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Presidential Pardon Power and its Limits

In early 2001, just before leaving office, President Bill Clinton pardoned his brother Roger, who had been serving time for a federal drug-related offense. In 2017, in the first year of his presidency, President Donald Trump pardoned former Arizona sheriff Joe Arpaio, who had been convicted of defying a U.S. judge's order to stop racially profiling suspects. Presidential pardon power is enshrined in the Constitution and has been wielded ever since President George Washington's 1795 pardon of two men involved in the infamous Whiskey Rebellion.

Most Americans understand that a pardon sets aside punishments for a federal criminal conviction, while fewer may realize that the conviction itself remains on the books after the pardon. But what are the limits of presidential pardon power? This article explores these limits, in addition to presidential pardon rules, the meaning of a commuted sentence, and more.

Presidential Pardon Power: Interpreting the Constitution

As written in Article II, Section 2 of the U.S. Constitution, the President's power to pardon seems nearly limitless:

"[The President] shall have Power to Grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment."

However, the details of the presidential pardon have been fleshed out through the courts and the legacy of former chief executives. Since the Constitution refers to "offences against the United States," the President's power to pardon is limited to federal offenses only. State governors have similar authority to grant clemency (the broader term for an executive's power to lessen a punishment) to those convicted of state crimes.

The U.S. Supreme Court clarified presidential pardon power in an 1866 case (Ex Parte Garland) challenging the pardon of a former Confederate soldier by President Andrew Johnson. In its opinion, the Court stated that this power "extends to every offense 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."

Presidents also may issue pre-emptive pardons -- or rather, a pardon for any crimes an individual may have committed or may have been charged with. For example, President Gerald Ford issued a pardon to outgoing President Richard Nixon even though Nixon had not been charged with any federal crimes at that point.

Additionally, the President may use this power to grant conditional pardons (such as serving a lesser sentence) or commutations; or to grant remissions (returns) of fines or forfeitures and respites (i.e. delaying a sentence).

Presidential Commutations

As with pardons, commutations are another way a president may grant clemency to a convicted criminal. But unlike pardons, which formally forgive the individual of their crimes and restore what may have been lost through the conviction (such as voting rights or the right to own firearms), a commutation merely ends the individual's sentence.

Can Presidents Pardon Themselves?

Whether Presidents may pardon themselves remains a subject of debate among legal scholars, although the Constitution clearly states that they may not pardon "in cases of impeachment." Still, it also doesn't say that presidents can't pardon themselves of federal crimes, although this particular gambit hasn't yet been attempted.

However, applying for and receiving a pardon is itself seen as an admission of guilt. So any attempt by a president to issue and grant a self-pardon would undoubtedly touch off a constitutional crisis and likely lead, at a minimum, to impeachment inquiries. Considering the original intent of the Framers, who were weary of tyranny, there would be serious constitutional concerns over the fact that a self-pardon could absolve presidents of criminal liability for either their official or unofficial acts, or even for crimes they may have committed before assuming the presidency.

Presidential Pardon Rules and Procedures

The rules and procedures for seeking and receiving a pardon are contained in the Code of Federal Regulations (Title 28, Chapter 1, Part 1). Anyone who wishes to apply for clemency at the federal level must follow the rules and file a petition with the Department of Justice (specifically, the Office of the Pardon Attorney).

The Pardon Attorney and their staff review petitions for clemency (either for a pardon or a commutation), conduct investigations, and prepare recommendations for the President. While the guilt or innocence of the petitioner isn't considered (i.e. the conviction stands), the decision to grant clemency generally rests on the following factors:

  • Post-conviction conduct, character, and reputation;
  • Seriousness of the offense;
  • Acceptance of responsibility, remorse, and atonement;
  • Need for relief; and
  • Official recommendations and reports.

Although there are formal procedures and guidelines in place for a presidential pardon or commutation, the President is not bound by these rules and may issue clemency in accordance with the powers granted by the Constitution.

Seeking Clemency for a Conviction? Talk to an Attorney

While U.S. presidents typically receive thousands of pardon petitions during their time in office, only a fraction of those are ever granted (and the odds of receiving clemency from a governor are similarly slim). But you may have a strong case for clemency or there may be other avenues for relief. An experienced litigation and appeals attorney will be able to help you explore your options.

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