"In the first United States Supreme Court case to be decided concerning the pardoning power, Chief Justice Marshall, speaking for the Court, said: ''As this power had been exercised from time immemorial by the executive of that nation whose language is our language, and to whose judicial institution ours bear a close resemblance; we adopt their principles respecting the operation and effect of a pardon, and look into their books for the rules prescribing the manner in which it is to be used by the person who would avail himself of it. A pardon is an act of grace, proceeding from the power entrusted with the execution of the laws, which exempts the individual, on whom it is bestowed, from the punishment the law inflicts for a crime he has committed. It is the private, though official act of the executive magistrate, delivered to the individual for whose benefit it is intended, and not communicated officially to the Court. . . . 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.' Marshall continued to hold that to be noticed judicially this deed must be pleaded, like any private instrument."^*

"By an act passed in 1865, Congress had prescribed that before any person should be permitted to practice in a federal court he must take oath asserting that he had never voluntarily borne arms against the United States, had never given aid or comfort to enemies of the United States, and so on. Garland, who had been a Confederate sympathizer and so was unable to take the oath, had however received from President Johnson the same year a full pardon 'for all offences by him committed, arising from participation, direct or implied, in the Rebellion.' The question before the United States Supreme Court was whether, armed with this pardon, Garland was entitled to practice in the federal courts despite the act of Congress just mentioned. Said Justice Field for a divided Court: 'The inquiry arises as to the effect and operation of a pardon, and on this point all the authorities concur. A pardon reaches both the punishment prescribed for the offence and the guilt of the offender; and when the pardon is full, it releases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offence. If granted before conviction, it prevents any of the penalties and disabilities consequent upon conviction from attaching [thereto]; if granted after conviction, it removes the penalties and disabilities, and restores him to all his civil rights; it makes him, as it were, a new man, and gives him a new credit and capacity.' Justice Miller, speaking for the minority, protested that the act of Congress involved was not penal in character, but merely laid down an appropriate test of fitness to practice law. 'The man who, by counterfeiting, by theft, by murder, or by treason, is rendered unfit to exercise the functions of an attorney or counsellor at law, may be saved by the executive pardon from the penitentiary or the gallows, but he is not thereby restored to the qualifications which are essential to admission to the bar.''"^*

"Klein sued in the court of claims under the Captured and Abandoned Property Act to recover land confiscated by federal troops during the Civil War. Although Klein had supported the Confederacy, he received a presidential pardon in return for his taking an oath of loyalty to the United States. Klein won in the court of claims. Before the government's appeal was heard in the Supreme Court, however, Congress passed a statute providing that a presidential pardon could not be entered into evidence as proof of loyalty for the purposes of the Act. The Court struck down the statute, partially on separation of powers grounds. Reasoning that '[i]t is the intention of the Constitution that each of the great co-ordinate departments of the government—the Legislative, the Executive, and the Judicial—shall be, in its sphere, independent of the others,' the Court concluded that the statute infringed on the constitutional power of the executive. As the Court stated, '[I]t is clear that the legislature cannot change the effect of such a pardon any more than the executive can change a law.'"^***

In this case the United States Supreme Court considered the effect of a pardon upon the rights of its recipient. Justice Field write:

"A pardon is an act of grace by which an offender is released from the consequences of his offense, so far as such release is practicable and within control of the pardoning power, or of officers under its direction. It releases the offender from all disabilities imposed by the offense, and restores to him all his civil rights. In contemplation of law, it so far blots out the offense, that afterwards it cannot be imputed to him to prevent the assertion of his legal rights. It gives to him a new credit and capacity, and rehabilitates him to that extent in his former position. But it does not make amends for the past. It affords no relief for what has been suffered by the offender in his person by imprisonment, forced labor, or otherwise; it does not give compensation for what has been done or suffered, nor does it impose upon the government any obligation to give it. The offense being established by judicial proceedings, that which has been done or suffered while they were in force is presumed to have been rightfully done and justly suffered, and no satisfaction for it can be required."

"Here the [United States] Supreme Court held that the disability to testify being a consequence, according to principles of the common law, of the judgment of conviction, the pardon obliterated that effect. But a pardon cannot 'make amends for the past. It affords no relief for what has been suffered by the offender in his person by imprisonment, forced labor, or otherwise; it does not give compensation for what has been done or suffered, nor does it impose upon the government any obligation to give it. The offence being established by judicial proceedings, that which has been done or suffered while they were in force is presumed to have been rightfully done and justly suffered, and no satisfaction for it can be required. Neither does the pardon affect any rights which have vested in others directly by the execution of the judgment for the offence, or which have been acquired by others whilst that judgment was in force. If, for example, by the judgment a sale of the offender's property has been had, the purchaser will hold the property notwithstanding the subsequent pardon. And if the proceeds of the sale have been paid to a party to whom the law has assigned them, they cannot be subsequently reached and recovered by the offender. The rights of the parties have become vested, and are as complete as if they were acquired in any other legal way. So, also, if the proceeds have been paid into the treasury, the right to them has so far become vested in the United States that they can only be secured to the former owner of the property through an act of Congress. Moneys once in the treasury can only be withdrawn by an appropriation by law.'"^*

"Carlesi had been convicted several years before of committing a federal offense. In the instant case, the prisoner was being tried for a subsequent offense committed in New York. He was convicted as a second offender, although the President had pardoned him for the earlier federal offense. In other words, the fact of prior conviction by a federal court was considered in determining the punishment for a subsequent state offense. This conviction and sentence were upheld by the [U.S.] Supreme Court. While this case involved offenses against different sovereignties, the Court declared by way of dictum that its decision 'must not be understood as in the slightest degree intimating that a pardon would operate to limit the power of the United States in punishing crimes against its authority to provide for taking into consideration past offenses committed by the accused as a circumstance of aggravation even although for such past offenses there had been a pardon granted.'"^*

"Here Marshall's doctrine in Wilson was put to a test that seems to have overtaxed it, perhaps fatally. Burdick, having declined to testify before a federal grand jury on the ground that his testimony would tend to incriminate him, was proffered by President Wilson 'a full and unconditional pardon for all offenses against the United States,' which he might have committed or participated in in connection with the matter he had been questioned about. Burdick, nevertheless, refused to accept the pardon and persisted in his contumacy with the unanimous support of the [United States] Supreme Court. 'The grace of a pardon,' remarked Justice McKenna sententiously, 'may be only a pretense . . . involving consequences of even greater disgrace than those from which it purports to relieve. Circumstances may be made to bring innocence under the penalties of the law. If so brought, escape by confession of guilt implied in the acceptance of a pardon may be rejected. . . .' Nor did the Court give any attention to the fact that the President had accompanied his proffer to Burdick with a proclamation, although a similar procedure had been held to bring President Johnson's amnesties to the Court's notice."^*

Two days after being subjected to an injunction for violation of the National Prohibition Act, Philip Grossman was arrested, tried, found guilty of contempt, and sentenced to one year and $1,000 fine. The President pardoned him, on the condition that the fine be paid. After his release, he was sent by the court to the House of Correction to serve his sentence, despite the pardon. Could the President pardon contempt offences? Chief Justice Taft of the United States Supreme Court wrote: "For civil contempts, the punishment is remedial and for the benefit of the complainant, and a pardon cannot stop it. For criminal contempts, the sentence is punitive in the public interest to vindicate the authority of the court and to deter other like derelictions. The executive can reprieve or pardon all offenses after their commission, either before trial, during trial or after trial, by individuals, or by classes, conditionally or absolutely, and this without modification or regulation by Congress."

"In Biddle, a prisoner convicted of murder instituted a habeas corpus proceeding, arguing that President Taft's commutation of his sentence from death to life imprisonment was not valid because he had not consented. The Eighth Circuit certified this question to the Supreme Court: 'Did the president have authority to commute the sentence of Perovich from death to life imprisonment?' In answering that the president could indeed commute a sentence, the Court backed away from Burdick's offer and acceptance theory of pardons. However, the Court again suggested that a pardon does not erase guilt. Justice Holmes, writing for the Court, stated: 'A pardon in our days is not a private act of grace from an individual happening to possess power. It is a part of the Constitutional scheme. When granted it is the determination of the ultimate authority that the public welfare will be better served by inflicting less than what the judgment fixed.'"^***

This case affirmed the President's power to bestow conditional as well as full pardons; the U.S. Supreme Court ruled that conditional Presidential pardons did not infringe Congress's authority to determine the punishment to be imposed for committing a federal crime. Chief Justice Burger wrote: "the power flows from the Constitution alone, not from any legislative enactments, and that it cannot be modified, abridged, or diminished by the Congress. Additionally, considerations of public policy and humanitarian impulses support an interpretation of that power so as to permit the attachment of any condition which does not otherwise offend the Constitution. The plain purpose of the board power conferred by 2, cl. 1, was to allow plenary authority in the President to 'forgive' the convicted person in part or entirely, to reduce a penalty in terms of a specified number of years, or to alter it with conditions which are in themselves constitutionally unobjectionable. If we were to accept petitioner's contentions, a commutation of his death sentence to 25 or 30 years would be subject to the same challenge as is now made, i. e., that parole must be available to petitioner because it is to others. That such an interpretation of 2, cl. 1, would in all probability tend to inhibit the exercise of the pardoning power and reduce the frequency of commutations is hardly open to doubt. We therefore hold that the pardoning power is an enumerated power of the Constitution and that its limitations, if any, must be found in the Constitution itself. It would be a curious logic to allow a convicted person who petitions for mercy to retain the full benefit of a lesser punishment with conditions, yet escape burdens readily assumed in accepting the commutation which he sought."

Murphy, a Michigan attorney, brought suit for a declaratory judgment against President Gerald Ford invalidating the pardon on grounds that a pardon could not be legally granted to an individual who had not first been indicted or convicted of a crime. Chief Judge Fox said: "The fact that Mr. Nixon had been neither indicted nor convicted of an offense against the United States does not affect the validity of the pardon. Ex parte Garland, 4 Wall. (71 U.S.) 333. In that case the Supreme Court considered the nature of the President's Pardoning Power, and the effect of a Presidential pardon. Mr. Justice Field, speaking for the court, said that the Pardoning Power is 'unlimited,' except in cases of impeachment."

"The Third Circuit reviewed the claim of Noonan, who had been convicted of draft violations (which conviction had previously been reviewed and upheld on appeal by the same Court), that a Presidential pardon granted by President Carter entitled him to expunction of court records relating to his conviction. He requested a court order that he 'may, as well as all others must, consider the criminal indictment expunged as if it had never occurred.' The Court determined that no such entitlement exists because the grant of a pardon does not wipe out the record of a conviction. While noting that the extraordinary remedy of expunction may be upheld when an arrest or conviction is constitutionally infirm, the Court found that in none of the cases reviewed had expunction been granted on the basis of a pardon following an unchallenged or otherwise valid conviction. As the Court stated, the implicit predicate for Noonan's argument for expungement was the Garland dictum that a pardon wipes out guilt. In rejecting the argument, citing Burdick...the Third Circuit found that a pardon does not 'blot out guilt' nor does it restore the offender to a state of innocence in the eye of the law. Thus, the Court agreed, a pardon leaves the existence of a conviction untouched, rejecting the suggestions that a pardon is equivalent to an acquittal, or wipes out the crime ab initio. The Court concluded that the Presidential pardon did not eliminate Noonan's conviction, and did not create any factual fiction that the conviction had not occurred to justify expunction of his criminal court record. The Court therefore reversed the lower Court's grant of expungement."^**

"Clair E. George, former CIA Deputy Director for Operations during the Iran-Contra Affair, sought reimbursement from the government for approximately $1.3 million in attorney's fees pursuant to Section 593(f)(1) of the Ethics in Government Act of 1978 as amended, 28 U.S.C. ''591-599. That act authorizes the court to award the "subject" of an independent counsel investigation attorney's fees incurred during the investigation, but only if no indictment is brought against the person. Although George was indicted, he was pardoned by President Bush. The D.C. Circuit Court of Appeals summarized his claim with the following question and answer: "Can the pardon annul, expunge, or otherwise nullify George's indictment so he can receive the fees pursuant to the statute? The answer is no; the pardon does not remove his disability." Citing Knote, Burdick...and Noonan, the Court found that Garland's dictum about blotting out guilt had been rejected. The D.C. Circuit found that George sought no less than Noonan, and that because a pardon does not blot out guilt or expunge a judgment of conviction, a pardon does not blot out probable cause of guilt or expunge an indictment. Thus, the Court found that it could not award attorney's fees to George under the statute."^**

The Board of Professional Responsibility of the D.C. Bar recommended that former Assistant Secretary of State Eliot Abrams be suspended from law practice for one year, asserting that Abrams had engaged in "dishonesty, deceit or misrepresentation" by giving false (but unsworn) testimony to three Congressional committees regarding the role of the United States government in what has become known as the Iran-Contra Affair. Following Abrams' conviction, upon a plea of guilty, of criminal charges arising out of his Congressional testimony, President Bush granted him a full and unconditional pardon. Although Abrams conceded before the Board that the pardon did not preclude Bar Counsel from maintaining this disciplinary proceeding, he contended that the President's action blotted out not only his convictions but also the underlying conduct, and that Bar Counsel's charges should be dismissed. The D.C. Circuit Court of Appeals ruled that "although the presidential pardon set aside Abrams' convictions, as well as the consequences which the law attaches to those convictions, it could not and did not require the court to close its eyes to the fact that Abrams did what he did. "Whatever the theory of the law may be as to the effect of a pardon, it cannot work such moral changes as to warrant the assertion that a pardoned convict is just as reliable as one who has constantly maintained the character of a good citizen." State v. Hawkins, 5 N.E. 228, 237 (Ohio 1886)....[In particular], the pardon could not "reinvest [Abrams] with those qualities which are absolutely essential for an attorney at law to possess or rehabilitate him in the trust and confidence of the court." In re Lavine, 41 P.2d 161, 163 (Cal. 1935) (citation omitted). Accordingly, we hold that this court's authority to impose professional discipline was not nullified by the presidential pardon.

SOURCES
^* Congressional Research Service, Library of Congress
^** Mudd v. West (U.S. District Court for the District of Columbia, No. 97-2946), Plaintiff's Supplemental Memorandum of Points
^*** Ashley M. Steiner, "Remission of Guilt or Removal of Punishment: The Effects of a Presidential Pardon", Emory Law Journal, Spring 1997