Jonah Patel
The US Constitution grants the President the authority to grant Reprieves and Pardons for Offenses against the United States in Article II, Section 2, Clause 1. This power, known as the prerogative of mercy, has its origins in English history, dating back to the seventh century. While it is broad, it is not limitless and is subject to constitutional constraints. The Supreme Court has interpreted this power as plenary, meaning it generally cannot be restricted by Congress. However, there are limitations, including that a crime must have been committed, it is limited to federal crimes, and the President may not pardon in cases of impeachment. The pardon power has been a source of controversy, with some arguing that certain pardons violate core constitutional provisions and amount to abuses of power.
| Characteristics | Values |
|---|---|
| Basis | Article II, Section 2, Clause 1 of the U.S. Constitution |
| Power | Broad but limited |
| Purpose | Justice, mercy, and public welfare |
| Limitations | Cannot be used for self-dealing, self-protection, or other bad faith, personal reasons |
| Applicable cases | Offenses against the United States, except in cases of impeachment |
| Applicable recipients | Individuals, as well as several other forms of relief from criminal punishment |
| Requirements | A crime must have been committed; limited to federal crimes |
| Historical context | Influenced by English practice; first appeared during the reign of King Ine of Wessex in the seventh century |
| Notable examples | President Gerald Ford pardoned Richard Nixon for any possible crimes connected to the Watergate scandal; George Washington pardoned those involved in the Whiskey Rebellion in 1795 |
| Controversy | Self-pardons and self-protective pardons are considered abuses of power and violate core constitutional provisions |
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What You'll Learn
The constitutional basis for presidential pardons
The presidential pardon power is considered "plenary", meaning it is generally not restricted or modified by Congress or the judiciary. The US Supreme Court has interpreted this power broadly, including the ability to grant conditional pardons, commutations of sentences, remissions of fines and forfeitures, and amnesties. A pardon is an executive order granting clemency for a conviction and may be issued at any time after the crime has been committed.
The framers of the Constitution deliberately separated the judicial function of government from the pardon power, addressing concerns that the power of judging and pardoning should not be held by the same person or entity. The pardon power in the US Constitution is influenced by English legal history, known as the "prerogative of mercy", which dates back to the reign of King Ine of Wessex in the seventh century.
While the pardon power is robust, there are limitations. Firstly, a crime must have been committed for a pardon to be issued. Secondly, the power only extends to federal crimes, not state or civil wrongs. Lastly, the President may not pardon in cases of impeachment. Certain types of pardons, such as self-pardons and self-protective pardons, are considered abuses of power as they violate the President's duty to faithfully execute the law and serve the public interest.
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Limitations and abuses of power
The presidential pardon power, though broad, is not without limitations. The most significant constraint is that the president can only pardon federal offences, and only in cases of criminal offences. State criminal offences and civil liabilities are not pardonable. This limitation is detailed in the Pardon Clause, which states that pardons may only extend to "Offenses against the United States".
The Supreme Court has also ruled that a pardon does not erase a conviction, but only the penalties and disabilities attendant on a conviction. For example, a pardoned individual would still have to answer "yes" when asked if they had ever been convicted of a crime.
Additionally, the right to reject a pardon is recognised, as accepting a pardon is considered a tacit admission of guilt. This right was asserted in the 1915 case of Burdick v. United States, where George Burdick refused a pardon from President Woodrow Wilson because accepting it would have prevented him from claiming his Fifth Amendment privilege when testifying about the pardoned crime.
The limitation on the president's pardon power that is most pertinent to abuses of power is the restriction on self-pardoning. Self-pardons are considered constitutionally suspect and illegitimate, as they place the president above the law and violate the due process principle that "no man is allowed to be a judge in his own case". Self-protective pardons, which impede investigations into the president or their interests, are also considered a form of self-pardoning.
Despite these limitations, there have been several instances of controversial and questionable pardons granted by presidents, including Donald Trump and Bill Clinton. In one instance, Clinton pardoned financier Marc Rich, whose ex-spouse had donated to the Clinton Presidential Library and the Democratic Party. This pardon was investigated as a potential violation of federal bribery law, though Clinton was not indicted. Trump's pardons included a large number of well-connected individuals, such as convicted fraudsters Salomon Melgen and Steve Bannon, as well as disgraced members of Congress and his own allies.
To prevent and address abuses of the pardon power, each branch of the US government has a role to play. Congress can employ its oversight tools to investigate potentially unlawful pardons, subpoena documents and witness testimonies, and pass legislation to aid in its oversight. The judiciary, through the federal courts, can adjudicate the validity of pardons and void those that are unlawful. The Department of Justice can also investigate the use of pardons by presidents to potentially commit crimes, such as bribery.
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Self-pardon and self-interest
The presidential pardon power is considered "plenary" and unlimited, and it is based on Article II, Section 2, Clause 1 of the U.S. Constitution. This grants the president the power to grant Reprieves and Pardons for Offenses against the United States, except in cases of impeachment.
However, the question of self-pardon remains unresolved. While some argue that a self-pardon would be legal, others disagree, stating that it would violate the president's duty to faithfully execute the law, as prescribed by the Constitution's Take Care Clause and Oath Clause. The latter argument asserts that the president's powers should be exercised in the public interest, not for "self-dealing, self-protection, or other bad faith, personal reasons".
The issue of self-pardon gained prominence during the Watergate scandal, when President Nixon's lawyer suggested that a self-pardon would be legal. However, the Office of Legal Counsel (OLC) issued an opinion concluding that a president may not self-pardon, based on the principle that "no one may be a judge in his own case". This principle, articulated by James Madison, has been invoked by the Supreme Court to prevent gross conflicts of interest among public officials.
Former President Donald Trump has claimed that the presidential pardon power is "complete" and free from limitations, even suggesting that he could pardon himself. Trump's use of pardons has been criticised as abuses of power, with a Washington Post investigation concluding that he used his clemency powers to further his own political efforts and grant pardons to white-collar criminals who provided political and financial support.
In summary, while the presidential pardon power is broad, the question of self-pardon remains a contentious and unresolved legal issue. The potential for self-pardon and self-interest in the use of pardons highlights the importance of constitutional constraints and the duty of the president to act in the public's interest.
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Historical precedent and evolution
The pardon power of the president is based on Article II, Section 2, Clause 1 of the U.S. Constitution, which grants the president the authority to "grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment". The framers of the Constitution were influenced by English practices, which previously referred to the "prerogative of mercy".
The origins of the pardon power can be traced back to the seventh century during the reign of King Ine of Wessex. While abuses of this power increased over time, leading to limitations, it persisted through the American colonial period. By the 18th century, the power had been restricted by parliament to address potential abuses, but it retained its broad application in the American colonies.
The first presidential pardon was issued by George Washington in 1795 after the Whiskey Rebellion in western Pennsylvania. The most famous presidential pardon was granted by President Gerald Ford to Richard Nixon for any crimes Nixon might have committed during the Watergate scandal, even though Nixon was neither charged with nor convicted of federal crimes. Other notable pardons include President George H.W. Bush's pardoning of former Defense Secretary Caspar Weinberger and former CIA official Duane Clarridge in 1992 before they were tried on Iran-Contra Affair charges.
More recently, questions have arisen about pardons issued by Presidents Barack Obama, George W. Bush, and Donald Trump. For example, President Trump granted pardons to financier Michael Milken and former New York City police chief Bernard Kerik, among others. Trump's pardons have been particularly controversial, with some arguing that he twisted a power intended to serve the public interest into a tool for self-dealing.
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Supreme Court interpretations
The U.S. Supreme Court has interpreted the pardon power as including the authority to grant pardons, conditional pardons, commutations of sentence, conditional commutations of sentence, remissions of fines and forfeitures, respites, and amnesties. The pardon power is considered plenary and thus generally cannot be restricted or modified by Congress or the judiciary.
In Ex parte Garland (1867), the U.S. Supreme Court confirmed the “unlimited" nature of federal pardons (except for impeachment cases) and broadened its scope to include offenses for which legal proceedings have not been initiated. In Burdick v. United States (1915), the Supreme Court held that a pardon does not take effect if the defendant does not accept it. The Court wrote:
> It is to be borne in mind ... that the power of the President under the Constitution to grant pardons and the [Fifth Amendment] right of a witness must be kept in accommodation. Both have sanction in the Constitution, and it should, therefore, be the anxiety of the law to preserve both, to leave to each its proper place.
The Supreme Court has also ruled that the pardon power is intended as a tool for justice and mercy (an "act of grace") and to further "the public welfare." Former Supreme Court Chief Justice and President Howard Taft reflected that " [t]he only rule he [a president] can follow is that he shall not exercise it against the public interest."
The Court has also ruled that the President cannot pardon himself, as this would violate the principle that “no man is allowed to be a judge in his own case, because his interest would certainly bias his judgment." Self-pardons would also violate the central constitutional principle that the U.S. is "a government of laws, not of men," and that no president is "above the law."
In Ex parte Grossman (1925), the Supreme Court indicated that a hypothetical effort by the President to deprive a court of the power to enforce its orders through successive pardons would suggest a resort to impeachment.
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Frequently asked questions
Article II, Section 2 of the US Constitution states that the President has the authority to "grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment."
Yes, there are a few limitations. Firstly, a crime must have been committed for a pardon to be issued. Secondly, the President's power is limited to federal crimes, and they may not issue pardons in cases of impeachment.
The ability of a President to self-pardon is a matter of legal debate. Some constitutional scholars argue that it is not explicitly prevented in the Constitution, while others contend that a President cannot pardon themselves due to the legal precedent that no one may be a judge in their own case.
The concept of pardons has its origins in English history, previously known as the "prerogative of mercy". It first appeared during the reign of King Ine of Wessex in the seventh century. The framers of the US Constitution were influenced by this English practice.
