CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Wednesday, April 28, 2021

Bowman on "Blanket" Pardons

Frank O. Bowman III (University of Missouri School of Law) has posted Why "Blanket Pardons" Are Unconstitutional (33 Federal Sentencing Reporter __ (2021)) on SSRN. Here is the abstract:
In 1974, President Gerald Ford pardoned former President Richard Nixon for "all offenses against the United States" committed during both his terms of office. This pardon, unique in American history, was not limited even to offenses of which President Ford then had knowledge. At the close of the Trump Administration, it was speculated that Mr. Trump might issue similar "blanket pardons" to family, friends, or political supporters. He did not, so far as is now known. But he might have issued secret pardons of that breadth, or a future president might do so.

Accordingly, this paper examines the constitutionality of "blanket pardons" for all federal offenses, known and unknown. It examines the constitutional text, as well as British and American legal history, and concludes that, despite the Ford-Nixon precedent, such pardons exceed the president's authority under the Pardon Clause.

The president's pardon power is broad indeed, and is not constrained by a rigorous specificity requirement. However, as a matter of text, history, and sound constitutional policy, the act of pardoning requires that a president be aware of the basic character of the offenses to be pardoned and the identity of the person or class of persons who will be beneficiaries of a pardon. Without such knowledge, the judgment that is a prerequisite to an award of clemency cannot occur. A pardon for all federal offenses, regardless of whether the pardoning president is aware of even their general character, is therefore impermissibly broad.

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