Is Accepting a Pardon an Admission of Guilt?

The question of whether accepting a pardon equates to admitting guilt has been a subject of much dispute. In fact, the answer to this question has been debated since the early Twentieth Century.

The answer to this question depends on which of two approaches one chooses. The first involves legislative immunity and the second includes a pardon.

Burdick v. U.S. (1915)

In the early Twentieth Century, the Supreme Court wrote a famous case called Burdick v. U.S. It established that a pardon was an admission of guilt and therefore must be accepted by the subject of the pardon.

In this case, the US Attorney wanted to get an editor of a New York City newspaper to testify about leaks he had received from inside the Treasury Department. In order to get Burdick to talk, he had to issue him a pardon, which would effectively extinguish his Fifth Amendment right against self-incrimination.

However, the Court ruled that Burdick was free to reject the pardon and that he was also entitled to claim immunity from prosecution under the Fifth Amendment. As a result, the court ruled that he was not contempt of court for refusing to answer the questions.

The Supreme Court made this statement as an obiter dictum, which means that it was not a binding statement of law but simply a part of its overall opinion in the case. This obiter dictum was not the only reason Ford issued his pardon to Nixon, but it was one of the most important points.

While many have argued that this statement is actually an admission of guilt, there are several experts who disagree with the idea. One such expert is Brian Kalt, a professor of law at Michigan State University and author of Presidents and the Constitution: A Living History.

Another expert is Ken Gormley, a professor at Duquesne University in Pittsburgh and author of Presidents and the Constitution: An Interim Study. Both of these experts point to the Burdick decision as a foundation for the idea that a pardon is an admission of guilt, and both have criticized the Trump administration for accepting that view.

The idea that a pardon is an admission is still controversial today. In fact, former White House staffer Bob Woodward once asked Gerald Ford if he had accepted his pardon and the president responded, “Yes, it was an admission of guilt” by pulling out a dog-eared copy of the Burdick decision from his wallet. He also read the key words from the Burdick decision to Woodward during an interview for Caroline Kennedy’s book, “Profiles in Courage for Our Time”.

Learned Hand (1914)

A federal trial judge for over a decade, Hand is most notably known for his contributions to the field of legal philosophy. His magnum opus, the Bill of Rights (not to be confused with the Declaration of Independence), helped set the tone for a new kind of democracy that made the law less about the state and more about the individual.

He was also a well rounded lawyer with impressive credentials, including an honorary doctorate from Harvard Law School. He was an active member of the Progressive Party, but his most prominent role was as an ardent defender of civil liberties. His illustrious tenure ended with his retirement from the bench in 1951.

Among his more memorable decisions was a 1950 case in which Hand and two colleagues decided that papers seized by the Department of Justice during a warrantless search were not admissible as evidence.

The case did not make it into Hand’s official record book, but he kept the paper. He rewrote it several times over the years and published it in a series of essays. His writings were a valuable source of historical information about the early days of the Supreme Court. The eponymous Learned Hand Collection includes 65,000 items, many of them legal in nature.

Brian Kalt (1999)

In 1999, a professor at Michigan State University named Brian Kalt began studying the constitutional question of whether or not the president can pardon himself. In the process, he came to two different opinions on the issue.

The first opinion he reached was that the president could not pardon himself. He argued that it would violate the constitution.

He also cited a Supreme Court case that said accepting a pardon is an admission of guilt. That was important to him because he believed that if the president admitted his guilt then he could be convicted of crimes and impeached.

Another reason he argues that the president cannot pardon himself is because the pardon power only applies to federal charges. He argues that this is why he believes that the president can’t pardon himself because there are no limits to how many people can be pardoned and how long it would take for a pardon to be effective.

Finally, he argues that the president has a position as chief prosecutor which does not allow him to support self pardoning. He argues that this makes it much more difficult for the president to defend himself against a criminal prosecution.

Sai Prakash: Well, I agree with Brian on this one because the constitution is very clear that the president is not above the law, not even in his role as a president. It’s a principle that reflects the framers desire to protect the presidency from being king and therefore allowing the president to pardon himself would be unconstitutional.

But I also think that there’s a way of reading the constitution and the founders history that might be more supportive of this idea of a president being able to pardon himself. And that’s to say that the founding era history suggests that the framers specifically contemplated and debated the possibility that the president might be guilty of a crime and use his pardon power to clear himself.

This is a fascinating and incredibly important issue, and it’s really hard to know which side of the debate we should take. We’re going to talk about it with a constitutional law expert who is a leading voice on both sides of the argument, and that’s our guest, professor at Michigan State University, Brian Kalt. Thank you so much for joining us tonight.

Ken Gormley (2018)

When Gormley was fresh out of law school in the 1980s, he began a career of pro bono work at Orphans’ Court, a local courthouse that often featured emotional storylines with characters that reminded him of his own childhood. That experience stayed with him for years, and it was that desire to help people that eventually led to him going back to school for law.

After receiving his degree from Harvard, he taught at the University of Pittsburgh School of Law and also practiced in private law firms in the city. His career as a constitutional scholar earned him national recognition. He has published a number of books, including “Archibald Cox: Conscience of a Nation” (Perseus Books), “The Death of American Virtue: Clinton vs. Starr” (Crown), and “American Presidents and the Constitution: A Living History” (NYU Press).

In his latest book, “The Heiress of Pittsburgh,” which was released in October 2018, Gormley tells a tale about the power of family. A fable of three generations, it explores issues of family relationships and values through a fictional story set in Pittsburgh’s Orphans’ Court.

The book features a series of scenes that bring to life Pittsburgh’s storied history and the many places it has touched, from the Hazelwood mills to the Cathedral on Pitt’s campus. The novel evokes memories of the city’s landmarks and a feeling of awe and wonder that can only be found in a place where so much has happened.

He says he wrote the book because it “felt like an act of love” for his hometown, and to thank Pittsburgh for the opportunity to raise a family in the area where he’s made his home for over 30 years. He also wanted to honor those he calls his mentors and friends who helped him develop his writing skills.

Those people included Benton Becker, who was special counsel to President Gerald Ford during the Watergate scandal and later became an adjunct professor at St. Thomas University Law School in Miami, Florida.

That research in the late summer of 1974, Becker says, unearthed a key Supreme Court decision about pardons, which determined that accepting a pardon is an admission of guilt. That was a revelation to Becker, who had been an associate prosecutor in California during the Watergate scandal.