So one of the last things Trump did was pardon a whole shitton of scumbags.

[conuly]

But not himself, because you can't do that.

Anyway, putting his self-serving pardons aside, I have a serious question about how pardons work. Theoretically, could an incoming president say "Look, we all know that the War on Drugs is both racist and bullshit, and also racist bullshit" and then grant a blanket pardon to everybody convicted of possession? Or would this president have to issue all the pardons individually?

Comments

[dine]

I'm not sure on the War on Drugs thing, but on January 21, 1977, Jimmy Carter issued an unconditional blanket pardon for Vietnam War draft dodgers - both the majority who'd fled to another country, and the smaller number who were hiding in the US.

so blanket pardons are possible - at least some of the time

[erinptah]

Oh, awesome. (Carter: still my favorite.)

I know the pardons are only for federal crimes, so Biden wouldn't be able to pardon all the state-level drug convictions. He could only do the ones with factors like "transportation across state lines" that turn them into federal cases.

[conuly]

I suppose this hypothetical president - because, let's be honest, I don't actually see Biden doing this, he's a little too centrist/establishment - could put weight on the governors of his party to do the same, perhaps all in one fell swoop. No, not a fell swoop, a beneficent swoop.

[elayna]

The power to pardon comes from State Constitutions, so it’s not consistent...mostly it’s the Governor but sometimes with other officials, sometimes it’s an independent board, sometimes it’s only if the board has recommended, etc.

It’s a lovely thought, but it seems complicated as all heck to achieve.

I do wonder how these next four years will go. I’m so relieved; I don’t think I’ve ever been so happy about a new President. Yet there is so much to fix, even at the best of times, and these are not those!

[calimac]

I was a little surprised that he didn't pardon the rioters at the Capitol whom the FBI and other police sources have kindly identified by name. But then I shouldn't have been surprised that he didn't do it: they only rioted for him, they didn't give him thousands of dollars.

[redbird]

I suspect that's some combination of them not having anything else to offer him, and the idea that if they'd been pardoned, they wouldn't have been able to plead the Fifth Amendment if summoned into court to testify against him.

[moxie_man]

I'm sure he didn't attempt to grant himself a pardon as that would have meant he'd have to admit he did something wrong. Trump admit to doing something wrong? His pride wouldn't allow that.

[conuly]

He floated the idea several times. Dingbat.

[elf]

Granting a pardon doesn't mean admission of guilt, especially for the Deep State Conspiracy theorists -- it would only mean admitting "the conspiracy might falsify evidence and pull the wool over the eyes of a judge and jury, so I'm avoiding the problem by preemptively pardoning."

I expect what happened is, every lawyer he ran the idea past said, "err.... no, it won't hold up. Even in your very conservative and grateful-to-you SCOTUS, the courts are not going to allow that presidents can just pardon themselves of everything on their way out of office. Nobody wants that precedent."

[adrian_turtle]

He could have resigned on Tuesday and asked PENCE to pardon him, like Ford pardoned Nixon. Richard Nixon didn't admit guilt, he could just say, "Gerry, those assholes think they can convict me!" (Of course, if Pence felt sufficiently betrayed, he might just refrain from pardoning Trump after that resignation.)

[conuly]

He apparently didn't trust that Pence would pardon him.

[hudebnik]

Would you, after pointing a mob with nooses and a gibbet at your Vice President?

[conuly]

I wouldn't anyway.

[moxie_man]

The US Supreme Court ruled in 1915 (Burdick Vs United States) that the granting and acceptance of a presidential pardon meant a presumption of (by granting) and confession of (by accepting) of guilt.

Ford wasn't Nixon's running mate. Congress appointed him through the 25th Amendment after Agnew resigned. Nixon nominated him, but only after Congress said: You're going to nominate Ford as we won't accept anyone else.

History continues to argue over what Ford did. Right or the wrong move, thanks to that US Supreme Court ruling, basically, Ford saved the nation from a lot of hassle, by getting Nixon to indirectly admit his guilt.

As such, I stick by my earlier statement. One of the reasons Orange Face didn't try to self pardon was it meant he'd have to admit he was guilty of something.

[bibliofile]

Excellent questions! I look forward to reading more about this in the near future.

[readerjane]

It would have to be Federal possession convictions. Not sure how what portion of the whole that would be: is it only a federal crime if you're caught crossing state borders?

[conuly]

Or in DC, maybe?

[redbird]

If he wanted to do that sort of blanket pardon, he could assign someone to go through the court records. I think he could then sign something that was like, "I hereby pardon everyone who has been convicted of drug-related offenses, the list of names is below" where "below" was umpteen thousand sheets of paper listing names and possibly a little detail, e.g. "John Doe of Anytown, convicted on $date."

[mount_oregano]

The State of Illinois has already revoked all convictions involving marijuana, now that it's legal. This is different than a pardon. If you're pardoned, the conviction is still on your record. By revoking the convictions, your record is cleared, and that makes it possible to freely access things like employment and housing.

[conuly]

That's a good idea.

[thewayne]

My understanding is that they must be issued individually for a specific crime or charge.

Interesting things about his pardon for Steve Bannon: apparently it's flawed and may not stand up to a challenge in court, and apparently pardons can be challenged! Also, Bannon's charges can also be applied at a state level, so it would be no problem for the Feds to send all the material they've gathered to State prosecutors - and bonus, the state penalties for what he did are stronger than the Fed penalties!!!

[conuly]

Pardons can be challenged!? Say what?

[thewayne]

Apparently if the basis upon which they are written is flawed, they can be challenged in court!  So if you have sucky legal counsel writing the pardon.... Of course, Donny only hires the best because he pays so well. And Bannon had not yet gone to trial, he was still in the pre-trial phase, so no double-jeopardy claim can be made. :-)

[conuly]

...but isn't the basis for a presidential pardon "I'm the president, so I can pardon you, so suck it"?

[hudebnik]

I think one legitimate basis for challenging a pardon is "overbroad", e.g. "Joe Schmoe is pardoned for all Federal crimes he's ever committed." There was language like that in Ford's pardon of Nixon, and it might not have held up in court, but nobody ever challenged it in court.

I'm not sure who has standing to challenge a pardon, though.

[mama_kestrel]

I don't see blanket pardons at a federal level because most federal convictions are for possession of mass amounts and/or for dealing, which is a whole different ball of wax. Nor are they usually limited to marijuana, unless it's something like charges against a "mule" who got caught. The usual federal drug sting nets the big guys, who have cocaine and heroin and meth, with the pot just sort of as an afterthought.

People who get caught with reasonable amounts of pot on federal land have usually gotten turned over to state authorities.

[conuly]

Back to the drawing board, it looks like.

[elf]

Presidential pardons are federal only; most convictions for drug crimes are state-level and wouldn't be affected. Presumably some could be, but there are better paths to "war on drugs" reform, including changing the federal enforcement priorities while encouraging Congress to change the relevant laws.

A president could hypothetically pardon "all persons convicted of drug-related offenses," without or without a time limit (he could limit it to the last 15 years or whatever). It'd just not be incredibly useful (because so many of the prosecutions are done by the states), and would involve a PR nightmare of pushback unless done in the last few hours before leaving office.

I want Bannon and any of his other pardoned cronies who've been active recently to be subpoenaed for the Senate impeachment trial. Oh look, immunity from federal prosecution... so, no invoking the 5th amendment... speak up or be guilty of contempt of court, and watch out for perjury.

[shadowkat]

Wasn't sure where to comment, and hunted to see if anyone had already answered this clearly. Elf comes closest.

HERE's the article that explains it best.

Since Mr. Trump ran out of options for challenging the election results, he and his White House advisers have focused significant energy on deciding who should be granted clemency, an unchecked presidential power that Mr. Trump has relished wielding. The president has polled associates about pardon candidates, and he and his top aides in recent days have personally called the families of some of the people whose clemency grants he had approved.

Mr. Trump has continued expressing interest in pre-emptively pardoning himself, but he has been warned against such an extraordinary move by the White House counsel, Pat A. Cipollone, and the former attorney general, William P. Barr.

Mr. Cipollone also warned the president against granting clemency for Republican lawmakers who might be connected to the storming of the Capitol, a person briefed on the discussion said. And Mr. Trump has been cautioned against issuing pre-emptive pardons for his three eldest children, his son-in-law and his personal lawyer Rudolph W. Giuliani, none of whom have been charged with wrongdoing.

Mr. Giuliani has been under investigation by the federal prosecutors in Manhattan over whether he illegally lobbied the Trump administration on behalf of Ukrainian interests.


Some may not stand up - since you can't be pardoned for something that you haven't been convicted for.

ttps://www.justice.gov/pardon/frequently-asked-questions

A pardon is an expression of the President’s forgiveness and ordinarily is granted in recognition of the applicant’s acceptance of responsibility for the crime and established good conduct for a significant period of time after conviction or completion of sentence. It does not signify innocence. It does, however, remove civil disabilities – e.g., restrictions on the right to vote, hold state or local office, or sit on a jury – imposed because of the conviction for which pardon is sought, and should lessen the stigma arising from the conviction. It may also be helpful in obtaining licenses, bonding, or employment. Under some – but not all – circumstances, a pardon will eliminate the legal basis for removal or deportation from the United States. Pursuant to the Rules Governing Petitions for Executive Clemency, which are available on this website, a person is not eligible to apply for a presidential pardon until a minimum of five years has elapsed since his release from any form of confinement imposed upon him as part of a sentence for his most recent criminal conviction, whether or not that is the conviction for which he is seeking the pardon.

Carter's pardons for the draft dodgers - which was blanket, did stand up, but they'd been convicted. So it may be different.

At any rate, the President cannot pardon anyone for a State conviction. Or for a crime that hasn't been charged. You can't pre-emptively pardon, and if he tried that - he would have been admitting guilt. That's why he didn't try it for his family members. Also it wouldn't have protected them from the State lawsuits. NY has 67 indictments pending against Trump, and Georgia has at least 12, and I think Virgina and DC were contemplating a few themselves.

He was going to pardon Snowdon/Assange - but the White House Council talked him out of it - because it would have pissed off the GOP big time. Also, he couldn't pardon the rioters - because admitting guilt - and hello...

So instead, he basically auctioned them off. He was also talked out of pardoning Sheldon Silver (again would piss off the GOP).

[hudebnik]

Steve Bannon was just "pardoned for something that [he hadn't] been convicted for" -- only indicted. But the article points out that that's quite unusual.

[shadowkat]

Yeah, it's not clear whether that will hold up or not. It's why the White House Council tried to talk him out of it. Also, by doing so - it's akin to stating he was guilty. What's also unusual is this is the first time the pardons were done with being vetted first through the Justice Department, etc. There's a few others that fit under the "clemency" version - which is they haven't exactly served any time and either were just convicted or about to be - and their sentence falls under clemency - ie. commuted or forgiven. That's the "draft dodgers" blanket pardon which Carter granted - it fell under "clemency" and the Supreme Court may hold up Trump's pardon of Bannon for the same reasons, along with a few of the others. Most aren't that unusual.

[silveradept]

The actual language regarding pardons is vague, but Popehat on the podcast I listened to said, IIRC, that the pardon has to be specific enough to describe the offense being pardoned. So they could be pardoned, each individually, but the more efficient way to do it would be to legalize and put in the legislation that all convictions are retroactively revoked. Not that that will happen either.

[conuly]

So you can't just generally pardon your buddy for whatever, you have to name it. Got it.

(And no, I don't see an end to the drug war anytime soon either. Bah.)