Early Saturday morning, President Trump declared via tweet that “all agree the U.S. President has the complete power to pardon.” It will come as little shock that many do not agree on this point, especially when it comes to the question of whether the president can pardon himself. In fact, a new wing of the Internet has been opened to debate this point.
The pardon power is exceptionally broad
It is true that the pardon power is, indeed, one of the strongest unilateral authorities of the presidency. Article II, Section 2 of the Constitution says that the president “shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.”
That language carves out two quick exceptions to the notion of “complete” pardon power. Presidential pardons cannot derail or overrule the impeachment process. And they can be used only for federal crimes, not for crimes that violate state law.
But those are relatively small limitations. Most presidential powers come with an asterisk of sorts. Appointees require Senate confirmation, for instance; vetoes can be overridden. The pardon power does not. Justice Stephen Field, writing for the Supreme Court in the 1866 case Ex parte Garland (not Merrick), held that the pardon power was, except as already noted, “unlimited. … It extends to every offence known to the law, and may be exercised at any time after its commission.” Thus pardons can indeed be issued even before someone is formally charged with an offense. And the pardon “cannot be fettered by any legislative restrictions.”
Pardons can be individually merciful
Field also called the power “the benign prerogative of mercy,” highlighting one of the reasons for its existence. Seen this way, the power is a check against judicial overreach, against a miscarriage of justice, available as an act of compassion. For instance, past presidents routinely commuted the sentences of elderly prisoners at death’s door (or said to be. William Howard Taft wrote in his memoir about two of his commutations along these lines: “One man died and kept his contract. The other recovered at once, and seems to be as healthy and active as anyone I know.”)
Without the pardon option, Alexander Hamilton wrote in Federalist 74, “justice would wear a countenance too sanguinary and cruel.”
Pardons can be granted in the public interest
But as Jeffrey Crouch’s 2009 book about the pardon power notes, “mercy” is not the whole story: The other traditional rationale for including the power in the Constitution is as a tool to serve a broader public interest. Hamilton covered this, too, with the example of a “well-timed offer of pardon” to insurgents that “may restore the tranquillity of the commonwealth.” George Washington used the power in this manner when in 1795 he set aside the death sentences of two ringleaders of the Whiskey Rebellion.
In a rather different application, Thomas Jefferson pardoned all those convicted under the Alien and Sedition Acts. Both Abraham Lincoln and Andrew Johnson issued proclamations of amnesty relating to the Civil War. Jimmy Carter granted a blanket pardon to more than 200,000 men charged with evading the Vietnam draft.
And much more recently, in lieu of hoped-for legislation on criminal sentencing reform, Barack Obama used his clemency powers to shorten more than 1,700 prison terms he thought were harshly skewed by mandatory minimum sentences that punished nonviolent crimes.
Sometimes, of course, presidents use the “public interest” rationale to pardon specific people rather than groups. In late 1921, for instance, Warren Harding commuted the prison sentence of Socialist presidential candidate Eugene V. Debs, who had been convicted of violating the Espionage Act by criticizing the U.S. government during World War I.
And in September 1974, in what Crouch calls “the most notorious pardon in U.S. history,” Gerald Ford pardoned Richard Nixon, who had resigned the presidency in the wake of the Watergate scandal. Ford explained that “the tranquility to which this nation has been restored by the events of recent weeks could be irreparably lost” by what could be a years-long prosecution of the former president.
Over time, many came to agree with Ford’s rationale. But the pardon had huge political consequences across several years. Ford’s approval rating rapidly dropped from above 70 percent to below 50 percent. His press secretary resigned in protest. The suspicion that he may have cut a deal with Nixon (with the latter agreeing to resign, if pardoned) prompted Ford to become the first sitting president in more than a century to travel to Capitol Hill to testify before a congressional committee. Republicans lost nearly 50 House seats in the 1974 midterm election and Ford lost his bid for election in 1976.
And pardons can be very controversial
Thus, although the word “amnesty” comes from the same root as “amnesia,” people don’t tend to forget even the perceived misuse of the pardon power — that is, applied for neither reasons of mercy nor public policy, but rather out of self-interest. A long sequence of presidents have discovered this — as political scientist P.S. Ruckman notes, “Every generation of Americans has seen its controversial pardon … or nine.”
In recent administrations, George H.W. Bush’s lame-duck pardon of six officials caught up in the Iran-contra scandal prompted accusations that Bush was seeking to conceal his involvement in the matter. George W. Bush spared I. Lewis “Scooter” Libby a 30-month jail sentence after Libby was convicted of perjury charges related to the leak of a CIA officer’s identity. (Bush, however, declined to grant a full pardon, angering Libby’s immediate boss, Vice President Richard B. Cheney.)
Bill Clinton granted clemency to 176 people just two hours before leaving office in 2001. Among them were his half brother, Roger Clinton, (for a 1985 drug conviction) and, most controversially, Marc Rich and Pincus Green, who had fled to Switzerland after a 1983 indictment for tax evasion. That decision was further tainted by the fact that Rich’s ex-wife had given close to half a million dollars to the Clinton presidential library fund (and more than $1 million to Democratic candidates since 1993.)
If a president is ‘himself a party to the guilt, he can be impeached and prosecuted.’
The category of self-serving pardons brings us back to the present day. Objections to the pardon power at the constitutional convention centered on the fear that a president guilty of treason would use it to shield his accomplices from punishment. But, James Wilson assured his fellow delegates, if the president “be himself a party to the guilt he can be impeached and prosecuted.”
Whether that implies the president cannot pardon himself, or simply that the framers could not conceive Americans electing a president who would need to, remains a question. As the links at the top of this post highlight, there is no consensus on the legality of such an act.
By contrast, history suggests that the political implications are quite clear. Trump may find out that something can be both legal and, simultaneously, an impeachable offense.