Michael Cohen, a former personal attorney of President Trump, in recent testimony before Congress, stated he would not accept a presidential pardon. Is this an option he has? If a pardon nullifies a committed crime, it seems like he should not be allowed to choose if he goes to prison or not because as far as the federal government is concerned, the crime is forgiven. An average person could not go to prison if a jury found them innocent. Why is this different?
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13It's worth correcting the opening statement of the OP's question. Michael Cohen did not say that he would not accept a presidential pardon. The transcript (nytimes.com/2019/02/27/us/politics/…) of the opening statement of his testimony shows that he said, "I have never asked for, nor would I accept, a pardon from President Trump." That's quite a different matter from the more general assertion that he would not accept a presidential pardon.– CrimsonDarkFeb 28, 2019 at 8:33
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8A pardon does not nullify the crime. A pardon forgives the guilty plea for a crime (you cannot pardon a non-guilty party). Thus a person may reject a pardon if they intend to prove their innocence.– slebetmanFeb 28, 2019 at 8:50
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2@user02814 maybe my English is not good but doesn't "I have never asked for, nor would I accept, a pardon from President Trump." basically mean "I have never asked for a pardon from President Trump." and "I would not accept a pardon from President Trump." ?– zakinsterFeb 28, 2019 at 10:07
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12@zakinster yes indeed - but I think user02814's point is that Cohen's assertion leaves open the question of accepting a presidential pardon from a president other than Trump.– James MartinFeb 28, 2019 at 11:02
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@JulienLopez why would they be prohibited? Because it's a nonsense situation, it doesn't need a rule– CalethFeb 28, 2019 at 13:59
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4 Answers
It is possible to reject a pardon. Referring to United States v. Wilson:
There is nothing peculiar in a pardon which ought to distinguish it in this respect from other facts; no legal principle known to the court will sustain such a distinction. A pardon is 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.
There are also other practical effects to accepting pardons, such as waiving of fifth amendment rights relating to the pardoned crimes, since it would be impossible to self incriminate anymore. So there are reasons to refuse beyond "choosing to go to prison".
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32I get a kick out of this part of that decision: "The power of pardon in criminal cases had been exercised from time immemorial by the executive of that nation whose language is our language, and to whose judicial institutions ours bear a close resemblance." Was this really a necessary phrasing on their part? Feb 28, 2019 at 3:47
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37@zibadawatimmy - Early 1800s, maybe they still viewed England as be a Valdemort type of entity. Feb 28, 2019 at 4:47
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5Can someone elaborate on the implications of waiving fifth amendment rights on accepting a pardon? Feb 28, 2019 at 12:12
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23@Mindwin If you get asked a question under oath which would force you to admit to a crime if answered truthfully, i.e you would incriminate yourself as to having commited a crime, then you can choose not to answer by "pleading the fifth" e.g. invoking the fifth amendment's protection against self incrimination. Most western nations have this right. If you get pardoned for a crime, it's essentially not a crime anymore, so you can't rely on fifth amendment protections to allow you to opt out of being asked about the details.– MagischFeb 28, 2019 at 12:27
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9@PoloHoleSet in a recent ruiling (Timbs v. Indiana), SCOTUS talks about Magna Carta to establish the length of precedent for the basis of their ruling. They are acknowledging that US law didn't spring from nothing in 1776– CalethFeb 28, 2019 at 13:54
The question is theoretical. But there's no need to theorize. There's at least one case of a convict successfully rejecting a presidential pardon. The Supreme Court ruled on this case in 1833, saying a pardon is "not completed without acceptance".
The case is touched upon in a previous answer to this post.
Here are excerpts from an article describing the case:
The Man Who Refused A Pardon ~ CBMC International
In 1829 two men, George Wilson and James Porter, robbed a United States mail carrier. Both were subsequently captured and tried in a court of law.
In May 1830 both men were found guilty of six charges, including robbery of the mail "and putting the life of the driver in jeopardy."
Both Wilson and Porter received their sentences: Execution by hanging, to be carried out on July 2. Porter was executed on schedule, but Wilson was not.
Influential friends pleaded for mercy to the President of the United States, Andrew Jackson, on his behalf. President Jackson issued a formal pardon, dropping all charges. Wilson would have to serve only a prison term of 20 years for his other crimes.
Incredibly, George Wilson refused the pardon!
An official report stated Wilson chose to "waive and decline any advantage or protection which might be supposed to arise from the pardon…."
The U.S. Supreme Court determined, "The court cannot give the prisoner the benefit of the pardon, unless he claims the benefit of it... It is a grant to him: it is his property; and he may accept it or not as he pleases."
Chief Justice John Marshall wrote, "A pardon is an act of grace, proceeding from the power entrusted with the execution of the laws... (But) delivery is not completed without acceptance. It may then be rejected by the person to whom it is tendered, and... we have no power in a court to force it on him."
(emphasis mine)
Reference:
answered Feb 28, 2019 at 3:46
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10If a pardon is not completed without acceptance, what does that mean for posthumous pardons? Feb 28, 2019 at 21:36
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4Like for any legal matter, the pardon can be accepted or challenged by the deceased person's estate. But I would presume that in such cases acceptance is simply implied. @CactusCake Mar 1, 2019 at 0:53
Certainly in the UK at least one person has refused a pardon, on the grounds that accepting the pardon implied their accepting the guilt of the action in the first place. They were attempting to prove they did not commit the act in the first place.
There is a difference between 'you did it but we forgive you' and 'you didn't do it' and the person wanted to prove they didn't do it. The same could hold true for a presidential pardon, but I suspect that Michael Cohen, having admitted his guilt, is making a different point.
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8Welcome to Politics! However, I don't really see how this answers the question. The fact that someone in the UK refused a pardon doesn't say anything about whether or not someone in the U.S. can refuse a pardon. The rest of this answer is speculation about Michael Cohen's motives. Whether or not Cohen is trying to avoid an implication of guilt, can he refuse a presidential pardon?– NullFeb 28, 2019 at 17:00
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6@houninym Who was that person? Adding that detail would make this an interesting and useful answer.– BenFeb 28, 2019 at 20:32
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4@Null US law is based on English law as it existed in 1776. Many other countries' laws are also based on English law, from Canada, Australia, India, China, Thailand and many others. SCOTUS often refers to foreign judgements as points of comparison even though they are obviously not binding, and other countries do the same to SCOTUS judgements. People refusing pardons in other countries is relevant.– BenFeb 28, 2019 at 20:35
Frank Abagnale has famously turned down 3 presidential pardons. Though in his case all were after the prison sentence had been served.
