Are Blanket Pardons Constitutional? A Reply to Bowman

If news reports are to be believed, President Trump is considering issuing blanket pardons (“for any and all offenses”) to many of his family-members and associates. In an article last year, I raised questions about the validity of such pardons, arguing that the Pardon Clause may be subject to a “specificity requirement,” a requirement that the President identify the specific offenses covered by the clemency order.

In a recent essay, Professor Frank Bowman takes issue with this claim, essentially contending that a specificity requirement has no support in the law or history. Although I disagree with Professor Bowman, I’m grateful to him for presenting the arguments against the specificity requirement with such clarity. The rigor of his analysis offers an opportunity for me in turn to clarify a few points about the common law and its relevance to the Pardon Clause.

An Originalist Methodology

To begin with the obvious: Arguments in support of a specificity requirement bear a heavy burden of persuasion. It is conventional wisdom today that the President’s power to pardon is essentially unlimited, subject only to the two constraints mentioned in the Constitution’s text (i.e. no pardons for state crimes or in impeachment proceedings). But while the pardon power is undoubtedly broad, it is not that broad.

The Supreme Court has repeatedly affirmed that the pardon power is subject to non-textual limitations. Although it has not offered an exhaustive list of these implicit limits, it has offered a methodology for identifying them. Namely, the scope of the pardon power must be based on the Framers’ intent at the time of the Constitution’s drafting. And as the Supreme Court has said, courts engaged in discerning that intent should look to English law during the founding period, since the framers “were conversant with the laws of England, and … both Englishmen and Americans attached the same meaning to the word pardon.” History, in short, should be our guide.

Professor Bowman appears to agree with this methodology. But he disagrees on what the common law requires. He sees nothing in the common law to support a specificity requirement; I reach a different conclusion.

Specificity and the Common Law

In his criticism of the specificity requirement, Professor Bowman makes much of the fact that the King of England issued a slew of “general pardons” in early centuries.  These examples, however, are largely irrelevant to the issue at hand. The key time period for interpreting the constitution is the time of the constitution’s drafting. This focus is important because English law went through a major period of transformation at the end of the 17th century, including the enactment of the English Bill of Rights and subsequent reforms. In that period, Parliament successfully imposed wide-ranging restrictions on the royal power, including restrictions on his pardon power.

Prior to the Glorious Revolution in England, a specificity requirement did exist, but it was a weak constraint that could be easily evaded. Under the Act of 1389, royal pardons had to be specific, but that act applied only to a few major crimes. And the requirement could be suspended by an explicit order from the King.

The Glorious Revolution changed the legal terrain, particularly in the area of pardons. It expanded the specificity requirement and gave it teeth. We can see that change both in terms of historical practice and in the holdings of legal authorities.

Consider historical practice first. In contrast to the slew of examples of general pardons prior to the 1700s, none of significance arose after that time period, at least none that I have found. Professor Bowman notes that, in 1750, “George II proposed and Parliament passed” a blanket pardon. But that example tells us nothing about the King’s pardon power.  Indeed, it is notable that the King did not issue the pardon on his own authority, but rather relied on Parliament to take the necessary steps.

Even more importantly, the common law authorities are quite clear about the changed legal terrain. Perhaps the most notable example is William Blackstone, who affirmed that: “General words have . . . a very imperfect effect in pardons. A pardon of all felonies will not pardon a conviction or attainder of felony, (for it is presumed the King knew not of those proceedings,) but the conviction or attainder must be particularly mentioned.”

Blackstone was not alone in this view. Other influential commentators, widely read in the colonies, recognized the existence of a specificity requirement.  William Hawkins for example, rejected the idea that general pardons are valid, stating: “the pardon of one who is convicted, by verdict, of a felony is not good, unless it recites the indictment and conviction.” Lesser-known commentators, such as Jacob Giles, reached similar conclusions. In 1725, for example, Giles wrote that for the King’s grant of mercy to be valid, “[t]he offense is to be specified in pardons.”

These comments are not to be disregarded or discounted. They are precisely the legal authorities that the Framers relied upon to assess the scope of English law itself. Professor Bowman suggests that the comments by Blackstone and others are not as absolute as they seem, and that they are just a “presumption” that the King can override if he really wants to issue a general pardon. But Professor Bowman offers no support for this novel reading, and it runs against a natural reading of the text.

An Alternative Interpretation

Is there any other plausible interpretation of the common law authorities? Yes, I think there is, but it is not the one that Professor Bowman has identified. As I note in my article, there is some authority for interpreting the specificity requirement narrowly. Under this reading, the requirement applies only to certain kinds of offenders — those already charged with crimes. General pardons could still be issued for individuals who had yet to be indicted. Thomas Wood, the author of a treatise entitled “An Institute of the Laws of England,” took this position. As he wrote: “A general pardon of all murders, robberies, etc. to one indicted and convicted of murder, robbery, etc. is not good, without recital of the indictment and conviction.” However, Wood warned, “if the Party is neither indicted or Attainted, A Pardon of all Felonies in General . . . is Good.”

This interpretation represents a significant dilution of the specificity requirement, since it would open the door for blanket, preemptive pardons. Nonetheless, while this reading is plausible, I do not think it is the best interpretation of the common law authorities for two reasons.

First, leading commentators at the time disputed this interpretation. William Hawkins, for example, rejected Wood’s view.  As Hawkins wrote:

[I]t seems to be taken for granted, in many books, that a pardon of all felonies in general, without describing any one particular felony, may even at this day, if the party be neither attainted nor indicted, be pleaded in bar of any felony . . . . But I find this point nowhere solemnly debated. Neither doth it seem easy to reconcile it with the general rules concerning pardons, agreed to be good in other cases. . . . [T]herefore where the books speak of pardons of all felonies in general as good, perhaps it may be reasonable for the most part to intend that they either speak of a pardon by parliament, or that they suppose that the particular crime is intentioned in the pardon, though they do not express it.

Second, a narrow specificity requirement would conflict with the accepted purposes of the specificity requirement. Those purposes were acknowledged to be two-fold: “(1) to assure that the pardon will be given effect only with respect to the offense intended to be pardoned, and (2) to protect the citizenry against executive irresponsibility.” Fletcher v. Graham, 192 S.W.3d 350, 386 (Ky. 2006). A narrow specificity requirement would permit broad preemptive pardons to be issued, and such pardons would undermine both goals. First, such pardons could allow an individual to be absolved for crimes that were entirely beyond the awareness of the king.  Second, blanket pardons would permit the king to pardon an offender “for any and all offenses,” obscuring the corrupt nature of the pardon order.

Given these considerations, the better view is that the common law supports a broad specificity requirement. But regardless of how one comes out on this issue, the very fact that common law authorities were debating the scope of the specificity requirement highlights that they believed some such requirement exists. While one can plausibly debate the scope of that restriction, it is less credible to argue that the common law offers no support at all for a specificity requirement.

American Pardon Practice Reconsidered

Professor Bowman’s argument, of course, does not rely solely on his reading of the common law. He argues that a specificity requirement conflicts with American law and practice.  That argument deserves a closer look.

Professor Bowman’s central claim is that non-specific pardons have been widespread in America history, and that this historical practice should count against the adoption of the pardon limitation. This argument is not frivolous. The Supreme Court has affirmed that, in separation of powers cases, a longstanding, unchallenged practice deserves deference, since it signifies the existence of a consensus view about the appropriate distribution of powers. The problem is that such a deeply entrenched practice simply does not exist in favor of non-specific pardons. If anything, the historical precedent supports, rather than undermines, the case for the specificity requirement.

To unpack this claim, it is useful to distinguish between two kinds of pardons — ordinary pardons and military amnesties. An “ordinary” pardon is granted by the president to an individual or a group of individuals for run-of-the mill crimes. An amnesty, in contrast, is granted to individuals for crimes relating to military conflicts.

With respect to typical pardons, the historical record is quite clear. An overwhelming number of these pardons satisfy the specificity requirement. As an illustration, over a 45-year period between 1974 and 2018, only two pardon grants — out of nearly 2200 pardons— violated the specificity requirement (these two were Gerald Ford’s pardon of Richard Nixon and George H.W. Bush’s pardon of the Iran-Contra conspirators). My less rigorous look at earlier periods of American history confirms that the same pattern holds.  There is simply no evidence that a well-entrenched practice supports non-specific pardons for ordinary crimes.

There is one caveat to this conclusion, which Professor Bowman rightly focuses on. And that is the practice of amnesties. As Professor Bowman notes, Presidents have issued non-specific amnesties throughout American history. I devote quite a bit of discussion to this issue in my article, because it seems to me to be a potential area of vulnerability, as well. But in the end I do not believe the existence of non-specific amnesties undermines the case for a specificity requirement.

As an initial matter, over the course of American history, the number of amnesties is relatively small – no more than a few dozen. Moreover, most of these pardons specify the covered offenses, either in the body of the clemency order or in its preamble. For example, President Carter’s amnesty for draft law violators specifically mentioned the offense at issue. All in all, fewer than ten amnesties in American history can be characterized as non-specific pardons, and most if not all of these are implicitly limited to a circumscribed set of events.

Again, this hardly seems to represent a deeply entrenched practice in favor of blanket pardons. But even if one felt differently, amnesties are a unique type of pardon. And that is because, as I wrote, amnesties “directly or indirectly implicate the President’s Article II commander-in-chief powers. These powers lie at the very heart of executive authority. For this reason, amnesties deserve a particularly deferential kind of review and, arguably, should be exempted from procedural rules pertaining to pardons, including the rule that a pardon satisfy the specificity requirement.”

The Rubber and The Road

Professor Bowman concludes his argument by noting that “in over two hundred years,” no court has ever ruled in favor of a specificity requirement. That is true, but at the same time, none has ever ruled against the restriction either. The lack of decision is not entirely surprising, given how few non-specific pardons have been issued in American history, and how few pardon cases in general are challenged at all. If you think about it, it takes an unusual set of facts for a pardon case to make it to court. For obvious reasons, defendants are usually loath to challenge a pardon. And, absent exceptional circumstances, executive branch prosecutors are not usually motivated to do so either.

But the lack of a court ruling does not mean that the issue has been resolved. Should Donald Trump issue a blanket pardon to his cronies or family members, the validity of that pardon should not be assumed. There is no guarantee, of course, that the Court will adopt a broad specificity requirement. But the argument in support of that requirement is at least very plausible, if not persuasive. And that ultimately is my point: The issue should be litigated.

Image: Win McNamee/Getty

 

About the Author(s)

Aaron Rappaport

Professor of Law at the University of California, Hastings College of the Law.