Does the President&#39;s Pardon authority extend to crimes not committed at the time of the pardon? Does the U.S. Constitutional power of the President to pardon extend to crimes not yet committed? I know Ford gave Nixon a blanket pardon, but he did so for acts that (might have) been committed in the past.
No. The relevant provision of the United States Constitution is Article II, Section 2, Clause 1 which states in the pertinent part: The President . . . shall have Power to Grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment. The correct conclusion flows pretty directly from the definition of a "reprieve" and a "pardon", both of which, in the ordinary senses of these words refer to granting forgiveness for acts that have already occurred. One of the leading cases on point which supports this view is Ex parte Garland, 59 U.S. (18 How.) 307, 380 (1855), which states: The power thus conferred is unlimited, with the exception stated. It extends to every offence known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken, or during their pendency, or after conviction and judgment. This power of the President is not subject to legislative control. Congress can neither limit the effect of his pardon, nor exclude from its exercise any class of offenders. The benign prerogative of mercy reposed in him cannot be fettered by any legislative restrictions. Despite its antiquity, this case remains good law and has been applied repeatedly in subsequent cases (although few on the right of a President to pardon future crimes which just hasn't come up). Other Observations The President's pardon power is limited to federal crimes, so no President may pardon or commute a state or foreign conviction. The nature of the pardon power, if any, with respect to state and local crimes is governed by each respective state constitution and varies rather considerably. The power in the U.S. Constitution is broader than that is some state constitutions. For example, the corresponding provision of the Colorado Constitution, applicable to convictions entered by the state of Colorado, does not allow crimes to be pardoned prior to a conviction. Article IV, Section 7, of the Colorado Constitution provides: "The governor shall have the power to grant reprieves, commutations and pardons after conviction, for all offenses except treason * * *." The History Of The Pardon Power One of the most thorough and up to date reviews of the scope and nature of the federal pardon power can be found in the law review article, Todd David Peterson, "Congressional Power Over Pardon and Amnesty: Legislative Authority In The Shadow of Presidential Prerogative" 38 Wake Forest L. Rev. 1225 (2003). In particular, it has an interesting historical overview of the power at pages 1228-1235 (pagination and footnotes omitted): The President's pardon power derives from the authority that had been invested in English kings since the end of the first millennium. Although the King possessed plenary power to grant pardons, over the years Parliament imposed specific limitations on the pardon power in order to avoid perceived abuses. For example, the Habeas Corpus Act of 1679 made it an offense for any person to imprison an English subject outside of the country and, in order to avoid an evasion of the writ, Parliament prohibited the King from granting a pardon for violation of the statute. Nevertheless, English courts frequently took an absolutist view of the King's pardon power. Thus, in Godden v. Hales, the Lord Chief Justice upheld a royal pardon on the ground that the Kings of England were absolute sovereigns; . . . the laws were the King's laws; . . . the King had a power to dispense with any of the laws of Government as he saw necessity for it; . . . he was sole judge of that necessity; that no act of Parliament could take away that power. The Parliament, however, persisted in its efforts to rein in the pardon power and, in 1700, adopted the Act of Settlement, which stated that "no pardon under the great seal of England [shall] be pleadable to an impeachment by the commons in Parliament." This limitation was enforced against the King, although it did not apply to pardons granted to relieve punishments imposed after the impeachment of an official. The royal pardon prerogative was imported into the American colonies whose charters gave the leaders substantial authority to pardon offenses. At the Constitutional Convention of 1787, neither the Virginia plan nor the New Jersey plan contained a pardon power. Nevertheless, at the insistence of Charles Pinckney, Alexander Hamilton, and John Rutledge, a pardon clause similar to the English Act of Settlement of 1700 was added to the draft constitution. Thus, the first report of the Committee on Detail proposed that the clause read: "He [the President] shall have power to grant reprieves and pardons; but his pardon shall not be pleadable in bar of an impeachment." The issue of legislative control over the pardon process was addressed directly by an amendment proposed by Roger Sherman of Connecticut. James Madison's journal notes that "Mr. Sherman moved to amend the power to grant reprieves and pardon' so as to readto grant reprieves until the ensuing session of the Senate, and pardons with consent of the Senate.'" George Mason argued that the Senate already possessed too much authority, and the proposed amendment was rejected by a vote of eight to one. The convention did approve a motion to insert "except in cases of impeachment" after pardon and remove the words "but his pardon shall not be pleadable in bar." Luther Martin then sought to limit the President's power to grant pre-conviction pardons by inserting the words "after conviction," following the words "reprieves and pardons." Martin, however, withdrew his motion after James Wilson argued that "pardon before conviction might be necessary, in order to obtain the testimony of accomplices." Edmund Randolph then offered an amendment to exclude "cases of treason" from the pardoning power. This proposed amendment was defeated, although its exclusion was later to prove controversial. Thus, although the framers realized that the pardon power was subject to potential abuse by the President, they declined to place any limitations on the President's pardon power or grant the legislature any authority to check potential presidential abuses. The debates following the convention's passage of the Constitution reveal more about the framers' views on the pardon power. In the Federalist 74, Alexander Hamilton attempted to respond to the criticism that the President could pardon his accomplices in a case of treason. Hamilton acknowledged that "there are strong reasons to be assigned for requiring in this particular the concurrence of [the legislative] body or of a part of it." Hamilton argued, however, that the reasons against such legislative authority outweighed any in its favor: "[i]t is not to be doubted that a single man of prudence and good sense, is better fitted, in delicate conjunctures, to balance the motives, which may plead for and against the remission of the punishment, than any numerous body whatever." In particular, Hamilton argued, in the case of large scale seditions that attracted significant popular support, we might expect to see the representation of the people tainted with the same spirit, which had given birth to the offense. And when parties were pretty equally matched, the secret sympathy of the friends and favorers of the condemned person, availing itself of the good nature and weakness of others, might frequently bestow impunity where the terror of an example was necessary. Thus, Hamilton argued not only that the power was properly reposed in the President, but that it would be dangerous to grant such power to Congress. Finally, Hamilton argued that it was appropriate to grant the President pardon power in order to ensure that the authority could be exercised with appropriate dispatch: "In seasons of insurrection or rebellion, there are often critical moments, when a well timed offer of pardon to the insurgents or rebels may restore the tranquility of the commonwealth; and which, if suffered to pass unimproved, it may never be possible afterwards to recall. The dilatory process of convening the Legislature, or one of its branches, for the purpose of obtaining its sanction to the measure, would frequently be the occasion of letting slip the golden opportunity. The loss of a week, a day, an hour, may sometimes be fatal. If it should be observed that a discretionary power with a view to such contingencies might be occasionally conferred upon the President; it may be answered in the first place, that it is questionable whether, in a limited constitution, that power could be delegated by law; and in the second place, that it would generally be impolitic before-hand to take any step which might hold out the prospect of impunity." There was little debate about the pardoning power during the state ratifying conventions. George Mason continued to argue that the power should not be given to the President. An opponent in New York suggested that pardons for treason should not be allowed without congressional consent. Ultimately, the Constitution was adopted without any express limitation on the President's pardoning power. The Supreme Court has on a number of occasions discussed the general scope of the pardoning power. For the most part, with exceptions to be discussed later, these decisions contain broad dicta concerning the unfettered nature of the President's power and the inability of Congress to impose any legislative restrictions on it. For example, in United States v. Wilson, the Court held that a pardon must be pleaded in order to be effective. Chief Justice Marshall wrote that the [C]onstitution gives to the [P]resident, in general terms, "the power to grant reprieves and pardons for offences against the United States." As this power had been exercised from time immemorial by the executive of that nation whose language is our language, and to whose judicial institutions ours bear a close resemblance; we adopt their principles respecting the operation and effect of a pardon, and look into their books for the rules prescribing the manner in which it is to be used by the person who would avail himself of it. Marshall further defined the pardon as an act of grace, proceeding from the power entrusted with the execution of the laws, which exempts the individual, on whom it is bestowed, from the punishment the law inflicts for a crime he has committed. It is the private, though official act of the executive magistrate, delivered to the individual for whose benefit it is intended, and not communicated officially to the court. In Ex parte Wells, the Supreme Court considered whether the President could grant a conditional pardon in the form of commutation of a death sentence to a sentence of life imprisonment. The Court noted that pursuant to the Pardon Clause, the President has granted reprieves and pardons since the commencement of the present government. Sundry provisions have been enacted, regulating its exercise for the army and navy, in virtue of the constitutional power of [C]ongress to make rules and regulations for the government of the army and navy. No statute has ever been passed regulating it in cases of conviction by the civil authorities. In such cases, the President has acted exclusively under the power as it is expressed in the [C]onstitution. The Court noted, however, that "[t]here are also pardons grantable as of common right, without any exercise of the king's discretion; as where a statute creating an offence, or enacting penalties for its future punishment, holds out a promise of immunity to accomplices to aid in the conviction of their associates. When accomplices do so voluntarily, they have a right absolutely to a pardon . . . ." Thus, at least in dicta, the Court recognized Congress's authority to regulate clemency in the military and to adopt statutes granting immunity for cooperation in a criminal investigation. In Ex parte Garland, the Court spoke in sweeping dicta about the exclusive power of the President over pardon and amnesty. In Garland, the Court considered the issue whether a former Confederate senator would be permitted to be a member of the Supreme Court Bar without taking the statutorily required oath that he had never voluntarily given aid or comfort to the confederacy. The petitioner had received a presidential pardon and argued that the pardon exempted him from the requirements of the oath to which he could not truthfully subscribe. The Court held that it was "not within the constitutional power of Congress thus to inflict punishment beyond the reach of executive clemency," and therefore, the petitioner was entitled to membership in the Bar. In the course of the opinion, the Court broadly defined the President's pardon power: "The power thus conferred is unlimited, with the exception stated. It extends to every offence known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken, or during their pendency, or after conviction and judgment. This power of the President is not subject to legislative control. Congress can neither limit the effect of his pardon, nor exclude from its exercise any class of offenders. The benign prerogative of mercy reposed in him cannot be fettered by any legislative restrictions." In Ex parte Grossman, the Court considered whether the President's pardon power extended to criminal contempts of court. The Court upheld the President's power to issue such pardons based on the history of royal pardons for contempt in England. The Court also looked to the long history of presidential pardons of criminal contempts of court. In responding to the argument that a presidential pardon of contempt of court would interfere with the ability of the federal courts to protect their own decrees, Chief Justice Taft noted that the Constitution provides a number of powers to the branches which give them the ability to check the other branches of government. With respect to the pardon power, the Court stated: "[t]he executive can reprieve or pardon all offenses after their commission, either before trial, during trial or after trial, by individuals, or by classes, conditionally or absolutely, and this without modification or regulation by Congress." The Court also noted that the President exercised the pardon power without any significant judicial check on his pardoning authority: "It is a check entrusted to the executive for special cases. To exercise it to the extent of destroying the deterrent effect of judicial punishment would be to pervert it; but whoever is to make it useful must have full discretion to exercise it. Our Constitution confers this discretion on the highest officer in the nation in confidence that he will not abuse it. An abuse in pardoning contempts would certainly embarrass courts, but it is questionable how much more it would lessen their effectiveness than a wholesale pardon of other offenses. If we could conjure up in our minds a President willing to paralyze courts by pardoning all criminal contempts, why not a President ordering a general jail delivery?" In Biddle v. Perovich, Justice Holmes wrote an opinion for the Court in which he upheld the President's conditional pardon of a convict sentenced to death on the condition that his sentence be commuted to life imprisonment. Justice Holmes suggested a different rationale for the pardon power than Chief Justice Marshall had enunciated early in the 19th century. Rather than being a private act of grace that must be accepted and proffered to the court by the one pardoned, Justice Holmes saw the President's pardon as serving public policy ends: "A pardon in our days is not a private act of grace from an individual happening to possess power. It is a part of the Constitutional scheme. When granted it is the determination of the ultimate authority that the public welfare will be better served by inflicting less than what the judgment fixed. . . . Just as the original punishment would be imposed without regard to the prisoner's consent and in the teeth of his will, whether he liked it or not, the public welfare, not his consent, determines what shall be done."
Not for that reason This would not make the Act invalid. The interaction between the two laws would simply mean that criminal prosecution would only succeed for acts on or after the Act came into effect. So, even though the law purports to invoke criminal sanction for acts before it came into effect, the Constitution says it can’t so it doesn’t. That doesn’t render the law invalid, just unenforceable for that period.
Yes, the President can certainly veto such a law. Per the US Constitution (emphasis added): Every bill which shall have passed the House of Representatives and the Senate, shall, before it become a law, be presented to the President of the United States; if he approve he shall sign it, but if not he shall return it, with his objections to that House in which it shall have originated, who shall enter the objections at large on their journal, and proceed to reconsider it. This can have a very real effect: legislators are under no obligation to vote the same way on a veto override as on the original bill. The reason the President needs to supply written objections in the first place is that it lets legislators reconsider, see if they're swayed, or see if they think this is a matter where a Congressional majority needs to be respected even if they disagree (they can change their mind in either direction). They can also get a sense of public reaction. And because the threshold for this is "present and voting," it's possible that just more legislators show up. Even if legislators won't be swayed, it still matters for pocket vetoes. That's where the President neither signs the bill nor returns it within 10 days; normally this is equivalent to signing, but if Congress adjourns in the meantime, it means the bill does not become a law. Because "Congress adjourns" is a necessary part of a pocket veto, it's impossible to override the veto (you can't do it if you're not in session). And even when this doesn't apply either, it matters for politics. Example of a futile veto: Public Law 100-4. Passed 406-8 in the House, 93-6 in the Senate. Vetoed; veto was overridden 401-26 in the House and 86-14 in the Senate (note that at least 7 Senators who voted for the bill voted not to override the veto). Example of an effective veto: While technically there was a conference report agreed to by both houses, and it doesn't seem to have had a roll-call vote (my guess is it was agreed to by unanimous consent; side note: many, many laws don't have roll-calls to check on, because they're passed by voice vote or unanimous consent), H.R.10929 from the 95th Congress was passed in the House by a vote of 319-67 and in the Senate by 87-2. After President Carter vetoed it, the House voted on whether to override the veto. The motion to override was defeated 191-206: after the veto, they couldn't even get a simple majority to override the veto of the bill which had been passed by an overwhelming supermajority. I mentioned it above, but the two-thirds threshold is "present and voting." As a general rule, any time you see a fraction of something needed for a vote to succeed in a deliberative assembly, then unless it specifies some other denominator, it's talking about the fraction of members present and voting. Relevant CRS report on override procedure.
Is a U.S. President a fiduciary in the same sense a trustee or bank officer is a fiduciary? No. Does a U.S. President have a duty to apply critical thinking to his public acts and statements? No. could a U.S. President who was acting in an obviously irrational way in exercising his discretion ( for example, by not using critical thinking) be held accountable under 28 U.S. Code § 1361 - action to compel an officer of the United States to perform his duty. No. 28 U.S. Code § 1361 applies only in circumstances where the duty to act involves no critical thinking or discretion whatsoever.
The main legal impediment to such action is that nonviolent political actions are not rebellion or insurrection. Interpreting the meaning of these terms arises in litigating insurance claims (where there is often a clause denying coverage in case of insurrection or rebellion), e.g. Younis Bros. v. CIGNA Worldwide Ins. where the matter was the Liberian civil war. Neither "insurrection" nor "rebellion" are defined under the statute, therefore they have their ordinary meanings. The ordinary meaning of "insurrection" does not include Congress overstepping its authority (if that happened), nor, in general, would it include an illegal act by a public official. Reference to 18 USC 2381, 2382, 2383 2384 is common in suits files under sovereign citizen theories of law, which courts deftly dispose of because the plaintiff has no standing in criminal matters. However, various Freedom of Information cases involving FBI investigations such as Shaw v. FBI, Friedman v. FBI, 605 F. Supp. 306 have suggested that the FBI can investigate a possible violation of 18 USC 2383 which does not involve open civil war. Various cases like Hamdi v. Rumsfeld (Scalia dissent), Padilla v. Hanft have supported the proposition that persons engaged in open war against the US can be prosecuted under this section. As far as I can determine, no case has supported the notion that a nonviolent action exceeding legal authority constitutes violation of that law. In US v. Silverman, 248 F.2d 671 the court mentions that "conspiring to overthrow the Government by force and violence" is prohibited by that statute. Furthermore, since the actions in this specific instance involve stuff that happened on the floor of the House, they are constitutionally completely immune. Article 1, Section 6 of the Constitution says of Congress They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place. So while a Congressman can be arrested for racketeering or breach of the peace traveling to a session, they cannot be tried for what they say in session. I think they could be arrested for assassinating the Speaker while in session, but not for advocating assassination in a speech or debate.
Your parsing is incorrect. The semicolon after &quot;from the same&quot; starts a new clause. It should be read as: [Part 2] They shall in all cases, except treason, felony and breach of the peace, [Part 3] be privileged from arrest during their attendance at the session of their respective Houses, and in going to and returning from the same; [Part 4] and for any speech or debate in either House, they shall not be questioned in any other place. So they are privileged from arrest while attending sessions, or while going to and returning from those sessions, except in cases of treason, felony, or breach of the peace. As a separate privilege, they shall not be questioned anywhere (except in Congress itself) regarding their speech and debate in Congress. But if they are neither attending, going to, or returning from a Congressional session, and the crime is not related to their speech or debate, they have no immunity. Also, to echo user6726, the privilege from arrest while attending Congress or traveling is not the same as immunity. If they commit a crime on the way to or from Congress, they can still be arrested after they get home, and subsequently tried and convicted.
The comments have already pointed out that the President of the United States is still a citizen, and all of the rights of a citizen are still protected for them. Additionally, the Administration is allowed to take policy positions which are antagonistic to a person or group's cause, even if that group is practicing their rights to express their views legally. To give a different example, the President and his administration may denounce the position of a group of Neo-Nazis marching legally. So, any argument that the President is acting in an official capacity while making antagonistic comments also probably fails, as the Administration is allowed to take a position on any issue they deem worth taking a stand on. As noted in another answer and in comments, the applicable laws appear to be 18 U.S. Code § 227, which provides for punishment of government officials who attempt to influence employment decisions through official acts for political purposes, and 42 U.S. Code § 1983, which provides for civil action when a person deprives, or causes the deprivation of, another person's rights under color of law. 18 U.S. Code § 227 likely does not apply for two reasons The President may show that his conduct was not purely for political purpose The official statements made do not qualify as official acts per McDonnell v. United States, as they are not a decision or action on a "question, matter, cause, suit, proceeding or controversy"; that question or matter must involve a formal exercise of governmental power, and must also be something specific and focused that is "pending" or "may by law be brought" before a public official 42 U.S. Code § 1983 might apply if the official statements were found to be acting under color of law, but I think the statements made so far will fail to meet the qualifications for this statute. Blair v. Bethel School District gives three qualifications for conduct that would allow recovery under this statute: (1) he engaged in constitutionally protected activity; (2) as a result, he was subjected to adverse action by the defendant that would chill a person of ordinary firmness from continuing to engage in the protected activity; and (3) there was a substantial causal relationship between the constitutionally protected activity and the adverse action. The President's and Administration's official speech appears to fail the second criteria. First, it is questionable whether it qualifies as an "Adverse Action" - in Blair, as well as Hartman v. Moore and Gibson v. United States, the adverse action against the Plaintiff caused actual damage or indignity. However, even if we assume the official speech qualifies as an adverse action for the purposes of the statute, it still appears to be permissible for effectively the same reasons as the first and third arguments presented in the decision: First, the adverse action Blair complains of was a rather minor indignity, and de minimis deprivations of benefits and privileges on account of one's speech do not give rise to a First Amendment claim. The actual effect of the Administration's speech has a minimal direct effect on the players it speaks against. The decision further states: The most familiar adverse actions are “exercise[s] of governmental power” that are “regulatory, proscriptive, or compulsory in nature” and have the effect of punishing someone for his or her speech Official speech by the Administration is not "regulatory, proscriptive, or compulsory in nature." While this is not a complete definition for "adverse action," it gives a sense of severity, which official speech does not appear to meet. Additionally, the President's right to speech, and the Administration's authority and need to make official speech as directed by the President is a competing interest in this case, as was the interest of the Board in Blair: Third, it is significant that Blair isn't the only party in this case whose interests implicate First Amendment concerns. To the contrary, we assume all of the Board members have a protected interest in speaking out and voting their conscience... The decision does note that: The point isn't that the vote against Blair was protected speech simply because it was expressive. Almost all retaliatory actions can be said to be expressive, including those that are manifestly unconstitutional. But, while Blair certainly had a First Amendment right to criticize Seigel and vote against his retention as superintendent, his fellow Board members had the corresponding right to replace Blair with someone who, in their view, represented the majority view of the Board. Similarly, it's probable that a court would find that the President's right to speech and their Administration's corresponding authority to speech against the players' right to protest is equally weighted or even weightier, such that stifling the official speech is as bad or worse than the alleged chilling effect of the speech. Some examples of things that clearly would fall afoul of 42 U.S. Code § 1983 would be the President or the Administration misappropriating funds to use to pay NFL teams not to hire players who kneel during the national anthem, or signing an Executive Order preventing players who kneel during the national anthem from playing - in both cases, they are taking actions which fall outside the powers of their office, which would qualify as acts made under color of law and clearly chill the players' First Amendment rights.
Short answer: Maybe. Long answer: The answer here varies from jurisdiction to jurisdiction. Normally, the process goes like this: The application for the warrant is usually made under seal or otherwise in secret to prevent the target from trying to hide evidence. So before it's been executed, you can pretty much forget about accessing it. After the warrant is executed, though, there are differing answers to this question. The Supreme Court gave us a test for this kind of question in Press-Enterprise II, which held that the First Amendment gives us a qualified right to access court proceedings and records. The right applies when public access makes sense using the "experience and logic" test: Has the Anglo-Saxon experience typically been to provide access, and does logic tell us that access has beneficial effects for the judicial process? But lower courts have disagreed about how to apply the test. The Eighth Circuit allowed access to warrants in a defense-industry corruption investigation in In re Search Warrant for Secretarial Area-Gunn, but the Ninth Circuit denied access in to warrants in the same investigation in Times Mirror Co. v. U.S. I think, though, that the Ninth Circuit decision would have come out differently if the investigation had already ended. Just to mix things up further, the Fourth Circuit has also allowed access, but based on common law principles of access, rather than the First Amendment. That was Baltimore Sun Co. v. Goetz. Same in the Second Circuit: In re Application of Newsday, Inc. Individual states also have their own rules, but those are of course subject to limits under the First Amendment. When I wanted a copy of a warrant, I would go first to the clerk of the court whose judge signed the warrant. I would tell them what I was looking for, and I pretty much always got it. I would rarely submit a FOIA request, especially if the warrant was issued by a federal agency. Those requests sit in a queue for months or years without being reviewed, and the agency virtually always denies the request anyway. When law enforcement agencies and courts have copies of the same record, you're almost always going to have better luck getting access from the courts, which are set to open by default. If the court denies the request, try again after there's an indictment, and again after the trial.