President Trump was widely expected to issue a fleet of pardons today, his last full day in office. So far (10:23 p.m Eastern time) he hasn't announced any. He may issue the last-minute pardons in the 13-1/2 hours before he leaves office . . . but Chief Justice John Marshall (1755-1835) is consulting his pocketwatch as he looks over the President's shoulder.
How does John Marshall, dead nearly two centuries, come into the picture. Let's go back to March 2, 1801 and the events that led to the celebrated Supreme Court case of Marbury v. Madison. John Adams's term as President was due to end at noon on March 4. He was bitterly opposed to the policies of his successor, Thomas Jefferson, and in fact detested him to the point that he skipped Jefferson's inauguration. (Sound familiar?) On March 2, Adams appointed several dozen of his supporters to positions on the federal bench, and the Senate quickly confirmed his appointments. Adams's term ended, however, before all of the judicial commissions had been delivered to the lucky Federalist recipients. Jefferson took office, discovered that not all the commissions had been delivered, and told Secretary of State James Madison not to deliver those that remained. One disappointed appointee, Marbury, sued to force Madison to deliver his commission.
In 1803, when Marbury's case made it to the Supreme Court, the Court held that Madison could not legally refuse to deliver the commission to Marbury, but that the statute that Congress passed that gave the Court jurisdiction over the case unconstitutionally expanded the Court's jurisdiction, and that the Court therefore did not have the power to order Madison to deliver the commission to Marbury. Marbury became famous for his role in the case, but he didn't become a judge.
Now let us go forward to 1830, when a federal grand jury issued several indictments against James Porter and George Wilson for various felonies committed in November and December 1829, including four different robberies of the United States mails. On May 27, Porter and Wilson were convicted and sentenced to death, and on July 2 Porter was executed.
Perhaps George Wilson knew someone important, for on June 14, 1830 President Andrew Jackson pardoned him from the crime for which he had been sentenced to death, allowing, however, that he might be sentenced to terms of imprisonment for other crimes not punishable by death. Wilson declined to plead the pardon in his defense, which led to the Supreme Court having to decide if the trial court could consider the pardon if Wilson refused to argue its existence to the court. Marshall's opinion in the Wilson case contains two interesting legal points. The first is that, in his view (adopted by the Court), a pardon is "the private, though official, act of the [President], delivered to the individual for whose benefit it is intended, and not communicated officially to the court." Being the President's private act and not directed to the trial court, the trial court is not able to take its existence into account unless the pardoned person brings the pardon before the court.
The second legal point of Marshall's opinion in the Wilson case is that there is nothing special about a pardon to distinguish it from other facts, in the sense that the existence of a pardon is a fact that, like other facts, is not before the court until one of the parties presents it. Then Marshall gets relevant to the problem of tonight and tomorrow morning: "A pardon is a deed, to the validity of which, delivery is essential, and delivery is not complete, without acceptance," followed in a footnote by "If [the transmission of a pardon] is not complete, it may be revoked by the successor of the president by whom it was granted."
Now let us return to the night of January 19, 2021 and the early morning of January 20. Let us surmise that the outgoing President, Sharpie in hand, sits down one last time at the Resolute and signs a stack of pardons. Who is left at the White House to deliver them? He will likely be able to deliver pardons to his children, if they are in town. But the others? We might imagine that tomorrow afternoon President Biden returns from the inauguration and finds that instead of leaving a farewell note in the desk as is traditional, President Trump has left a stack of signed pardons. What happens if President Biden, like James Madison 220 years ago, chooses not to deliver them? As I read the Marbury and Wilson cases, the pardons are not yet effective. President Biden may choose to deliver them -- or not. And if he discovers a sheaf of undelivered pardons, he may offer his predecessor's associates the chance to relive Marbury v. Madison. My only advice to a not-quite-pardoned Trump associate who sues to enforce the undelivered pardon is not to hire Rudy Giulani or Sidney Brown to press the case.