The Importance of Presidential Pardon Limits
President Trump believes he can pardon himself, but some argue there are presidential pardon limits.
“It would lead to probably an immediate impeachment” – Rudy Giuliani
A presidential pardon is one of the most sweeping powers granted by the United States Constitution.
According to Article II, Section 2 of the United States Constitution, the President “shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment”.
The wording indicates there are two presidential pardon limits, but President Donald Trump’s recent claims have raised new questions regarding presidential pardon limits and purpose.
Let’s take a closer look …
Pardons Granted By President Trump
The United States President has the unique power to grant pardons for offenses against the United States. It’s one of the most sweeping powers granted to the President by the United States Constitution, and President Trump has used it to grant pardons to several people.
President Donald Trump granted pardons to Joseph Arpaio (contempt of court), Dinesh D’Souza (campaign contribution fraud), and Lewis Libby (obstruction of justice; false statements; perjury).
Upset by the ongoing Special Counsel investigation of the Russian government’s efforts to interfere in the 2016 presidential election, which includes any coordination from the presidential campaign and potential obstruction of justice, President Trump took to Twitter and raised a controversial discussion regarding presidential pardon limits and purpose …
“I have the absolute right to PARDON myself” – President Trump, June 4, 2018
This claim has raised new questions about presidential pardon limits and sparked an ongoing discussion regarding whether or not the President can pardon himself. Many in the legal community have cited the wording only suggests two limits: Pardons must be for offenses against the United States, except in cases of impeachment.
The Origins of Pardoning Power
The power to pardon comes from the seventh-century British monarchy and before that, the Greek, Roman, and biblical kings who granted amnesty.
America’s founding fathers felt that a strong presidential pardon was a necessary check on the country’s criminal justice system. They put the power into the Constitution in Article II, Section 2, stating the president “shall have the power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.”
So, the Constitution contains only two restrictions on presidential pardon – it must be for a federal crime and it cannot be used to save the president or any other official from impeachment.
Over the years, presidential pardon limits have been clarified through court proceedings. The fact that the Constitution refers to “offenses against the United States” only means that the presidential pardon does not apply to state crimes.
State governors do have similar powers to grant clemency to lessen punishment for those convicted of crimes at the state level. Governors grant clemency directly or work with clemency boards in their states.
Presidential Pardon Limits
In 1866, the U.S. Supreme Court decided, in a challenge to President Andrew Johnson’s pardon of a former Confederate soldier, that his 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.”
This interpretation gives the president the power of preemptive pardons – a pardon for any crimes an individual may have committed or been charged with. A famous example was the pardon by President Gerald Ford for outgoing President Richard Nixon, even though he had not been charged with any federal crimes at that point in time.
In addition to full pardons, the president may also use this power to grant other privileges including conditional pardons (based on some requirement), commutations (shortening or ending sentences), remissions (returning fines or forfeitures), or respites (delaying a sentence).
An expungement is an act that wipes out any record of a criminal conviction as if it never happened. This differs from a pardon, which removes all punishment but still acknowledges the conviction. Although many states have specific procedures for expungements, it is rare in the federal system.
A pardon grants full legal forgiveness for a crime, removing any remaining prison sentence, unpaid fines, or conditions of probation. And it removes other collateral consequences of a conviction, for example, allowing felons to vote, hold professional licenses, run for public office, or own a gun.
A president has the sole power to grant a pardon, which must be accepted by the person being pardoned. There have been occasions when a conditional pardon was not accepted because the person refused to meet the conditions specified for the pardon.
The president has sole power to grant pardons. They may not be overturned by either Congress or the Courts once granted and accepted.
Can the President Pardon Himself?
This is an ongoing controversy.
The question has never really been addressed because no president has tried it. One argument says a president can pardon himself because the Constitution does not say he can’t. There is no Constitutional clause against it.
But there are also arguments regarding presidential pardon limits and the President’s ability to pardon himself. The Constitution states that a president has the “power to grant” a pardon, and “grant” is generally considered to mean “giving to someone else.”
There is a generally accepted fundamental rule of law that says “No one may be a judge in his own case.” That was the reason behind a 1974 Justice Department memo released four days before President Richard Nixon resigned.
There is the question being hotly debated by many that ask “Could a president be impeached for granting a pardon to himself?” President Trump’s own attorney, Rudy Giuliani, has said that the President pardoning himself is “unthinkable and would probably lead to impeachment.”
What about pardoning others who might be allegedly involved in government crimes as in the current Russia investigations? A pardon would be possible and even valid, but many feel this would also lead to impeachment if Congress decided it was an obstruction of justice.
Regarding what is impeachable, President Gerald Ford once said, “An impeachable offense is whatever a majority of the House of Representatives considers it to be, at a given moment in history.”
Applying for and receiving a pardon is itself seen as an admission of guilt and any attempt by a president to grant a self-pardon would no doubt touch off a constitutional crisis.
The Constitutional Fathers were very concerned about tyranny and many believe that any act to absolve a president of criminal liability would be a serious challenge to the Constitution.
The Pardoning Process
Anyone seeking a presidential pardon or clemency would apply to the Justice Department’s Office of the Pardon Attorney. This office reports to the deputy attorney general. The pardon attorney or staff will review the case, seek an FBI background investigation, and seek comments and opinions from prosecutors and the judge.
Then, recommendations proceed up the ladder to the deputy attorney general, an associate White House Counsel, White House Counsel, and then the President.
But because the Constitution invests the power in the President, he can bypass this process and grant a pardon directly on his own.
There are currently over 2,000 pardon applications and almost 9,000 clemency applications pending with the Office of the Pardon Attorney. The names of everyone pardoned by the president are public and are listed on the Justice Department’s website.
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