Burdick v US is often cited on the intertoobs for the legal proposition that acceptance of a pardon is an admission of guilt. But that tenet is just a part of the legal analysis of the ability of an individual to refuse the pardon.
The argument is based on the fundamental idea that a pardon is a private act. That term is not further clarified in Burdick, but upon that word turns the analysis that, as a private act, it must be delivered to the recipient of the pardon. And delivery, Burdick points out, implies acceptance. That’s where the idea of delivery or acceptance enters in.
Now, I never practiced criminal law or ever had a client who was the beneficiary of a pardon, but I believe a pardon must be proven in court. You can’t just point to a tweet or a press release. I would analogize it to probate: at the moment of death, the estate becomes the property of the named heirs in the will (property law abhors a vacuum in ownership). But until the will is probated in a court of competent jurisdiction, and letters testamentary issued, the heirs and the executors can’t do anything. No one recognizes their authority; or has to. Those documents, the letters testamentary, give the bearer authority over the estate. Until they are delivered, the executor has no real authority.
So, too, a pardon must be presented; and to be presented, it must first be received; to be received, it must be delivered, and accepted. Now, why would you not want to accept it? Because a pardon forgives a crime; unlike immunity, which shields from any allegation of a crime. That’s the immunity of the Speech and Debate Clause (which also provides immediate immunity from civil suits); or the immunity created by Trump v US. A pardon is not a grant of immunity; it is negation of a crime. Obviously that infers some responsibility for a crime.*
The other side of the Burdick analysis is the assumption criminal investigations are carried out in good faith: that grand juries are not corrupt, prosecutors are not pursuing vendettas, and juries are reliable. I do think it would be very difficult for Kash Patel, say, to get far with an investigation against someone on his “enemies list.” I don’t think grand juries would play along, and after Trump’s singular lack of success with juries, I’m quite sure they wouldn’t, either. But neither do I want to face a government investigation without a lawyer. And since governments don’t run out of money, and the rest of us can’t fleece the rubes like Trump, I see the wisdom in Biden’s pardons. And I don’t think the stigma attaches to those who accept those pardons. (What stigma can be said to attach when the POTUS himself is a convicted felon?) I think the stigma attaches to the false prosecutions which Biden has tried to curtail. Biden’s pardons actually uphold the rule of law. Trump’s anticipated pardons will simply undermine it. Ironically, we find that argument in Burdick, too:
It is of little service to assert or deny an analogy between amnesty and pardon. Mr. Justice Field, in Knote v. United States, 95 U. S. 149, 95 U. S. 153, said that "the distinction between them is one rather of philological interest than of legal importance." This is so as to their ultimate effect, but there are incidental differences of importance. They
are of different character and have different purposes. The one overlooks offense; the other remits punishment. The first is usually addressed to crimes against the sovereignty of the state, to political offenses, forgiveness being deemed more expedient for the public welfare than prosecution and punishment. The second condones infractions of the peace of the state.
As the court says, these are incidental differences; but they are, also, important. Trump’s pardons of the J6 defendants “condone[] infractions of the peace of the state.” In this case, of the violent interference with the actual function of the state. And whatever spin or gloss he wants to put on it, that’s still what it means.
Trump’s pardons (if, as I’m writing, he issues them) undermine the rule of law. Biden’s unprecedented pardons actually uphold it. The issue is not: why did Buden do it? The issue is: why did he have to?
*Burdick was a newspaper editor overseeing articles reporting on alleged customs fraud. He refused to testify about the sources before a grand jury, based on his 5th Amendment rights. He was found in contempt, and before he could be brought before a second grand jury, he was given a pardon by President Wilson. He refused to accept the pardon, which led to the Supreme Court ruling.
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