Federal pardons in the United States

In the United States, the pardon power for federal crimes is granted to the President of the United States under Article II, Section 2 of the United States Constitution which states that the President "shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment". The U.S. Supreme Court has interpreted this language to include the power to grant pardons, conditional pardons, commutations of sentence, conditional commutations of sentence, remissions of fines and forfeitures, respites, and amnesties.[1]

Early history

Alexander Hamilton defended the pardon power in The Federalist Papers, particularly in Federalist No. 74.

Pardons granted by presidents from George Washington until Grover Cleveland's first term (1885–1889) were hand written by the president; thereafter, pardons were prepared for the president by administrative staff requiring only that the president sign it.[2]

Modern process

All federal pardon petitions are addressed to the President, who grants or denies the request. Typically, applications for pardons are referred for review and non-binding recommendation by the Office of the Pardon Attorney, an official of the United States Department of Justice. The percentage of pardons and reprieves granted varies from administration to administration. Fewer pardons have been granted since World War II.[3]

A federal pardon can be issued prior to the start of a legal case or inquiry, prior to any indictments being issued, for unspecified offenses, and prior to or after a conviction for a federal crime.[4] President Gerald Ford's broad federal pardon of former president Richard M. Nixon in 1974 for "all offenses against the United States which he, Richard Nixon, has committed or may have committed or taken part in during the period from January 20, 1969 through August 9, 1974" is a notable example of a fixed-period federal pardon that came prior to any indictments being issued and that covered unspecified federal offenses that may or may not have been committed.[4]

The Justice Department requires that anyone requesting a pardon wait five years after conviction or release prior to receiving a pardon. The constitutionality of open pardons, such as Ford's pardon of Nixon, has never been judged by the Supreme Court and is open to question.[5]

While clemency may be granted without the filing of a formal request, in most cases the Office of the Pardon Attorney will consider only petitions from persons who have completed their sentences and, in addition, have demonstrated their ability to lead a responsible and productive life for a significant period after conviction or release from confinement.[6]

Limitations

Federal pardons issued by the president apply only to federal law; they do not apply to civil, state, or local offenses. Federal pardons also do not apply to cases of impeachment. Pardons for state crimes are handled by governors or a state pardon board.

A pardon can be rejected by the intended recipient, and must be affirmatively accepted to be officially recognized by the courts. George Wilson was convicted of robbing the US Mail in Pennsylvania and sentenced to death. Due to his friends' influence, Wilson was pardoned by President Andrew Jackson. Wilson refused the pardon and in 1833, the United States Supreme Court held in United States v. Wilson that his rejection—and consequently the pardon not being introduced to the court by "plea, motion, or otherwise" as a point of fact and evidence—was valid and the court could not force a pardon upon him. Wilson was hanged.[7]

According to Associate Justice Joseph McKenna, writing the majority opinion in the U.S. Supreme Court case Burdick v. United States, a pardon "carries an imputation of guilt; acceptance a confession of it."[8] However, the federal courts have yet to make it clear how this logic applies to persons who are deceased (such as Henry Ossian Flipper, who was pardoned by Bill Clinton), those who are relieved from penalties as a result of general amnesties and those whose punishments are relieved via a commutation of sentence (which cannot be rejected in any sense of the language).[9]

While a presidential pardon will restore various rights lost as a result of the pardoned offense and should lessen to some extent the stigma arising from a conviction, it will not erase or expunge the record of that conviction. Therefore, even if a person is granted a pardon, they must still disclose their conviction on any form where such information is required, although they may also disclose the fact that they received a pardon.[10] In addition, most civil disabilities attendant upon a federal felony conviction, such as loss of the right to vote and hold state public office, are imposed by state rather than federal law, and also may be removed by state action.

Self-pardons

The legal and constitutional ability of a president to pardon himself (self-pardon) is an unresolved issue. During the Watergate scandal, President Nixon's lawyer suggested that a self-pardon would be legal, while the Department of Justice issued a memorandum opinion on August 5, 1974, stating that a president cannot pardon himself.[11] The 1974 memo laid out a scenario in which, under the Twenty-fifth Amendment to the United States Constitution, the president could declare himself unable to perform his duties and could appoint the vice president as acting president. The acting president could then pardon the president and "thereafter the president could either resign or resume the duties of his office."[11]

The issue re-arose in 1998, during the impeachment of President Bill Clinton. On July 22, 2017, President Donald Trump tweeted "While all agree the U. S. President has the complete power to pardon, why think of that when only crime so far is LEAKS against us.FAKE NEWS", prompting a series of news article and online commentary regarding the president's ability to pardon relatives, aides, and possibly even himself in relation to the 2017 Special Counsel investigation.[12]

Controversies

The pardon power was controversial from the outset; many Anti-Federalists remembered examples of royal abuses of the pardon power in Europe, and warned that the same would happen in the new republic. In his final day in office, George Washington granted the first high-profile federal pardon to leaders of the Whiskey Rebellion.

Critics argue that pardons have been used more often for the sake of political expediency than to correct judicial error. One of the more famous recent pardons was granted by President Gerald Ford to former President Richard Nixon on September 8, 1974, for official misconduct which gave rise to the Watergate scandal.[13] Polls showed a majority of Americans disapproved of the pardon, and Ford's public-approval ratings tumbled afterward.[14] Other controversial uses of the pardon power include Andrew Johnson's sweeping pardons of thousands of former Confederate officials and military personnel after the American Civil War, Jimmy Carter's grant of amnesty to Vietnam-era draft dodgers,[15] George H. W. Bush's pardons of 75 people, including six Reagan administration officials accused or convicted in connection with the Iran–Contra affair, and Bill Clinton's commutation of sentences for 16 members of FALN in 1999 and of 140 people on his last day in office, including billionaire fugitive Marc Rich and his own brother, Roger Clinton. George W. Bush's commutation of the prison term of I. Lewis "Scooter" Libby was controversial. In commuting Libby's prison term, Bush stated, "I am commuting the portion of Mr. Libby's sentence that required him to spend thirty months in prison," while leaving intact Libby's fine, remaining sentence, and felony conviction.[16] In 2017, Barack Obama commuted the sentence of Chelsea Manning.[17]

Symbolic use

A symbolic use of the presidential pardon is the National Thanksgiving Turkey Presentation each Thanksgiving, in which a domestic turkey is pardoned from being slaughtered for Thanksgiving dinner and allowed to live out its life on a farm.[18]

See also

References

  1. ↑ Ruckman, P. S., Jr. (1997). "Executive Clemency in the United States: Origins, Development, and Analysis (1900–1993)". Presidential Studies Quarterly. 27 (2): 251–271. JSTOR 27551729.
  2. ↑ Ruckman, Jr., P. S. (November 4, 1995). "Federal Executive Clemency in United States". Archived from the original on March 26, 2011. Retrieved March 19, 2011.
  3. ↑ Ruckman, P. S., Jr. "Presidential Pardons by Administration, 1789–2001". Rock Valley College. Retrieved July 22, 2017.
  4. 1 2 https://foreignpolicy.com/2017/05/19/what-would-happen-if-trump-pardoned-himself-mueller-russia-investigation/
  5. ↑ Duker, William F. (1976). "The President's Power to Pardon: A Constitutional History". Wm. & Mary L. Rev. 18: 475–537. The Supreme Court never has been called upon to judge the validity of an open pardon like the Nixon pardon. If it must do so in the future and if it continues to view Article II, section 2 in light of the meaning the framers intended it to have, the evidence raises a reasonable doubt of the constitutionality of the Nixon pardon.
  6. ↑ "Clemency Regulations". United States Department of Justice. Retrieved 2007-03-08.
  7. ↑ "United States v. Wilson: 32 U.S. 150 (1833)". Justia.com. Retrieved July 24, 2017.
  8. ↑ "How the Nixon Pardon Strained a Presidential Friendship". 2011-12-13. Retrieved 2017-08-10.
  9. ↑ see Chapman v. Scott (C. C. A.) 10 F.(2d) 690)
  10. ↑ "Pardon Information and Instructions". Office of the Pardon Attorney (USDOJ). Retrieved 2014-05-20.
  11. 1 2 "Presidential or Legislative Pardon of the President" (PDF). 1974-08-05. Retrieved 2017-07-24.
  12. ↑ "Trump Says He Has ‘Complete Power’ to Pardon". The New York Times. Retrieved 2017-07-22.
  13. ↑ "Ford Gives Pardon To Nixon, Who Regrets 'My Mistakes'". The New York Times. September 9, 1974.
  14. ↑ Inc., Gallup,. "Gerald Ford Retrospective".
  15. ↑ "Carter pardons draft dodgers Jan. 21, 1977".
  16. ↑ "Statement by the President on Executive Clemency for Lewis Libby". 2007-07-02. Retrieved 2017-07-24.
  17. ↑ Savage, Charlie (January 17, 2017). "Obama Commutes Bulk of Chelsea Manning’s Sentence". The New York Times. Retrieved July 25, 2017.
  18. ↑ "Obama pardons turkeys and tells dad jokes for Thanksgiving tradition – video". The Guardian. Retrieved 14 November 2016.
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