PRESIDENTIAL PARDON POWER

The U.S. Constitution provides, “[t]he President . . . shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” Article II, Section 2, Clause 1.  This sweeping presidential power authorizes the President of the United States to exercise leniency towards persons who have committed federal crimes.  Under the Constitution, only federal criminal convictions may be pardoned by the President; he cannot pardon a state criminal offense.  The power extends to both commutation of a sentence as well as pardon.

The pardon power is not only broad in scope, it is also immune from restraint by Congress.  The Supreme Court in its interpretations involving the pardon clause has yet to limit the President’s discretion when exercising the pardon power.

The Office of Pardon Attorney, which is part of the Department of Justice, has existed since 1893 to keep track of and manage pardon requests.  Although pardons may be granted throughout a President’s term in office, as a President’s term draws to a close, it is fair to say that it is the “busy season” for granting pardons.

According to the Office of Pardon Attorney, a pardon is an expression of the President’s forgiveness and ordinarily is granted in recognition of the applicant’s acceptance of responsibility for the crime and established good conduct for a significant period of time after conviction or completion of sentence.  While that may be true, there is no constitutional requirement that there be any acceptance of responsibility or any good conduct by the recipient of the pardon.  Consider that when President Richard Nixon was granted a pardon by President Gerald Ford for any crimes that President Nixon may have committed during the Watergate scandal, President Nixon had not at the time even been charged with any crimes.  This “pre-emptive pardon” did not require any acceptance of responsibility or good conduct.

A pardon does not signify innocence, but it does remove civil disabilities, such as restriction of the right to vote, hold state or local office, or sit on a jury.  According to the Office of Pardon Attorney, a presidential pardon is the only way a person convicted of a federal felony offense may regain his or her right to bear arms.

Presidents rarely announce their reasons for granting or denying clemency, although a President certainly is free to do so.  The policy in place is that if the President does not issue a public statement concerning his action in a pardon matter, no explanation is provided.  Moreover, deliberative communications involving the President’s decision-making, to the extent that they are documented, are withheld under the government’s interpretation of the Freedom of Information Act and the Privacy Act.  While the details of the President’s consideration of a clemency request may not be revealed by the government, the presidential grants of pardons are a matter of public record.