I Beg Your Pardon? Victims of Unjust Agency “Civil” Prosecution Deserve Mercy Too

The recent flurry of pardons issued by our outgoing and incoming presidents raises a question I’ve pondered from time to time but never resolved: Can (and should) presidents grant clemency to deserving people who committed no crime but nevertheless find themselves condemned to perpetual misery and impecunity for committing putatively “civil” violations prosecuted by federal agencies?

The legal question is murky and debatable, as discussed briefly below, but the stark reality is not. Each year, thousands of Americans are saddled by agencies with often crippling “civil” fines and debarments for relatively minor offenses that would never be prosecuted as crimes. Based on my past experience both prosecuting these cases at the Securities and Exchange Commission and defending against them as an attorney in a private law firm, agency overzealousness and miscarriages of justice are frequent. For every Ponzi-scheming fraudster prosecuted by the SEC, every willful mass polluter prosecuted by the EPA, and every Capone-style tax evader prosecuted by the IRS, there are dozens (if not hundreds) of putatively “civil” agency prosecutions of far less egregious offenses allegedly committed (often unintentionally) by ordinarily law-abiding Americans of relatively modest means.

These agency prosecutions can be enormously stressful and expensive to defend against, and the potential penalties can be financially ruinous. Through it all, many agency targets lose their jobs and face great difficulty finding new ones. Even the agency investigation that precedes formal charges can last years and cost tens if not hundreds of thousands of dollars to defend against. Double that amount to mount a vigorous defense after formal charges are filed.

Faced with potential financial ruin, most investigative targets eventually capitulate to the agency’s settlement demands, including monetary penalties and often a lifetime bar or limitation on their ability to continue working in their chosen profession.  For those who mount a defense and ultimately lose, agencies typically demand staggering penalties to deter others from similarly defending themselves, typically trotting out familiar (and deeply troubling) mantras such as failure to acknowledge wrongdoing, lack of remorse, and insincerity of assurances against future wrongdoing.

(If you’re wondering how someone being prosecuted by their government can plausibly acknowledge wrongdoing, express remorse, and promise no future wrongdoing, all while simultaneously hoping to mount a successful defense against the charges, you are not alone.)

Even for relatively minor offenses, agencies now routinely impose fines and other monetary sanctions (such as “disgorgement” of profits) that exceed the life savings and annual income of the person accused.  For people of modest means, particularly those who have already paid substantial sums to their lawyer, this often means that the punishment for their “civil” violation includes the depletion of life savings, perpetual garnishment of future earnings, and even garnishment of up to 15% of post-retirement social security checks.  Based on the experiences of several of my former clients, begging for mercy from your prosecuting agency or the IRS (which typically handles the unpleasant collection process) is typically futile.

All of which brings us back to the original question:  Can a president pardon someone who was unjustly prosecuted and punished for committing only a civil violation of federal law, and by doing so relieve them of their ongoing misery and impecunity?  The answer is surprisingly unclear.

Article II, Section 2 of the Constitution empowers a president “to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.”  Thus, the question largely boils down to whether the putatively “civil” violations prosecuted by administrative agencies are “Offences against the United States.”

As chronicled by attorney and Yale Law School lecturer Noah Messing in his thorough analysis of the issue published by the Buffalo Law Review in 2016, the traditional understanding of the president’s pardon power is that it extends only to crimes, and not to civil offenses.  But Messing persuasively argues, based on a comprehensive analysis of historical English monarchical practice and common law, confirmed by 18th and 19th century American history, that the traditional understanding is wrong, and that civil offenses ought to be pardonable.  He also offers the following common-sense logic:

“The pardon power is, for federal criminal offenses, nearly “unlimited,” and presidents may pardon murder, treason, and kidnapping.  It would therefore be bizarre if a president could pardon a farmer who murdered federal officials and committed treason but was powerless to remit a $117.11 fine that the same farmer incurred for growing too much wheat—the only civil offense in the bunch.”

Bizarre indeed.

February 3, 2025