Can a President Revoke a Former President's Pardon?

The United States Constitution is a remarkably concise document that relies heavily on terms of art that were well understood at the time of its writing. The Constitution does not explicitly address whether a sitting president can revoke a pardon granted by a previous president. This article delves into the legal and historical aspects of this question and examines the potential implications.

Understanding the Nature of Pardons

The document that grants a pardon is often likened to a contract or authorization; for instance, when the president signs a pardon, it is only legally binding once it is delivered to the individual who has been pardoned. Similar to how a signed contract is not enforceable until it reaches the recipient, the same principle applies to pardons.

In one notable case, a document pardoning a person was in the possession of his jailer but had not yet been delivered to him. Consequently, the pardon was deemed ineffective. According to the U.S. courts, a pardon does not take effect without the recipient's acceptance, which typically occurs in court. This precedence underscores the importance of actual delivery and acceptance in the enforcement of a pardon.

However, the document itself is not the sole factor in determining the efficacy of the pardon. While the Constitution does not explicitly lay out the format of a presidential pardon, it is widely understood that a pardon cannot apply to acts that have not yet occurred. For example, President Biden cannot issue a pardon for an act that has yet to happen, such as the hypothetical killing of Donald Trump. This limitation, however, is not explicitly stated in the law.

The Role of Tradition and Precedent

The format of a presidential pardon has evolved over time, from handwritten documents to typed and finally digitized versions. Similarly, the delivery and communication of the pardon are crucial. Today, a presidential pardon is recognized through a known communication from the Office of the President, such as a phone call. The official document, while important for historical and ceremonial purposes, serves more as a formal record than a legal mandate.

Given this tradition, President Donald Trump could conceivably issue a pardon through an official statement on his platform, much like his previous policy statements on Twitter. This raises the question of whether a pardon communicated through such channels would hold legal weight.

Legal Limitations and Precedent

The Supreme Court of the United States (SCOTUS) has established that the only explicit limitation on the presidential pardon power is the one codified in the Constitution—namely, it cannot be applied to matters of impeachment. Beyond this, the interpretation of the pardon power is left largely to legal precedent and tradition.

Currently, the SCOTUS has shown a willingness to overturn precedent when it deems necessary. Therefore, it is possible that the courts could be challenged regarding the idea of a sitting president revoking a pardon granted by a former president. While the Constitution does not explicitly prohibit this, the legal system would need to decide whether such an action is permissible.

A sensible president would not revoke a pardon issued by a former president for fear of setting a precedent that any successor could similarly revoke pardons from the current president. However, if one were to assume a scenario where the current president does not intend to allow a future president with different intentions, revoking a former president's pardon might not be a concern.

Conclusion

The constitutionality of a sitting president revoking a pardon issued by a former president is a complex issue rooted in tradition, precedent, and the interpreted powers of the presidency. Legal challenges in this area would likely test the current understanding and limits of presidential authority. As the legal system evolves, so too does the interpretation and enforcement of presidential pardons.

Therefore, while the current law of the USA does not directly state that a sitting president cannot revoke a pardon issued by a former president, it could certainly be tested in court.