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The answer is not 100% clear, but there is a Supreme Court case that says it does.
That case, though, was about whether a pardon recipient could be compelled to testify, not whether he could be prosecuted.
That 1915 Supreme Court case, Burdick v. United States, said a recipient may reject a pardon and, if it is rejected, a court has no power to force it on him or her. That case upheld a newspaper editor’s right to refuse a pardon — and assert his constitutional right against self-incrimination — in a case in which the government was trying to force him to testify.
The court also held that for a pardon to become legally effective, a warrant of pardon must be physically delivered to the recipient. In a previous case, United States v. Wilson, Chief Justice Marshall declared that a “pardon is a deed, to the validity of which delivery is essential, and delivery is not complete without acceptance.”
The case is especially pertinent given today’s news that Biden, with just hours remaining in office, issued a slew of pardons to pre-emptively protect people Trump had threatened. Biden pardoned former Joint Chiefs of Staff Chairman Mark Milley, Dr. Anthony Fauci, members and staff of the committee that investigated the Jan. 6, 2021, attack on the U.S. Capitol, and Capitol and D.C. Metropolitan police officers who testified before that committee. And Trump has said he’ll pardon the Jan. 6 rioters on his first day in office.
All that said, legal experts say it’s not clear when such an acceptance would have to happen, and what form it must take. So, could Liz Cheney, who was a member of the House committee that investigated the Jan. 6, say she is refusing a pardon now, but if she learns she is under criminal investigation, then accept it? It’s not settled.
Still, the Supreme Court pretty clearly has said a person can refuse a pardon at least under some circumstances and prevent it from taking effect.
The Burdick case also said a pardon was an implicit acceptance of guilt. But that finding was held to be not binding. And in 2021, a federal appeals court ruled that a soldier pardoned by then-President Trump could still fight his murder convictions in court.
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