Federal pardons in the United States

The president of the United States is authorized by the U.S. Constitution to grant a pardon for a federal crime. The other forms of the clemency power of the president are commutation of sentence, remission of fine or restitution, and reprieve.[1] A person may decide not to accept a pardon, in which case it does not take effect,[2] according to a Supreme Court majority opinion in Burdick v. United States.[3] In 2021, the 10th Circuit ruled that acceptance of a pardon does not constitute a legal confession of guilt, recognizing the Supreme Court's earlier language as authoritative.[4]

Under the Constitution, the president's clemency power extends to all federal criminal offenses, except in cases of impeachment.[5] All requests for executive clemency for federal offenses are normally directed to the Office of the Pardon Attorney in the U.S. Department of Justice for investigation and review,[6] but the president may bypass that office.[7]

The Constitution grants the president the power to pardon "offenses against the United States".[5] An offense that violates state law, but not federal law, is an offense against that state rather than an offense against the United States; however, the Supreme Court has never ruled on this matter or in the President's power to grant a habeas corpus petition for a state offense where it has been denied by a federal court.[5][8]

The full extent of a president's power to pardon has not been fully tested. According to Ex Parte Garland, 71 U.S. 333 (1866), the President’s authority to pardon is unlimited except in cases of impeachment, extending to every offense known to the law and able to be exercised either before legal proceedings are taken, or during their pendency, or after conviction and judgment. Pardons have been used for presumptive cases, such as when President Gerald Ford pardoned Richard Nixon, who had not been charged with anything, over any possible crimes connected with the Watergate scandal,[8] but the Supreme Court has never considered the legal effect of such pardons.[9] There is disagreement about how the pardon power applies to cases involving obstructions of an impeachment.[10] Also, the ability of a president to pardon themselves (self-pardon) has never been tested in the courts, because, to date, no president has ever taken that action.[11] There has also been speculation as to whether secret pardons are possible.[12]

  1. ^ "Office of the Pardon Attorney". US Department of Justice. March 2, 2014. Archived from the original on January 5, 2015. Retrieved January 12, 2021.
  2. ^ Cite error: The named reference :1 was invoked but never defined (see the help page).
  3. ^ Burdick v. United States, 236 U.S. 79, 89-90 (1915)
  4. ^ "Ex-soldier's acceptance of Trump pardon didn't constitute confession of guilt, court rules". Reuters. September 23, 2021.
  5. ^ a b c "Frequently Asked Questions". Department of Justice – Office of the Pardon Attorney. January 8, 2021. Archived from the original on November 28, 2017.
  6. ^ Cite error: The named reference usdojpardon was invoked but never defined (see the help page).
  7. ^ Reinhard, Beth; Gearan, Anne. "Most Trump clemency grants bypass Justice Dept. and go to well-connected offenders". The Washington Post. Retrieved February 22, 2020.
  8. ^ a b "Presidential Pardons – ABA Legal Fact Check". American Bar Association. Retrieved August 30, 2017.
  9. ^ Cite error: The named reference duker was invoked but never defined (see the help page).
  10. ^ Redish, Martin H. (December 5, 2019). "The President's Pardon Power May Be Weaker Than It Seems". The New York Times. Retrieved December 16, 2019.
  11. ^ Conklin, Michael (April 28, 2020). "Please Allow Myself to Pardon ... Myself: The Constitutionality of a Presidential Self-Pardon". University of Detroit Mercy Law Review. 97. doi:10.2139/ssrn.3587921. ISSN 1556-5068. S2CID 225891854.
  12. ^ Ibrahim, Nur (January 20, 2021). "Could Trump Have Issued Secret Presidential Pardons?". Snopes.