The short answer: A pardon is the President’s forgiveness for a federal crime. It is mercy, not a finding of innocence, and through the normal process it usually follows years of responsible living after the sentence.
Below, we look at how courts and the Justice Department have defined a pardon, and at whether a President may pardon himself.
Pardon Definition – Dictionary
- The term “pardon” means to “excuse,” or give “forgiveness for a fault, offense, or discourtesy.” It comes from ancient Latin “donate” or give. At bottom, the term is synonymous with giving compassion and granting forgiveness.
- With regard to a President’s ability to grant pardons, from Article II, Section 2 of the U.S. Constitution, it is similarly viewed as an act of presidential forgiveness – an act of mercy. It does not signify innocence. Quite the contrary, it is an acknowledgment of a person’s wrongdoing, and a grant of forgiveness for the bad act.
Pardon Definition – U.S. Supreme Court
Chief Justice John Marshall, in one of the earliest discussions elaborating on the President’s pardoning power, said as follows:
The Constitution gives to the President in general terms, “the power to grant reprieves and pardons for offenses against the United States.” . . . A pardon is an act of grace, proceeding from the power entrusted with the execution of the laws, which exempts the individual, on whom it is bestowed, from the punishment the law inflicts for a crime he has committed. It is the private, though official act of the executive magistrate . . . .
(United States v. Wilson, 32 U.S. (7 Pet.) 150 (1833) (emphasis added)).
As the pardon definition evolved through judicial decisions, however, the U.S. Supreme Court in the 1927 case of Biddle v. Perovich, moved away from the “private act of grace” aspect of Chief Justice Marshall’s pardon definition. Rather, the Court gave a more concrete, public-welfare focused, pardon definition, as follows:
[The pardon power] is part of the Constitutional scheme. When granted, it is the determination of the ultimate authority that the public welfare will be better served by inflicting less than what the judgment fixed.
(Biddle v. Perovich, 274 U.S. 480, 486 (1927)).
The Supreme Court, however, never denied the fundamental “forgiveness” aspect of the presidential pardon definition. As the Court stated more recently:
The plain purpose of the broad power conferred by [Art. II, § 2, cl. 1] was to allow plenary authority in the President to “forgive” the convicted person in part or entirely, to reduce a penalty in terms of a specified number of years, or to alter it with conditions which are in themselves constitutionally unobjectionable.
(Schick v. Reed, 419 U.S. 256, 267 (1974)).
Pardon Definition – Office of the Pardon Attorney
Finally, with regard to the pardon definition, the United States Office of the Pardon Attorney explains that a pardon is the President’s forgiveness for a federal crime and that it “does not signify innocence” (Office of the Pardon Attorney, Frequently Asked Questions). The Justice Manual says the Department looks for acceptance of responsibility and a “demonstrated ability to lead a responsible and productive life for a significant period after conviction” (Justice Manual 9-140.112).
In sum, the notions of giving grace, forgiveness, and mercy inform the concept of a presidential pardon. Further, a pardon typically comes as a result of a person’s acceptance of responsibility for wrongdoing, and a demonstration of good conduct subsequent to the person’s crimes.
Can the President Pardon Himself?
- Taking the above pardon definition and applying it to the circumstance of a President actually pardoning himself, it would appear that a President should not be able to do so.
- First, the term “pardon” has its origin in the ancient Latin word “donate.” It would not make sense that someone could donate something to themselves.
- Second, “forgiveness” is, in typical terms, something you give to someone else. In the same vein, “showing mercy” or “grace” is something that person in authority usually bestows upon another. While one might argue that a person can forgive themselves, the notion of giving mercy or forgiveness is normally a bilateral action between two people.
- Third, the pardon typically assumes that the recipient acknowledges wrongdoing and has shown good conduct subsequent to any wrongdoing.
- Another strong argument against a self-pardon is that our law upholds the notion that no person can be a judge in his or her own case. In 1974, the Justice Department’s Office of Legal Counsel reached the same conclusion. No court has decided the question.
- Overall, it is not possible to predict how the Supreme Court might rule on a President’s self-pardon.