Everything You Need to Know About Pardons
Many wonder about preemptive pardons and whether a sitting president can pardon himself, so I have attempted to debunk some pardon misconceptions and answer any pardon questions you might have.
Presidents have always had the ability to grant pardons to Americans who have been convicted of federal crimes. A presidential pardon represents a bestowment of forgiveness at the highest level, and is an official expression of clemency that removes most civil penalties imposed at conviction, such as restrictions on the right to vote, hold elected office and sit on a jury. Most importantly, a pardon at this level, is considered to be a privilege that seeks to erase the cultural stigma attached to criminal convictions, through an element of prestige that comes with the president being one’s benefactor.
The president derives his pardoning power authority directly from the Constitution in Article II Section 2 that says the president, "shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.” That is the full extent of what was put into writing by the Founding Fathers concerning this power. Some extensions and limitations of this power, not specifically addressed in this brief Constitutional clause, have been determined by the courts as necessary.
The list of pardons being reviewed by the Trump administration seems to be growing at an alarming rate. While the practice of an outgoing president issuing several pardons during the lame-duck tenure of his term is not unusual, Trump has shown his willingness to stretch the boundaries on who he will consider, which has turned the typically reserved process into a free-for-all.
There is a list of possible pardon recipients that are being pushed by Trump allies and friends, and then there are the more traditional pardon requests from individuals serving sentences who do not have a close connection with the president. Some of the more outrageous mentions that have been discussed in the press so far include Trump’s family members, his personal attorneys, other Republican politicians and even Joe Exotic, also known as the Tiger King.
Presidents also have the ability to issue a pardon to someone before a criminal conviction is complete, or has even started. A Supreme Court ruling in 1866, formally established the preemptive pardon and declared the power applies “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.” Justice Stephen Field also denoted that the presidential pardon power was unlimited, except in cases of impeachment.
This kind of preemptive pardon has typically applied to crimes that have been committed, not to matters that occurred after the pardons were issued. In 1975, Ford issued a very broad pardon for Nixon and that pardon was never challenged in the court with regard to how it applied to future crimes. Many legal scholars argue that specificity is required to uphold a preemptive pardon on future crimes in the courts, which means the pardon would have to state that it applies to any future crimes the recipient might commit.
It is possible that the Supreme Court would uphold this kind of pardon, given how broad the power was intended to be. The established precedent that says the power is only limited in cases of impeachment. But, there is also a strong argument that bestowing this type of pardon on a citizen would give them a free pass to commit any federal crime they wish to for the remainder of their lives, without limit — this is a dangerous scenario that will not easily be overlooked.
The recent pardon granted to former Trump national security adviser Michael Flynn uses specific language to limit its application. Flynn’s pardon specifically applies to his lies to the FBI, everything covered in his earlier plea agreement, and “any and all possible offenses arising out of facts and circumstances known to, identified by, or in any manner related to” former special counsel Robert Mueller's investigation.
In contrast, President Andrew Johnson granted a blanket pardon to anyone involved with the Confederacy during the Civil War and President Jimmy Carter granted unconditional pardons to men who evaded the draft. But, just like with Nixon’s pardon from Ford, none of these pardons were challenged in the court with regard to exactly how far into the future the power extended, or if it applied to a future federal crime.
It’s important to note that while it can easily be argued that a pardon implies some form of guilt to the recipient, pardons have no formal or legal power to declare guilt — that happens in the courts. In 1915, the Supreme Court wrote in Burdick v. United States that a pardon “carries an imputation of guilt; acceptance a confession of it.” But, the issue before the Court in Burdick dealt with a recipient’s ability to turn down a pardon, not whether a pardon denotes guilt. This means that statement is simply an aside within a ruling about another issue — what those in the legal profession call “dicta.”
Another question that has yet to be resolved in the courts that is likely to be at issue thanks to Donald Trump, is the question of whether a sitting president can issue a pardon to himself and what that power could legally entail. Laurence Tribe, Richard Painter and Norman Eisen wrote, “The Constitution specifically bars the president from using the pardon power to prevent his own impeachment and removal.” But, other scholars, like Jonathan Turley and Richard Posner, have agreed with Trump, by citing the Constitution’s intentional lack of limitation on the power it bestows. They say the only limitation to the president’s pardon power is “impeachment.”
The question of whether Donald Trump can pardon himself is still an unsettled legal question, that has strong arguments on both sides. What we know for sure is that Trump can try to pardon himself in theory, by issuing the pardon and declaring it. But, whether that pardon would stand is a question that the Court would need to resolve after he has left office. This means that while he can attempt it, pardoning himself is a risky move because the pardon could easily be overturned once he is out of office and no longer able to leverage his executive power.
Another option for Trump, to make sure he receives a pardon that has the best chance of surviving a court challenge, would be for Trump to resign, thereby making Pence the president and having Pence issue Trump’s pardon. This strategy would rely on Trump trusting Pence enough to carry out his wishes and follow through with the pardon in order to resign. There could also be another hypothetical problem — Ford’s pardon of Nixon, in this same way, was never tested in the Court. There is always the possibility that the Supreme Court might invalidate that Pence pardon, or limit it substantially once the case is presented.
If you have questions regarding the Presidential Pardon Power and what the limitations of this power might be, you can use the comments section of this article to ask me how a certain scenario might play out. I will do my best to answer all of them or direct you to a resource that can.
Amee Vanderpool writes the SHERO Newsletter and is an attorney, published author, contributor to newspapers and magazines and analyst for BBC radio. She can be reached at avanderpool@gmail.com or follow her on Twitter @girlsreallyrule.
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Excellent article, Amee. Thanks for all the info and background on presidential pardoning power and the potential controversy that surrounds it!