Malcolm Rivera
The U.S. Constitution grants the President the power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment. This power, which has its roots in English law, is broad but limited and has been interpreted by the Supreme Court as plenary, meaning it is generally not subject to congressional modification. The presidential pardon power has been used throughout history, but it has also been abused and controversially applied, leading to debates about its extent and limitations.
| Characteristics | Values |
|---|---|
| Extent of power | The pardon power is intended as a tool for justice and mercy (an “act of grace”) and to further “the public welfare.” |
| Limitations | The pardon power is not limitless and is subject to several express and structural constitutional constraints. |
| Scope | The pardon power includes the power to remit fines, penalties, and forfeitures but not fines imposed by a co-ordinate department of the government for contempt of its authority. |
| Historical context | The pardon power has roots in English law, where the Crown had an exclusive right to grant mercy regarding criminal punishment. |
| Impeachment | The president may not issue pardons in cases of impeachment. |
| Federal crimes | The president's power extends only to federal crimes, not state or civil wrongs. |
| Self-pardoning | The ability of a president to self-pardon is unclear and has never been attempted. |
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What You'll Learn
Historical context: English law and the American colonists
The presidential pardoning power has its origins in English law, previously known as the "prerogative of mercy". It first appeared during the reign of King Ine of Wessex in the seventh century.
The English Crown's authority to "alter and reduce punishments" was well-known to the framers of the US Constitution in 1787. The Supreme Court has looked to the legal principles underlying the English Crown's authority when interpreting the scope of the presidential pardoning power.
In English law, the king's pardon authority applied in the American colonies through delegation to colonial authorities before the American Revolution. Over time, abuses of the pardon power increased, leading to limitations on it. For example, a pardon could not impair certain rights of third parties, and, by an act of Parliament in 1701, pardons could not be pleaded to bar impeachment.
During the Constitutional Convention, Alexander Hamilton included a pardon power vested in an "Executive authority" in his suggested amendments to the Virginia plan. The first report of the Committee of Detail included a proposed provision giving the President the power to grant reprieves and pardons, with the exception that a pardon would "not be pleadable in bar of an impeachment".
The impeachment exception was added to the Constitution without noted discussion, supplanting proposed language that more closely mirrored the English limitation on pardons. James Iredell, in a pamphlet published during the ratification debates, noted that the king "may pardon after conviction, even on an impeachment; which is an authority not given to our President, who in case of impeachments has no power either of pardoning or reprieving".
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The US Constitution: Presidential powers and limitations
The US Constitution grants the President "executive clemency powers", which include the power to grant reprieves and pardons for federal offences against the United States. This power is derived from Article II, Section 2 of the Constitution, which states that the President has the authority to “grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment".
The presidential pardon power has its roots in English law, where the Crown had the exclusive right to grant mercy regarding criminal punishment. The Framers of the US Constitution debated the extent and limits of this power during the Constitutional Convention in 1789, with Alexander Hamilton arguing that the executive branch should wield pardon power over all criminal offences.
The Supreme Court has interpreted the pardon power as "plenary", meaning it is considerably broad and not generally subject to congressional modification. However, the power is not limitless and is subject to constitutional constraints. For example, the President may not pardon state criminal offences or civil liabilities, and they may not pardon themselves or impede an investigation into themselves or their interests, as this would amount to a self-pardon.
The presidential pardon power has been the subject of controversy and abuse. For example, President Trump was criticised for granting a record number of pardons to white-collar criminals, who went on to provide political and financial support for him. Another example is when President Bill Clinton pardoned Marc Rich in 2001, which some believed could be a quid pro quo for donations, leading to an investigation by federal prosecutors.
In conclusion, the US Constitution grants the President broad powers to grant reprieves and pardons, but these powers are limited to federal offences and are subject to constitutional constraints to prevent abuses of power.
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Supreme Court rulings: Interpreting the pardon power
The U.S. Constitution gives the president the power to "grant Reprieves and Pardons for Offenses against the United States, except in Cases of impeachment." The Supreme Court has interpreted this provision broadly, holding that the president's pardon power is unlimited and covers all federal offences. This power has been rarely challenged in the Supreme Court, but certain aspects are well-established and unlikely to be revisited.
The Supreme Court has ruled that the president can exercise the pardon power at any time, even before legal proceedings start or the prosecutor knows of the crime. In Ex parte Garland, the Court indicated that the president can pardon at any point after a crime is committed and before, during, or after criminal proceedings. However, the president cannot pardon someone for future crimes. A pardon covers both the offender's conviction and sentence for a crime, but it does not erase the conviction from their record.
The Court has also clarified that pardons only apply to federal offences and do not preclude civil actions. In Biddle v. Perovich, the Court held that commutations, unlike pardons, may not be refused. In Burdick v. United States, the Court addressed the effect of an unaccepted pardon, ruling that a pardon only becomes effective if it is accepted.
While the Supreme Court has affirmed the president's broad pardon power, it has not addressed the possibility of self-pardons. This issue has been broached during several presidencies, but no court has taken it on, and it remains unresolved. Some argue that a self-pardon is not off-limits, while others contend that it contradicts the president's duty to faithfully execute the laws.
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Controversial pardons: Examples and implications
The US Constitution grants the president the power to issue pardons, but this power is not limitless. Pardons are intended as a tool for justice and mercy and to further "the public welfare". However, some presidents have abused this power, granting controversial pardons that have sparked public outrage and raised questions about the integrity of the pardon process.
One notable example of a controversial pardon is former President Donald Trump's pardon of Paul Manafort, his former campaign chairman. Manafort was convicted of bank and tax fraud. Trump's pardon of Manafort was seen as an abuse of power, as it was believed to be a reward for Manafort's loyalty and support of the president. This pattern of "patronage pardoning" continued, with Trump pardoning numerous individuals connected to him politically or financially, including Republican officials, wealthy donors, and even rioters involved in the January 6 attack on the US Capitol. These pardons sent a message of a two-tiered justice system, where accountability for the wealthy and well-connected is different from that of ordinary citizens.
Another controversial pardon in US history was issued by President Gerald Ford to former President Richard Nixon in 1974. Nixon was facing official misconduct charges related to the Watergate scandal. Ford's pardon of Nixon was widely disapproved of by the American public, and his approval ratings suffered as a result.
Andrew Johnson's pardons of thousands of former Confederate officials and military personnel after the American Civil War were also highly controversial. Johnson's successor, Abraham Lincoln, had used clemency during the Civil War to encourage desertions from the Confederacy. Johnson's pardons were seen as sweeping and indiscriminate, and they sparked outrage and criticism.
These examples highlight the potential for abuse of power when it comes to presidential pardoning authority. While the pardon power is intended to serve justice and mercy, it can be twisted to serve personal and political interests, undermining the very principles it aims to uphold.
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Checks and balances: Congressional oversight
The US Constitution vests the president with the power "to grant Reprieves and Pardons" for federal crimes, except in cases of impeachment. This power is not limitless and is subject to checks and balances by the other branches of government.
Congressional oversight plays a crucial role in checking the president's pardon power. Congress has the authority to investigate, impeach, and remove a president from office for abuse of the pardon power. For example, in the articles of impeachment against President Richard Nixon, the US House cited his efforts to obstruct justice by offering pardons to potential Watergate witnesses.
Congress can also pass legislation to address concerns about the pardon power. For instance, the Protecting Our Democracy Act, passed by the US House during the 117th Congress and re-introduced in the 118th Congress, includes reforms to improve congressional oversight over pardon matters. Additionally, Congress can propose constitutional amendments, such as providing a mechanism for congressional disapproval of pardons.
The judiciary, particularly the federal courts, also plays a role in checking the pardon power. The Supreme Court has addressed questions regarding the scope of the pardon power, including its applicability to contempt of court and contempt of Congress. For example, in the 1885 case The Laura, the Court recognized that the pardon power includes the power to remit fines and penalties but noted an exception for fines imposed by a coordinate department of the government for contempt of its authority.
The executive branch itself can also investigate criminal abuses surrounding the exercise of the pardon power. For instance, a grand jury was empaneled to investigate the Marc Rich pardon during the Clinton administration, which some believed could be a quid pro quo for donations.
In conclusion, while the president has broad power to grant pardons, this power is not unlimited and is subject to checks and balances by Congress, the judiciary, and the executive branch itself to prevent its abuse. Congressional oversight is a critical component of this process, ensuring that the pardon power is exercised in the public interest and within the constraints of the Constitution.
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Frequently asked questions
The presidential pardoning power extends to federal crimes, but not state or civil wrongs. The President may grant reprieves and pardons for offences against the United States, except in cases of impeachment.
The presidential pardoning power is not limitless and is subject to constitutional constraints. There are three main limitations: firstly, a crime must have been committed for a pardon to be issued; secondly, the power is limited to federal crimes; and lastly, the president may not issue pardons in cases of impeachment.
There is no clear consensus on whether a president can issue a self-pardon. Some constitutional scholars argue that it is not explicitly prevented in the Constitution, while others contend that a president cannot pardon themselves as no one may be a judge in their own case.
One controversial use of the presidential pardoning power was Andrew Johnson's pardon of Jefferson Davis, the former president of the Confederacy, in 1868. Another example is when President Bill Clinton pardoned Marc Rich in 2001, which some believed could be a quid pro quo for donations.
