Gavin Howe
The US Constitution grants the President the power to pardon individuals for federal offenses committed against the United States and the District of Columbia. This power, rooted in English law, is subject to certain constraints, including cases of impeachment and state law violations. While the President's pardon authority is broad, it is not unlimited and can be checked by other branches of government. The legality of a presidential self-pardon remains unresolved, with legal scholars debating its constitutionality and implications for the separation of powers. Given the lack of historical precedent and judicial review, the full scope and legal implications of presidential pardons remain a subject of ongoing discussion and potential amendment.
| Characteristics | Values |
|---|---|
| Can the president pardon himself or herself? | The legal and constitutional ability of a president to pardon himself or herself is an unresolved issue. |
| Can the president pardon state law violations? | No, the president can only pardon federal offenses committed against the United States and the District of Columbia. |
| Can the president pardon treason? | Yes, but it requires the approval of the Senate. |
| Can the president pardon impeachment cases? | No, the pardon power does not extend to impeachment cases. |
| Can the president pardon without a public statement? | Yes, if the president does not issue a public statement, no explanation is provided by the Department of Justice. |
| Can the president pardon without it being a matter of public record? | No, the name of each person granted a pardon, along with the district they were convicted in, the year of sentencing, and the offense, is publicly listed on the Office of the Pardon Attorney website and may also be posted on The White House website. |
| Can the president's pardon power be modified by Congress? | The pardon power is considered plenary and thus generally cannot be restricted or modified by Congress or the judiciary. However, Congress has constitutional tools it may use in relation to the president's pardon authority, such as oversight, impeachment, and constitutional amendment. |
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What You'll Learn
Presidential self-pardons
The ability of a president to pardon themselves, or self-pardon, is a highly contested issue in the United States. The Office of Legal Counsel (OLC) issued an opinion in 1974, concluding that a president may not self-pardon, based on the principle that "no one may be a judge in his own case". This interpretation suggests that the president would first need to temporarily transfer power to the vice president, who could then issue the pardon. However, this scenario lacks legal analysis and is not considered authoritative.
Arguments against self-pardons centre around the themes of self-judging, the president being above the law, violations of public trust, and the inadequacy of political consequences as a safeguard. These arguments have been challenged, and the Supreme Court has affirmed the president's "unlimited" pardon power. As a result, a constitutional amendment or a Supreme Court decision is required to definitively settle the legality of self-pardons.
The Impeachment Disqualification Clause of Article I, Section III, and the requirement for the President to "take Care that the Laws be faithfully executed" in Article II, Section III, have been cited as potential preclusions to self-pardons. Additionally, the Due Process Clauses of the 5th and 14th Amendments may also be relevant in this context.
The pardon power is considered plenary, meaning it generally cannot be restricted or modified by Congress or the judiciary. This power has historical roots in early English law and was included in the 1787 Constitution with little debate. The Supreme Court's ruling in Ex parte Garland (1867) confirmed the “unlimited” nature of federal pardons, except in cases of impeachment. However, there remains uncertainty about the full scope and legal implications of federal pardons due to a lack of historical precedent.
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Historical precedent
The historical precedent for the presidential pardon law in the United States dates back to early English law and the power of the English king to pardon offences against the crown. This power, known as the "benign prerogative of mercy", was recognized by the Supreme Court as quite broad and has been a part of the US Constitution since the 1787 Constitutional Convention.
At the Convention, there was little debate about including a pardon power for the president. The Virginia and New Jersey plans, which concerned the structure of the new government, did not address pardons. Instead, most discussions focused on how and where presidential pardons could be exercised. Hamilton proposed amendments to the Virginia Plan, suggesting that pardon power should vest in an Executive authority for all offences except treason, which would require Senate approval. The Committee of Detail proposed allowing the president to grant "reprieves and pardons", with the exception of cases of impeachment, similar to English restrictions on royal pardons. Virginia delegate Edmund Randolph disagreed, arguing that pardons should extend to treasonous acts as well.
The US Supreme Court has issued rulings that affirmed the president's "unlimited" pardon power, except in cases of impeachment. In Ex parte Garland (1867), the Court confirmed the broad nature of federal pardons, extending to offenses for which legal proceedings have not been initiated. This was further emphasized in the 1886 case Ex parte Garland, where the Court referred to the President’s authority to pardon as "unlimited" except in cases of impeachment, encompassing all offences known to the law.
Despite the established nature of the presidential pardon power, there remains uncertainty about its full scope and legal implications due to a lack of historical precedent. The exact dimensions of this power are for the Supreme Court to determine, and certain aspects are so well-established that it is unlikely any Court will revisit them. However, the Court has shown a willingness to go beyond precedent in politically fraught cases.
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Constitutional constraints
The presidential pardon power has roots in English law, where the Crown had the exclusive right to grant mercy regarding criminal punishment. However, the American colonists believed that the Crown abused its pardon powers, and so when the US Constitution was drafted, the Framers debated the extent and limits of the pardon power.
The presidential power to grant clemency is relatively straightforward. The President of the United States may pardon anyone who commits a federal offence against the United States or the District of Columbia. The president cannot pardon violations of state laws. When the president grants a pardon, it erases any punishment and guilt of the pardoned person and restores their civil rights. However, a pardon does not remove an offence from a person's criminal record.
The pardon power is considered "plenary" and thus generally cannot be restricted or modified by Congress or the judiciary. The Supreme Court has ruled that the power is "unlimited", with the exception of impeachment cases. However, there are constitutional constraints on the pardon power from every branch of government. The Pardon Clause makes explicit that pardons may only extend to "Offences against the United States", and that they may not be granted for "Cases of Impeachment".
The Supreme Court has also ruled that the power to pardon cannot be used to prevent courts from enforcing orders protecting constitutional rights. For example, a pardon for an individual held in contempt of court would subvert a court's ability to enforce its orders.
The possibility of a president pardoning themselves (a self-pardon) has been raised, but this 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 as "no one may be a judge in his own case". Common arguments against self-pardons include the themes of self-judging, the unjust nature of the president being above the law, and violations of the public trust. Since the Supreme Court has issued constitutional rulings that affirmed the president's "unlimited" pardon power, a constitutional amendment or a Supreme Court decision would be required to settle the constitutionality of a self-pardon.
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Limits of pardon power
The U.S. President's pardon power is considered ""plenary" and ""unlimited", except in cases of impeachment. This means that the president cannot pardon an officeholder from being impeached or undo the effects of an impeachment and conviction. The pardon power is limited to federal offences only, and does not extend to violations of state laws.
The President is not bound by the formal procedures and guidelines in place for a pardon or commutation, and may issue clemency in accordance with the powers granted by the Constitution. The pardon power has been recognised by the Supreme Court as quite broad, and the Court has issued constitutional rulings that affirmed the President's "unlimited" pardon power.
Despite the breadth of the President's authority, there are at least two limits on the power. Firstly, clemency may only be granted for "Offenses against the United States", meaning that state criminal offences and federal or state civil claims are not covered. Secondly, the President's clemency authority cannot be used in cases of impeachment.
The legal and constitutional ability of a President to pardon themselves (self-pardon) is an unresolved issue. Common arguments against self-pardons include the themes of self-judging, self-dealing, and the unjust nature of the President being above the law. However, such arguments have been disputed, and a constitutional amendment or a Supreme Court decision would be required to settle the constitutionality of a self-pardon.
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Pardoning process
The pardoning process in the United States involves the President using their authority to grant clemency to individuals convicted of federal felony offences. This power is derived from the Constitution, which establishes the President's ability to grant pardons and other forms of relief from criminal punishment. The process is typically initiated by filing a clemency petition, and applicants are advised to contact the appropriate clemency authorities in their state to understand the specific procedures.
While the President's pardon power is considered plenary and cannot be restricted by Congress or the judiciary, it does not extend to self-pardons or violations of state laws. The legal and constitutional ability of a President to pardon themselves is an unresolved issue, with arguments both for and against. Some scholars suggest that self-pardons would be precluded by certain clauses in the Constitution, while others argue that the President's pardon power is "unlimited".
The pardoning process includes a thorough investigation of the applicant's post-conviction life, conducted by the Federal Bureau of Investigation. This may involve a background check to assess the applicant's recent or ongoing rehabilitative efforts. The Department of Justice generally does not accept applications for posthumous pardons or pardons for federal misdemeanour convictions, as they prioritise requests that have a more meaningful effect on the clemency recipient.
In other countries, the pardoning process may differ. For example, in Morocco, requests for pardons are examined by a commission that includes the Minister of Justice and representatives of the Supreme Court before being approved by the King. In Canada, the Parole Board is responsible for processing pardon applications, and the processing time depends on the nature of the offence.
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Frequently asked questions
No president has ever tried to pardon themselves, so it is unclear whether this would be allowed. However, many legal scholars argue that self-pardons would violate the Impeachment Disqualification Clause of Article I, Section III, and the Due Process Clauses of the 5th and 14th Amendments.
Yes, Congress has the power to amend presidential pardon law. However, this can only be done through a constitutional amendment, and the legal conditions associated with these tools must be met.
Presidential pardon power is considered plenary, meaning it cannot generally be restricted or modified by Congress or the judiciary. However, it is subject to constitutional constraints from every branch of government and does not extend to violations of state laws or cases of impeachment.
To grant a pardon, the President must submit a request to the Office of the Pardon Attorney. The name of each person granted a pardon, along with information about their conviction, is publicly listed on the Office of the Pardon Attorney website and may also be included in press releases.
