Omar Bennett
Article II of the United States Constitution outlines the powers of the president and the executive branch, including the power to grant reprieves and pardons for federal offenses, except in cases of impeachment. This power, known as executive clemency, has its roots in English law, where the Crown had the exclusive right to grant mercy regarding criminal punishment. The presidential pardon power has been a topic of debate and interpretation by the Supreme Court, with some questioning its constitutionality in certain cases, such as self-pardoning.
| Characteristics | Values |
|---|---|
| Article | II, Section 2, Clause 1 |
| Name | Pardon Clause |
| Power | Clemency, reprieves, pardons, and commutation of sentences |
| Limitations | Cannot pardon self, cannot pardon in cases of impeachment, cannot pardon state crimes, cannot pardon civil contempt |
| Scope | Federal crimes, offenses against the United States |
| Judicial Intervention | Supreme Court has ruled that presidential pardon power is "unlimited" and not subject to congressional modification |
| Historical Context | Originates from English common law, known as the "prerogative of mercy" |
| Notable Examples | Gerald Ford's pardon of Richard Nixon, Bill Clinton's clemency to 450+ people, George W. Bush's clemency to 200 people, Donald Trump's clemency to 237 people |
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What You'll Learn
Presidential self-pardons
The United States Constitution grants the President the authority to "grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment". This power is outlined in Article II, Section 2, Clause 1, also known as the Pardon Clause. The President's pardon power is considered plenary, meaning it is broad and not generally subject to congressional modification.
While the pardon power is robust, 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. Lastly, the President may not issue pardons in cases of impeachment.
The question of whether a President can grant a self-pardon is a matter of legal debate. Some constitutional scholars argue that the Constitution does not explicitly prevent a President from self-pardoning, given the minimal restrictions placed on the pardon power in Article II. Others contend that a President cannot pardon themselves due to the legal precedent that no one may be a judge in their own case, and because a President cannot issue a pardon in relation to impeachment. The Justice Department concluded in 1974 that the President did not have the constitutional power to issue a self-pardon, but this has never been tested in practice.
The issue of self-pardoning gained attention during the final days of the Trump administration, with many questioning whether President Trump would attempt to pardon himself. While Trump issued a significant number of pardons and commutations during his term, he did not ultimately grant himself a self-pardon.
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Presidential pardon limitations
The presidential pardon power is based on Article II, Section 2, Clause 1 of the U.S. Constitution, which states that the President has the authority to "grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment." The Supreme Court has interpreted this provision as granting the president broad and plenary power to grant pardons, commutations of sentence, and other forms of clemency. However, there are several limitations and restrictions on this power.
Firstly, a crime must have been committed for a pardon to be issued. This means that pre-emptive pardons can be issued for past or ongoing crimes, but not for future crimes. Secondly, the presidential pardon power is limited to federal crimes and does not extend to violations of state laws or civil actions. Thirdly, the president may not pardon themselves, as this would go against the legal precedent that no one may be a judge in their own case. Additionally, the president cannot issue pardons in cases of impeachment, as this would interfere with the judicial function of the government.
There have been concerns and debates about the potential abuse of pardon power, especially in cases where pardons are granted to the president's friends, family, or administration officials. In response, Congressman Steve Cohen has repeatedly introduced a Constitutional Amendment to clarify and limit the president's pardon power, prohibiting self-pardons and pardons for specific individuals and crimes.
Furthermore, while pardons can erase the penalties and some disabilities attendant on a conviction, they do not erase the conviction itself. This means that a pardoned individual may still have to disclose their conviction in certain situations. Additionally, accepting a pardon is considered a tacit admission of guilt, and individuals have the right to reject a pardon if they so choose.
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Historical context of pardons
The power of presidential pardons in the US Constitution has its roots 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.
Alexander Hamilton introduced the concept of pardon power at the 1787 Constitutional Convention, defended in The Federalist Papers, particularly in Federalist No. 74. Hamilton argued that placing power solely with the President would lead to its most beneficial exercise, as a single person would be a more eligible dispenser of the mercy of the government than a group of people.
The framers of the Constitution deliberately separated the judicial function of government from the pardon power, addressing the concern of 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.
The Constitution establishes the President's authority to grant clemency, encompassing not only pardons of individuals but several other forms of relief from criminal punishment. The US Supreme Court has interpreted this power as "plenary", meaning it 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. However, there are three important limitations on pardon power: 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.
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. Andrew Johnson's pardon of Jefferson Davis, the former president of the Confederacy, in 1868, was perhaps the most controversial pardon to date.
In the 20th century, Warren G. Harding's commutation of 24 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 of pension fund fraud and jury tampering. In 2021, newly inaugurated president Donald Trump pardoned close to 1,600 persons accused and convicted of illegal actions on January 6, bypassing input from the US Office of the Pardon Attorney.
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Supreme Court cases
The US Constitution establishes the President's authority to grant clemency, encompassing pardons of individuals and other forms of relief from criminal punishment. This power is derived from Article II, Section 2, Clause 1, of the Constitution, also known as the Pardon Clause. While the President's pardon power is broad, there are three key limitations: a crime must have been committed, it is limited to federal crimes, and pardons cannot be issued in cases of impeachment.
The Supreme Court has interpreted the pardon power as "plenary," meaning it is not generally subject to congressional modification. In Ex parte Garland (1866) and United States v. Klein (1871), the Court affirmed that legislation could not restrict the President's pardon authority. The Ex parte Garland decision clarified that Congress cannot intervene in the pardon process, stating that the President's "prerogative of mercy" cannot be limited or restricted by legislative action.
In Schick v. Reed, the Court recognized that the President's exercise of clemency may include any condition that does not violate the Constitution. This suggests that the President cannot make clemency subject to a condition prohibited by another constitutional provision. Additionally, clemency cannot affect the vested rights of third parties or certain proceeds paid into the treasury.
In Burdick v. United States (1915), the Supreme Court held that a pardoned person must introduce the pardon into court proceedings for it to be valid. The Court also stated that formal acceptance of the pardon is not necessary for it to take effect. However, if a pardon is rejected, it cannot be forced upon the individual. The Court's opinion in this case suggested that a pardon implies guilt and acceptance of a confession, but this issue remains disputed.
The question of whether a President can self-pardon is unresolved. Some constitutional scholars argue that it is not explicitly prohibited, while others contend that it is invalid due to established legal precedents and the restriction on pardons related to impeachment. The Justice Department concluded during the Nixon presidency that the President does not have the constitutional power to self-pardon.
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Congress's role in pardons
The Constitution establishes the President’s authority to grant clemency, encompassing not only pardons of individuals but several other forms of relief from criminal punishment as well. This power, which has historical roots in early English law, has been recognized by the Supreme Court as quite broad. In the 1886 case Ex parte Garland, the Court referred to the President’s authority to pardon as unlimited except in cases of impeachment, extending to every offence known to the law and able to be exercised either before legal proceedings are taken, or during their pendency, or after conviction and judgment.
However, Congress does have a role to play in the process. Congress has invoked its Article I authority to conduct oversight as a more indirect constraint on the use of the pardon power. In the past, the Department of Justice has taken the position that instances of Executive Branch compliance with congressional requests for information regarding pardon decisions have been purely voluntary and are not indicative of congressional authority to review clemency decisions. Nevertheless, Congress has other constitutional tools that it may use in relation to the President’s pardon authority, provided the legal conditions associated with those tools are met, such as oversight, impeachment, and constitutional amendment. For example, in 1974, Congress proposed a constitutional amendment to provide a mechanism for congressional disapproval of pardons.
Beyond this, there is historical precedent for Congress facilitating the exercise of the pardon power by funding positions in the Department of Justice to assist in considering clemency petitions. In a concurring opinion in an otherwise-unrelated 1990 Supreme Court decision, Justice Byron White noted that statutory appropriation restrictions may fall if they encroach on the powers reserved to another branch of the Federal Government, giving the example of Congress impairing the President’s pardon power by denying him appropriations for pen and paper.
Finally, while it is not a direct check on the pardon power, the Supreme Court has alluded to the possibility of impeachment as a check on the misuse of the power.
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Frequently asked questions
Article II, Section 2, Clause 1 of the US Constitution, also known as the Pardon Clause, states that the President has the authority to "grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment."
Firstly, a crime must have been committed for a pardon to be issued. Secondly, the President's power is limited to federal crimes. Lastly, the President may not issue pardons in cases of impeachment.
The US Constitution does not explicitly prevent a President from pardoning himself, and no US President has ever attempted to do so. However, some legal scholars argue that a President cannot pardon himself due to the established legal precedent that no one may be a judge in their own case, and because it would imply that the President is above the law.
