TeamPurple Political Explainer (11/26)- Pardon Me…our take on Pardons

Whenever a person close to the President is indicted, or implicated in some malfeasance, people immediately begin to discuss whether or not the President will pardon him.  With the Mueller investigation winding down, and numerous Trump officials sentenced to prison, it seemed like a good time to start talking about the possibility of pardons.

In the United States, the pardon power for federal violations of the law 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”.  That last point is important as it is the only way to remove someone from office, so by qualifying the pardon power this way, our forefathers said a President couldn’t keep Congress from kicking him, any cabinet member or any justice out of their respective positions.

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.  So the Executive has the power to limit the sentences of those convicted of crimes.

The pardon power of the President applies only to convictions under federal law. Additionally the power extends to military court-martial cases, as well as convictions in the Superior Court of the District of Columbia.  This is important; if the conviction was under state law, the Governor of that particular state has the power to pardon.  Every state does it a little bit differently, but many have pardon boards that suggest pardons to the Governor.

Pardons in Practice

So that’s the crux of it.  How does it work in practice?  Often not very well.  Only two Presidents did not use the power to pardon: William Henry Harrison and James Garfield.  The fact that both of them died early in their terms was probably the main factor why not.  Every other President has issued a pardon, with Franklin Delano Roosevelt issuing the most– a whopping 3,687 pardons in his 12 years in office. Please note, these numbers do not include “blanket commutations” where the President commutes a sentence based on what is perceived as an unjust law, not to a specific person.  Obama offering a blanket commutation for minor drug offenses serving felony convictions due to the “3 strikes law” would fall into this category.

It should also be noted there is no legal consequence to the President for issuing a pardon.  The blowback, if there is any, is always political, and usually hinges on whether or not the public feels the pardon was justified.  For that reason, most Presidents are reticent to offer too many pardons, especially for high profile situations.  Often, they will offer pardons for minor violations, people who have already served substantial time in prison, or in situations where the federal crime is pardoned but there are still substantial state sentences to serve.  In addition, most pardons are offered in the lame duck period after the election as the President is leaving office, so as to not result in election issues.

Probably the most notable pardon came in 1974, when Gerald Ford pardoned Nixon for any crimes he may have committed during the Watergate scandal.  Ford’s reasoning was to put the issue to rest and move on, but many felt that it indicated some backroom dealing and some in Ford’s cabinet resigned out of disgust.  The pardon was a major issue in the campaign and very likely ruined any election chances for Ford in 1976.

On Christmas Day, 1868 President Andrew Johnson (who was recently impeached, and whose party lost badly in the 1868 election), granted a general amnesty to everyone who fought for the Confederacy during the Civil War.  This did not sit well with many Republicans who wanted the South to pay for the Civil War and for Lincoln’s assassination.  Again, it helped turn the page but left a sour taste in the mouths of many.  In the end, even the leaders of the Confederacy were pardoned by Johnson’s successor, President Ulysses S. Grant, with the Amnesty Act of 1972.

And then there are the donors.  During the ’70s George Steinbrenner was convicted of 14 counts of illegal campaign contributions and obstruction of justice.  Ronald Reagan provided a full pardon for Steinbrenner.  And this is not just a GOP problem, democrats do it to.  In 2000, weeks before leaving office, Bill Clinton offered a flurry of pardons including to his brother, Roger (for minor drug offenses), and also to a deep pocketed donor, Marc Rich.  The pardon was largely ridiculed as a payoff.  Clinton also pardoned Susan McDougal, who was implicated in the Whitewater land deal that eventually lead to Clinton’s impeachment.

For a list of each President’s most notably pardons, you can find them here:

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