Why would Michael Cohen refuse a pardon? There’s precedent

Last week, Michael Cohen’s lawyer insisted that he would refuse a pardon from President Trump if one were offered. Cohen’s refusal to accept a pardon puts him within a tradition reaching back many centuries of rejecting pardons because of the shame of receiving them.

The Supreme Court has several times upheld defendants’ decisions to refuse pardons. When bank robber George Wilson declined to plead a pardon from President Andrew Jackson, the Supreme Court held in 1833 that the pardon was not effective (United States v. Wilson). When New York Tribune editor George Burdick refused to accept a pardon from President Woodrow Wilson and instead insisted upon his Fifth Amendment right to remain silent in an investigation into leaks to the press from the Treasury Department, the Supreme Court likewise affirmed his ability to do so (Burdick v. United States).

{mosads}Acceptance of a pardon has often been seen as an admission of guilt. The Court in Burdick acknowledged as much, noting the “confession of guilt implied in the acceptance of a pardon.” This admission of guilt may have several dimensions. The most straightforward imputes responsibility for the underlying crime to the person pardoned. Another, however, objects to the notion that the actions committed were crimes at all.

The latter was the case in the aftermath of the American Revolution. In 1782, the Continental Congress briefly contemplated encouraging states to enact amnesties or oblivions that would exculpate those loyalists who remained in the United States but had fought for Britain, a measure that never took hold. In this context, amnesty or oblivion would allow the loyalists to become full members of the new United States without having to accept that their earlier conduct had been wrongful as they might with mere pardons. Philosopher Thomas Hobbes similarly endorsed an Act of Oblivion on the Restoration of King Charles II to the English throne in the aftermath of the English Revolution. As he had explained in Leviathan, rebels who “have engaged themselves beyond hope of justification” will “fall also upon the Supreme Authority, for feare of punishment, or shame of receiving pardon”; hence granting amnesty is the only sure course of deterrence. The English Parliament did indeed pass such an Act of Oblivion in 1660 at the urging of Charles II.

Others have refused conditional pardons in order to protest the restrictions placed upon their prospective freedom. In eighteenth-century England, it was common to grant a defendant a pardon conditioned on his or her transportation to one of the British colonies. In 1789, several convicts temporarily insisted upon receiving the death penalty rather than accepting this conditional pardon. Although they eventually relented, their action registered a powerful protest against the already controversial requirement of transportation.

Cohen’s rationale for rejecting a putative Trump pardon fits in part with this history as he has invoked the shame of accepting a Trump pardon. As Cohen’s lawyer, Lanny Davis, noted, Cohen is “not interested in being dirtied” by such a pardon.

In other respects, however, his rationale is new. In particular, Davis’s statement suggests that Cohen sees accepting a pardon from Trump as demonstrating a persisting alliance with the president. As Davis noted, Trump “uses the pardon power in a way that no president in American history has ever used a pardon—to relieve people of guilt who committed crimes, who are political cronies of his.” This is a vision of pardoning as the continuation of conspiracy rather than the end of a prosecution. Disingenuously or not, Cohen and his lawyer have tapped into the extraordinary characteristics of President Trump’s pardons and have insisted on washing their hands of at least that shame.

Bernadette Meyler is Carl and Sheila Spaeth Professor of Law and Co-Associate Dean for Curriculum at Stanford Law School. She teaches and writes on constitutional law and law and the humanities. Her book, “Theaters of Pardoning,” is forthcoming in 2019 from Cornell University Press. Follow her on Twitter @MeylerBernie.