Joette Katz Authors Law.com Article Entitled "Pardons and Acceptance: Take It or Leave It?"

A lot has been written lately about Presidential pardon power. While many of us know its origins, we don’t know or at least give much thought to its implications.

Article II, Section 2, Clause 1 of the United States Constitution establishes the President’s authority to grant clemency, including pardons of individuals as well as several other forms of relief from criminal punishment. The power, which has historical roots in early English law, has been recognized by the Supreme Court as quite broad. In 1886, in Ex parte Garland, the court referred to the president’s authority to pardon as unlimited except in cases of impeachment, extending to every offence known to the law and able to be exercised either before legal proceedings are taken, during their pendency, or after conviction and judgment.

In 1974, in Schick v. Reed, the court wrote that the broad power conferred in the Constitution gives the president plenary authority to 'forgive’ [a] convicted person in part or entirely, to reduce a penalty in terms of a specified number of years, or to alter it with certain conditions. As stated in Garland, and reiterated in Schick, Congress generally cannot substantively constrain the president’s pardon authority through legislation; the “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.”

Now that we know who can give a pardon, I thought it might be useful to touch on its parameters and some of its repercussions. In 1833, in United States v. Wilson, Justice Marshall stated: "A pardon is a deed, to the validity of which, delivery is essential, and delivery is not complete without acceptance. It may then be rejected by the person to whom it is tendered; and if it be rejected, we have discovered no power in a court to force it on him."

The need for acceptance of a pardon was again emphasized by the United States Supreme Court in 1915 in Burdick v. United States. In that case, a witness in a grand jury proceeding refused to accept a pardon and instead asserted his privilege against self-incrimination. Relying on United States v. Wilson, the court held that acceptance was essential, and that the witness' refusal to accept left the privilege against self-incrimination intact. “A pardon is 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 prosecution 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 .... A pardon is a deed, to the validity of which delivery is essential, and delivery is not complete without acceptance. It may then be rejected by the person to whom it is tendered, and if it be rejected, we have discovered no power in a court to force it on him.”

Later in Biddle v. Perovich, the court placed a different emphasis on the pardoning power, and a presidential commutation of a death sentence to life imprisonment was held effective even without an inmate's consent. Although Perovich can be viewed as casting doubt on the need for acceptance of an unconditional pardon, it has been noted that: "Whether these words sound the death knell of the acceptance doctrine is perhaps doubtful. They seem clearly to indicate that by substantiating a commutation order for a deed of pardon, a President can always have his way in such matters, provided the substituted penalty is authorized by law and does not in common understanding exceed the original penalty."

In his last hours in office, President Biden offered preemptive pardons to members of the House panel that had investigated the January 6 Capitol riot. They had not been charged with any crime (hence preemptive), but he wanted to protect them from any future federal charges. Many of them graciously and gratefully accepted the pardon. Congresswoman Liz Cheney, Congressman Bennie Thompson, Dr. Anthony Fauci and Gen. Mark Milley were among those who acknowledged and accepted the pardons.

I must admit that I reacted with enthusiasm when Representative Adam Kinzinger spoke on Colbert’s late show and said essentially: I do not seek, nor will I accept a pardon because I did nothing wrong. When he learned after the fact that Biden had issued a blanket pardon to all the members of the House panel that had investigated the January 6 Capitol riot, Kinzinger reiterated that he had not wanted nor sought it and expressly stated that he didn’t have to “accept it” because it was part of a blanket pardon to all members of the Committee. Hopefully, he won’t have to test that assumption.

Whether the acceptance of a pardon constitutes an admission of guilt by the recipient is not entirely clear. The Court's dictum in Burdick v. United States would strongly suggest that it is. "This brings us to the difference between legislative immunity and a pardon. They are substantial. The latter carries an imputation of guilt; acceptance a confession of it. The former has no such imputation or confession. It is tantamount to the silence of the witness. It is noncommittal. It is the unobtrusive act of the law given protection against a sinister use of his testimony, not like a pardon, requiring him to confess his guilt in order to avoid a conviction of it.”

In the lower court decision, Judge Learned Hand had stated: "It is suggested that a pardon may not issue where the person pardoned has not at least admitted his crime. I need not consider this, because everyone agrees, I believe, that if accepted the acceptance is at least admission enough. It is an admission that the grantee thinks it useful to him, which can only be in case he is in possible jeopardy, and hardly leaves him in position thereafter to assert its invalidity for lack of admission."

On the other hand, a pardon can be equated with amnesty, which renders further inquiry needless, and does not necessarily import guilt or exclude innocence. Moreover, at this point in time, it can reasonably be argued that an acceptance of a pardon is necessary to avoid the expense, trauma and other side effects of a criminal proceeding such that its acceptance is not inconsistent with a position of innocence. As General Milley said: “After 43 years of faithful service in uniform to our nation, protecting and defending the Constitution, I do not wish to spend whatever remaining time the Lord grants me fighting those who unjustly might seek retribution for perceived slights.” 

I have thought about the question of whether I would accept a pardon if I had done nothing illegal. Would my protestations of innocence in the face of a preemptive pardon be misinterpreted? I think about when as a youth I had committed some act of which my mother disapproved; when I protested my innocence, she cautioned me by quoting Shakespeare: “the lady doth protest too much methinks.” Clearly, a no-win situation. Maybe that’s how the recipients of this last-minute pardon felt.

Copyright 2025. ALM Global, LLC. All Rights Reserved. Originally published by Connecticut Law Tribune and Law.com [https://www.law.com/ctlawtribune/2025/01/24/pardons-and-acceptance-take-it-or-leave-it/], reprinted by permission.