THE PRESIDENT’S CONDITIONAL PARDON POWER The ... - Harvard Law Review

THE PRESIDENT'S CONDITIONAL PARDON POWER

The President's pardon power is a near-blank check hidden among the Constitution's checks and balances.1 Despite substantial handwringing about possible abuses of the power, scholars have almost entirely overlooked the most potent tool in the President's pardon power arsenal: the ability to attach conditions to clemency grants (the "conditional pardon power").2 As a subset of the general pardon power, the conditional pardon power is assumed to be similarly "unfettered,"3 "plenary,"4 or "unlimited."5 This cannot be correct.

If the conditional pardon power were truly "unfettered," then the President could wield it for political advantage. He or she could pardon, and thereby re-enfranchise, thousands of convicted felons in key swing states upon the condition that they vote for his or her party in the upcoming election. Pardon recipients who failed to fulfill the condition would be thrown back in jail.6

If the conditional pardon power were truly "plenary," then the President could use it to replace a duly enacted penal scheme with one of his or her own choosing. Imagine Congress unanimously passed, over the President's veto, a bill requiring jailtime for police officers who killed unarmed civilians with chokeholds. A President who preferred only limited civil liability could unilaterally impose a different penal scheme by pardoning all such officers upon the condition they pay the

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1 The power is granted with only two textual limits: the President may only pardon crimes "against the United States" and may not issue pardons "in Cases of Impeachment." See U.S. CONST. art. II, ? 2, cl. 1 (granting the President the "Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment").

2 A conditional pardon is "[a] pardon that does not become effective until the wrongdoer satisfies a prerequisite or that will be revoked upon the occurrence of some specified act." Conditional Pardon, BLACK'S LAW DICTIONARY (11th ed. 2019).

3 Schick v. Reed, 419 U.S. 256, 262 (1974). 4 Id. at 266; see also United States v. Klein, 80 U.S. 128, 147 (1871). 5 Ex parte Garland, 71 U.S. (4 Wall.) 333, 380 (1866) (noting that the pardon power is "unlimited" with the exception of textual limitations stated supra note 1). 6 See Conditional Pardon, supra note 2; Lupo v. Zerbst, 92 F.2d 362, 364 (5th Cir. 1937) (describing a President's revocation of a conditional pardon). The President might also gain political advantage by granting conditional pardons to coconspirators that preserve their Fifth Amendment right to decline to testify. Cf. Aziz Huq, Trump's Pardon Spree Could Actually Be Good for Democracy, WASH. POST (Dec. 24, 2020, 2:42 PM), outlook/2020/12/22/trump-pardons-congress-investigations-self [] (arguing that pardoned individuals can no longer claim a Fifth Amendment privilege to avoid testifying). Imagine: "I do hereby pardon Paul Manafort upon the condition that if he should testify for the prosecution in a case in which Donald Trump or one of his children is the defendant, this pardon shall be null and void."

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victim's family a sum of money not to exceed $500.7 And if the conditional pardon power were truly "unlimited," then the

President could impose horrifying conditions. He or she could pardon a healthy prisoner upon the condition that the prisoner donate her kidney to the President's ailing cousin, or commute a death sentence upon the condition that the prisoner be strung up by his ankles and tortured in the Rose Garden for the First Family's entertainment.

Some hypotheticals seem more plausible than others, but history teaches us to take seriously the hard boundaries of executive power, especially where its exercise could be catastrophic.

Presidents have so far avoided controversial conditional pardons.8 As a result, the boundaries of the conditional pardon power have not been clearly drawn. This Note fills that gap. It answers two questions: Are there limits9 to the conditional pardon power? If so, what are they?

This Note's examination of the conditional pardon power is valuable for a few reasons. First, the power is ripe for abuse. It could allow a norm-breaking President to infringe upon individual rights and, as perniciously, to undermine America's separation of powers. Second, the original understanding of the conditional pardon power is sorely under-

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7 If this example seems unrealistic, consider that Presidents have already used, or come close

to using, their pardon power to circumvent bicameralism and presentment and implement their preferred criminal laws. President Jefferson pardoned everyone convicted under the Sedition Act of 1798, a law he believed unwise and possibly unconstitutional. See William F. Duker, The President's Power to Pardon: A Constitutional History, 18 WM. & MARY L. REV. 475, 530 (1977); Margaret Colgate Love, Of Pardons, Politics and Collar Buttons: Reflections on the President's Duty to Be Merciful, 27 FORDHAM URB. L.J. 1483, 1488 (2000).

Recently, President Obama controversially used his power over deportation to create quasipermanent resident status for so-called Dreamers after Congress declined to pass comprehensive immigration reform. See Caitlin Dickerson, What Is DACA? And How Did It End Up in the Supreme Court?, N.Y. TIMES (July 3, 2020), []. Multiple members of Congress called on the President to instead use his pardon power. Letter from Representatives Zoe Lofgren, Luis V. Guti?rrez, and Lucille

Roybal-Allard to President Barack Obama (Nov. 17, 2016), uploadedfiles/ltr_to_president_on_daca_and_pardon_authority_-_11-2016.pdf [ KC9E-6TC3]. Had President Obama acquiesced to calls for DACA-by-pardon, he would have unilaterally and unalterably rewritten United States immigration law despite a total lack of congressional authorization.

8 But see Notorious Presidential Pardons: Jimmy Hoffa, 1971, TIME, http:// content.time/specials/packages/article/0,28804,1862257_1862325_1862316,00.html [].

9 This Note defines "limit" as something that would render a pardon inoperative. A pardon

issued as part of a corrupt scheme to obstruct justice might lead to impeachment or criminal prosecution. See Laurence Tribe, Opinion, Donald Trump's Pardons Must Not Obstruct Justice, FIN. TIMES (Dec. 26, 2020) []. But because the pardon would be valid insofar as it effectively shields its recipient from prosecution, impeachment and prosecution would not constitute "limits" on the pardon power. Limits can be internal (the power does not extend this far) or external (the

power cannot overcome some other constraint on government action).

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developed. Given the increasingly originalist federal judiciary, the outcome of future conditional pardon cases could turn on the power's original meaning. Finally, the conditional pardon power is underappreciated but not entirely neglected. America's history books contain scattered instances of conditional pardons, some of which received scrutiny from the Supreme Court. History provides enough data points for this Note's pardon power connect-the-dots to sketch an intelligible picture of the President's conditional pardon power.10

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This Note concludes that the President's pardons may not include conditions that deprive an individual of rights not already deprived by that individual's conviction (or, in the case of preemptive pardons, rights that would have been deprived by a guilty plea). This internal limitation is externally reinforced by the Due Process Clause. This Note's historical and constitutional arguments should inform judges faced with conditional pardon cases. Whatever disagreements may arise over this Note's descriptive account of the conditional pardon power's limits, the examination of risks from unfettered conditional pardons commends to future administrations the wisdom of prudential limits.

Part I introduces the conditional pardon power jurisprudence. It begins by examining three cases showing that (1) English common law informs the President's pardon power and (2) American courts oscillate between two distinct theories of the President's pardon power. The first theory, which this Note dubs the "merciful-contract" theory of pardons, envisions pardons as a private act between President and pardon recipient. By contrast, the "public-welfare" theory understands pardons as an instrument of the general welfare. This Part next describes two conceptions of the conditional pardon power: a "Broad Position" that would impose no limits on the conditional pardon power and a "Narrow Position" that insists on limits but fails to precisely define them.

Part II argues that the Broad Position cannot be correct. After establishing that the conditional pardon power poses unique danger to constitutional rights, it concludes that the English common law, the Framing, and structural inference from our constitutional system all suggest a conditional pardon power that is far from plenary.

Part III identifies this limit: pardon conditions may only divest rights already forfeited by dint of conviction. It explains the limit using examples before fitting it into the theoretical framework of the pardon power. Finally, this Part compares the identified limit with other proposals and situates it within constitutional theory generally. Part IV concludes.

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10 This Note does not explicitly consider self-pardons, unconditional pardons, pardons in cases of impeachment, or pardons from state court convictions.

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I. CONCEPTIONS OF THE CONDITIONAL PARDON POWER

The Constitution grants the President the "Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment."11 This barebones clause received scant attention from the Framers.12 Fleshing it out has fallen to the courts.

A. Theoretical Foundations

Pardon power jurisprudence sprang from Chief Justice John Marshall's pen. In United States v. Wilson,13 he relied on English common law to hold that a court could not take notice of, and therefore could not give effect to, a pardon that a prisoner had intentionally declined to plead in court.14 The Court upheld the prisoner's conviction for robbing the mail despite a presidential pardon from an earlier capital conviction for the same misconduct.15

Wilson established that English common law informs the President's pardon power. Chief Justice Marshall justified adopting England's "principles respecting the operation and effect of a pardon" because the "[pardon] power had been exercised from time immemorial by the executive of [England] . . . [,] to whose judicial institutions ours bear a close resemblance."16 Nearly every subsequent Supreme Court decision has reaffirmed the pardon power's common law basis.17

Though pardon power jurisprudence consistently looks to English common law, it equivocates about both the substance of the King's common law pardon power18 and the extent to which the King's power was modified, if at all, when adopted in the American constitutional system.19 The disjointed jurisprudence provides no clear answers. Instead, it oscillates between two distinct conceptions of the President's pardon

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11 U.S. CONST. art. II, ? 2, cl. 1. 12 See Ex parte Grossman, 267 U.S. 87, 112 (1925). 13 32 U.S. (7 Pet.) 150 (1833). 14 Id. at 163. 15 Id. at 153, 163. 16 Id. at 160. 17 See, e.g., Schick v. Reed, 419 U.S. 256, 263?64 (1974); Ex parte Grossman, 267 U.S. at 110; Ex parte Wells, 59 U.S. (18 How.) 307, 311 (1856) ("We must then give the word the same meaning as prevailed here and in England at the time it found a place in the constitution."). But see Osborn v. United States, 91 U.S. 474 (1876) (failing to mention English common law). 18 The Wilson Court relied on English precedent to determine only the mechanics of effectuating a pardon. See Wilson, 32 U.S. (7 Pet.) at 160?61. To the extent Wilson reached broad conclusions about the substance of the King's pardon power, subsequent courts have conducted their own historical analyses regarding the substance of the King's pardon power. See, e.g., Hoffa v. Saxbe, 378 F. Supp. 1221, 1226?30 (D.D.C. 1974); Ex parte Grossman, 267 U.S. at 110?11. 19 Wilson can be read to support either the broad proposition that the President's pardon power is identical to the King's, see Ex parte Grossman, 267 U.S. at 109?10, or only the narrow proposition that the requirement to plead a pardon does not differ from the common law requirement, see Wilson, 32 U.S. at 161?63.

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power with divergent substantive implications.20 Conflicting cases about pardon acceptance, Burdick v. United States21 and Biddle v. Perovich,22 highlight the distinct theories.

In Burdick, President Wilson pardoned a newspaper editor, George Burdick, who had refused to testify by invoking his Fifth Amendment right against self-incrimination.23 President Wilson reasoned that Burdick, once pardoned, would no longer risk self-incrimination and therefore could not refuse to take the stand.24 When Burdick rejected the pardon and still declined to testify,25 the Supreme Court held that a pardon must be accepted for it to have legal effect.26 The Burdick Court relied heavily on Chief Justice Marshall's opinion in Wilson, which had found a pardon ineffective when not pleaded in court.27

Burdick embodies what this Note calls the "merciful-contract" theory of pardons. It conceives of a pardon as "a private deed"28 created

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by the President exclusively for the benefit of the individual upon whom it is bestowed.29 Burdick's acceptance condition logically follows: a pardon, like all contracts, "must be delivered and accepted to be valid."30 The merciful-contract theory of pardons shuts the door to additional constraints beyond an acceptance requirement. If a pardon is a private contract, then a bad pardon is one from which the parties do not benefit. Providing a "right . . . against the exercise of executive power not solicited by [an offender] nor accepted by him"31 fully prevents bad pardons.

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20 Other scholars, including the former U.S. Pardon Attorney, have recognized these distinct

theories. See, e.g., Love, supra note 7, at 1500 ("Judicial precedent is not very helpful . . . : on the one hand, the courts describe pardon as a `part of the Constitutional scheme' to be exercised for

the `public welfare;' on the other, they call it `a matter of grace' that need not be justified or de-

fended within the legal system." (footnote omittted) (first quoting Biddle v. Perovich, 274 U.S. 480, 486 (1927); and then citing Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272, 282, 285 (1998))).

21 236 U.S. 79 (1915). 22 274 U.S. 480. 23 236 U.S. at 85?86. 24 See id. 25 Id. at 86?87. The district court held Burdick in contempt of court and imprisoned him for refusing to testify. Id. 26 Id. at 91. 27 See id.; United States v. Wilson, 32 U.S. (7 Pet.) 150, 161?62 (1833); supra p. 2836. 28 A semantic note: Burdick might suggest labeling this theory a "private-deed" theory of par-

dons, but this Note prefers its own original term, the "merciful-contract" theory, for two reasons.

First, the term "contract," which connotes an agreement between multiple parties, better recognizes

the acceptance requirement's two-way agreement than does the term "deed," which can be signed

by only one party and delivered to another. Compare Contract, BLACK'S LAW DICTIONARY (11th ed. 2019), with Deed, BLACK'S LAW DICTIONARY (11th ed. 2019). Second, the "merciful-contract" label emphasizes the singular importance of privately dispensed "mercy" under this theory.

29 Burdick, 236 U.S. at 90; see also id. ("It is the private, . . . though official act of the executive magistrate." (citation omitted)).

30 See Comment, The Pardoning Power of the Chief Executive, 6 FORDHAM L. REV. 242, 264 (1937).

31 Burdick, 236 U.S. at 91.

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