Michael Cohen arrives at federal court in Manhattan on April 26, 2018. (Photo: David Handschuh/NYLJ)

Michael Cohen, the former lawyer and friend of President Donald Trump who pleaded guilty Tuesday in a hush-money scheme, would not accept a pardon from Trump if offered, according to Cohen's lawyer Lanny Davis.

But there may be a hitch: it is not clear that the beneficiary of a presidential pardon can refuse.

“Mr. Cohen is not interested in being dirtied by a pardon from such a man,” Davis said in an NPR interview on Wednesday. Davis added that Cohen “has flatly authorized me to say under no circumstances would he accept a pardon from Mr. Trump, who 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.”

But a modern-day reading of the pardon power suggests otherwise, according to Margaret Love, a Washington lawyer and clemency expert who served as U.S. pardon attorney between 1990 and 1997.

“It is an act of state, not a gift you can say 'no thank you' to,” she told The National Law Journal in an interview Wednesday. “To the extent that the president is dispensing with the punishment, [Cohen] really doesn't have a choice in the matter.” Put another way, Love said Cohen would not be able to “sit in a jail cell while the door is wide open.”

Fordham University School of Law professor John Feerick, who wrote a 1975 article on the subject, said Wednesday, “If a president makes a decision to grant a pardon, I have a hard time with the proposition that a citizen affected by the pardon could decline it.”

But, as with numerous other legal doctrines, U.S. Supreme Court precedent is ambiguous, in spite of the fact that the court has interpreted the Constitution to give a president nearly unfettered pardon power.

Two main decisions have dealt with the issue of rejecting pardons:

>>> United States v. Wilson: In this 1833 case, President Andrew Jackson pardoned George Wilson, who had been sentenced to death for robbing a postal worker. But Wilson rejected the pardon, and the Supreme Court said that was acceptable. Chief Justice John Marshall wrote for the court: “A pardon is a deed, to the validity of which delivery is essential, 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.”

>>> Biddle v. Perovich: This 1927 ruling involved Vuco Perovich, sentenced to hang for a murder in Alaska. President William Howard Taft commuted his punishment from death to life in prison. Perovich challenged the commutation, and this time the court said his approval was not required. Using the word “pardon” interchangeably with “commutation” in some instances, Justice Oliver Wendell Holmes wrote, “A pardon in our days is not a private act of grace from an individual happening to possess power. It is a part of the Constitutional scheme. When granted, it is the determination of the ultimate authority that the public welfare will be better served by inflicting less than what the judgment fixed. … The public welfare, not his consent, determines what shall be done.” He added, “The convict's consent is not required.”

Trump has issued six pardons or commutations since taking office, according to a Justice Department website. One of those pardons, granted to a former sheriff in Arizona, Joe Arpaio, will be scrutinized in a federal appeals case. Arpaio is fighting to erase his conviction for criminal contempt.

 

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