Can Someone Be Pardoned For a Crime They Haven’t Yet Been Charged With?

Recorded on December 16, 2020.

Attorney Ben Barry of Martin, Harding, & Mazzotti, LLP is on the radio with Joe Vega of WIZN explaining presidential pardons. Can the President pardon someone for a crime they have not yet been charged with?

Please give it a listen or read the transcript below.

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Joe: 106.7 WIZN. And it’s Aerosmith with “Rag Doll,” Alice In Chains before that. Joe Vega taking you through your Rocking your Ride Home. And I’m joined now by Ben Barry from Martin Harding & Mazzotti. Hello, Ben.

Ben: Hello, Joe.

Joe: So I’m calling because I was having a debate with some friends the other night we were watching the news and they were talking about how President Trump in his final month or so of office is probably going to start handing out the pardons. And some of the people that they were mentioning on the news, who they thought were going to get pardons were people who as far as I know, at least, have not only never been convicted of a crime, but I’ve never been charged with a crime. So I guess my question for you is, is it possible that the president can pardon someone for a crime that they haven’t even been charged with?

Ben: It is absolutely possible.

Joe: Really.

Ben: Yes, absolutely. Under Article 2, Section 2, of the constitution permits it. And that power has also been recognized previously in court cases, particularly this old court case from the late 1800s Ex Parte Garland, that case deals with this square on. We’ve seen this in more recent history when President Ford pardoned former President Nixon right during the…

Joe: During the Watergate.

Ben: The Watergate scandal. And so we actually have two cases on point.

Joe: So does he have to specify about what crimes he’s pardoning?

Ben: I don’t think so. To my knowledge, I don’t think that there is any specificity that has to be provided with respect to that pardon, it does not grant a pardon into the future. Let’s say somebody committed fraud, the two days before President Trump leaves office, he gives them a pardon the day after, which is a blanket pardon, there’s been no indictment, there’s been no charges filed and President Trump just says, “From this day and before this person is pardoned from all of these offenses,” and that person, then a month later commits the same offense then that pardoned does not extend to that offense. But it is the case that you don’t necessarily have to be brought up on formal charges. Those offenses don’t necessarily need to be known at the time of the pardon. And so I do think that there’s the ability to kind of provide a pretty substantial absolution of liability for criminal offenses.

Now, I think that the larger question that people are asking is whether or not President Trump can pardon himself. I don’t think that there is good case law on that particular point. It would be very interesting if that is what the plan for President Trump is. It will certainly cause a lot of constitutional law professionals to kind of say, “What?” And I imagine that there would be some challenge to that, and ultimately, it would play itself out in the Supreme Court, and we’d get a decision. And then 20 years from now when another president does that, we would have case law on that particular point.

But right now it doesn’t seem to me anyways, that there is any case that would support that sort of thing. It might be a case of first impression for the Supreme Court. And I think all lawyers across the land would be interested to read that decision and to see how that affects our understanding of the framework of the constitution. But as far as other people are concerned, he has the absolute ability under Article 2 section 2 to grant those pardons even if no formal charges have been filed.

Joe: Well, thank you for clearing that up. Ben Barry from Martin, Harding & Mazzotti.

Ben: Thank you, Joe.

Joe: Remember, you can call Ben anytime at 1800LAW1010 or go online to Mel Allen is taking over. He’s got music from Van Halen and Queen next.

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