I write, as an attorney, to argue that the pardon of Richard M. Nixon by Gerald Ford was Unconstitutional and further that any pardons issued by a President of the United States to any individual who has not been convicted of a crime are Unconstitutional.
First, the relevant clause of the Constitution for the United States of America:
Article. II.
Section. 2.
The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.
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(Emphasis added.)
Firstly, in Article I, Section 9, of the Constitution, Congress is explicitely forbidden the power to pass any Bill of Attainder. Secondly, Article II of the Constitution expressly limits the power of the presidency to executive acts, i.e. executing the laws of the United States as passed by Congress and approved by the president. (There are other powers, but none give the President legislative or judicial powers). Thirdly, and finally, Article III of the Constitution expressly vests the judicial powers in the Supreme Court and such inferior Courts as the Congress may from time to time ordain and establish.
So what does this have to do with pardons? A pardon, as defined by Merriam-Webster is:
- indulgence
- the excusing of an offense without exacting a penalty
3 a: a release from the legal penalties of an offense b: an official warrant of remission of penalty
- excuse or forgiveness for a fault, offense, or discourtesy <I beg your pardon>
A pardon is an excuse of an offense or a release from the legal penalties of an offense. Under our system of government, one is innocent of an offense until proven guilty. As such, blanket pardons without convictions mean nothing because no offense has been charged and no guilt has been found, thus no pardon can issue due to a lack of an offense.
Admittedly, the present Administration could instruct one of the U.S. Attorneys or even the Attorney General to bring all charges possible against everybody it wishes to protect, have each individual plead guilty, and subsequently pardon them all. But absent that, it is my legal contention, and one that I feel is well grounded in history and in the Constitution, that no pardon is effective absent a finding of guilt of an offense against the laws of the United States.
I understand that many will be enticed to comment that the pardons will issue forth anyway and will question whether or not any challenges will be made against them. I'm propounding a legal argument regarding the legitimacy of such pardons, not predicting whether they will be made or what the aftermath, if any, might be (it would certainly go to the Supreme Court if charges were brought).
Thoughts? Comments?