She was still sentenced to two months in jail, three years of probation and a $500 fine to be paid into a fund.
Prosecutors cited her rhetoric in postings before January 6th and a picture holding a gun. She later said that a therapist changed her mind and she became a supporter of Kamala Harris.
Hemphill said that she viewed the pardon as belittling the attack and rewriting history.
Even those of us who expressed concerns over the handling of these cases agree with Hemphill that January 6th was a desecration of our constitutional process.
The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.
However, the question is whether this sweeping power can be refused by the recipient. In my view, there is a strong basis for treating pardons as a one-way street. You do not have to agree with the pardon for a president to grant you the benefit of it. Pardons are a final failsafe in the criminal justice system, allowing presidents to correct what they view as a wrong in the treatment of individuals or groups. This view treats a pardon as an act in the public welfare or good, a view that I tend to favor.
Yet, in 1833, in the case of United States v. Wilson, Chief Justice John Marshall ruled that this private act of grace
is a deed” which requires “delivery” 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.
The Court stressed that our pardon jurisprudence rests on English common law because the “[pardon] power had been exercised from time immemorial by the executive of [England] . . . [,] to whose judicial institutions ours bear a close resemblance.” In England, it was treated as a private agreement or act with the King. However, many have suggested that our rejection of a monarchy should militate in favor of a public purpose or public welfare view of the authority. Nevertheless, Marshall suggested that even a condemned person could refuse a pardon if it were conditional. In other words, a person could find that the “condition may be more objectionable than the punishment inflicted by the judgment.”
The Court reaffirmed Wilson in Burdick v. United States after President Woodrow Wilson pardoned a newspaper editor, George Burdick, who had refused to testify by invoking his Fifth Amendment right against self-incrimination. Wilson wanted Burdick to testify in a case and hoped that the pardon would bar the use of the privilege against self-incrimination.
Justice Joseph McKenna wrote the opinion that found that Burdick was entitled to reject the pardon for a number of reasons. In dicta, McKenna noted that a pardon is an implicit admission of guilt — a view that I have always rejected as fundamentally wrong. However, the Court emphasized that the Burdick pardon would have resulted in losing his right against self-incrimination under the Fifth Amendment. That condition seemed to drive the decision.
The Court then muddled this area even further with a seemingly conflicting result a few years later in Biddle v. Perovich. In that case, Justice Oliver Wendell Holmes wrote for a unanimous Court that there was no consent required in commuting a death sentence to life imprisonment.
President Taft had reduced Vuco Perovich’s death sentence to life in prison. Perovich wanted a full pardon and challenged the change. The Court found that the president had the authority regardless of his opposition. The decision clearly rejects the view of Wilson in holding that a pardon is not a private act of grace.
I fall obviously closer to Biddle and view both Wilson and Burdick as deeply flawed, particularly the latter’s suggestion of implied guilt from a pardon.
Ironically, the implied guilt issue came up in another Trump pardon involving Clint Lorance who was convicted in the killing of two Afghan civilians. After Trump pardoned Lorance, he sought to continue to seek relief in challenging his conviction but the district court found, ala Burdick, that the pardon was an admission of guilt. The United States Court of Appeals for the Tenth Circuit correctly reversed the trial court and found no such admission.
Hemphill raises the reverse image of Lorance. She opposes the pardon because she feels that it removes or expunges her guilt.
The Hemphill pardon does not contain any conditions. However, this was not a commutation but a full pardon. It could be cited as a problem in refusing to testify on the underlying criminal acts (though Hemphill appears eager to discuss those acts). It does not appear to implicate other constitutional rights. (Notably, individuals are routinely compelled to testify with the grant of immunity).
I remain skeptical of the private act model in such cases. Yet, it is not a matter likely to be litigated. It is unlikely to arise without a fight over the privilege against self-incrimination. Frankly, I wish we could see a test case to allow the Court to revisit the underlying authority.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and the author of “The Indispensable Right: Free Speech in an Age of Rage.”