Malcolm Rivera
The pardon power is a constitutional authority granted to the President of the United States, enabling them to grant reprieves, pardons, and clemency for federal offences, except in cases of impeachment. The framers of the Constitution deliberately separated the judicial function from pardon power, addressing concerns that the power of judging and pardoning should not be held by the same entity. The pardon power has its roots in early English law, known as the prerogative of mercy, which permitted the monarch to provide alternatives to death sentences. While the President's pardon power is considered broad and not generally subject to congressional modification, it is not unlimited and does not extend to state or civil wrongdoings.
| Characteristics | Values |
|---|---|
| Purpose | Justice and mercy (an "act of grace") and to further "the public welfare" |
| Origin | English history, previously known as the "prerogative of mercy" |
| Limitations | A crime must have been committed, it is limited to federal crimes, and it cannot be issued in cases of impeachment |
| Legislative role | The legislature should not have a role in the pardon process due to the constitutional separation of powers |
| Impeachment exception | The president cannot pardon someone involved in the crimes for which the president is being impeached |
| Unilateralism | The framers of the Constitution deliberately separated the judicial function of government from the pardon power |
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What You'll Learn
The power's historical roots in English law
The pardon power in the United States Constitution has its historical roots 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 royal prerogative of mercy allowed judges and ministers to exercise mercy and mitigate the rigour of the law. This was especially important before the establishment of a general form of criminal appeal. A judge could grant a pardon if they believed the law was unduly harsh or if they felt merciful towards the defendant.
The Indemnity and Oblivion Act of 1660 was a general pardon for those who committed crimes during the English Civil War and Interregnum, with exceptions for regicides and serious crimes. Over time, abuses of the pardon power increased, leading to limitations on its use. However, the power persisted through the American colonial period.
Alexander Hamilton introduced the concept of pardon power at the Constitutional Convention, and there was debate about whether Congress should have a role in the pardon process. The framers of the Constitution deliberately separated the judicial function of government from the pardon power, addressing English jurist William Blackstone's concern that the powers of judging and pardoning should not be held by the same person or entity.
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The ability of a president to self-pardon
The ability of a president to pardon himself or herself, or self-pardon, is an unresolved issue. The Constitution does not explicitly prevent a president from issuing a self-pardon, and some constitutional scholars argue that the broad pardon power granted to the president in Article II does not restrict this.
However, others, including the Department of Justice, disagree with this interpretation. They argue that a president cannot be a judge in their own case, a legal principle established in Anglo-American law over three centuries ago. In 1974, 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. This opinion is not binding in the courts, and the Supreme Court has not ruled definitively on the issue.
The pardon power is considered "plenary," meaning it is considerably broad and generally cannot be restricted or modified by Congress or the judiciary. The Supreme Court has interpreted this power as allowing the president to grant pardons for offenses against the United States, except in cases of impeachment. The framers of the Constitution deliberately separated the judicial function of government from the pardon power to address concerns that the power of judging and pardoning should not be held by the same person or entity.
The president's pardon power has been used throughout history, with George Washington first exercising it in 1795 after the Whiskey Rebellion in Pennsylvania. 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 is limited to federal crimes. Lastly, the president may not pardon in cases of impeachment.
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The framers' intention to separate the judicial function of government from the pardon power
The framers of the US Constitution deliberately separated the judicial function of government from the pardon power. This was done to address the concern of English jurist William Blackstone that the powers of judging and pardoning should not be vested in the same person or entity. The framers also reasoned that pardoning subordinates for treason would subject the president to threats of impeachment and removal from office.
The pardon power is derived from English history, previously known as the "prerogative of mercy". It first appeared during the reign of King Ine of Wessex in the seventh century and persisted through the American colonial period. Alexander Hamilton introduced the concept of pardon power at the Constitutional Convention, and it was included in Article II, Section 2 of the US 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 framers of the Constitution intended to create a system of checks and balances, and the pardon power was seen as a check on the judiciary. According to Harvard Law School's Michael Klarman, "The criminal justice system might treat somebody too harshly [or] might make a mistake... You want some institutional actor to have the authority to show mercy." The framers also left the powers of the presidency relatively vague, allowing for future interpretation and redefinition.
While the pardon power is broad, there are limitations. Firstly, a crime must have been committed for a pardon to be issued. Secondly, the presidential pardon power is limited to federal crimes. Lastly, the president may not issue pardons in cases of impeachment. These limitations ensure that the pardon power does not place the president above the law or subvert other parts of the Constitution, including individual constitutional rights.
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The president's authority to grant clemency
The framers of the Constitution intentionally 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 entity. The Constitution also establishes that the President's authority to grant clemency extends beyond pardons to include other forms of relief from criminal punishment, such as amnesty, commutation, and reprieve. A pardon releases an individual from punishment and restores their civil liberties.
While the President's pardon power is broad, there are important limitations. Firstly, a crime must have been committed for a pardon to be issued. Secondly, the power is limited to federal crimes. Lastly, the President may not issue pardons in cases of impeachment. The possibility of presidential abuse of pardon power has been a concern, and it is considered that a threat to use this power may be grounds for impeachment.
Throughout history, the pardon power has been exercised by 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. In recent times, Donald Trump's use of the pardon power has been viewed as controversial, with some considering it an abuse of power.
The question of whether a president can pardon themselves, known as self-pardon, remains unresolved. While some constitutional scholars argue that it is not explicitly prevented by the Constitution, others contend that it violates the principle that no one may be a judge in their own case and that a president cannot pardon in relation to impeachment.
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The limitations of the pardon power
The presidential pardon power is broad but limited to granting "Reprieves and Pardons for Offenses against the United States". The limitations of the pardon power are:
- Federal crimes only: The pardon power is limited to federal crimes. State offenses are pardoned by state governors.
- Cannot pardon impeachment: The president may not issue pardons in cases of impeachment.
- A crime must have been committed: Pardons can only be issued for crimes that have already been committed and are known to the law.
- Cannot obstruct justice: Pardons cannot be used to obstruct justice or as part of a bribery scheme.
- Cannot pardon contempt of court: Pardoning an individual held in contempt of court would subvert a court's ability to enforce its orders.
- Cannot pardon future crimes: Pardons can only be issued for past crimes.
While the above limitations are clear, the question of whether a president can pardon themselves (a self-pardon) has been the subject of much debate and has never been attempted or addressed by the Supreme Court. Some argue that a self-pardon would contradict the president's constitutional duty to faithfully execute the laws and that no one is above the law. Others argue that there is no constitutional language preventing a self-pardon.
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Frequently asked questions
The pardon power in the US Constitution was influenced by English history, specifically the "prerogative of mercy" or "royal prerogative of mercy" that permitted the monarch to withdraw or alter punishments, especially death sentences. The pardon power was first observed during the reign of King Ine of Wessex in the seventh century.
The founding fathers were divided on the issue of pardon power. Alexander Hamilton defended pardon power, arguing that it should be "as little as possible fettered or embarrassed to ensure easy access to exceptions in favour of unfortunate guilt". He also maintained that locating the power solely with the President would lead to its most beneficial exercise. On the other hand, George Mason was deeply troubled by the possibility that the President of the United States might not always be someone of sound character and high intelligence, and that they might abuse the power to pardon. James Madison, while acknowledging the danger, pointed out that the House of Representatives could impeach the President if there were "grounds to believe" that he might "shelter" someone.
The President's pardon power is limited to federal crimes and does not extend to cases of impeachment.
There is no clear consensus among legal professionals concerning the constitutionality of the presidential self-pardon. Some constitutional scholars argue that the Constitution does not explicitly prevent such an action, while others contend that a president cannot pardon himself due to the established legal precedent that no one may be a judge in his own case.
