Can Bush Refuse an Obama Pardon?

November 17, 2008 7:45 PM

May George W. Bush refuse a pardon from Barack Obama?

Imagine that Barack Obama's first act is to pardon George W. Bush for all the illegal acts he committed during his term. Could Bush refuse such a pardon? Would his refusal mean that he could still assert his Fifth Amendment right to not be required to incriminate himself? Or would he be required to testify before any committee to call him up? (assuming Bush fails in his inevitable assertion of executive privilege).

For that matter, can any other pardon-refusing potential witness before Congress or other body with subpoena power still claim Fifth Amendment rights to avoid incriminating themselves and thereby avoid testifying?

I'm a lawyer, so give me hard details if they exist. Google is no help.

posted by Ironmouth to law & government (19 comments total)

Everything I've seen suggests that a person must be convicted before he can be pardoned.
posted by The World Famous at 7:49 PM on November 17, 2008

Definitely not - Nixon hadn't been convicted when Ford pardoned him. To quote the never-wrong-ever Wikipedia:

"It appears that a pardon can be rejected, and must be affirmatively accepted to be officially recognized by the courts. Acceptance also carries with it an admission of guilt."
posted by Tomorrowful at 7:52 PM on November 17, 2008

Nixon was pardoned by Ford before he was even indicted. There are no limits to the pardon power.
posted by Ironmouth at 7:53 PM on November 17, 2008

I stand corrected.
posted by The World Famous at 7:55 PM on November 17, 2008

The World Famous, this Slate article addresses the question of pardons-before-convictions, and makes a pretty good case that such pardons are legal. As for Ironmouth's original question about refusing a Presidential pardon, I'm afraid I have no idea. I'll bet the answer is, "Nobody knows because it's never been hashed out in court."
posted by The Tensor at 7:56 PM on November 17, 2008

Can I get pardoned for something I might do in the future by a governor or president now? If a pardon must be affirmatively accepted, how long does the pardoned have to accept?
posted by JohnnyGunn at 7:57 PM on November 17, 2008

Wow those links were instructive. Burdick v. U.S. controls and you can directly refuse a pardon. Damn.

More interestingly, I see that the Justice Department regs indicate that the victims must be informed. That would be a lot of letters in a lot of different languages.
posted by Ironmouth at 7:58 PM on November 17, 2008 [2 favorites]

Also the person seeking to avoid the subpoena needs to introduce it before the body in order to not be prosecutor. Don't know if that means that you could claim the Fifth it if you rejected the pardon.
posted by Ironmouth at 8:03 PM on November 17, 2008

As for subpoenas: Though I don't know why I'm offering legal conjecture to a lawyer, here's what I'll pull out of the air: subpoenas are an act of the Legislature, and as such the action or inaction of the Executive shouldn't be relevant (except inasmuch as executive privilege, etc) may apply. In other words, if you reject a pardon, then claim the Fifth, the courts would conclude that it's kosher, since you were dealing with one branch re: pardon and another re: subpoena. As opposed to a hypothetical (and, IIRC, impermissible) rejection of immunity-for-testimony followed by the Fifth.
posted by Tomorrowful at 8:03 PM on November 17, 2008

A pardon can be refused, Burdick v. United States (1915).
posted by lee at 8:06 PM on November 17, 2008 [1 favorite]

Eh, I am too slow!!!!
posted by lee at 8:11 PM on November 17, 2008

Yeah, well, at least you weren't totally dead wrong like me. ;-)
posted by The World Famous at 8:26 PM on November 17, 2008 [1 favorite]

Analysis is the same whether the subpoena power is derived from the legislative power or the judicial power. Is there criminal jeopardy? If no, no right to plead the Fifth.

Plus Obama could make a public benefit argument. Burdick does not apply because this isn't about the recipient's personal benefit, but public benefits such as reconcilation, or say the elimination of pleading the fifth for persons questioned by Congress.
posted by Ironmouth at 8:44 PM on November 17, 2008

Burdick is a lead-pipe cinch on the criminal side for subpoenas. Zero wiggle room. They don't write them like that anymore.
posted by Ironmouth at 8:52 PM on November 17, 2008

I learned a lot about presidential pardons in my reading of Metal Men, the story of the corporate criminal Marc Rich, who was pardoned by Clinton in his last day in office (pardons generally come at the tail end of a presidential term, not at the beginning, btw).

There is no requirement on the part of the person pardoned to accept the pardon. In fact, acceptance of a presidential pardon is considered essentially equivalent to an admission of guilt in the matter for which one is pardoned - this is the reason that Rich still remains a fugitive from the US, despite having been "offered" pardon - there's significant enough fear of legal ramifications should he accept the pardon and return to the US. In my understanding, the pardons are largely symbolic more than complete protection from further prosecution down the road. But then, of course, IANAL.
posted by allkindsoftime at 4:54 AM on November 18, 2008

A bit more on prez pardons (didn't know Clinton gave out *that* many, wow).
posted by allkindsoftime at 4:58 AM on November 18, 2008

From the world of fiction, a Tom Clancy novel, The Teeth of the Tiger has a plot that revolves around pardons for future undefined acts.
posted by mmascolino at 8:39 AM on November 18, 2008

George Wilson refused a pardon from Andrew Jackson in 1830.
posted by Plutor at 12:27 PM on November 18, 2008

And here's the case preview: "There is nothing peculiar in a pardon which ought to distinguish it in this respect from other facts; no legal principle known to the court will sustain such a distinction. A pardon is a deed to the validity of which delivery is essential, and delivery is not complete without acceptance. It may then be rejected by the person to whom it is tendered, and if it be rejected, we have discovered no power in a court to force it on him."
posted by Plutor at 12:30 PM on November 18, 2008