The Power of the Presidential Pardon

photorandy2023

2 years ago

I have written several articles on our Presidents and Vice-Presidents. A list of the links have been provided at the bottom of this article for your convenience. This article will, however address additional Presidents and their places in history.

Why are U.S. presidents allowed to pardon anyone—even for treason?

Ever since George Washington, presidents have bestowed mercy on both the treasonous and their own allies. But there’s still one kind of pardon that no one has ever tried.

Presidential pardons are once again in the news as Donald Trump—former president and likely GOP candidate for the 2024 presidential election—contends with a third federal indictment charging him with election interference. Could Trump pardon himself if he is re-elected? Or will another future president pardon him, as Gerald Ford did for his disgraced, scandal-ridden predecessor Richard Nixon?A U.S. president’s pardon authority is as old as the office itself, but controversy over whether and how the chief executive should exercise the privilege has persisted since the nation’s founding. Despite a rich history of pardoning controversial figures after and even before they’re convicted of federal crimes, there’s still one kind of pardon that no president has ever tested: the self-pardon.

Why we have presidential pardons

At the 1787 Constitutional Convention, Alexander Hamilton proposed the president be given the power to pardon those who have committed crimes or reduce their sentences, later explaining that pardons might help “restore the tranquillity of the commonwealth” in times of rebellion. The concept wasn’t new: English laws had long given monarchs the power to grant mercy to their subjects, and the practice extended to the governors of British colonies in America.Most of the framers agreed with Hamilton and subsequently voted down a competing last-minute proposal to deny the president the ability to grant pardons in cases of treason. Article II of the Constitution gives a president “power to grant reprieves and pardons for offenses against the United States.” The one exception enumerated in the Constitution is that presidents may not use their clemency powers to stop themselves or others from being impeached by Congress.

President have four kinds of pardon power which apply only to federal—not state—crimes. They may issue a pardon that wipes out the crime entirely, shorten or do away with a criminal sentence with a commutation, release a person from a legal obligation like a fine with a remission, or put off a person’s sentence, known as respite.The issue of a president’s almost unlimited pardon power was contentious enough that it factored into the decision of George Mason, a Virginia delegate who feared a strong federal government, to abstain from signing the Constitution. A president with the power to pardon the treasonous, he warned, “might make dangerous use of it” by pardoning crimes in which he was a co-conspirator—which Mason believed could destroy the republic.

Earliest presidential pardons

As it turned out, the first presidential pardons did offer mercy to men who committed treason. In 1795, President George Washington pardoned two men who had organized the 1794 Whiskey Rebellion, an uprising in western Pennsylvania in response to a costly federal tax on spirits; it took a militia of 13,000 to quell. Washington pardoned the last of the insurgents on the final day of his second term in 1797, indicating his “desire to temper the administration of justice with a reasonable extension of mercy.”The tradition of pardoning rebels and polarizing figures continued through the years. After his election in 1800, Thomas Jefferson pardoned all of those convicted under the Sedition Act of 1798, a law passed during his predecessor’s term that made it illegal to defame the government.One early presidential pardon was rejected by the person it was designed to save. In 1833, President Andrew Jackson pardoned George Wilson, who had been sentenced to death for stealing U.S. mail and putting the life of a mail carrier in jeopardy. For unclear reasons, Wilson refused the pardon. The case was heard by the U.S. Supreme Court, which ruled that a pardon can be rejected. Wilson was later executed by hanging.

Mass pardons

In 1862, Abraham Lincoln made another controversial—if unofficial—pardon when he refused to authorize the executions of 265 Dakota men in Minnesota. Suffering from hunger and repeated treaty violations, these men had attempted to drive white settlers from Native ancestral lands by burning settlements and murdering civilians. Between 600 and 700 settlers were killed in what was the worst massacre in American history. More than 500 Native Americans were killed in retaliation.Lincoln’s decision not to order the execution was politically unpopular. But Lincoln, horrified by the unjust and unprofessional trials that led to the convictions of many obviously innocent men, said he “could not afford to hang men for votes.” (Still, the 1862 hanging of the 38 men who were not pardoned remains the largest mass execution in the nation’s history.)In the wake of the Civil War in 1865, Lincoln’s successor, Andrew Johnson, waded into even more contentious territory by offering a blanket pardon to former Confederates, with exceptions for those who had personally helped orchestrate the South’s secession from and war against the Union. Soon after, Johnson began exercising his clemency power with abandon as he granted personal pardons to those exempted by the blanket pardon.

Ultimately, Johnson granted pardons to up to 90 percent of applicants—more than 13,000 in all—including many high-level Confederate officials. By 1867, writes historian Jonathan Truman Dorris, Johnson had pardoned “86 members of the lower house of the Confederate congress, a smaller number of the upper house, and perhaps a dozen Confederate governors.” Many of those leaders later became the architects of Jim Crow, the racist laws designed to re-establish a brutal racial hierarchy in the former Confederacy.Augustus Hill Garland, a former Confederate senator and attorney, received one of the pardons in 1865, but remained disbarred under a law passed earlier that year that stripped law licenses from former Confederates. He took the case to the U.S. Supreme Court, arguing that he shouldn’t be subject to the law since his crime had been wiped away. The justices agreed, and in the ruling they affirmed the president’s broad power to issue pardons—including the power to grant a pardon before a person has been charged with a crime.

Preemptive pardons

That power was put to the test during the nation’s most controversial pardon of all—that of a former president. In September 1974, a month after President Richard Nixon resigned in the wake of the Watergate scandal, his successor Gerald Ford granted him unconditional pardon for all offenses that he may have committed.

Although Nixon had not been formally charged with any crimes, he was now a private citizen and could be prosecuted for his involvement in covering up the attempt to surveil the Democratic National Committee’s headquarters. Ford, who had served as Nixon’s vice president, believed the nation could not withstand the divisiveness of a potential criminal trial of the disgraced president. But his decision backfired, prompting a public and Congressional backlash, and is thought to have cost Ford his political career.The Nixon pardon was followed by another high-profile preemptive pardon. On President Jimmy Carter’s first day in office in January 1977, he issued unconditional pardons to most people who evaded the draft during the Vietnam War, including those who had not yet been prosecuted. Although the pardon was an attempt to heal the deep rifts caused by the war, it was condemned by veterans’ groups.

Can a president self-pardon?

When it comes to presidential pardons, there’s only a sliver of truly untested territory: whether a president can pardon himself.The issue is hotly contested among legal scholars since it has never been attempted. There isn’t anything in the Constitution explicitly barring a president from self-pardoning—or preventing a president from temporarily stepping down so that his vice president can pardon him while serving as acting president.Some legal scholars note that the lack of a specific Constitutional safeguard against self-pardon could be interpreted as meaning that a president has the right to do so.But others believe a self-pardon would be explicitly illegal given the Constitution’s prohibition of serving as one’s own judge. They also point to precedent that prevents a chief executive from obstructing federal criminal investigations. That opinion was shared by former deputy attorney general Mary C. Lawton, who researched the matter in 1974 at Nixon’s behest. If a president were to grant a self-pardon, the act would likely trigger a legal challenge to settle this debate once and for all.

If a president ultimately did grant some form of clemency to themselves, it would not be a blanket protection against prosecution. Since the power only applies to federal crimes, states can still bring criminal charges against recipients of federal pardons—no matter who they might be.

While the President’s ability to pardon is a powerful tool, it is not all encompassing. The president can only pardon federal crimes. Crimes that are committed at the state and local level are exempt from his/her presidential pardon.

Presidential Pardon Power Explained

The Constitution gives the president the “Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.” When it comes to reducing our prison populations, we’ve argued that this power should be used more frequently as a vital mechanism of mercy, tempering the often harsh, racist, and inequitable effects of our criminal legal system.

But the pardon power also comes with the risk of abuse. Never has this been more apparent than under President Trump, who has used it to grant clemency to people convicted of crimes relating to his presidential campaign. And now, Trump is reportedly considering trying to pardon himself for a variety of crimes, which would be unprecedented.

Why is Trump considering pardoning himself?

The most recent reason is his role in inciting the deadly insurrection at the Capitol Wednesday, when he told a crowd of supporters in front of the White House that the election was stolen and instructed them to “walk down to the Capitol” where Congress was counting the Electoral College votes. The Justice Department said that it was not ruling out charging Trump for inciting a riot, with the U.S. attorney in Washington saying, “All options are on the table. … We will look at every actor and all criminal charges.”

Since making that statement, the DOJ has softened its position, with one official calling it a “moonshot” that “there’s any hook for criminal liability for Trump.” But even if Trump dodges prosecution now, nothing will stop the Biden DOJ, based on its review of the law and facts, from prosecuting Trump for inciting the riot. And Biden’s attorney general pick Merrick Garland condemned Wednesday’s riots and noted that today’s priorities, “from ensuring racial equity in our justice system to meeting the evolving threat of violent extremism,” are ones that he will be devoted.

The other recent reason is illegal election interference — specifically, Trump’s January phone call to Georgia Secretary of State Brad Raffensperger in which the president asked him to “find 11,780 votes” to change the outcome of the presidential vote in the state.

News of the call prompted Reps. Ted Lieu (CA) and Kathleen Rice (NY) to ask the FBI to open a criminal investigation into the matter, saying that they believe the president has engaged in “solicitation of, or conspiracy to commit, a number of election crimes.”

Back in 2017, the Washington Post reported that Trump consulted with his advisors on the legal authority to self-pardon when he was under investigation by Special Counsel Robert S. Mueller III as part of the Russia probe.

Could Mike Pence pardon Trump if he resigns or is removed from office by impeachment or under the 25th Amendment?

Yes. The only president who has ever obtained a pardon was Richard Nixon. After he resigned, his successor, President Gerald Ford, granted him a full pardon for any crimes that he might have committed against the United States as president, shielding Nixon from criminal charges related to the Watergate scandal.

Would a presidential self-pardon be constitutional?

The answer is unclear. While neither the text of the Constitution nor judicial precedent explicitly resolves the matter, a 1974 Justice Department memo contended that a self-pardon would collide with “the fundamental rule that no one may be a judge in his own case.” The only way to answer this question, then, is for Trump to pardon himself and subsequently be indicted for a federal crime for which he had pardoned himself. That, in turn, would create the opportunity for the courts to settle the debate.

The bipartisan National Task Force on Rule of Law & Democracy has called for Congress to pass a resolution expressly and categorically condemning self-pardons.

How would a self-pardon affect state prosecutions?

The Constitution only grants the ability to pardon people of federal crimes, so even if the courts found that the president could pardon himself, it would not excuse him from violations of state laws, several of which he is in danger of being prosecuted for.

Following the release of Trump’s call with Raffensperger, where the president may have violated state laws against election interference, the Fulton County district attorney released a statement declaring that “Anyone who commits a felony violation of Georgia law in my jurisdiction will be held accountable.”

President Trump is also in legal peril in New York, where he is facing a string of investigations. The state’s attorney general, Letitia James, is looking into the financial dealings of Trump and the Trump Organization. And Cyrus Vance Jr., the Manhattan district attorney, is investigating the president and the Trump Organization on suspicion of bank and insurance fraud.

Predicting that the president might attempt to self-pardon, New York State enacted legislation in October 2019 permitting state prosecutions when a person — even President Trump himself — has received a presidential pardon for federal crimes that could be the basis of state or local crimes.

How has Trump used the clemency power so far compared with the past?

President Barack Obama granted more than 1,700 commutation requests, more than every other president over the previous half-century combined. Yet 7,881 petitions were never reviewed.

Thus far, President Trump has granted just over 90 pardons and commutations, primarily to his friends and political allies. And he has talked about adding himself to that list: in 2018, he tweeted, “As has been stated by numerous legal scholars, I have the absolute right to PARDON myself.”

Meanwhile, there are thousands of people who are potentially appropriate clemency candidates sitting in federal prison. The Biden administration must make more broad-based use of the clemency power, which will provide some relief to those serving particularly harsh mandatory sentences, correct for unwarranted disparities among codefendants, and give retroactive effect to recent changes in the law.

Presidential pardons: Settled Law, unsettled issues, and a downside for Trump

Scope of the Pardon Power

ArtII.S2.C1.3.1.1 Scope of the Pardon Power

Article II, Section 2, Clause 1:

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

The pardon power embraces all “offences against the United States,” except cases of impeachment, and includes the power to remit fines, penalties, and forfeitures, except as to money covered into the Treasury or paid an informer, the power to pardon absolutely or conditionally, and the power to commute sentences, which, as seen above, is effective without the convict’s consent. It has been held, moreover, in face of earlier English practice, that indefinite suspension of sentence by a court of the United States is an invasion of the presidential prerogative, amounting as it does to a condonation of the offense. It was early assumed that the power included the power to pardon specified classes or communities wholesale, in short, the power to amnesty, which is usually exercised by proclamation. General amnesties were issued by Washington in 1795, by Adams in 1800, by Madison in 1815, by Lincoln in 1863, by Johnson in 1865, 1867, and 1868, and by Theodore Roosevelt—to Aguinaldo’s followers—in 1902. Not until after the Civil War, however, was the point adjudicated, when it was decided in favor of presidential prerogative.

The President cannot pardon by anticipation, or he would be invested with the power to dispense with the laws, King James II’s claim to which was the principal cause of his forced abdication.

Offenses Against the United States: Contempt of Court

The President may pardon criminal but not civil contempts of court. The Court “point[ed] out that it is not the fact of punishment but rather its character and purpose that makes the difference between the two kinds of contempts. For civil contempts, the punishment is remedial and for the benefit of the complainant, and a pardon cannot stop it. For criminal contempts the sentence is punitive in the public interest to vindicate the authority of the court and to deter other like derelictions.” In upholding the President’s power to pardon criminal contempt, Chief Justice Taft, speaking for the Court, resorted once more to English conceptions as being authoritative in construing this clause of the Constitution. He wrote: “The King of England before our Revolution, in the exercise of his prerogative, had always exercised the power to pardon contempts of court, just as he did ordinary crimes and misdemeanors and as he has done to the present day. In the mind of a common law lawyer of the eighteenth century the word pardon included within its scope the ending by the King’s grace of the punishment of such derelictions, whether it was imposed by the court without a jury or upon indictment, for both forms of trial for contempts were had. [Citing cases.] These cases also show that, long before our Constitution, a distinction had been recognized at common law between the effect of the King’s pardon to wipe out the effect of a sentence for contempt in so far as it had been imposed to punish the contemnor for violating the dignity of the court and the King, in the public interest, and its inefficacy to halt or interfere with the remedial part of the court’s order necessary to secure the rights of the injured suitor. Blackstone IV, 285, 397, 398; Hawkins Pleas of the Crown, 6th Ed. (1787), Vol. 2, 553. The same distinction, nowadays referred to as the difference between civil and criminal contempts, is still maintained in English law.” Nor was any new or special danger to be apprehended from this view of the pardoning power. “If,” the Chief Justice asked, “we could conjure up in our minds a President willing to paralyze courts by pardoning all criminal contempts, why not a President ordering a general jail delivery?” Although, he added, “the power of a court to protect itself and its usefulness by punishing contemnors is of course necessary,” in light of the fact that a court exercises this power “without the restraining influence of a jury and without many of the guaranties [sic] which the bill of rights offers[,] . . . [m]ay it not be fairly said that in order to avoid possible mistake, undue prejudice or needless severity, the chance of pardon should exist at least as much in favor of a person convicted by a judge without a jury as in favor of one convicted in a jury trial?”

Effects of a Pardon: Ex parte Garland

The leading case on this subject is Ex parte Garland, which was decided shortly after the Civil War. By an act passed in 1865, Congress had prescribed that, before any person should be permitted to practice in a federal court, he must take oath asserting that he had “never voluntarily borne arms against the United States,” had never given aid or encouragement “to persons engaged in armed hostilities” against the United States, and so forth. Garland, who had “taken part in the Rebellion against the United States, by being in the Congress of the so-called Confederate States,” and so was unable to take the oath, had, however, received from President Johnson “a full pardon ‘for all offences by him committed, arising from participation, direct or implied, in the Rebellion,’” The question before the Court was whether, armed with this pardon, Garland was entitled to practice in the federal courts despite the act of Congress just mentioned. Justice Field wrote for a divided Court: “The inquiry arises as to the effect and operation of a pardon, and on this point all the authorities concur. A pardon reaches both the punishment prescribed for the offence and the guilt of the offender; and when the pardon is full, it releases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offence. If granted before conviction, it prevents any of the penalties and disabilities consequent upon conviction from attaching; if granted after conviction, it removes the penalties and disabilities, and restores him to all his civil rights; it makes him, as it were, a new man, and gives him a new credit and capacity.”

Justice Miller, speaking for the minority, protested that the act of Congress involved was not penal in character, but merely laid down an appropriate test of fitness to practice law. “The man who, by counterfeiting, by theft, by murder, or by treason, is rendered unfit to exercise the functions of an attorney or counselor-at-law, may be saved by the executive pardon from the penitentiary or the gallows, but he is not thereby restored to the qualifications which are essential to admission to the bar.” Justice Field’s language must today be regarded as too sweeping in light of the 1914 decision in Carlesi v. New York. Carlesi had been convicted several years before of committing a federal offense. In the instant case, he was being tried for a subsequent offense committed in New York. He was convicted as a second offender, although the President had pardoned him for the earlier federal offense. In other words, the fact of prior conviction by a federal court was considered in determining the punishment for a subsequent state offense. This conviction and sentence were upheld by the Supreme Court. Although this case involved offenses against different sovereignties, the Court declared in dictum that its decision “must not be understood as in the slightest degree intimating that a pardon would operate to limit the power of the United States in punishing crimes against its authority to provide for taking into consideration past offenses committed by the accused as a circumstance of aggravation even although for such past offenses there had been a pardon granted.”

Limits to the Efficacy of a Pardon

But Justice Field’s latitudinarian view of the effect of a pardon undoubtedly still applies ordinarily where the pardon is issued before conviction. He is also correct in saying that a full pardon restores a convict to his “civil rights,” and this is so even though simple completion of the convict’s sentence would not have had that effect. One such right is the right to testify in court, and in Boyd v. United States, the Court held that “[t]he disability to testify being a consequence, according to the principles of the common law, of the judgment of conviction, the pardon obliterated that effect.” But a pardon “does not make amends for the past. It affords no relief for what has been suffered by the offender in his person by imprisonment, forced labor, or otherwise; it does not give compensation for what has been done or suffered, nor does it impose upon the government any obligation to give it. The offence being established by judicial proceedings, that which has been done or suffered while they were in force is presumed to have been rightfully done and justly suffered, and no satisfaction for it can be required. Neither does the pardon affect any rights which have vested in others directly by the execution of the judgment for the offence, or which have been acquired by others whilst that judgment was in force. If, for example, by the judgment a sale of the offender’s property has been had, the purchaser will hold the property notwithstanding the subsequent pardon. And if the proceeds of the sale have been paid to a party to whom the law has assigned them, they cannot be subsequently reached and recovered by the offender. The rights of the parties have become vested, and are as complete as if they were acquired in any other legal way. So, also, if the proceeds have been paid into the treasury, the right to them has so far become vested in the United States that they can only be secured to the former owner of the property through an act of Congress. Moneys once in the treasury can only be withdrawn by an appropriation by law.”

The Supreme Court and the president’s pardon power

The Constitution gives the president the power “to grant Reprieves and Pardons for Offenses against the United States, except in Cases of impeachment.” In the days before Christmas, President Donald Trump used this power to pardon or commute the sentences of over 40 people, including Paul Manafort, Trump’s former campaign manager; Charles Kushner, the father of Trump’s son-in-law and adviser, Jared Kushner; Roger Stone, who was convicted by Special Counsel Robert Mueller of obstruction of justice and other crimes; and four men who were convicted of killing Iraqi civilians while working as contractors for the private security firm Blackwater.. With just under three weeks remaining in Trump’s term, there could be more pardons on the horizon – and Trump has asserted that he has the “absolute right” to pardon himself.

The Supreme Court has made clear that, subject to the exception for impeachment, the president’s power to grant pardons is “unlimited,” with virtually no oversight or limiting role for Congress. In Ex parte Garland, which involved President Andrew Johnson’s pardon of a lawyer who had served in the legislature of the Confederacy, the court indicated that the president’s pardon power covers all federal offenses. The president can issue a pardon at any point after a crime is committed and before, during or after criminal proceedings have taken place. The president cannot, however, pardon someone for future crimes. A pardon covers both the offender’s conviction for the crime and the sentence for that crime.

In Burdick v. United States, the Supreme Court addressed the case of a newspaper editor who declined to testify before a grand jury, invoking the Fifth Amendment, even after the president pardoned him. Burdick declined to accept the pardon, and he was held in contempt for refusing to testify. The question before the Supreme Court was what effect, if any, the unaccepted pardon had. The court ruled that a pardon becomes effective only if it is accepted. The court also compared immunity, granted by Congress, and a pardon, explaining that the differences are “substantial.” Unlike immunity, the court reasoned, a pardon “carries an imputation of guilt; acceptance a confession of it.”

And in Connecticut Board of Pardons v. Dumschat, the court emphasized that pardons “have not traditionally been the business of courts; as such, they are rarely, if ever, appropriate subjects for judicial review.”

The broad and largely unreviewable pardon power outlined in the Supreme Court’s cases means that the president has significant leeway to pardon, for example, family members or close associates such as former New York City Mayor Rudolph Giuliani — although neither Giuliani nor any Trump family members have been charged with any crimes.

A presidential pardon applies only to federal offenses, so it would leave open the possibility that anyone whom Trump pardoned could still face charges in state court. In 2019, in Gamble v. United States, the Supreme Court upheld the “dual-sovereignty” doctrine, which allows a state to prosecute a defendant under state law after the federal government has prosecuted him for the same conduct under federal law without violating the Constitution’s ban on double jeopardy. (Some states, like New York, also have their own double jeopardy laws. In October, a New York court threw out state mortgage fraud charges against Manafort, pointing to his federal conviction on similar charges.)

The Supreme Court has not weighed in on the question whether Trump can pardon himself. In a memorandum dated Aug. 5, 1974 – less than a week before President Richard Nixon resigned – acting Assistant Attorney General Mary Lawton of the Department of Justice’s Office of Legal Counsel concluded that the answer is no. The memorandum left open the possibility of two work-arounds, however: Congress could pardon the president (an unlikely scenario these days); or the president could allow the vice president to become the acting president under the 25th Amendment, on the ground that the president was temporarily unable to perform his duties, and the vice president could then pardon him.

This is all purely hypothetical, of course, right now. It remains to be seen whether the president will issue any more pardons before Jan. 20, and – if he does – who will receive them.

Correction (Jan. 5, 10:15 a.m.): An earlier version of this article cited Ex parte Garland for the proposition that a pardon creates a situation as if the defendant had never committed the crime. But the court later recognized that pardoned conduct can be considered in some subsequent proceedings, such as to enhance a defendant’s sentence in a subsequent state-court proceeding.

The History of the Pardon Power: Executive Unilateralism in the Constitution.

Article II, Section 2 of the United States Constitution states that the President has the authority to “grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” The United States Supreme Court has interpreted this power as “plenary,” meaning that is considerably broad and not generally subject to congressional modification.

In both Ex parte Garland (1866) and United States v. Klein (1871), the Court ruled that legislation could not restrict the president’s pardon power.

The origins of the pardon power in the United States Constitution can be found in English history, known previously as the “prerogative of mercy.” It first appeared during the reign of King Ine of Wessex in the seventh century. Although abuses of the pardon power increased over time, leading to limitations on it, the pardon power persisted through the American colonial period. Alexander Hamilton introduced the concept of a pardon power at the Constitutional Convention. There was debate about whether Congress should have a role in the pardon power, with the Senate approving presidential pardons. Delegates also debated whether treason should be excluded from pardonable offenses. However, the final result was an expansive power for the president in Article II, the strongest example of constitutional executive unilateralism.

The framers of the Constitution deliberately separated the judicial function of government from the pardon power, therefore obviating concern from English jurist William Blackstone that the power of judging and pardoning should not be delegated to the same person or entity. They also reasoned that pardoning subordinates for treason would subject the president to threats of impeachment and removal from office.

There are many different types of clemency that fall under the president’s power. They include: pardon, amnesty, commutation, and reprieve. A pardon releases a person from punishment and restores all civil liberties. Amnesty is the same as the pardon but is extended to an entire class of individuals. Commutation reduces the sentence imposed by a federal court. A reprieve delays the imposition of a sentence or punishment.

While the pardon power is robust, there are three important limitations on it. First, a crime must have been committed for a pardon to be issued. Second, the presidential power is limited to federal crimes. Lastly, the president may not issue pardons in cases of impeachment. Other than these criteria, there are no constitutional restrictions on a president’s pardon power.

Presidents throughout American history have exercised their constitutional authority granted by the pardon power. George Washington first exercised the pardon power in 1795 after he issued amnesty to those engaged in Pennsylvania’s Whiskey Rebellion. Thomas Jefferson granted amnesty to any citizen convicted of a crime under the Alien and Sedition Acts. Abraham Lincoln used clemency to encourage desertions from the Confederate Army. In 1868, Andrew Johnson’s pardon of Jefferson Davis, the former president of the Confederacy, was perhaps the most controversial pardon to date.

In the twentieth century, Warren G. Harding’s commutation of twenty-four political prisoners, including socialist leader Eugene Debs, proved controversial. In 1971, Richard Nixon commuted the sentence of James Hoffa, former president of the International Brotherhood of Teamsters who was convicted for pension fund fraud and jury tampering. Of course, Gerald Ford’s 1974 pardon of Richard Nixon was arguably the most famous exercise of executive clemency in American history. After Ford’s pardon of Nixon, his approval rating fell over twenty points in the ensuing days. Many political analysts conclude that Ford never recovered from the pardon, thus severely damaging his chances to win election to the White House in 1976.

Ford explained that he granted the pardon as an act of mercy to Nixon and for the broader purpose of restoring domestic tranquility in the nation after Watergate.

Although some pardons are controversial, executive grants of clemency are not rare in American history. In fact, most clemency cases are “all but anonymous.”

According to Department of Justice statistics, the total number of executive clemency actions from 1900 to 2017 is 22,485. In recent decades, the number of issued clemency grants have declined as well as the percentage of granted petitions. From the beginning of Ronald Reagan’s administration (1981) to the conclusion of Barack Obama’s presidency (2017), there have been 3,069 acts of executive clemency. There is also considerable variation amongst presidents. Since the mid-twentieth century, Barack Obama issued the most pardons and commutations (1,927) for two-term presidents. In comparison, George W. Bush issued the fewest number of clemency actions (200) for a two-term president.

The Office of the Pardon Attorney at the Department of Justice issues guidelines for the application of clemency, but presidents do not need to follow them.

The Pardon Attorney serves in an advisory, not decision making, capacity. Recommendations for pardons are routed through the Deputy Attorney General, who supervises the Pardon Attorney. Final recommendations are made to the Office of White House Counsel, who advises the president on such petitions.

As decided in Ex Parte Garland (1866), presidents may issue pardons at any time after the commission of a federal offense, even before federal charges have been filed or a sentence has been imposed.

Such was the case when Ford pardoned Nixon. There are other instances of presidents circumventing judicial processes in anticipation of legal action. Abraham Lincoln issued preemptive pardons during the Civil War and so did Jimmy Carter, who pardoned Vietnam draft evaders who had not been charged for their actions.

It is unclear whether accepting a pardon is a legal admission of guilt. President Gerald Ford argued as such; he carried with him a quote from the Burdick v. United States (1915) decision that concluded a pardon “carries an imputation of guilt; acceptance a confession of it.” However, such statement was included in dicta, or legal commentary found within a judicial opinion that does not establish precedent. Other presidents have not shared Ford’s belief that a pardon’s acceptance signified guilt. For example, President George H.W. Bush pardoned former Secretary of Defense Caspar Weinberger and others involved in the Iran-Contra scandal because he felt they were innocent of wrongdoing; he claimed such individuals had fallen victim to “the criminalization of policy differences” and used the pardon power to correct legal judgments and prevent other errors from occurring.

Legal analysts are not settled on the question concerning the ability of a president to self-pardon. A recent review of law school faculty opinion on the power to self-pardon stated: “There is no clear consensus among legal professionals concerning the constitutionality of the presidential self-pardon, which has never been attempted by a U.S. President.”

Some constitutional scholars argue that the Constitution does not explicitly prevent such an action, given the minimal restrictions placed on the pardon power in Article II. Other experts contend that a president cannot pardon himself or herself due to the established legal precedent that no one may be a judge in his own case and the constitutional restriction that a president cannot issue a pardon in relation to impeachment. Richard Nixon did consider a self-pardon in 1974. At that time, the Justice Department produced a memorandum that concluded the president did not have the constitutional power to issue a self-pardon.

However, constitutional law and interpretation is undetermined in this situation since historical precedent has not been established.

Frequently Asked Questions

How long has The Office of the Pardon Attorney been involved with the President’s power to grant pardons and commutations?

Responsibility for exercising the pardon power vested in the President by Article II, section 2, of the Constitution was shared by the Secretary of State and the Attorney General from 1789-1853. The Attorney General had administrative responsibility for pardon application review, 1853-70, although the Department of State continued to issue pardon warrants until a Presidential order of June 6, 1893, transferred this function to the Department of Justice. Pardon responsibilities were delegated to the Office of the Clerk of Pardons, established in the Office of the Attorney General by an act of March 3, 1865 (13 Stat. 516). The Office of the Clerk of Pardons became a component of the newly created Department of Justice, pursuant to its enabling act, June 22, 1870 (16 Stat. 162). It was superseded by the Office of the Attorney in Charge of Pardons, established in the Department of Justice by an act of March 3, 1891 (26 Stat. 946), and re-designated the Office of the Pardon Attorney in 1894. SEE 204.1.

Can the President make clemency decisions without receiving a recommendation from the Department of Justice?

The regulations contained in 28 CFR §§ 1.1 thru 1.11 are advisory only and for the internal guidance of Department of Justice personnel. They create no enforceable rights in persons applying for executive clemency, nor do they restrict the authority granted to the President under Article II, Section 2 of the Constitution.

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. See Pardons Granted by President Donald Trump (justice.gov)

Does the President have authority to grant clemency for a state conviction?

No. The President’s clemency power is conferred by Article II, Section 2, Clause 1 of the Constitution of the United States, which provides: “The President . . . shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” Thus, the President’s authority to grant clemency is limited to federal offenses and offenses prosecuted by the United States Attorney for the District of Columbia in the name of the United States in the D.C. Superior Court. An offense that violates a state law is not an offense against the United States. A person who wishes to seek a pardon or a commutation of sentence for a state offense should contact the authorities of the state in which the conviction occurred. Such state authorities are typically the Governor or a state board of pardons and/or paroles, if the state government has created such a board.

I was convicted in the District of Columbia Superior Court. How do I apply for clemency?

Only the President can grant clemency for D.C. Code offenses. To be considered for clemency, you should submit an application to the Office of the Pardon Attorney in the U.S. Department of Justice. The D.C. Clemency Board may provide a letter of recommendation for your clemency application. To request a letter of recommendation from the D.C. Clemency Board, go to https://clemency.dc.gov/page/apply.

What is the difference between a commutation of sentence and a pardon?

In the federal system, commutation of sentence and pardon are different forms of executive clemency, which is a broad term that applies to the President’s constitutional power to exercise leniency toward persons who have committed federal crimes. A commutation of sentence reduces a sentence, either totally or partially, that is then being served, but it does not change the fact of conviction, imply innocence, or remove civil disabilities that apply to the convicted person as a result of the criminal conviction. A commutation may include remission (release) of the financial obligations that are imposed as part of a sentence, such as payment of a fine or restitution. A remission applies only to the part of the financial obligation that has not already been paid. A commutation of sentence has no effect on a person’s immigration status and will not prevent removal or deportation from the United States. To be eligible to apply for commutation of sentence, a person must have reported to prison to begin serving his sentence and may not be challenging his conviction in the courts. A pardon is an expression of the President’s forgiveness and ordinarily is granted in recognition of the applicant’s acceptance of responsibility for the crime and established good conduct for a significant period of time after conviction or completion of sentence. It does not signify innocence. It does, however, remove civil disabilities – e.g., restrictions on the right to vote, hold state or local office, or sit on a jury – imposed because of the conviction for which pardon is sought, and should lessen the stigma arising from the conviction. It may also be helpful in obtaining licenses, bonding, or employment. Under some – but not all – circumstances, a pardon will eliminate the legal basis for removal or deportation from the United States. Pursuant to the Rules Governing Petitions for Executive Clemency, which are available on this website, a person is not eligible to apply for a presidential pardon until a minimum of five years has elapsed since his release from any form of confinement imposed upon him as part of a sentence for his most recent criminal conviction, whether or not that is the conviction for which he is seeking the pardon.

Is a presidential pardon the only way a person convicted of a federal felony offense can regain his civil rights?

Not necessarily. Some, but not all, states have instituted procedures for restoring to their citizens certain basic civil rights, such as the rights to vote, hold office, or sit on a jury, even if the disqualifying felony conviction was incurred in federal court. A person who is considering applying for a presidential pardon solely to restore such rights may wish to contact the appropriate clemency authorities within the state of his residence to ascertain whether such a procedure exists in that state.

Is a presidential pardon the only way a person convicted of a federal felony offense may regain his right to bear arms?

Yes. At present, a presidential pardon is the only means by which a person convicted of a federal felony offense may obtain relief from federal firearms disabilities. Under Supreme Court case law interpreting federal firearms laws, a state restoration of civil rights does not remove the federal firearm disability that arises from a federal felony conviction. That relief can only be provided through action under federal law. Although 18 U.S.C. § 925(c) provides that the Attorney General may grant relief from federal firearms disabilities “if it is established to his satisfaction that . . . the applicant will not be likely to act in a manner dangerous to public safety and that the granting of the relief would not be contrary to the public interest,” there currently is no means to obtain relief through this mechanism. Since Fiscal Year 1992, Congress has prohibited the Bureau of Alcohol, Tobacco, Firearms and Explosives, the agency responsible for processing such requests, from spending any appropriated funds to investigate or act upon applications for such relief. Accordingly, at this time a presidential pardon is the only means by which a person convicted of a federal felony may obtain this relief.

Do you have to hire a lawyer to apply for a pardon or a commutation of sentence?

No. The executive clemency process is intended to be accessible to ALL eligible applicants, whether or not they are represented by counsel, and is begun by filing the appropriate clemency petition. In fact, most clemency applications are submitted by persons who are not represented by counsel. Application forms are available on this website. If you have questions about the application as you are completing it or helping someone else to complete it, you may contact the Pardon Attorney at USPardon.Attorney@usdoj.gov to ask for clarification, but please be aware that we are unable to provide legal advice. If a pardon applicant submits an application that is incomplete or does not sufficiently answer the questions posed, the Pardon Attorney will contact the applicant through whatever communication mode we were contacted through and explain what additional information is required.

Is a hearing held on an application for pardon or commutation of sentence?

No. The executive clemency process is a written process. There is no hearing held by Pardon Attorney on any commutation or pardon application. However, in the processing of a pardon application, a thorough investigation is made of the applicant’s post-conviction life, which may include a background investigation conducted by the Federal Bureau of Investigation. As a general matter, if an applicant wishes to have specific information considered in connection with his clemency request, he should submit that information in writing to the Pardon Attorney. He may do this at any time while the application is pending.

Is there any limit to the kinds of information an applicant may submit in support of his clemency application?

A clemency applicant – or any third party – is free to send any documentation or other written information he believes has a bearing on the applicant’s suitability for clemency so that it may be considered in connection with the application. We recommend that a person desiring to submit a document to the Pardon Attorney send a copy of the record rather than the original document, since the record will be made part of the applicant’s executive clemency file. Because of the nature of its case tracking system, the Pardon Attorney cannot make information recorded on digital media part of an applicant’s file. The office therefore does not accept information presented in such formats.

Is the decision on every clemency application made by the President?

Yes. Except for situations in which an application must be closed administratively because (1) an applicant withdraws their application from consideration, (2) an applicant repeatedly fails to respond to a request by the Pardon Attorney for required information, (3) an applicant dies before a decision is made on their request, (4) we learn that the applicant is no longer a resident of the United States during the course of our review, (5) an applicant is released from Federal prison during the processing of a commutation petition that seeks only the reduction of his/her prison sentence, or (6) we learn that the applicant has not yet exhausted all legal remedies or has pending litigation, every clemency application submitted to the Pardon Attorney follows the process described above and is decided by the President. Please note that if the Pardon Attorney learns that a motion for compassionate release is pending for an applicant with an open case, the Pardon Attorney may determine that the interests of justice are not served by an administrative closure of the case.

If the President does not make a decision on my case before he leaves office, do I need to submit another petition for the new President?

No. Every clemency application submitted to the Pardon Attorney is decided by the President, except in situations in which an application must be closed administratively because (1) an applicant withdraws their application from consideration, (2) an applicant repeatedly fails to respond to a request by the Pardon Attorney for required information, (3) an applicant dies before a decision is made on their request, (4) we learn that the applicant is no longer a resident of the United States during the course of our review, (5) an applicant is released from Federal prison during the processing of a commutation petition that seeks only the reduction of his/her prison sentence, or (6) we learn that the applicant has not yet exhausted all legal remedies or has pending litigation (not including compassionate release motions in which it is determined that the application should remain open in the interests of justice). Accordingly, if the outgoing President does not reach a decision before the end of his elected term, the clemency application will remain open until resolved by a later President. While both the Department of Justice and the President make every effort to resolve clemency applications in a timely manner, there is no guarantee that an application submitted during an administration will be decided by that President. If an applicant has not received a denial notification from the Pardon Attorney, then the applicant may assume that the application remains pending and will extend into the next administration. The status of clemency cases submitted through the Department of Justice since 1989 can always be confirmed on our website at Search Clemency Case Status For Cases Opened Since 1989 | PARDON | Department of Justice.

Does a presidential pardon expunge or erase the conviction for which the pardon was granted?

No. Expungement is a judicial remedy that is rarely granted by the court and cannot be granted within the Department of Justice or by the President. Please also be aware that if you were to be granted a presidential pardon, the pardoned offense would not be removed from your criminal record. Instead, both the federal conviction as well as the pardon would both appear on your record. However, a pardon will facilitate removal of legal disabilities imposed because of the conviction, and should lessen to some extent the stigma arising from the conviction. In addition, a pardon may be helpful in obtaining licenses, bonding, or employment. If you are seeking expungement of a federal offense, please contact the court of conviction. If you are seeking expungement of a state conviction, which the Office of the Pardon Attorney also does not have authority to handle, states have different procedures for “expunging” a conviction or “clearing” the record of a criminal conviction. To pursue relief of a state conviction, you should contact the Governor or state Attorney General in the state in which you were convicted for assistance.

If the President denies a clemency request, is the applicant told why?

As a general matter, Presidents in recent times have rarely announced their reasons for granting or denying clemency, although the President may choose to do so in a given case. Consistent with long-standing policy, if the President does not issue a public statement concerning his action in a clemency matter, no explanation is provided by the Department of Justice. Moreover, deliberative communications pertaining to agency and presidential decision-making are confidential and not available under existing case law interpreting the Freedom of Information Act and Privacy Act.

If I apply for executive clemency from the President and my request is denied, may I reapply?

Yes. A person whose request for a commutation of sentence is turned down may reapply anytime after one year from the date of the President’s denial of the request. A person whose request for a pardon is denied may reapply anytime after two years from the date of the President’s denial of the request. To reapply for a pardon or commutation, a person must complete and submit a new application form that contains current information in response to all questions. Resubmitting the prior application form that was previously denied is not an acceptable form of reapplication.

If I apply for any form of executive clemency, what information about me will be released publicly upon grant or denial of my request by the President?

Presidential grants are a matter of public record, so immediately after Presidential action, the name of each person granted a pardon or commutation, along with the district they were convicted, year of sentencing, offense, and the date the President granted their request is publicly listed on the Office of the Pardon Attorney website. This information may also be posted on The White House website and included in press releases issued by the Department or The White House. Moreover, in accordance with the ruling by the federal court of the District of Columbia in Lardner v. Department of Justice, 638 F.Supp.2d 14 (D.D.C. 2009), affirmed, Lardner v. United States Department of Justice, No. 09-5337, 2010 WL 4366062 (D.C. Cir. Oct. 28, 2010) (unpublished), the Office of the Pardon Attorney is obliged to release existing lists of the names of persons who have been denied executive clemency by the President to anyone who requests such records pursuant to the Freedom of Information Act. Given the frequency of such requests, the Office of the Pardon Attorney has started to proactively disclose the names of persons who have been denied executive clemency by the President on our website, in accordance with our Freedom of Information Act obligations.

I was convicted under the Federal Youth Corrections Act. May I still seek a pardon?

The Federal Youth Corrections Act (YCA) was enacted in 1950 in order to provide sentencing alternatives for young offenders. The YCA was repealed in 1984. If an individual sentenced under the YCA was released from imprisonment or discharged from probation prior to the expiration of the maximum period sentenced, the conviction was automatically set aside upon the sentencing court’s issuance of a certificate of set-aside. Unfortunately, the certificate required to set aside the conviction was often not issued accordingly; thus leaving the conviction intact. If you were convicted under the YCA and are in possession of the certificate of set-aside issued by the court, there is, in fact, no conviction to pardon. Our office would, therefore, be unable to process your application, and you may wish to contact the closest division office of the FBI and ask that your criminal history record be properly amended to reflect the lack of conviction. If you believe you were convicted under the YCA, but are not in possession of the certificate of set-aside, then your conviction may still stand and you may submit a pardon application. If we are able to obtain evidence that a certificate of set-aside was, in fact, issued in your case, you will be notified of that fact and your case file will be closed administratively. If we are unable to conclude that a certificate of set-aside was issued in your case, we will process your pardon application fully.

I am a member of the news media who would like to speak with or interview an employee or senior manager within the Office of the Pardon Attorney. Is that possible?

All media inquiries and interview requests should be routed to the Department’s Office of Public Affairs. The Office of Public Affairs is responsible for ensuring that the public and the media are informed about the Department’s activities and the priorities and policies of the Attorney General and the President regarding law enforcement and legal affairs, including the Departments role in the executive clemency process. Please visit their website at https://www.justice.gov/opa/contact-office or call them at (202) 514-2007.

Resources

nationalgeographic.com, “Why are U.S. presidents allowed to pardon anyone—even for treason?” By Erin Blakemore; brennancenter.org, “Presidential Pardon Power Explained.” By Lauren-Brooke Eisen, Hernandez D. Stoud and Josh Bell; brookings.edu, “Presidential pardons: Settled Law, unsettled issues, and a downside for Trump.” By Richard Lempert; law.cornell.edu, “Scope of the Pardon Power.”; scotusblog.com, “The Supreme Court and the president’s pardon power.” By Amy Howe; whitehousehistory.org, “The History of the Pardon Power: executive unilateralism in the constitution. ” By Colleen Shogan; justice.gov. “Frequently Asked Questions.”;