Eleanor Finch
The pardon power of the president is based on Article II, Section 2, Clause 1 of the U.S. Constitution. The pardon power has historical roots in early English law, and the Supreme Court has interpreted the provision to include the power 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. While the presidential pardon power is expansive, it is not, according to federal courts, limitless. In practice, as president, Trump also supercharged abuses of the pardon power, twisting a power intended to serve the public interest into a tool for self-dealing.
| Characteristics | Values |
|---|---|
| Source of pardon power | Article II, Section 2, Clause 1 of the U.S. Constitution |
| Who has the power | The President |
| Extent of power | Broad but limited |
| Limitations | Clemency may only be granted for "Offenses against the United States"; cannot be used in "Cases of impeachment"; cannot pardon by anticipation; cannot preemptively immunize future criminal conduct; cannot aggravate punishment; cannot affect vested rights of third parties |
| Historical roots | Early English law; ancient Jewish, Greek, and Roman legal principles and practices |
| Purpose | Justice and mercy ("an act of grace"); to further "'the public welfare'" |
| Notable examples | Gerald Ford's pardon of Richard Nixon; Washington in 1795; Adams in 1800; Madison in 1815; Lincoln in 1863; Johnson in 1865, 1867, and 1868; Theodore Roosevelt in 1902 |
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What You'll Learn
The pardon power is considered plenary
The Supreme Court has interpreted this power as plenary, meaning it is not limited to specific offences and can be exercised at any stage of legal proceedings, including before, during, or after conviction and judgment. In the 1886 case of Ex parte Garland, the Court referred to the President's authority to pardon as unlimited, except in cases of impeachment. The Court's ruling in this case set a precedent for the broad interpretation of the pardon power, which was further affirmed in United States v. Klein (1871).
The plenary nature of the pardon power gives the President the authority to 'forgive' a convicted person in part or entirely, reduce a penalty, or alter it with certain conditions. This power extends to all federal criminal offenses and various forms of clemency, such as commuting or postponing a sentence, remitting a fine or restitution, and providing amnesty to a group or class of individuals. However, it is important to note that the President's pardon power does not apply to state or civil wrongs and is limited to offenses against the United States.
While the pardon power is considered plenary, there are some limitations and checks in place. For example, the President cannot pardon in cases of impeachment, as this would interfere with the constitutional process of holding officeholders accountable. Additionally, the President's pardon power is subject to oversight and constitutional tools, such as congressional oversight and the potential for impeachment. The Supreme Court has also ruled that a pardon must be accepted by the intended recipient to be officially recognized, as seen in the case of United States v. Wilson (1833).
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The US Constitution's pardon power originated from English tradition
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." This power has its origins in English tradition, dating back to the reign of King Ine of Wessex in the seventh century, where it was known as the "prerogative of mercy".
The historical roots of the pardon power can be traced to early English law, where the king had the authority to pardon contempts of court, crimes, and misdemeanors. This power was recognized as broad and unlimited, except in cases of impeachment. The framers of the U.S. Constitution deliberately separated the judicial function from the pardon power, addressing concerns that the power of judging and pardoning should not be held by the same person or entity.
The U.S. Constitution establishes the president's authority to grant clemency, which includes not only pardoning individuals but also providing relief from criminal punishment. This power extends to all federal criminal offenses and entails various forms of clemency, such as commuting or postponing sentences, remitting fines, and granting amnesty. The president's pardon power is considered "plenary," meaning it generally cannot be restricted or modified by Congress or the judiciary.
However, there are a few limitations to the president's pardon power. 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 cannot pardon in cases of impeachment, as this would subject the president to threats of impeachment and removal from office.
Throughout history, the pardon power has been exercised by various presidents, including George Washington, Thomas Jefferson, Abraham Lincoln, and Andrew Johnson, whose pardon of Jefferson Davis, the former president of the Confederacy, was particularly controversial.
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Limitations of the pardon power
Article II, Section 2 of the US Constitution grants the president broad but limited power "to grant Reprieves and Pardons for Offences against the United States". This power is not limitless and is subject to several express and structural constitutional constraints.
Firstly, the pardon power is limited to federal crimes or "offences against the United States", excluding state criminal offenses and civil liability. This limitation is explicitly stated in the Pardon Clause, which also specifies that pardons may not be granted in "Cases of Impeachment".
Secondly, certain types of pardons would violate the president's duty to faithfully execute the law as outlined in the Constitution's Take Care Clause and Oath Clause. These include self-pardons and self-protective pardons, which would place the president above the law and impede investigations, constituting abuses of power.
Additionally, the pardon power cannot be used to pardon a crime that has not yet been committed. While this has not been tested in court, it is generally understood that the power to pardon does not extend to future crimes.
Furthermore, while there is debate over the extent of congressional oversight, Congress does possess constitutional tools to check the president's pardon authority, such as oversight, impeachment, and constitutional amendment.
Finally, the pardon power is intended to serve the public interest and further "the public welfare". Abuses of this power, such as granting pardons to political allies or using it as a political weapon, violate the purpose of the pardon power as articulated by federal courts.
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Self-pardon and self-protective pardon
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 President's power to pardon extends only to offences against the United States, meaning federal crimes but not state or civil wrongs.
The legal and constitutional ability of a president to pardon himself or herself (self-pardon) is an unresolved issue. During the Watergate scandal, Nixon's lawyer suggested that a self-pardon would be legal, but the Office of Legal Counsel (OLC) issued an opinion that concluded that a President may not self-pardon. The OLC memo concluded that no one may be a judge in their own case, and a self-pardon would violate the president's duty to faithfully execute the law as prescribed by the Constitution's Take Care Clause and Oath Clause. A self-pardon would also violate the central constitutional principle that the US is "a government of laws, not of men", and that the president is not above the law.
A self-protective pardon is a pardon that has the intent and effect of impeding an investigation into a president or their interests, and would thus amount to a self-pardon. Such a pardon would violate the president's duty to defend the Constitution against domestic enemies as required by their oath of office. It would also serve the president’s personal interests, violating their duty to execute presidential powers on behalf of the public interest, not as a means of self-protection.
Common arguments against self-pardons include the themes of self-judging and self-dealing, the unjust nature of the president being above the law, violations of the public trust, the inclusion of the word "grant" in the relevant clause, the definition of "pardon", and the inadequacy of other safeguards. Laurence Tribe, Richard Painter, and Norm Eisen have suggested that presidential self-pardons are precluded by the Impeachment Disqualification Clause of Article I, Section III. Meanwhile, Philip Bobbitt and other legal scholars have suggested that self-pardons would be precluded by the requirement that the President "shall take Care that the Laws be faithfully executed" in Article II, Section III, or by the Due Process Clauses of the 5th and 14th Amendments.
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Presidential abuses of the pardon power
Despite these constraints, presidents have abused the pardon power in several instances. One notable example is President Gerald Ford's pardon of Richard Nixon, who resigned from the presidency due to the Watergate scandal. By pardoning Nixon, Ford prevented him from facing criminal charges related to his time in office. Another controversial pardon involved President Bill Clinton's pardon of Marc Rich, a fugitive from justice who was indicted for fraud and tax evasion. Rich's former wife had donated to Clinton's foundation and her Senate campaign, raising questions about potential influence-peddling.
More recently, President Donald Trump has been criticised for granting questionable pardons to his friends, family, and political allies. On his final day in office, Trump pardoned 74 people, including Steve Bannon, who was indicted for fraud, and Salomon Melgen, convicted of defrauding Medicare. Trump also pardoned four employees of the Blackwater security firm, convicted of murder for killing 14 unarmed civilians in Iraq. Trump's actions have brought attention to the need for reform and constraints on the pardon power.
Legal analysts and members of Congress have proposed various solutions to prevent and address abuses of the pardon power. One proposal includes barring pardons for oneself, family, and close advisers, as well as for actions that personally benefit the president. Congress could also increase oversight, impose transparency and reporting requirements, and expand laws criminalising bribery and public corruption associated with pardons.
While there are no easy solutions to curb presidential abuses of the pardon power, it is clear that this constitutional authority requires careful scrutiny and consideration to ensure it is used appropriately and in the public interest.
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Frequently asked questions
The pardon power of the president is based on Article II, Section 2, Clause 1 of the U.S. Constitution.
The pardon power allows the president to grant reprieves and pardons for offences against the United States, except in cases of impeachment.
The pardon power has historical roots in early English law, specifically the "royal prerogative of mercy" which permitted the monarch to withdraw or provide alternatives to death sentences.
No, the pardon power only applies to federal crimes, not state or civil wrongs.
