Friday, July 21, 2017
Well, it would appear that the nature and extent of the Presidential power to pardon has become somewhat newsworthy.
I had the opportunity to delve into the issue when President George H.W. Bush pardoned Elliott Abrams a few days after a disciplinary hearing that I prosecuted was held based upon his guilty plea to charges brought by Independent Counsel Lawrence Walsh.
A divided District of Columbia Court of Appeals held that the pardon did not preclude professional discipline for the underlying conduct, although a bar prosecutor may no longer rely on the fact of the conviction itself.
Mr. Abrams (through his counsel Charles Cooper) sought certiorari review and did not garner a single vote.
One of the cases I came across was a 1915 Supreme Court decision in United States v. Burdick, where the court stated
Indeed, the grace of a pardon, though good its intention, may be only in pretense or seeming; in pretense, as having purpose not moving from the individual to whom it is offered; in seeming, as involving consequences of even greater disgrace than those from which it purports to relieve. Circumstances may be made to bring innocence under the penalties of the law. If so brought, escape by confession of guilt implied in the acceptance of a pardon may be rejected, preferring to be the victim of the law rather than its acknowledged transgressor, preferring death even to such certain infamy.
Acceptance of a pardon thus would appear to at least "imply" a confession of guilt. (Mike Frisch)