George Lardner, Jr: What would a pardon for Libby mean?

... If Mr. Libby were to accept a traditional presidential pardon — a “full and unconditional” grant of clemency — he would be admitting that he was guilty of the crimes of which he was convicted: obstructing justice, perjury and lying to the F.B.I. Perhaps it shouldn’t be that way, but it is — no ifs, ands or buts about it. So, while many who have been pardoned like to claim they have been “exonerated,” that simply isn’t so.

The Supreme Court laid down the law in 1915 in a case that, paradoxically, grew out of a debate over the sanctity of a newspaperman’s sources. Six decades later, President Gerald Ford relied heavily on the court’s decision — in his own mind, though not publicly — in justifying his pardon of Richard Nixon. Ford would have preferred an open confession of guilt by Nixon instead of the grudging statement that confessed nothing, but Ford consoled himself with the doctrine that acceptance of a pardon is, legally and ethically, an admission of guilt.

The story behind the 1915 case is little known but very relevant today. It involved the city editor of The New York Tribune, George Burdick, who, unlike journalists in the Libby case, flatly refused to testify before a federal grand jury about his sources for an article on fraud in the United States Custom House in New York. He said he might incriminate himself in his testimony. The federal prosecutor saw a quick pardon as the answer to this problem, and President Woodrow Wilson agreed.

Wilson gave Burdick “a full and unconditional pardon for all offenses against the United States” he might have committed in connection with the article and for any other matter the grand jury might ask him about. That would seem to have let Burdick off the hook, but he still didn’t want to testify. He refused to accept the pardon, and was locked up for contempt.

The case went to the Supreme Court, which held that Burdick was within his rights and ordered him discharged. In doing so, the court embraced Chief Justice John Marshall’s 1833 definition of a pardon as “a private, though official” act of grace whose validity depended on its 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’s pronouncements, in United States v. Wilson, were pure dicta — nonbinding observations — but the courts treated them as gospel. In the Burdick case, the court likewise held that “a pardon, to be effective, must be accepted” because it “carries an imputation of guilt; acceptance a confession of it.” This made Marshall’s view the law of the land.

The problem is that both Marshall’s definition and the court’s 1915 reinforcement of it were bad history and tortured logic. Acceptance of a pardon should not be a confession of guilt, especially if there is documentation of innocence. The “imputation of guilt” would disappear if acceptance of a pardon were not required. If one has no choice but to take a pardon, it would become like a grant of immunity, and thus would be noncommittal....