The presidential pardon is one of the most sweeping powers of — arguably — the most powerful person in the world.
President Joe Biden granted thousands of pardons, including family members on his last day in office. President Donald Trump pardoned or commuted the sentences of roughly 1,500 people charged in the storming of the Capitol on Jan. 6, 2021, on his first day back in the Oval Office.
Two of those convicted Jan. 6 rioters declined to accept the presidential pardon.
Northeastern University law experts say that a presidential pardon can not only be refused, but it may be practical for some recipients to do so.
“These people are well within their rights to refuse a pardon,” Northeastern University School of Law Professor Jeremy Paul says. “The Supreme Court has said if you want to refuse a pardon, you can.”
Last week, Trump pardoned or commuted the sentences of everyone convicted in the Jan. 6, 2021, events, and ordered the Justice Department to dismiss all pending cases.
The move caused controversy among members of both parties, as Biden’s pardons did. Trump’s pardons were also controversial for at least two people convicted in the riot who refused the clemency offers.
Their refusal has precedent, Paul says.
In an 1833 case, the Supreme Court ruled that George Wilson could refuse a pardon issued by President Andrew Jackson.
“A pardon is a deed, to the validity of which delivery is essential, and delivery is not complete without acceptance,” Chief Justice John Marshall wrote in the unanimous opinion. “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.”
But refusing a pardon certainly doesn’t usually happen.
Dan Urman, director of the Law and Public Policy Minor at Northeastern School of Law, notes that the number of pardon petitions vastly outweighs the number of pardons issued.
“It is absolutely the exception rather than the rule for people to reject a pardon,” Urman says.
Urman also notes the 1915 Burdick case that upheld the right to refuse a pardon.
So, why reject a pardon?Paul says there are generally two reasons why one might refuse a pardon.
First, there is what he calls a “spiritual reason.”
“There are people who are convicted of crimes who feel genuine remorse and feel that accepting a pardon would allow them to escape the moral consequences of what they did,” Paul says.
Both of the individuals who refused Trump’s Jan. 6 pardons appear to be in this camp, according to their statements to the media.
Or, Urman notes that individuals may refuse a pardon if they feel that accepting one would mean “accepting guilt.”
“There could be people who don’t think they did anything wrong and feel like accepting a pardon is actually admitting that they did something wrong,” Urman says.
Then there are what Paul calls “practical reasons.”
For instance, journalists or others who don’t want to testify in a case could reject a pardon if accepting one would mean that they could no longer invoke the Fifth Amendment’s protection against self-incrimination. Because a pardoned individual would now be immune from federal prosecution for the pardoned offense, testimony in federal proceedings might be compelled.
The status of compelled testimony, however, is not entirely clear, Paul says, because a presidential pardon doesn’t apply to state offenses, which only the relevant governor can forgive. Nonetheless, Paul notes that fear of being forced to testify remains the principal practical reason why pardons have been refused. And it appears that although a pardon may be refused, a commutation that merely reduces or alters a criminal sentence is binding on the affected individual, he adds.
But whether spiritual or practical, the rejection of a pardon remains rare, Urman says.
“Just look at the numbers for the January 6th group,” Urman says.