In today’s New York Times, George Lardner, Jr. has an op-ed on the prospect of a presidential pardon for Scooter Libby. The byline tells us that Lardner, a former Washington Post reporter, “is writing a history of presidential pardons.” From the evidence of this very confused article he has a long way to go before he has a good book.
Lardner’s central point is this: “If Mr. Libby were to accept a traditional presidential pardon . . . he would be admitting that he was guilty of the crimes of which he was convicted.” This conclusion, as a legal matter, Lardner says, is compelled by the precedent in Burdick v. United States (1915), which in turn is based on United States v. Wilson (1833). These two cases, according to Lardner, are based on “bad history and tortured logic.” In that case Lardner ought to reach the opposite conclusion—that notwithstanding these precedents, Libby should be understood as admitting nothing if he is offered a pardon and accepts it. He seems so wedded to the idea that the Constitution is what the judges say it is that he insists on conforming public perception to the implications of legal reasoning he thinks is mistaken! (And it is public perception he seems to be talking about, since his article says nothing about the sometimes complex matter of a pardon’s legal effect.) But I think it is Lardner who has tortured history.
The Wilson case of 1833, a unanimous decision in which Chief Justice John Marshall wrote the opinion, held that a presidential pardon may be rejected by its intended recipient. Marshall described it as a species of property in the recipient’s possession, which must be pleaded by him to have its proper effect in court. As such, he can throw it away if he wishes. Noting that pardons are sometimes conditional (e.g., imposing exile or some other consequence of acceptance), Marshall said that some might prefer the punishment in prospect without a pardon to the conditions the pardon carries. And for conditional and unconditional pardons alike, the rule must be the same. “There is nothing in the Constitution that gives a person the prerogative to turn down a pardon,” says Lardner. But there is nothing there either that entitles a president to impose a pardon’s effects on an unwilling recipient, and Marshall had a host of English authorities on his side regarding this legacy from the mother country’s common law, a background properly assumed behind the pardon power the framers put in the Constitution. (Lardner’s attempt to bolster his ipse dixit with a quotation from Federalist No. 74 is unpersuasive, as he tears from context a remark about the power being “as little as possible fettered or embarrassed.” Hamilton was talking there about the breadth of the offenses to which the power might be applied; he was not rejecting the traditional acceptance principle.)
If I haven’t lost the reader entirely, consider what is missing from the above description of the Wilson case. Nowhere does Marshall say or imply that acceptance of a pardon is an admission of guilt. He does not even give it as one of the reasons why someone might reject a pardon, though it is easy to see that it could be a reason. But Lardner implies that Marshall implied this. Referring to Marshall’s remarks on the acceptance principle as “pure dicta—nonbinding observations” (and they weren’t; rather, they were arguments supporting the central holding), Lardner then writes:
“In the Burdick case [1915], the court likewise held that ‘a pardon, to be effective, must be accepted’ because it ‘carries an imputation of guilt; acceptance a confession of it.’ This made Marshall’s view the law of the land.”
Where to begin? It was Justice McKenna’s opinion in Burdick that introduced what we might call the “guilt theory” of a pardon’s acceptance; as I’ve noted, it doesn’t appear in Marshall’s Wilson opinion. And the guilt theory in Burdick was itself (unlike Marshall’s Wilson reasoning on a pardon’s acceptance) pure obiter dicta, unnecessary to the decision of the case. You wouldn’t know it from Lardner, but his two quotations from Burdick in the passage above are not exactly close to each other. He has stitched them together with his own “because,” but the conclusion in Burdick that a pardon must be accepted was already settled by the time Justice McKenna offered his monocausal theory for why someone might reject a pardon, and there was no “because” linkage of the kind Lardner states. There was no support for McKenna’s view in the Court’s precedents; no necessity for saying it in the case at hand; and no reason to accept it as consistent with what we know about the various human motivations to accept or reject a pardon. And so far as I can tell from a quick glance at present-day authorities, McKenna’s guilt theory has played no significant role in the law surrounding the legal meaning of pardons ever since—though on this I stand ready to be corrected.
The world can think what it likes about Scooter Libby, if he is ever fortunate enough to receive a presidential pardon. As for John Marshall in 1833, he left uncontradicted in his opinion the following bald assertion made in the case’s argument by Attorney General (later Chief Justice) Roger Taney: “The pardon restores [the recipient] to innocence in the eye of the law.” There speaks the traditional understanding needlessly mangled by Justice McKenna in 1915, and by George Lardner in the Times.