How Presidential Pardons Work

By: Patrick J. Kiger  | 

Michael Flynn
President Donald Trump's former National Security Adviser Michael Flynn pled guilty to lying to the FBI. Trump announced a sweeping full pardon for Flynn in November 2020. Alex Wroblewski/Getty Images

"It is my Great Honor to announce that General Michael T. Flynn has been granted a Full Pardon," President Donald J. Trump announced on Twitter in late November 2020, two weeks after he lost his bid for reelection [source: Lucas].

Flynn, Trump's former national security adviser, had been the only member of the Trump Administration to be charged with a crime as part of the investigation by special counsel Robert Mueller into Russian interference in the 2016 presidential campaign and the question of whether there had been links to or coordination with the Trump campaign [sources: Lucas, Mueller Report]. Flynn pled guilty in 2017 to lying to the FBI about his contacts with the Russian ambassador, and cooperated with prosecutors, but then changed his mind and tried to withdraw his plea [source: Lucas].

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Trump's pardon of Flynn drew fire from critics in Congress, who saw it as an effort by Trump to erase the investigation into his campaign's connections with Russia, which Trump angrily had denounced as "a hoax" [source: Panetta]. "Donald Trump has repeatedly abused the pardon power to reward friends and protect those who covered up for him," Rep. Adam Schiff, D-Calif. and chairman of the House Judiciary Committee, responded on Twitter [source: Lucas].

The outcry increased after the White House released the specifics of the pardon, which absolved Flynn of not just of the original charges, but also of "any and all possible offenses within the investigatory authority or jurisdiction of the Special Counsel" [source: Clemency notice]. One legal expert, Margaret Love, a former pardon attorney for Presidents George H.W. Bush and Bill Clinton, told Politico that Trump's pardon of Flynn was the most sweeping in history, even more so that President Gerald Ford's 1974 pardon of his predecessor, Richard Nixon, for any crimes he might have committed during Watergate [source: Gerstein and Cheney].

But the critics' concerns didn't make any difference. Trump, like every president before him, had the unique ability to override the federal justice system, release anyone he chose from paying a fine, and return a person to the state of innocence he had before he ever committed a crime.

The president isn't required to explain or justify his actions to you, me, Congress or anyone else for that matter. The power to pardon is left solely to the discretion of the president, and cannot be reviewed or overturned by any of the other branches of government.

Perhaps it's because, in the U.S. government of separated and balanced branches, this unique power stands out like a sore thumb — a president in full-pardon swing more resembles a king than an elected official. In fact, the basis of the presidential pardon can be found in the royal Prerogative of English Kings (more on that later).

So where does this power come from? Why did it make it into the U.S. Constitution? What does it do and how exactly does it work? In this article, we'll answer these questions and look at some noteworthy presidential pardons.

The Origins of the Presidential Pardon

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Alexander Hamilton (third from left) and the other Founding Fathers (from left John Adams, Gouverneur Morris and Thomas Jefferson) recognized the value in using pardoning power as a tool to govern. Universal History Archive/Universal Images Group via Getty Images

The presidential pardon is based on the Royal Prerogative of English Kings, which gave the king the ability to overturn any sentence. Originally, the king's prerogative existed without any limitations attached to it. But during the reign of King Charles II (1660-85), the English Parliament managed to institute the single rule that impeachment was excluded from the pardon power. This rule lives on today [source: Duker].

When the Founding Fathers were developing the laws for the United States in the late 18th century, the power to pardon almost didn't make it into the Constitution. In fact, it was barely considered. Two plans, the Virginia Plan and the New Jersey Plan for framing the Constitution, did not include the power to pardon. One of the Virginia Plan's backers, George Mason, believed it was a mistake to grant such power to a single person. Having just revolted against King George III, whom many Americans considered a tyrannical king, many of Mason's fellow framers agreed with him [source: Buffa].

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But Alexander Hamilton, who believed in a large, powerful, centralized federal government made up of the elite thinkers of the nation, was able to bring the other framers of the U.S. Constitution around to his way of thinking.

In No. 74 of his "Federalist Papers," Hamilton extolled the value of a pardoning power:

In seasons of insurrection or rebellion, there are often critical moments, when a well-timed offer of pardon to the insurgents or rebels may restore the tranquility of the commonwealth; and which, if suffered to pass unimproved, it may never be possible afterwards to recall.

Hamilton, and eventually the other framers, saw the value of investing in the president the ability to — at a moment's notice and without the consent of any other branch of government — grant reprieves to groups during periods of national crisis. It was reasoned that some crises could be allayed or overcome if the belligerents could be given a deal forgiving them for their trespasses.

Almost no sooner than the ink on the Constitution was dry, this ability was needed. When farmers in Pennsylvania revolted in 1794 against federal taxes levied on their corn crops, the Whiskey Rebellion was born. President George Washington used the power to pardon for the first time in United States history to forgive the revolting farmers for their insurrection against the young nation. The action worked and the rebellion was quieted [source: Hagen]

The pardon has since been used in this original intent several times. Andrew Johnson used the pardon to redeem Confederate soldiers after the Civil War [source: Glass]. And to help end the Vietnam era, President Jimmy Carter offered a blanket pardon to any American who had dodged the draft during the Vietnam War [source: Frost].

There have been cases where Congress has considered introducing bills that limit the president's pardon power or allow oversight of pardons. Every last one of these bills failed. Why? Because the president's power to pardon is guaranteed by the Constitution; it's in the actual original document, not just the Bill of Rights. Plus, it's a long-standing and time-honored traditional power granted to the leader of a country, and a useful one, as we will see. Finally, the judicial branch, viewing the pardon power as a part of the Constitution has served to protect it more often than not [source: Shanor and Miller].

In the 1974 case, Schick v. Reed, the Supreme Court decreed that "the pardoning power is an enumerated power of the Constitution and that its limitations, if any, must be found in the Constitution itself" [source: Justia].

What a Pardon Does

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President Donald Trump granted Alice Johnson, a criminal justice reform advocate and former federal prisoner, a full pardon in 2020 after commuting her sentence on non-violent drug charges in 2018. NICHOLAS KAMM/AFP via Getty Images

A person is convicted of a federal felony may have to go to prison or pay a fine. But that's not all. He or she loses certain civil liberties — the right to vote, serve on a jury, own a firearm. In legal terminology, losing certain rights is referred to as collateral consequences or a disability [sources: Thompson, U.S. Department of Justice].

But the Article II, Section 2 of the U.S. Constitution gives the president broad power to provide relief from all those punishments. As a U.S. Supreme Court decision in 1974 Schick v. Reed, put it, "plenary authority ... to 'forgive' the convicted person in part or entirely, to reduce a penalty in terms of a specified number of years, or to alter it with conditions which are in themselves constitutionally unobjectionable" [source: Thompson].

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The president's power to excuse a person's offenses and reduce or eliminate the penalties is called clemency. There are five specific types.

  • Reprieve, a temporary postponement of punishment
  • Remission of criminal fines and forfeiture
  • Commutation, which can cut short a sentence or substitute a milder punishment than the one the court has imposed, but doesn't restore a person's civil rights.
  • Amnesty, which is usually granted to groups of people
  • Pardon, which restores a person's full civil rights and wipes clean the slate, as if the crime had never been committed [source: Thompson].

There is also the conditional pardon or amnesty. Under this circumstance, a president may issue a pardon in exchange for something in return. In 1902 for example, President Theodore Roosevelt issued a blanket amnesty to all who had taken part in the insurrection in the Philippines, then an American territory. However, those who received the amnesty were required to swear an oath "accept the supreme authority of the United States of America in the Philippine Islands" [source: Shanor and Miller].

Similarly, in 1971, President Richard Nixon gave union leader Jimmy Hoffa a conditional pardon in exchange for Hoffa's pledge to never again take part in labor organization [source: Time].

The Pardon Process

pardon
It's a holiday tradition for the U.S. president to pardon the Thanksgiving turkey. Here Barack Obama pardons Abe, at the White House in 2015. The turkeys do NOT need to go through the pardon attorney's office to get their approval. Chip Somodevilla/Getty Images

Vast numbers of people convicted of federal crimes request clemency, but only a few of them actually receive it. In order to help make sure that the clemency process is conducted fairly, the Department of Justice has an institution, the Office of the Pardon Attorney, which has the job of accepting and reviewing applications and preparing recommendations for how the cases should be handled [source: Thompson].

After a petition for executive clemency is received, the pardon attorney conducts an investigation of the facts of the case, with the help of the FBI and other federal agencies. Once that's completed, the attorney presents the petition and all the research on the case to the deputy attorney general, along with a recommendation of what should be done. The deputy then transmits it to the attorney general, who reviews it and writes a recommendation, which is then submitted to the president [source: Thompson].

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The Department of Justice also has set up guidelines for reviewing pardon petitions, and what factors should be considered in deciding whether to grant them. The factors to taken into consideration include:

  • Post-conviction conduct, character and reputation
  • The seriousness of the crime, and how recently it occurred
  • Acceptance of responsibility, remorse and atonement
  • Need for relief
  • Official recommendations and reports relevant to the case [source: Thompson].

For commutations, the pardon attorney traditionally has looked at questions such as whether a person is serving an unusually harsh sentence, is in ill health, or has cooperated in an investigation or prosecution but not been rewarded for it so far. But in 2014, the Department of Justice announced a list of six new factors that it would use to prioritize applications.

  • The applicant is in prison serving a federal sentence that is more severe that what he or she would have received for the same crime today.
  • The applicant is a nonviolent, low-level offender without significant ties to major criminal organizations.
  • The applicant has served at least 10 years of the sentence.
  • The applicant doesn't have a significant criminal history.
  • Good conduct in prison.
  • No history of violence prior to or during current term of imprisonment. [source: Thompson].

Presidents, though, can also go outside of this system. The Washington Post reported in February 2020, for example, that most of President Trump's 24 grants of clemency up to that point had gone to offenders who didn't go through the pardon office system, or else hadn't met its requirements [source: Reinhard and Gearan].

Why Do Presidential Pardons Become Controversial?

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President George Washington pardoned those responsible for the Whiskey Rebellion in Pennsylvania in 1794. The Whiskey Rebellion was a reaction to the excise tax of 1791 introduced by Treasury Secretary Alexander Hamilton. Kean Collection/Getty Images

Pardons have the potential to provoke controversy, because they allow a president to undo the decision made by the nation's legal system — or, in the case of preemptive pardons, to prevent a person from being prosecuted at all. That can lead to accusations that a president is playing politics, favoring his supporters or even trying to cover up a scandal.

Here are some of the most controversial clemency actions in U.S. history.

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  • President George Washington in 1795 pardoned two of the organizers of the infamous Whiskey Rebellion in Pennsylvania, which required 13,000 soldiers to suppress [source: Blakemore].
  • President Thomas Jefferson pardoned 10 people who had been convicted under the Alien and Sedition Acts, which had been passed during the administration of his predecessor, John Adams [source: Onuf].
  • President James Madison in 1815 pardoned notorious pirate Jean Laffite, who captured and plundered American, British and Spanish ships in the early 1800s, and others involved in piracy who resided on the island of Barataria off the Louisiana coast. The clemency repaid Laffite for declining to help the British and instead fighting alongside U.S. forces in the Battle of New Orleans during the War of 1812 [source: Wegmann].
  • President Andrew Jackson in 1833 pardoned George Wilson, who had been sentenced to death for stealing mail and jeopardizing the life of a mail carrier. Wilson, for reasons that remain mysterious, refused the pardon and the U.S. Supreme Court subsequently ruled the felons had the right to turn down clemency. Wilson eventually was hanged [source: Blakemore].
  • President Abraham Lincoln in 1861 pardoned Arthur O'Bryan, who had been convicted in the District of Columbia of attempted bestiality back in 1857, after he had an exemplary record in prison [source: Gilder Lehrman].
  • In 1865, President Andrew Johnson granted amnesty to more than 13,000 former Confederates, including many high-ranking officials in the Confederate government. After the end of Reconstruction in the 1870s, many of those Confederate leaders became involved in taking away Blacks' rights and re-establishing white supremacy in the South [source: Blakemore]
  • In 1971, President Richard Nixon pardoned Teamsters union leader Jimmy Hoffa, who had been convicted of jury tampering and fraud, with the provision that he stay out of the union movement. Hoffa subsequently endorsed Nixon in his 1972 reelection bid [source: Time].

Nixon himself was the recipient of a very controversial pardon as we'll see on the next page.

Pardons: Famous, Infamous and Otherwise

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Many Americans were outraged when President Gerald Ford pardoned President Richard Nixon after the Watergate affair. Bill Pierce/The LIFE Images Collection via Getty Images

Here are five more controversial presidential pardons in modern history.

  • In 1974, President Gerald Ford pardoned his immediate predecessor, Richard Nixon, for any crimes that he might have committed during the Watergate scandal. Some critics accused Ford of having cut a deal with Nixon, which Ford denied. Ford's granting of the pardon may have played a role in his loss in the 1976 Presidential election to Democratic candidate Jimmy Carter [source: Time].
  • President Jimmy Carter in 1977 granted amnesty to thousands of Americans who had avoided service in the Vietnam War, either by fleeing the country or not registering with Selective Service boards. Carter was criticized by veterans groups who thought the draft dodgers were unpatriotic, but he also drew fire on the political left because he had excluded military deserters and others [source: Glass].
  • President Ronald Reagan in 1989 pardoned New York Yankees owner George Steinbrenner, who had pleaded guilty to obstruction of justice and illegal contributions to the 1972 Nixon campaign [source: Associated Press].
  • President George H.W. Bush in 1992 pardoned six figures on charges related to the Iran-Contra scandal, in which officials in the Reagan Administration had arranged the sale of missiles to Iran and then used the proceeds to fund a rebel army in Nicaragua. Bush, who had served as Reagan's vice president, had denied any involvement in Iran-Contra during the 1988 presidential election [source: Glass].
  • President Bill Clinton, shortly before leaving office in 2001, pardoned financier Marc Rich and his partner Pincus Green, who fled the U.S. after being indicted on tax evasion and other charges [source: Berg]. The FBI subsequently investigated whether the pardon had been influenced by contributions to the Democratic party and the Clinton Presidential Library, but closed the probe in 2005 without filing any charges [source: Gerstein].

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What a Presidential Pardon Can't Do

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One thing a U.S. president has yet to do is pardon himself, though Donald Trump has suggested he has the ability to do so. Al Drago/Getty Images

While a presidents' power to pardon is broad, it's not completely unlimited. For one thing, presidents can only pardon people for federal crimes, not state or local offenses. Additionally, a pardon can't be used to overturn a judgment in a civil lawsuit.

A president also doesn't have the power to interfere with a judge who imprisons someone for contempt of court. Oddly, this legal principle was established by a 1924 court case heard by Chief Justice William Taft, who himself was a former U.S. President [source: Cornell University Law School].

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Most importantly, the impeachment process, which can be used to remove presidents, members of Congress and federal judges from office, is excluded from the scope of the president's pardon power [source: NPR].

And even though President Trump has said he has the "absolute right" to pardon to himself, legal scholars are divided on whether he can. No president has tried to pardon himself while in office, so if Trump does so before Jan. 20, 2021, he will be enter uncharted waters never before tested in the courts.

But the Associated Press reported that many legal experts say it's a simple answer: no. The Constitution's text the "power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment" suggests that the Founding Fathers meant the power is to be used only someone else.

That was the reason cited in the 1974 opinion from the assistant attorney general for the Justice Department's Office of Legal Counsel, dated days before Nixon's resignation. It said "it would seem" a president could not pardon himself.

So two questions really remain: Will Trump try to pardon himself? And if he tries, will he succeed?

For more information on pardons and related topics, check out the links below.

Originally Published: Aug 9, 2007

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More Great Links

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