Can a Sitting President Rescind a Pardon Before It is Accepted?

The legal process surrounding presidential pardons is a highly complicated and nuanced topic. An understanding of when and how a sitting president can rescind a pardon is crucial. Let's delve into the specifics.

Understanding Presidential Pardons

A pardon is a legal act of forgiveness that absolves the person receiving it from penalties incurred as the result of their conviction. However, making a pardon is a two-step process: issuance and acceptance. Until the pardon is accepted, there is a possibility of rescinding it.

The Acceptance Process

The president's pardon, once issued, cannot be rescinded if it is already accepted by the individual. The recipient must formally accept the pardon before the deal is finalized. Only after the pardon has been officially accepted can it become binding and irreversible.

Rescinding a Pardon Before Acceptance

Conceptually, a pardon can be rescinded before it is accepted. This means that if the recipient has not yet accepted the pardon, the executive can theoretically withdraw it. It's important to note that this condition is highly dependent on the specific circumstances and the willingness of the president to act.

Practical Considerations

There are several practical considerations that come into play:

The Constitution does not explicitly mention the possibility of rescinding a pardon.

No previous president has ever attempted to rescind a pardon after it has been accepted, making it highly unlikely that such an action would ever occur.

Only the president has the authority to issue a pardon, and no other branch of government or entity, including the House, Senate, or Supreme Court, can nullify a pardon.

The Department of Justice (DOJ) also cannot reverse a pardon, as it is a legal decision final once accepted.

Consequences of a New Crime

If the recipient of a pardon commits a new crime, the pardon will not protect them from the consequences of those new crimes. The principle of double jeopardy under the Fifth Amendment protects individuals from being tried for the same crime twice, but it does not absolve them of new crimes committed after the pardon has been accepted.

Exceptional Circumstances

There is some precedent for rescinding a pardon if it has not been delivered to and accepted by the pardoned individual. This can happen under very specific circumstances, but the process is complex and legally challenging.

Limited Powers of State Governments

It's worth noting that the president can only pardon federal crimes. For state crimes such as manslaughter or assault, only a governor or a special state agency has the authority to grant pardons. This means that if the pardon involves a state crime, it must comply with state laws and procedures.

Conclusion and Constitutional Amendment

To fundamentally change the process of pardons or to allow for their rescission after acceptance, a constitutional amendment would be necessary. Given the complexity of the issue and the potential legal challenges, such an amendment would face significant obstacles and could take years to pass.