The short answer: The pardon power is broad, but it has limits. It covers only federal crimes, it can’t stop an impeachment, and it doesn’t erase the conviction from the record. Within those limits, courts and Congress generally can’t undo a pardon.
Executive clemency powers garnered increased media attention lately. President Donald Trump pardoned several convicts so far to rectify perceived injustices in their convictions or sentences.
The Presidential Pardon Limits as a Check on the Criminal Justice System
In addition, some analysts speculate that he could expand Presidential Pardon Limits. For instance, allegations of illegal campaign activities generated speculation that the president might give Presidential Pardon for political gain.
The recent debate on the extent of the presidential pardon limits does not diminish its benefits for convicted persons. Increased attention on this form of clemency highlights how the president can use it to right perceived wrongs. Learn more about how the president can use this power and what it means for those convicted of a federal crime.
The Authority to Grant a Presidential Pardon and Exceptions
According to Article II, Section 2 of the Constitution, the president may pardon those who committed crimes against the United States. Above all, the presidential pardon limits only applies to federal crimes. The President cannot pardon a state conviction.
Federal misdemeanors, as well as federal felonies, can be pardoned.
Courts generally may not overturn a pardon based on the reasons why the president granted it. This is true even if the president grants a pardon for his own gain.
What are the Exceptions to Presidential Pardon Authority?
- The Constitution prohibits the president from pardoning impeachment offenses. In other words, he cannot pardon himself or someone else to specifically avoid impeachment. This includes the crime of impeachment itself.
- Furthermore, many legal scholars think the president may not issue a self-pardon.
- However, no president ever tested this theory. In 2019, some analysts speculated that President Donald Trump might attempt a self-pardon. He did not.
What are the Benefits of a Presidential Pardon Limits ?
- A presidential pardon officially forgives a convicted person. Simply put, a pardon extinguishes the punishment, including any prison sentence or fine.
- It can restore rights lost because of the conviction. The Justice Department’s form says a pardon can restore civil rights, like voting and jury service, and lift barriers to licensing, employment, housing, and education. Some rights, like voting, also depend on state law.
- Conditions may attach to a presidential pardon. For example, the applicant might have to pay a fine or complete a treatment program.
- In rare cases, people refuse clemency because they do not want to accept its conditions. The Supreme Court held long ago that a pardon must be accepted to take effect (United States v. Wilson, 32 U.S. 150 (1833)).
How a Presidential Pardon Differs from Expungement ?
- First, expungement removes or seals the records of a conviction. Expunged offenses remain out of public view to allow the defendant to seek employment, clear his name and avoid the stigma of a criminal record.
- On the other hand, a presidential pardon does not remove the record of an offense (Office of the Pardon Attorney, Frequently Asked Questions). It acknowledges the offense in order to officially forgive it and dispense with the punishment.
- Furthermore, a presidential pardon might involve the convicted person acknowledging guilt for the offense to receive forgiveness. However, there are some instances when a president issued a pardon for a crime for which the defendant was likely innocent. For example, a convicted person who accepts responsibility for a crime and demonstrates remorse and rehabilitation could be a good candidate. You should consult with an experienced criminal attorney before admitting guilt or including incriminating information in a pardon application.
- Second, expungement is a court remedy. For federal convictions, it is rarely granted (Office of the Pardon Attorney, Frequently Asked Questions).
- Those seeking clemency for federal crimes may apply for a presidential pardon.
Presidential Pardons limits for Persons Convicted of State and Federal Crimes
Some cases involve both state and federal crimes. In those cases, a presidential pardon covers only the federal offenses. It does not reach the state convictions.
Recent Developments in the Process of Granting Presidential Pardons
The Office of the Pardon Attorney handles all federal pardon applications. The application includes personal information and involves a background investigation by the FBI. Staff attorneys process the application and recommend an action to the president. The application documents are generally not made public (28 C.F.R. § 1.5).
How Did the Trump Administration Handle Pardon Applications? (2019)
- President Donald Trump actively engages in this process. The Constitution vests power in the president to make ultimate determinations on pardons using Presidential Pardon limits as the guidelines. This means that the president can bypass staff attorneys’ recommendations.
- In fact, President Trump often follows his own investigative process in reviewing cases for presidential pardons.
- The review process is generally not public. Even so, we have more insight now on how the president reviews applications. This is because President Donald Trump frequently comments on pardon applications.
- One of the telling ways that President Donald Trump differs from his predecessors is how early he started granting pardons. Many presidents do not grant pardons until well into their terms.
- Unlike his predecessors, President Trump started granting pardons during the first year of his term. This means that he could potentially grant significantly more pardons than other administrations.
What are the considerations for Those Seeking a Presidential Pardon ?
- In sum, the current administration treats the presidential pardon process differently. Applicants for pardons should be aware of changes in each administration.
- Applicants should understand the rules and how their petitions will be reviewed.
- Even though this process receives more spotlight now, the ultimate benefits for those convicted remain the same. The courts or Congress may not overturn a presidential pardon once granted. This is true even if the president granted the pardon for self-serving purposes.
- As such, those convicted of a federal crime should continue to consider a pardon as a beneficial form of clemency. The application process demands serious attention to detail. Mistakes in the application can delay processing.
Contact Criminal Center About Applying for a Pardon
Criminal Center helps people apply for federal pardons. If you or a loved one have been convicted of a federal crime, you may be eligible to apply. A lawyer is not required, but the process is complex and time-consuming.
Book a consultation and tell us what happened. We’ll tell you whether a presidential pardon or another form of clemency fits.