Understanding Presidential Pardons and Their Use in the US
Understanding Presidential Pardons and Their Use in the US.
The United States possesses a distinctive characteristic in allowing its president to grant pardons independently, without the necessity of obtaining approval from others. Here are the key points to understand.
On Thursday, Joe Biden granted pardons to 39 individuals convicted of non-violent offenses and announced the commutation of sentences for nearly 1,500 individuals who have already been released from incarceration.
According to the White House, the commutations pertain to individuals who were released from prison and placed under home confinement during the Covid pandemic, and their sentences will now be reduced. The 39 individuals receiving pardons will have their convictions completely erased.
This announcement, which the White House describes as the largest single-day act of presidential clemency in modern U.S. history, follows Biden's earlier decision to pardon his son Hunter for any federal offenses “he committed or may have committed” between January 1, 2014, and December 1, 2024. This has reignited discussions regarding the extensive clemency powers granted to the president by the U.S. Constitution.
Such powers have been utilized by presidents throughout history, from George Washington, who pardoned participants in the Whiskey Rebellion, to Donald Trump, who extended pardons to his political associates.
(Image: White House Photo by Joyce N Boghosian/Sipa USA/PA)
What is the pardon power?
The authority of the president to grant pardons is explicitly stated in the United States Constitution.
According to Section 2 of Article II, the president possesses the power to "grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment." This authority is limited to federal offenses and does not extend to state crimes or impeachment proceedings.
The concept of presidential pardon power was derived from English tradition, where monarchs had the long-established right to issue pardons of mercy. There was some discussion regarding whether Congressional approval should be necessary for pardons and if treason should be treated differently. However, Alexander Hamilton advocated for a broad pardon authority to be exclusively held by the president during the Constitutional Convention.
Hamilton articulated in Federalist No. 74 that a single individual is better suited to dispense governmental mercy than a collective body, as the latter might be swayed by group dynamics, potentially leading to indecision or excessive leniency.
Regarding treason, he contended that the president could utilize the pardon power strategically to foster negotiation and national unity. He noted that during times of insurrection or rebellion, a timely offer of pardon could restore peace, and failing to act on such opportunities might result in irretrievable consequences.
Bernadette Meyler, a law professor at Stanford University specializing in British and American law, characterized this power as "the one emergency power written into the constitution, other than the suspension of habeas corpus."
“It’s one thing that is a concession to the idea that there might be certain unforeseen circumstances that the president would have to intervene in,” she said. “It goes along with the president’s control also over the army and navy and military power because, in the context that it was being contemplated, it was really being thought about as another tool within the ability to control domestic unrest.”
How has the pardon power been used?
George Washington granted the first pardons in 1795 to two individuals involved in the Whiskey Rebellion, a violent protest in Pennsylvania against a tax imposed on whiskey and other alcoholic beverages by the emerging federal government.
A significant development in the exercise of pardon power occurred following the Civil War, when President Andrew Johnson issued “a full pardon and amnesty” to anyone “who, directly or indirectly, participated in the late insurrection or rebellion” during that conflict. This action, along with similar pardons issued around the same period, prompted the U.S. Supreme Court to interpret the pardon power as allowing the president to extend broad amnesty to groups of individuals rather than limiting it to specific offenses, as noted by Meyler.
After Richard Nixon's resignation in the 1970s due to the Watergate scandal, Gerald Ford granted a full and unconditional pardon for any crimes committed during his presidency.
In 1977, President Jimmy Carter issued a mass pardon for individuals who had evaded the draft during the Vietnam War. At the conclusion of his presidency in 1992, George H.W. Bush pardoned six individuals connected to the Iran-Contra affair, including former Defense Secretary Caspar Weinberger.
On his final day in office in 2001, Bill Clinton pardoned his half-brother and controversially granted clemency to Marc Rich, a fugitive convicted of financial crimes, whose ex-wife had been a significant contributor to the Democratic Party and the Clinton campaign.
During his presidency, Barack Obama granted clemency to over 1,700 individuals, including many who had been convicted of non-violent drug offenses.
Who did Donald Trump pardon?
During his presidency, Trump did not hesitate to exercise his pardon authority to assist his political allies. He granted clemency to Charles Kushner, the father of his son-in-law Jared, who had previously pleaded guilty to tax evasion and witness tampering; Trump has since nominated him as ambassador to France.
Additionally, he pardoned his political adviser Steve Bannon, who was facing charges related to defrauding donors for a charity aimed at constructing a wall along the southern border. Trump also extended pardons to Paul Manafort, a key figure in his 2016 campaign, and his associate Roger Stone.
Other individuals who received pardons included former New York City police commissioner Bernard Kerik, conservative commentator Dinesh D’Souza, and Elliott Broidy, a prominent Republican donor. Furthermore, he pardoned rapper Lil Wayne and Alice Marie Johnson, a woman who had spent many years incarcerated for drug-related offenses and gained significant attention after Kim Kardashian advocated for her release.
Trump has indicated his intention to issue a mass pardon for those involved in the January 6 attacks, a decision that would effectively halt the extensive efforts of the Justice Department to investigate and prosecute individuals connected to those events.
Do other countries have a pardon power?
The authority to grant pardons is a prevalent practice globally, as noted by Andrew Novak, a professor at George Mason University and the author of Comparative Executive Clemency: The Constitutional Pardon Power and the Prerogative of Mercy in Global Perspective. However, the United States stands out in that it permits its chief executive to exercise this power independently, without requiring consultation or approval from other parties.
“Biden can grant a pardon without input from anybody, which is much more of like a medieval English king conception of the pardon power, which is kind of ironic,” he added. “We have kind of an old-fashioned conception of the pardon power, at least generally.”
“Having this unlimited pardon power that’s more similar to like 1700s England than it is to the current state of affairs in the western world,” he added. “In most countries in Europe, and the comparators in the developed world, they require input from someone else.” That requirement for input, Novak said, can somewhat limit a pardon being used to serve political or personal interests, the way it can be used in the US.
Numerous nations do not permit pardons prior to a conviction, as noted by Novak, and there has been a growing movement in various countries over recent decades advocating for increased transparency to ensure adherence to proper procedures.
Approximately half of the constitutions globally restrict the power of pardon to instances occurring only after a conviction, apply solely to designated offenses, or mandate that an executive consult with others before granting a pardon, according to Novak. He further remarked that it is rare for countries to impose a prohibition on self-pardoning or on pardoning family members.
“Perhaps this is infrequent because such situations do not often arise,” he stated. “The power to grant pardons has historically posed a risk of corruption, dating back to medieval times, and can be exploited for various forms of self-interest, such as protecting close associates or supporters.”
Meyler pointed out that the founders of the United States recognized impeachment as a crucial check on the pardon power. “As we have observed, it is exceedingly difficult to secure a conviction through impeachment, which has effectively rendered it a nominal limitation on the president’s authority.”
The U.S. presidential pardon power, while sometimes controversial, serves as a crucial tool for justice, offering second chances to individuals who may have been wronged or rehabilitated. It provides an opportunity for mercy and correction, reflecting the country's values of fairness and compassion.
The history of pardons, from George Washington to Joe Biden, shows that this power can be used strategically to promote national healing, restore justice, and correct past mistakes. While it’s important to ensure transparency and accountability, the ability to grant pardons remains an essential mechanism for ensuring that mercy is part of the legal system.
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