President Donald Trump's decision to pardon his former national security advisor Michael Flynn has caused speculation about who else might receive clemency during his last weeks in office.
One question that's surfaced since the presidential election is whether Trump will try to pardon himself. Though there is disagreement about whether he has the power to do so, many critics have claimed that if he does self-pardon, this will be an admission of guilt.
However, it's not entirely clear if accepting a presidential pardon carries an imputation of guilt. There's disagreement among legal scholars about the issue despite popular belief that accepting a pardon means the person is guilty.
Brian Kalt, professor of law at Michigan State University, told Newsweek on November 18 that a pardon did not mean an admission of wrongdoing.
"First of all, as a practical matter, it would make him look guilty," Kalt said. "Note that it is incorrect to say, as many, many people do, that accepting a pardon equals an official admission of guilt."
Kalt made the same point in an op-ed for The Washington Post in 2018. He pointed to a famous Supreme Court case about pardons from 1915, Burdick v. United States. This is a possible origin for the belief. In that case, a person wanted to reject a pardon on the basis that it made him look guilty of something he said he had not done.
In Burdick, the court said: "This brings us to the difference between legislative immunity and a pardon. They are substantial. The latter carries an imputation of guilt; acceptance a confession of it. The former has no such imputation or confession. It is tantamount to the silence of the witness. It is noncommittal. It is the unobtrusive act of the law given protection against a sinister use of his testimony, not like a pardon, requiring him to confess his guilt in order to avoid a conviction of it."
As Kalt pointed out, this statement was part of what is known as obiter dictum—a non-binding comment made by a court or judge in passing. Dicta, as it's also known, can be considered persuasive by lower courts but it does not carry the same weight as binding precedent.
Ken Gormley, president of Duquesne University in Pittsburgh and author of Presidents and the Constitution: A Living History argued in the Washington Post in 2018 that accepting a pardon is an admission of guilt, citing Burdick. This shows that there is still uncertainty among experts on the matter.
One of the most famous judges in American history, the late U.S. Court of Appeals Judge Learned Hand, took the view that accepting a pardon did suggest guilt in a case that was eventually decided by Burdick.
"I believe, that if accepted the acceptance is at least admission enough. It is an admission that the grantee thinks it useful to him, which can only be in case he is in possible jeopardy, and hardly leaves him in position thereafter to assert its invalidity for lack of admission," Hand wrote in 1914.
If Trump decides to pardon himself—and if he has the power to do so—it's likely to create the perception that he's guilty of something but legally the matter is more complex.
Trump wrote on Twitter in 2018 that he does have the authority, saying: "As has been stated by numerous legal scholars, I have the absolute right to PARDON myself, but why would I do that when I have done nothing wrong?"
It's also worth noting that pardons can be used to correct perceived miscarriages of justice or in cases where a person is considered innocent of the charges brought against them.
This article has been updated to include more information about self-pardons and comments by President Donald Trump.
