How does the president grant pardons under the Constitution?
With the end of Donald Trump’s term set for January 20, much attention will be focused on the outgoing president’s final pardons issued from the White House. Just who can the president pardon? And could a president grant a self-pardon?
According to the Justice Department, President Trump has issued pardons and granted clemency to more than 90 people since 2017. Among the most recent recipients were former Trump campaign manager Paul Manafort, former campaign advisor Roger Stone, and former National Security Advisor Michael Flynn.
In recent years, questions have arisen about pardons issued by outgoing presidents. Prominent examples included President Barack Obama’s commutation of a jail sentence for Wikileaks figure Chelsea Manning; President Bill Clinton’s pardon of his own brother, Roger (who had served a one-year jail sentence on a drug conviction); and President Ronald Reagan’s pardon of New York Yankees owner George Steinbrenner for charges related to illegal campaign contributions made to Nixon’s 1972 reelection campaign. Each act of clemency was met with some public criticism of the presidential pardon power.
Even the question of a presidential self-pardon was considered briefly during President Richard Nixon’s final days in office.
Here is a brief explanation of the president’s clemency powers, and a look at some past cases and controversies.
The president has pardon or clemency power under Article II, Section 2, Clause 1, of the Constitution, under the Pardon Clause. The clause says the president “shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” While the president’s powers to pardon seem unlimited, a presidential pardon can only be issued for a federal crime, and pardons cannot be issued for impeachment cases tried and convicted by Congress.
Related Podcast: Can the President Pardon Himself? (With Brian Kalt and Saikrishna Prakash)
The Office of the Pardon Attorney, which is part of the Justice Department, has handled such matters for the president since 1893, and it has a detailed description of the pardon and clemency process on its website.
Types of Pardons
The Congressional Research Service’s January 2020 report on presidential pardon powers lists five types of clemency that fall under the president’s powers. A full pardon relieves a person of wrongdoing and restores any civil rights lost. Amnesty is similar to a full pardon and applies to groups or communities of people. A commutation reduces a sentence from a federal court. A president can also remit fines and forfeitures and issue a reprieve during a sentencing process.
The CRS says the courts and Congress have a limited role in the pardon process. In a 1974 decision of the U.S. District Court for the District of Columbia, Hoffa v. Saxbe, the court said the president has “unfettered executive discretion” to grant clemency. The Hoffa case involved conditions placed by President Richard Nixon on a commuted sentence for the former Teamster’s leader, Jimmy Hoffa, barring him from resuming a union leadership position. Hoffa argued the stipulation violated his First Amendment rights. Judge John H. Pratt said the stipulations were reasonable.
President Nixon was also involved in perhaps the most famous presidential pardon, when President Gerald Ford pardoned Nixon for any crimes Nixon might have committed during the Watergate scandal, even though Nixon wasn’t charged with or convicted of federal crimes. (This is known as a pre-emptive pardon.)
Nixon was able to receive a pardon under the precedent of the 1866 Supreme Court’s decision in Ex parte Garland, which allowed for a pardon granted by President Andrew Johnson to remain in force for a former Confederate politician. As Justice Field wrote in his majority opinion, “The [pardon] power . . . extends to every offence known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken or during their pendency or after conviction and judgment.” Other notable pre-emptive pardons include President George H.W. Bush’s pardons of former Defense Secretary Caspar Weinberger and former CIA official Duane Clarridge in late 1992 before they were tried on Iran-contra Affair charges.
The Ex parte Garland decision also made it clear that Congress did not have the power to intervene in the presidential pardon process. “Congress can neither limit the effect of his pardon, nor exclude from its exercise any class of offenders. The benign prerogative of mercy reposed in him cannot be fettered by any legislative restrictions,” said Justice Field.
Presidential Self-Pardons
The theoretical question about the presidential self-pardon goes back to the Nixon and Clinton presidencies (but not the Andrew Johnson era), and there are competing theories about its constitutionality.
Legal scholar Brian Kalt wrote extensively about this subject in the 1990s during the Clinton era. (Kalt is also one of the contributing scholars to the National Constitution Center’s Interactive Constitution project.) Kalt said the concept was indirectly debated at the 1787 Constitutional Convention in Philadelphia. James Wilson argued that the Pardon and Impeachment Clauses, which were eventually approved, provided that if “[the President] be himself a party to the guilt he can be impeached and prosecuted.”
The exact question of self-pardoning wasn’t directly addressed at the Convention. “As such, arguments derived from the intent of the Framers are speculative at best,” Kalt said. "There are two likely possibilities: Self-pardons either were not considered, or their invalidity was silently presumed. A third possibility, that self-pardons were presumed valid, is less likely.”
Kalt believed based on precedent that the president doesn’t have self-pardoning powers. “The intent of the Framers, the words and themes of the Constitution they created, and the wisdom of the judges that have interpreted it all point to the same conclusion: Presidents cannot pardon themselves,” he concluded.
However, Judge Richard Posner, another widely cited legal authority, said in a 1999 book about the Clinton impeachment that the question was left open by the Founders. “It has generally been inferred from the breadth of the constitutional language that the president can indeed pardon himself,” Posner argued.
And Samuel Morison, a pardon attorney who specialized in that subject at the Justice Department, told the Washington Post in 2018 that a self-pardon could theoretically be done by a president. “My opinion is that in theory that he could. But then he would be potentially subject to impeachment for doing that,” Morison said. “There are no constraints defined in the Constitution itself that says he can’t do that.”
Kalt said Nixon reportedly asked for an internal legal opinion about the option of a self-pardon towards the end of his presidency. The president’s lawyers said he had the power to issue a self-pardon, but Nixon declined to do so.
But just before Nixon’s resignation, the Justice Department Office of Legal Council issued its own memo on the subject, on August 5, 1974. “Under the fundamental rule that no one may be a judge in his own case, the President cannot pardon himself,” said Mary C. Lawton, Acting Assistant Attorney General.
Lawton said that didn’t mean that a president couldn't find a way to receive a pardon and continue in office. “A different approach to the pardoning problem could be taken under Section 3 of the Twenty-Fifth Amendment. If the President declared that he was temporarily unable to perform the duties of his office, the Vice President would become Acting President and as such he could pardon the President. Thereafter the President could either resign or resume the duties of his office,” Lawton said.
In its January 2020 analysis, the Congressional Research Service considered the question of a presidential pardon as unsettled. “As for whether a President may grant a self-pardon, no past President has ever issued such a pardon. As a consequence, no federal court has addressed the matter. That said, several Presidents have considered the proposition of a self-pardon, and scholars have reached differing conclusions on whether such an action would be permissible based on the text, structure, and history of the Constitution. Ultimately, given the limited authority available, the constitutionality of a self-pardon is unclear.”
Scott Bomboy is the editor in chief of the National Constitution Center.