Brandon Stras (University of Chicago Law School) has posted Pardoning Corporations (forthcoming, University of Chicago Law Review, Volume 92) (29 pages) on SSRN. Here is the abstract:
Though the Pardon Clause could be interpreted to include or exclude corporate offenses, overlooked history suggests the broader interpretation is the more plausible one. The Clause codified a power that had existed for centuries in England. And corporations were often pardoned at common law—including the Massachusetts Bay Company. This tradition lasted for hundreds of years, and it is the backdrop against which the Framers drafted the Pardon Clause. Even following the Founding, people continued to understand that the pardon power stretched to corporations. Since that time, however, institutional memory has faded.
The President could condition forgiveness on corporate compliance programs or on donations to his political campaign. He could offer pardons to foreign companies to sweeten relations with other countries. He could effectively abolish corporate criminal liability during his terms, at least at the federal level, even for prosecutions initiated by independent agencies. He could pardon his own companies to protect them from prosecution. Or he might even pardon companies that bribed him. Given the sweeping pardon power in Article II, all these decisions fall within the President’s discretion. He does not even need to wait for a company to apply.
Some of these consequences are startling, but Congress can limit the pardon power’s effects in two ways. First, Congress can refuse to appropriate refunds of pardoned fines. At the time of writing, Congress has not appropriated such refunds for individuals or companies. That decision denies people reprieve from the most common, and often most consequential, punishments imposed on companies. Second, Congress can repeal statutes that impose corporate criminal liability and replace them with unpardonable civil infractions, depriving the President of offenses to pardon.
I agree that the President can pardon corporations, but I would structure the argument differently. I think it is not the case that the pardon clause, on its face, "could be interpreted to include or exclude corporate offenses." The clause reads:
[The President] shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.
There is no textual basis for excluding offenses committed by corporations. To overcome the textual clarity, I would need very strong evidence of a background understanding that corporations could not be pardoned. So the article's history is important, but with the context of a very strong burden presumption in favor of the broader view of the pardon power. (But with that methodological qualification, the article makes a persuasive case.)
Posted at 6:02 AM