Introduction - What is a Pardon?
There is probably no better time than now to ask the question – What is a pardon? Since the time President Trump won the Electoral College to become President, rarely has there been a day when the news did not mention the investigation into the Trump campaign’s collusion with Russia to swing the election in Trump’s favor.
With the indictment of Trump campaign manager Paul Manafort, the plea deal of Trump campaign advisor George Papadopoulos, and the plea deal of former Trump National Security Advisor Michael Flynn, the pressure against Trump is building. The country, more and more, is curious about what did Trump know, and when did he know it.
Not surprisingly, recent news reports state that Trump is trying to understand the extent of his presidential pardon power. It appears clear that he is considering how to use the presidential pardon to help his friends, and most significantly, himself.
Definition of Pardon
Based on a normal dictionary definition of the term, “to pardon” means to forgive someone for an offense. “Pardon” actually comes from the same Latin root as “donate.” Accordingly, it implies the giving of something such as forgiveness or mercy.
As it pertains to government action, the term “pardon” means a decision by a government official to absolve a person of a criminal conviction. It is an official forgiveness, or release from liability for a criminal offense. It is not, however, an assertion of the person's innocence. Pardons are typically granted by the President in federal criminal cases, or by individual state governors in state criminal cases. An official pardon of a group of people is typically called “amnesty” rather than “pardon.”
The U.S. Constitution does not spend a lot of verbiage on the presidential pardon. In Article II, Section 2, Clause 1, the Constitution states, “The President . . . shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.” However, U.S. Supreme Court decisions have helped shape the answer to the question.
In United States v. Wilson, in 1833, Chief Justice John Marshall emphasized the forgiveness aspect of the presidential pardon. Chief Justice Marshall stated:
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 . . . .
In the 1927 case of Biddle v. Perovich, however, Justice Oliver Wendall Holmes placed an emphasis on the public policy aspect of the presidential pardon. Justice Holmes stated that, “[a] pardon in our days is not a private act of grace from an individual happening to possess power. It is part of the constitutional scheme.” Indeed, Alexander Hamilton argued in The Federalist No. 74:
[I]n seasons of insurrection or rebellion there are often critical moments when a well-timed offer of pardon to the insurgents or rebels may restore the tranquility of the commonwealth; and which, if suffered to pass unimproved, it may never be possible afterwards to recall.
Consistent with Hamilton’s words, Presidents Abraham Lincoln and Andrew Johnson granted amnesty to Confederate soldiers in the Civil War, and Presidents Gerald Ford and Jimmy Carter issued amnesty to Vietnam-era draft dodgers.
In sum, the pardon power is very broad and is not only granted to those who have been convicted and sentenced. In Ex Parte Garland, a 1867 case, Justice Stephen Field stated:
If granted before conviction, [a pardon] prevents any of the penalties and disabilities consequent upon conviction from attaching [thereto]; if granted after conviction, it removes the penalties and disabilities, and restores him to all his civil rights; it makes him, as it were, a new man, and gives him a new credit and capacity.
The question of "what is a pardon?" necessarily includes a look at the purpose for a pardon. The American constitutional concept of the pardon derived from England and the royal English Prerogative of Kings. Oftentimes, English kings would grant a pardon in exchange for money or military service.
The pardon power in the U.S. Constitution, however, primarily reflects the purpose to temper justice with mercy in appropriate cases. It also is meant to do justice if new information comes to light following a conviction. Alexander Hamilton wrote that "humanity and good policy" require that "the benign prerogative of pardoning" was necessary to serve as a check on the judiciary's strict adherence to the criminal code.
There are different types of pardons, that vary from state to state. In the federal system, there are essentially two types - full pardons and conditional pardons.
- Full. A full pardon gives the convicted person back the status they had prior to conviction. Any rights that were lost are reinstated. If granted prior to conviction, then it absolves the person from any further criminal liability for an offense.
- Conditional. A conditional pardon can be issued in exchange for something. If a person meets a certain condition or complies with a request, such as providing information about co-conspirators in a crime, then a pardon will be granted.
- The President's pardon power is limited by the U.S. Constitution, and a state governor's pardon power is limited by the relevant state constitution. With regard to the presidential pardon, the Constitution only expressly provides two limitations.
- The President can only pardon people for federal crimes, i.e., offenses "against the United States," not for state crimes. In addition, the President cannot use the power in cases of impeachment.
- The framers of the Constitution did not directly address the question of whether a president can pardon himself or herself. A preeminent scholar on the subject states that there are two likely reasons for that. Either the framers simply did not consider self-pardons, or they silently presumed that self-pardons were invalid.
- Indeed, the Supreme Court in the 1974 case of Schick v. Reed reasoned that a pardon cannot be used in a way that would "offend the Constitution." Accordingly, because a person under the law is not allowed to serve as judge in his own case, it is more likely that a court would interpret the Constitution such that self-pardons are not permitted. That said, it is impossible to know what the Supreme Court will do when faced with a question.
- To conclude, the answer to the question "what is a pardon?" involves a discussion of its definition, its purpose, and its limitations. At bottom, however, the appropriate use of a pardon is left up to the judgment of whoever occupies the office of the executive. One hopes it is exercised responsibly.