Can the President pardon people who haven’t been charged?

Jacob Leibenluft, in his article in Slate, has missed an important point. To understand the pardon power, we need to examine just what is happening when an executive with pardon power grants a pardon. What he is saying, essentially, is “I won’t enforce a sentence against x for y, and I bind my successors not to do so as well.”

Where the question gets interesting is when we ask if he can grant a pardon for a conviction that has not yet occurred, or prevent a trial from being held. From my historical research, and despite Ex parte Garland, I find the answer to both is no. A pardon has to specify a sentence as well as the defendant, and that can’t be known before conviction. Granting a pardon to someone for anything he might be convicted of, in advance of such conviction, is in conflict with the constitutional prohibition against granting titles of nobility, and exempting someone from prosecution for anything at all is making that person a noble, even if it comes only with a title of “he who is above the law”. Leaving aside the obvious likelihood that the Court in Ex parte Garland was corrupt, this point was not argued before the Court and therefore the precedent does not cover it.

Even if we ignore the problem of conflict with the title of nobility prohibition, it cannot be logically inferred from the pardon power that a pardon can prevent prosecution. The president may refuse to carry out a sentence but he has no power to prevent a charge from being filed, an indictment obtained, and the court from trying the accused. The court might be reluctant to do so if the sentence won’t be imposed, but a trial serves many purposes besides executable conviction, one of the most important of which is to bring out the truth, and it may be important to proceed with trial even if the conviction won’t be executed.

There is also an issue of whether a president can bind his successors not to enforce a conviction. That is an implied power of a monarch, but not of a president. My finding is that the pardon power of the president is not the power to bind his successors.

http://www.constitution.org

Quo Warranto

The common law writ of quo warranto has been suppressed at the federal level in the United States, and deprecated at the state level, but remains a right under the Ninth Amendment which was understood and presumed by the Founders, and which affords the only judicial remedy for violations of the Constitution by public officials and agents. Here are a few writings on the subject. Revival of the writs must be combined with reviving standing for private prosecution of public rights, subverted by the decision in Frothingham v. Mellon, 262 U.S. 447 (1923), which is discussed in an article by Steve Winter, The Metaphor of Standing and the Problem of Self-Governance.

Although some of these writings are copyrighted, we are assured that all the chapters of all the ones still copyrighted have been attached to pleadings in various cases, and thus made part of the public record, thereby putting them into the public domain.

A critical key to achieving federal constitutional compliance is to resurrect quo warranto and other common law writs. This involves reasserting and strengthening the original All-Writs Act and repealing or declaring unconstitutional legislation, such as the Anti-Injunction Act, and those Rules of Judicial Procedure, that have restricted the jurisdiction of federal courts to accept petitions for these writs and grant a fair hearing (“oyer”) and a decision on the merits (“terminer”) on such petitions.

1. The Practice of Extraordinary Remedies, Chester James Antieau, 1987, Chapter on Quo Warranto.
2. A Treatise on Extraordinary Legal Remedies, Embracing Mandamus, Quo Warranto and Prohibition, James L. High, 1896, Section on Quo Warranto.
3. A Treatise on the Legal Remedies of Mandamus and Prohibition, Habeas Corpus, Certiorari, and Quo Warranto, Horace g. Wood, 1896, Section on Quo Warranto.