What You Need to Know About Presidential Pardons
Since presidential pardons are very much in the news right now we thought it would be a good idea to provide the public with a primer on the power and its limitations. The purpose of the pardon power is to provide mercy where a strict application of the law would result in injustice, and also to help restore comity in the community of partisan or other divisions result in violence or intense disaffection.
The following sources are used: a report prepared by the Congressional Research Service; the Constitution annotated, from Congress; the Office of the Pardon Attorney at the Department of Justice; and this Brookings Report.
History
An English form of pardon power vested in the king, the “prerogative of mercy,” first appeared during the reign of King Ine of Wessex (688-725 A.D.). Over time, perceived abuses “such as royal sales of pardons or use of pardons as bribery to join the military” prompted Parliament to impose limitations on the pardon power. The king’s power to pardon nevertheless endured through the American colonial period and applied in the colonies themselves through delegation to colonial authorities.
Debate at the Convention over the pardon power was limited, primarily centering on questions of (1) how broad the power should be (i.e., what restrictions or exceptions to the power should exist), and (2) whether the legislature should have a role in the power’s exercise. Ultimately, proposals to impose additional limits on pardons beyond an exception for impeachment—such as by calling for Senate approval of pardons or requiring conviction prior to pardon —were rejected, resulting in the expansive power in Article II, Section 2 of the Constitution.
Nature of the power
The pardon power authorizes the President to grant several forms of relief from criminal punishment. The most common forms of relief are full pardons (for individuals) and amnesties (for groups of people), which completely obviate the punishment for a committed or charged federal criminal offense, and commutations, which reduce the penalties associated with convictions. An administrative process has been established through the Department of Justice’s Office of the Pardon Attorney for submitting and evaluating requests for these and other forms of clemency, though the process and regulations governing it are merely advisory and do not affect the President’s ultimate authority to grant relief.
…the President has “plenary” constitutional authority under the pardon provision “to ‘forgive’” an accused or convicted person “in part or entirely, to reduce a penalty in terms of a specified number of years, or to alter it with conditions which are in themselves constitutionally unobjectionable.”
At least five forms of clemency fall under this authority:
1. pardon; (“releases the wrongdoer from punishment and restores the offender’s civil rights without qualification“)
2. amnesty; (“is extended to whole classes or communities, instead of individuals.”)
3. commutation; ( substitutes the punishment imposed by a federal court for a less severe punishment, such as by reducing a sentence of imprisonment)
4. remission of fines and forfeitures; (does not require consent)
5. reprieve. (delay in the execution of a sentence.)
Pardons may be exercised “either before legal proceedings are taken, or during their pendency, or after conviction and judgment.”
A pardon does not immunize against future criminal conduct.
Can the President pardon someone before they are indicted, convicted, or sentenced for a federal offense against the United States?
It would be highly unusual, but there have been a few cases where people who had not been charged with a crime were pardoned, including President Gerald Ford's pardon of President Richard Nixon after Watergate, President Jimmy Carter's pardon of Vietnam draft dodgers and President George H.W. Bush's pardon of Caspar Weinberger. President Donald J. Trump pardoned Joseph Arpaio and others after they were charged and convicted, but prior to sentencing.
“There are several reasons to expect that a broad pre-emptive pardon would be held invalid. A pardon which doesn’t specify in sufficient detail the offenses pardoned conflicts with the notion that accepting a pardon is an implicit admission of guilt. It is hard to say that a person who has accepted a pardon for any offense he or she may have committed has admitted guilt to an offense when we don’t know what wrongful behavior has been acknowledged. Moreover, judicial language justifying pre-emptive pardons appears to have pardons for specific offenses in mind. In addition, it is unlikely that the framers would have vested in the president the power to issue pardons for offenses of which he was unaware.”
Can the President pardon himself?
As for whether a President may grant a self-pardon, no past President has ever issued such a pardon. As a consequence, no federal court has addressed the matter. That said, several Presidents have considered the proposition of a self-pardon, and scholars have reached differing conclusions on whether such an action would be permissible based on the text, structure, and history of the Constitution. Ultimately, given the limited authority available, the constitutionality of a self-pardon is unclear.
Miscellania
1. Pardons require the consent of the pardoned.
2. Pardons may be conditional or unconditional, although there are limits on the conditions the president may impose. “Legal scholars have maintained that grants of clemency or clemency conditions at odds with certain constitutional guarantees like equal protection of the law, due process, and the prohibition of cruel and unusual punishment are subject to judicial review and potential invalidation.“
3. They apply only to federal crimes.
4. Pardons for the crime of treason must be approved by the senate.
5. “Most notably, in Carlesi v. New York, the Court determined that a pardoned offense could still be considered “as a circumstance of aggravation” under a state habitual-offender law, and then in Burdick v. United States, the Court noted that a pardon in fact ‘carries an imputation of guilt; acceptance a confession of it.’
6. Does not apply to civil suits and awards.
Director of the Ford Leadership Forum, Gerald R. Ford Presidential Foundation
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