pardon yourself for something you didn't do? Why?

[onenote]

5. Pardons can be and are granted prior to conviction

or even charges being brought. Moreover, the DOJ's own written policy regarding pardons acknowledges the possibility that a pardon could be granted to someone who proclaims their innocence. And the federal law that provides for compensation to individuals who have been "unjustly convicted" allows for such compensation in cases where an individual has received a pardon based on the "stated ground of innocence and unjust conviction."

One of the purposes of pardons is to provide relief to an unjustly convicted individual. Imagine an African-American man convicted by an all-white jury in the south in the 1960s on the basis of false testimony or against the weight of the evidence. Certainly you would agree that individual should be able to receive a pardon without having to admit they were guilty.

[Proud Liberal Dem]

12. I guess that I'm looking at this more politically than legally

From a political and basic common sense perspective, Trump pardoning himself while also insisting that he didn't do anything wouldn't make a lick of sense.

[onenote]

20. I'm sure he would claim he was doing it because the investigation

was a tainted witch hunt. Those who support him would continue to believe he was innocent. Those who don't support him would dismiss his claims as more of his usual crapola.

So from a political standpoint, it wouldn't really change much of anything.

[syringis]

11. Hi Proud Liberal Dem

I am lawyer. Here's how it works :

https://www.democraticunderground.com/100210695526

[DetlefK]

2. I made an OP about this article two days ago. :D

Short take: The question whether or not this counts as an admission of guilt would end up in court and Trump would have to convince a judge that he pardoned himself as an act of mercy for somebody afflicted by injustice, not as a get-out-of-jail-free card.

[workinclasszero]

3. Accepting a pardon is always an admission of guilt

Why would you need to pardon an innocent person?

[onenote]

6. Because sometimes innocent people are unjustly charged and convicted.

Study up on the history of trials of African Americans in the south.

[workinclasszero]

14. I realize innocent people get railroaded into prison

It doesn't change the fact that a pardon is an admission of guilt. If I was convicted unjustly and offered a pardon, I'd take it but that doesn't change the nature of a pardon.

I thought we were talking about Trump anyway. That dirty bastard is the polar opposite of innocent on anything,

[onenote]

22. Sorry, but you're mistaken.

In our system of justice, one is presumed innocent until proven guilty. If a pardon is granted to someone who has engaged in certain behavior but has not yet been charged with a crime, or has been charged, but not yet prosecuted, and that person doesn't "admit" that they were guilty of committing a criminal act, they can still receive a pardon and if that pardon expressly indicates it was granted based on the grantor's conclusion that the recipient is innocent of wrongdoing, that person is innocent, not guilty.

Consider a real world example, albeit one involving a pardon granted at the state level, not federal. Keith Cooper was charged, tried and convicted of committing violent robbery. Over time, however, the evidence on which his conviction was based began to fall apart, to the extent that both the state parole board and the prosecutor that tried him concluded that he was not guilty of the crime for which he was convicted and that he should receive a pardon. Throughout it all, Cooper maintained his innocence. Unfortunately, the governor at the time, a schmuck named Mike Pence, refused to grant a pardon. it was only after Pence left office and a new governor took his place that the new governor, expressly stating that "I am very much at peace pardoning him for the one he claims innocence on… He has from the very outset and I believe he is innocent of that crime.”
https://www.thedailybeast.com/innocent-man-finally-pardoned-after-mike-pence-refused-to-clear-his-name

Now, consider your position -- that when Cooper was offered and accepted the governor's pardon, both the governor and Cooper were acknowledging Cooper's guilt, notwithstanding Cooper's consistent insistence that he was innocent and the governor's express agreement with Cooper in that regard. Consider further the consequences of your position: if Cooper were to sue for "wrongful conviction," your position would, logically, prevent him from doing so since he would have, in your view, admitted he was guilty, which would make it impossible to find he had been wrongfully convicted.

I'm sure you are aware of the work of the Innocence Project, which has through DNA testing and other efforts, established the innocence of several hundred convicted felons (and has provided evidence leading to the conviction of dozens of actual perpetrators). In some instances, the work of the Innocence Project has resulted in a pardon based on the innocence of the recipient of the pardon. Do you really think that an individual, convicted of capital murder, shown not to have committed that murder based on irrefutable DNA evidence and granted a pardon as a result, should be regarded as having admitted he committed the murder because he was granted and accepted that pardon?

[NewJeffCT]

4. His main legal advice

is soundbites from Fox & Friends and Sean Hannity

[workinclasszero]

7. And that crook Jay Sekulow

Trump attorney Jay Sekulow’s family has been paid millions from charities they control

https://www.washingtonpost.com/investigations/trump-attorney-jay-sekulows-family-has-been-paid-millions-from-charities-they-control/2017/06/27/6428d988-5852-11e7-ba90-f5875b7d1876_story.html?utm_term=.b34e85532227

[cyclonefence]

10. Isn't that guy the sleaziest of the sleazy! nt

[workinclasszero]

15. That's why he works for Trump

The whole GOP is one big con/criminal enterprise.

If there was any justice in this country, we could use the RICO act on the GOP and shut it down forever!

[cyclonefence]

18. My skepticism is showing

but I automatically turn on the bullshit meter when dealing with a Jewish man who has become an evangelical christian and is making a lot of money from his conversion.

[unblock]

8. imho, this is all a big misunderstanding.

the idea that accepting a pardon is an admission of guilt came up in the burdick decision, in a peculiar instance of a pardon -- the government was trying to force a pardon on an unwilling recipient in order to coerce testimony by voiding his 5th amendment protection against self-incrimination.

the supreme court reasoned that the president could give a pardon, but that they couldn't force the recipient to accept it or to use it. in the course of explaining that point of view, they mentioned something not essential to their conclusion, namely that accepting a pardon would constitute an admission of guilt, and though there might be no legal consequence to it, it was nevertheless one potential reason for refusing to accept a pardon.

this "dicta" has been misinterpreted, imho, to apply far more broadly than the supreme court in that case ever intended. it certainly can't reasonable apply when a pardon is granted because the recipient turned out to be innocent, but we only determined that after appeals had been exhausted, e.g., based on more recent dna evidence. or if it was otherwise a miscarriage of justice, or the crime that the recipient was convicted for is no longer considered a crime.

fundamentally, a pardon is simply a procedural way to void a prosecution, and it can be used for many different reasons, so i don't think it makes sense to say it always, or really even ever, necessarily means an admission of guilt.

again, this notion was not even necessary to the original case or an unwanted pardon.

[syringis]

13. Hi Unblock, this :

fundamentally, a pardon is simply a procedural way to void a prosecution, and it can be used for many different reasons, so i don't think it makes sense to say it always, or really even ever, necessarily means an admission of guilt.

Exactly !

[onenote]

23. +1

[duforsure]

9. To pardon himself,

For what? You have to be convicted first of a crime to be pardoned don't you? So yes if he were convicted (impeached in the House) in the Senate he actually would not have that power anymore, but before it , I don't think so. I don't think in any way he could pre-pardon himself. Just my opinion. Does that apply to being indicted? Again that's not a crime to be indicted, and only after he would be found guilty, which again is a legal issue if that could happen other than being impeached , then convicted from the Senate and Congress.

[unblock]

16. you can be pardoned for any crime you may have already committed.

it can happen at any stage.

most pardons, by far, happen well after conviction, usually after all appeals are exhausted. in other words, the pardon is usually the last line of defense.

however, the pardon can happen at any point after the crime may have been committed.

[syringis]

17. Thank you Unblock

We don't have the same legal system, ours is Civil Law, but the notion of pardon exists. "Grâce "

There is also another notion, "Amnistie" (amnesty)

The difference between "Grâce" and "Amnistie" :

Grâce : non-execution of the sentence but does not erase the condemnation

Amnistie : totally and forever erases the conviction, and leads to the " oblivion " of the sentence.

[unblock]

21. we use both terms, pardon and amnesty

but the meanings are a bit different, even though they are really just different cases of the same "pardon" power granted to the president in the constitution.

amnesties tend to be given to groups and generally mean the government won't prosecute. pardons are for individuals and usually granted at some point after conviction, usually well after.

there's also commutation, which again is really just another pardon power, which simply reduces the sentence imposed, e.g., to reduce a sentence from death to life in prison, or to free someone by reducing their sentence to "time served".

[treestar]

19. I don't know how many times I have heard perception is everything

when trying to explain a legal point or how desirable it is to follow the law rather than who we like.

It's always that we should totally cave to the idea of perception and likeability rather than the law and justice.

So here, I can say, maybe legally it would not. But with a public that believes settling a civil suit is an admission of guilt, it would be easy to convince them that accepting a pardon is even more so, even if it legally isn't.

OTOH, the Deplorables will be hypocritical as usual.

[bdamomma]

24. tRump cannot pardon himself

Last edited Wed Jun 6, 2018, 11:50 AM - Edit history (1)

https://www.washingtonpost.com/opinions/no-trump-cant-pardon-himself-the-constitution-tells-us-so/2017/07/21/f3445d74-6e49-11e7-b9e2-2056e768a7e5_story.html?noredirect=on&utm_term=.9fefde95827a

Just a snip of the article.


Can a president pardon himself? Four days before Richard Nixon resigned, his own Justice Department’s Office of Legal Counsel opined no, citing “the fundamental rule that no one may be a judge in his own case.” We agree.

The Justice Department was right that guidance could be found in the enduring principles that no one can be both the judge and the defendant in the same matter, and that no one is above the law.

The Constitution specifically bars the president from using the pardon power to prevent his own impeachment and removal. It adds that any official removed through impeachment remains fully subject to criminal prosecution. That provision would make no sense if the president could pardon himself.


https://www.cnbc.com/2018/06/04/here-is-what-9-experts-say-about-whether-president-trump-can-pardon-himself.html

[ck4829]

25. Sure sounds like it

[krawhitham]

26. Yes

[Gothmog]

27. Yes, it would be an admission of guilt