Article II, Section 2, Clause 1:

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.

In the 1833 case United States v. Wilson, Chief Justice John Marshall wrote for the Court that a pardon is a private “act of grace,” 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.” 1 Though the Court in Wilson doubted that a “being condemned to death would reject a pardon,” it recognized that a pardon might be rejected regardless of the gravity of the punishment, as, for instance, if the pardon were conditional “the condition may be more objectionable than the punishment inflicted by the judgment.” 2

Almost a century later, in Burdick v. United States, the Court confirmed that a pardon may be refused, at least where other constitutional rights are at stake.3 Burdick involved a pardon issued by President Woodrow Wilson to George Burdick, an editor at the New York Tribune, for any federal offenses he “may have committed” in connection with the publication of an article regarding alleged customs fraud, despite the fact that Burdick had not been charged with any crime at the time of the pardon.4 The apparent motivation for the pardon was that Burdick had refused to testify before a grand jury investigating the involvement of Treasury Department officials in leaks concerning the wrongdoing, asserting his Fifth Amendment right not to provide testimony that would tend to incriminate him.5 Despite President Wilson’s issuance of the pardon, Burdick “refused to accept” it and continued to refuse to answer certain questions put to him before the grand jury.6 The Supreme Court in Burdick assumed that the pardon was within the President’s power to issue and concluded that “it was Burdick’s right to refuse it” and stand on his Fifth Amendment objection.7

Burdick notwithstanding, if a pardon is accepted, it obviates a Fifth Amendment objection to providing testimony.8 Additionally, it appears that the Wilson/Burdick rule does not extend to commutations and remissions. In the later case Biddle v. Perovich, the Court considered a commutation of a death sentence to life imprisonment that the recipient argued was “without his consent and without legal authority.” 9 The Biddle Court disagreed with this assessment, stating, contrary to the language of Wilson, that a pardon “is not a private act of grace” but is rather a determination of what the public welfare requires.10 As such, in the Biddle Court’s view, “the public welfare, not [a recipient’s] consent determines what shall be done.” 11 On this basis, the Court in Biddle concluded that Burdick should not “be extended to the present case,” indicating that no one doubted “a reduction of the term of an imprisonment or the amount of a fine would limit the sentence effectively on the one side and on the other would leave the reduced term or fine valid and to be enforced” with “the convict’s consent . . . not required.” 12

Footnotes

1

32 U.S. 150, 160–61 (1833).

2

Id.

3

236 U.S. 79, 94 (1915).

4

Id. at 85–86.

5

Id.

6

Id. at 87.

7

Id. at 94. The Court relied on Burdick to decide a separate case the same day on “almost identical” facts. Curtin v. United States, 236 U.S. 96, 97 (1915).

8

Brown v. Walker, 161 U.S. 591, 599 (1896) ( “[I]f the witness has already received a pardon, he cannot longer set up his privilege, since he stands, with respect to such offense, as if it had never been committed.” ).

9

274 U.S. 480, 485 (1927).

10

Id. at 486.

11

Id.

12

Id. at 486–88. In the much earlier case Ex parte Wells, the Court appeared to assume that a pardon of a convict sentenced to death, conditioned on his imprisonment for life—effectively a commutation similar to the one at issue in Biddle—was based on consent of the recipient. 59 U.S. 307, 315 (1856) (rejecting argument that conditional pardon was not “voluntarily accepted,” as recipient was legally imprisoned).