What is a presidential pardon?

A presidential pardon allows someone who has committed a crime to avoid serving their sentence. The president is the only person with the authority to give pardons and reprieves for federal crimes.

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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Written by Jeffrey Johnson
Insurance Lawyer Jeffrey Johnson

UPDATED: Mar 16, 2022

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Overview

  • The Constitution grants the U.S. president the power to pardon any person convicted or accused of federal crimes, except in cases of impeachment 
  • This portion of the Constitution gives the president broad pardoning power, with very few limitations
  • A presidential pardon, no matter how contentious, cannot be overturned

According to the U.S. Constitution, presidential pardons give the president the “Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment,” according to the Constitution. This article will overview presidential pardons and what presidential powers and limits apply.

What is a presidential pardon?

A presidential pardon allows someone accused or convicted of a crime to avoid serving their sentence. A pardon does not erase a criminal record or conviction, but you regain any civil rights lost due to the criminal conviction.

The president is the only person with the authority to grant pardons and reprieves for federal crimes, according to Article 2, Section 2 of the U.S. Constitution. The Constitution prohibits the president from pardoning impeached officials, but he can issue pardons for the crimes that led to the impeachment.

All presidential pardon applications must go through the Department of Justice for consideration. According to the department’s standards, no one can seek clemency until five years after release from jail. 

Though individuals usually receive pardons, groups of people can also get pardons.

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What are commutations, remissions, and reprieves?

The president’s clemency power includes commutations, remissions, and repreives.

Commutation

For federal convictions, the president has the power to commute — or reduce — sentences, meaning they can replace the initial punishment with a less harsh one. A president may commute a sentence when facts not known at the time of sentencing later come to light. They also often use commutation in circumstances of advanced age, illness, or when the sentence is disproportionately harsh. The recipient does not regain citizenship privileges after a presidential commutation; only a subsequent pardon can do that.

Remission and Reprieve

The president’s mercy power also allows for the remission of fines and penalties for federal violations. This type of clemency involves the removal of a forfeiture, penalty, or restitution order in which payment would cause undue hardship. In general, the applicant must show that they are making a reasonable effort to pay their obligations and that their post-conviction behavior is suitable.

A reprieve postpones the imposition of a criminal sentence — generally a death sentence — for a certain period. A presidential reprieve, albeit just a pause, can give an inmate more time to appeal or give the president more time to consider a pardon or commutation.

What does a presidential pardon mean?

A pardon does not mean the convicted person is innocent. Convictions are usually not expunged by pardons. However, they will frequently restore civil rights lost due to the conviction. Pardons usually restore the following rights: 

  • Right to vote
  • Right to run for and hold public office
  • Right to serve on a jury, and the right to possess firearms 

If the pardoned conviction is a deportable offense, a pardon may prevent deportation. 

What are the limitations to presidential pardon power?

The president’s pardon power is limited in two ways: 

  • They cannot grant pardons for state crimes since they are outside federal jurisdiction.
  • The president cannot avoid impeachment by Congress. 

Aside from this, the only other limitations to the president’s power are those written in other constitutional provisions. Let’s take a closer look at these provisions. 

State vs. Federal Crimes

The president’s power to pardon individuals is limited to federal offenses exclusively, not state offenses. Federal crimes typically deal with federal or national issues, such as federal tax fraud, immigration infractions, counterfeit U.S. currency, and wire fraud.

Most crimes, such as murder, sexual assault, and theft, are prosecuted at the state level unless the offense crosses state lines. The president does not have the authority to pardon state offenses; instead, state governors have such control. Since state prosecutions aren’t subject to presidential pardons, they act as a check on the president’s pardon power.

Crimes in the Past vs. Crimes in the Future

Only previously committed crimes — those “known to the law” — are eligible for a pardon. Though future offenses are out of the question, the Supreme Court ruled that the president can use his pardon power at any moment, even before legal proceedings. The only requirement is that the person receiving the pardon should have already committed the offense.

The official document granting the pardon usually specifies the offense(s) and if a prosecutor has yet to file charges.

Preemptive Pardons

Former President Richard Nixon’s pardon serves as an excellent example of a “preemptive pardon.” Preemptive pardons are pardons that the president grants before formal accusations or legal proceedings initiate.

Essentially, preemptive pardons skip the formal pardon process overseen by the Office of the Pardon Attorney of the U.S. Department of Justice. To qualify under the U.S. Pardon Attorney’s regulations, a person must be convicted or sentenced, wait five years after incarceration release, complete probation and parole, take responsibility for the offense, and demonstrate rehabilitative efforts.

However, if a president wishes to make a point of pardoning someone before being charged, tried, or sentenced, they are allowed to do so.

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Can presidents pardon their relatives?

The Constitution has few restrictions on who presidents can pardon, including their relatives or spouses. According to the presidential pardon rules, the president has practically unrestricted ability to grant pardons to people or groups in the past, according to the courts. 

Can a president pardon themselves?

Since Nixon’s presidency, the idea of a presidential self-pardon has been around. During that time, a memo from the Justice Department’s Office of Legal Counsel explained that a president could not self-pardon, saying, “Under the fundamental rule that no one may be a judge in his own case, it would seem that the question should be answered in the negative.”

However, this is only a legal opinion, not a law. Nixon did receive a presidential pardon, but it came from Gerald Ford, his former vice president. Ford pardoned Nixon of offenses he “committed or may have committed or participated in between January 20, 1969 and August 9, 1974.”

Can a Presidential Pardon be Overturned?

A presidential pardon, no matter how contentious, is irreversible. The executive branch has the sole authority to grant pardons under the Constitution. The constitutional separation of powers — between the executive, legislative, and judicial branches — prevents one branch from infringing on the authority of the other.

To word it another way, the Supreme Court and Congress do not have the authority to overturn a presidential pardon.

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How many pardons have been issued?

The number of pardons issued by each president since George Washington — who granted 16 — is listed below.

Presidents who Issued the Most Pardons: 

PresidentPardons
Franklin D. Roosevelt (1933 to 1945) 3,687 (FDR served as President for 12 years.)
Woodrow Wilson (1913 to 1921) 2,480
Harry Truman (1945 to 1953) 2,044
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Pardons Issued From President Nixon to Obama:

PresidentPardons
Richard Nixon (1969 to 1974) 926
Gerald Ford (1974 to 1977)409
Jimmy Carter (1977 to 1981) 566
Ronald Reagan (1981 to 1989) 406
George H.W. Bush (1989 to 1993) 77
Bill Clinton (1993 to 2001) 456
George W. Bush (2001 to 2009) 176
Barack Obama (2009 to 2017) 64
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Presidential Pardons

The Consti­tu­tion gives the U.S. pres­id­ent the “Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeach­ment.” A presidential pardon is a sign of forgiveness for those who accept responsibility for their crimes and demonstrate rehabilitation, though there are two constitutional limitations.

References:

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