Pardon Me, Mr. President

Where does the President’s pardon power come from legally?

Amid the President’s pardon of former Maricopa County Sheriff, Joe Arpaio, many people are talking about the decision, but few understand the legal mechanism behind presidential pardons.

Let’s talk about some basics.

  • The President’s authority comes from the United States Constitution.
  • The President can only issue pardons for federal crimes. For example, wire fraud, mail fraud, or conspiracy.
  • The President cannot pardon someone for a state crime. A state Governor would have to issue a comparable directive under controlling state law.
  • A pardon typically involves a concession of guilt or responsibility on the part of the person receiving the pardon.
  • The most famous pardon was issued by President Gerald Ford when he pardoned President Richard Nixon.
  • The most common offenses for which people have received pardons are non-violent first offenses such as Conspiracy to Distribute Marijuana and Possession of Marijuana for Sale.
  • An individual who receives a pardon no longer has a 5th Amendment privilege against self-incrimination as once someone gets a pardon, they can no longer face future prosecution for that conduct.

(Insert Sound of Screeching Brakes)

This last point is a doozy.

While it may be suggested that the President may pardon friends and family members who are the subject of Special Counsel Robert Mueller’s investigation, such a move may blow up in the President’s face. Once someone receives a pardon, they could no longer refuse to testify as the pardon would insulate them from ever being prosecuted.

As a criminal defense lawyer, I try to stay apolitical in my posts. My role is to defend the Constitution and protect my clients’ rights, even in the face of this matter, which appears to be a trampling of that same Constitution and a flagrant disregard for the rule of law that I swore to defend nearly 22 years ago.

Now that we’ve aired that out, I will go back to doing what I do best; being one of the most experienced criminal defense attorneys in Phoenix who regularly defends clients charged in white collar and drug conspiracy cases in Arizona’s state and federal courts.

I’m available for consultations and routinely evaluate cases and criminal liability for individual and corporate defendants. If that’s something that meets your needs, call my office at (602) 663-9100 to set up a meeting. Without exception, everyone who meets with me feels better (even just a little bit) when they walk out the door.

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