The President’s Conditional Pardon Power

The Constitution grants the President the power to pardon individuals for federal crimes committed. The pardon power is fairly broad and hasn't seen many tests in the Supreme Court, but there are some limitations. For example, the President may not issue pardons in the event of impeachment.

The full extent of the pardon power has not been tested in the courts. No President has tried to pardon themselves from crimes committed while in office. Therefore, it is not known if the courts would accept this use of the pardon power. However, President Ford issued a pardon to President Nixon over possible crimes connected with Watergate. The court did not determine the legality of that pardon.

The President can only pardon crimes committed under federal law. Most murder convictions take place under state law. However, if the murder was charged as a federal crime, for example based on the murder of a federal agent or a murder taking place on a Native American reservation, the President would be able to use the pardon power in that circumstance.

There is an official process for applying for a presidential pardon for federal crimes. One must submit an application to the Office of the Pardon Attorney. There is a five year waiting period after being released from confinement. A pardon is not a determination of innocence. Rather it is granted in circumstances where the applicant has accepted responsibility for the crime and established good conduct for a significant period of time after conviction or release from confinement. The final determination of a pardon is made by the President.

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

United States Library of Congress, The Constitution of the United States of America: Analysis and Interpretation

The pardon power embraces "all offences against the United States," except cases of impeachment, and includes the power to remit fines, penalties, and forfeitures, except as to money covered into the Treasury or paid an informer,1 the power to pardon absolutely or conditionally, and the power to commute sentences, which, as seen above, is effective without the convict's consent.2 It has been held, moreover, in face of earlier English practice, that indefinite suspension of sentence by a court of the United States is an invasion of the presidential prerogative, amounting as it does to a condonation of the offense.3 It was early assumed that the power included the power to pardon specified classes or communities wholesale, in short, the power to amnesty, which is usually exercised by proclamation. General amnesties were issued by Washington in 1795, by Adams in 1800, by Madison in 1815, by Lincoln in 1863, by Johnson in 1865, 1867, and 1868, and by Theodore Roosevelt—to Aguinaldo's followers—in 1902.4 Not until after the Civil War, however, was the point adjudicated, when it was decided in favor of presidential prerogative.5

The President cannot pardon by anticipation, or he would be invested with the power to dispense with the laws, King James II's claim to which was the principal cause of his forced abdication.6

The President may pardon criminal but not civil contempts of court. The Court "point[ed] out that it is not the fact of punishment but rather its character and purpose that makes the difference between the two kinds of contempts. For civil contempts, the punishment is remedial and for the benefit of the complainant, and a pardon cannot stop it. For criminal contempts the sentence is punitive in the public interest to vindicate the authority of the court and to deter other like derelictions."7 In upholding the President's power to pardon criminal contempt, Chief Justice Taft, speaking for the Court, resorted once more to English conceptions as being authoritative in construing this clause of the Constitution. He wrote: "The King of England before our Revolution, in the exercise of his prerogative, had always exercised the power to pardon contempts of court, just as he did ordinary crimes and misdemeanors and as he has done to the present day. In the mind of a common law lawyer of the eighteenth century the word pardon included within its scope the ending by the King's grace of the punishment of such derelictions, whether it was imposed by the court without a jury or upon indictment, for both forms of trial for contempts were had. [Citing cases.] These cases also show that, long before our Constitution, a distinction had been recognized at common law between the effect of the King's pardon to wipe out the effect of a sentence for contempt in so far as it had been imposed to punish the contemnor for violating the dignity of the court and the King, in the public interest, and its inefficacy to halt or interfere with the remedial part of the court's order necessary to secure the rights of the injured suitor. Blackstone IV, 285, 397, 398; Hawkins Pleas of the Crown, 6th Ed. (1787), Vol. 2, 553. The same distinction, nowadays referred to as the difference between civil and criminal contempts, is still maintained in English law."8 Nor was any new or special danger to be apprehended from this view of the pardoning power. "If," the Chief Justice asked, "we could conjure up in our minds a President willing to paralyze courts by pardoning all criminal contempts, why not a President ordering a general jail delivery?" Although, he added, "[t]he power of a court to protect itself and its usefulness by punishing contemnors is of course necessary," in light of the fact that a court exercises this power "without the restraining influence of a jury and without many of the guaranties [sic] which the bill of rights offers[,] . . . [m]ay it not be fairly said that in order to avoid possible mistake, undue prejudice or needless severity, the chance of pardon should exist at least as much in favor of a person convicted by a judge without a jury as in favor of one convicted in a jury trial?"9

The leading case on this subject is Ex parte Garland,10 which was decided shortly after the Civil War. By an act passed in 1865, Congress had prescribed that, before any person should be permitted to practice in a federal court, he must take oath asserting that he had "never voluntarily borne arms against the United States," had never given aid or encouragement "to persons engaged in armed hostilities" against the United States, and so forth.11 Garland, who had "taken part in the Rebellion against the United States, by being in the Congress of the so-called Confederate States," and so was unable to take the oath, had, however, received from President Johnson "a full pardon 'for all offences by him committed, arising from participation, direct or implied, in the Rebellion,'"12 The question before the Court was whether, armed with this pardon, Garland was entitled to practice in the federal courts despite the act of Congress just mentioned. Justice Field wrote for a divided Court: "[T]he inquiry arises as to the effect and operation of a pardon, and on this point all the authorities concur. A pardon reaches both the punishment prescribed for the offence and the guilt of the offender; and when the pardon is full, it releases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offence. If granted before conviction, it prevents any of the penalties and disabilities consequent upon conviction from attaching; 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."13

Justice Miller, speaking for the minority, protested that the act of Congress involved was not penal in character, but merely laid down an appropriate test of fitness to practice law. "The man who, by counterfeiting, by theft, by murder, or by treason, is rendered unfit to exercise the functions of an attorney or counselor-at-law, may be saved by the executive pardon from the penitentiary or the gallows, but he is not thereby restored to the qualifications which are essential to admission to the bar."14 Justice Field's language must today be regarded as too sweeping in light of the 1914 decision in Carlesi v. New York.15 Carlesi had been convicted several years before of committing a federal offense. In the instant case, he was being tried for a subsequent offense committed in New York. He was convicted as a second offender, although the President had pardoned him for the earlier federal offense. In other words, the fact of prior conviction by a federal court was considered in determining the punishment for a subsequent state offense. This conviction and sentence were upheld by the Supreme Court. Although this case involved offenses against different sovereignties, the Court declared in dictum that its decision "must not be understood as in the slightest degree intimating that a pardon would operate to limit the power of the United States in punishing crimes against its authority to provide for taking into consideration past offenses committed by the accused as a circumstance of aggravation even although for such past offenses there had been a pardon granted."16

But Justice Field's latitudinarian view of the effect of a pardon undoubtedly still applies ordinarily where the pardon is issued before conviction. He is also correct in saying that a full pardon restores a convict to his "civil rights," and this is so even though simple completion of the convict's sentence would not have had that effect. One such right is the right to testify in court, and in Boyd v. United States, the Court held that "[t]he disability to testify being a consequence, according to the principles of the common law, of the judgment of conviction, the pardon obliterated that effect."17

But a pardon "does not make amends for the past. It affords no relief for what has been suffered by the offender in his person by imprisonment, forced labor, or otherwise; it does not give compensation for what has been done or suffered, nor does it impose upon the government any obligation to give it. The offence being established by judicial proceedings, that which has been done or suffered while they were in force is presumed to have been rightfully done and justly suffered, and no satisfaction for it can be required. Neither does the pardon affect any rights which have vested in others directly by the execution of the judgment for the offence, or which have been acquired by others whilst that judgment was in force. If, for example, by the judgment a sale of the offender's property has been had, the purchaser will hold the property notwithstanding the subsequent pardon. And if the proceeds of the sale have been paid to a party to whom the law has assigned them, they cannot be subsequently reached and recovered by the offender. The rights of the parties have become vested, and are as complete as if they were acquired in any other legal way. So, also, if the proceeds have been paid into the treasury, the right to them has so far become vested in the United States that they can only be secured to the former owner of the property through an act of Congress. Moneys once in the treasury can only be withdrawn by an appropriation by law."18

In the first case to be decided concerning the pardoning power, Chief Justice Marshall, speaking for the Court, said: "As this power had been exercised from time immemorial by the executive of that nation whose language is our language, and to whose judicial institution ours bear a close resemblance; we adopt their principles respecting the operation and effect of a pardon, and look into their books for the rules prescribing the manner in which it is to be used by the person who would avail himself of it. 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, delivered to the individual for whose benefit it is intended, and not communicated officially to the Court. . . . A pardon is a deed, to the validity of which delivery is essential, and delivery is not complete without acceptance. It may then be rejected by the person to whom it is tendered; and if it be rejected, we have discovered no power in a court to force it on him." Marshall continued to hold that to be noticed judicially this deed must be pleaded, like any private instrument.19

In Burdick v. United States,20 Marshall's doctrine was put to a test that seems to have overtaxed it, perhaps fatally. Burdick, having declined to testify before a federal grand jury on the ground that his testimony would tend to incriminate him, was proffered by President Wilson "a full and unconditional pardon for all offenses against the United States," which he might have committed or participated in in connection with the matter he had been questioned about. Burdick, nevertheless, refused to accept the pardon and persisted in his contumacy with the unanimous support of the Supreme Court. "The grace of a pardon," remarked Justice McKenna sententiously, "may be only a pretense . . . involving consequences of even greater disgrace than those from which it purports to relieve. Circumstances may be made to bring innocence under the penalties of the law. If so brought, escape by confession of guilt implied in the acceptance of a pardon may be rejected."21 Nor did the Court give any attention to the fact that the President had accompanied his proffer to Burdick with a proclamation, although a similar procedure had been held to bring President Johnson's amnesties to the Court's notice.22 In 1927, however, in sustaining the right of the President to commute a sentence of death to one of life imprisonment, against the will of the prisoner, the Court abandoned this view. "A pardon in our days," it said, "is not a private act of grace from an individual happening to possess power. It is a part of the constitutional scheme. When granted it is the determination of the ultimate authority that the public welfare will be better served by inflicting less than what the judgment fixed."23 Whether these words sound the death knell of the acceptance doctrine is perhaps doubtful.24 They seem clearly to indicate that by substituting a commutation order for a deed of pardon, a President can always have his way in such matters, provided the substituted penalty is authorized by law and does not in common understanding exceed the original penalty.25

Congress cannot limit the effects of a presidential amnesty. Thus the act of July 12, 1870, making proof of loyalty necessary to recover property abandoned and sold by the government during the Civil War, notwithstanding any executive proclamation, pardon, amnesty, or other act of condonation or oblivion, was pronounced void. Chief Justice Chase wrote for the majority: "[T]he legislature cannot change the effect of such a pardon any more than the executive can change a law. Yet this is attempted by the provision under consideration. The Court is required to receive special pardons as evidence of guilt and to treat them as null and void. It is required to disregard pardons granted by proclamation on condition, though the condition has been fulfilled, and to deny them their legal effect. This certainly impairs the executive authority and directs the Court to be instrumental to that end."26 On the other hand, Congress itself, under the Necessary and Proper Clause, may enact amnesty laws remitting penalties incurred under the national statutes.27

Lawyer Robert Barnes has argued for some time that before he leaves office, if after this election, Rutabaga will pardon both Hunter AND Trump, the latter to show his “fairness” but also, probably, as a kind of pre-bribe to not use these other charges.

A bigger debate involves President Trump on the Patriot Day, J6 protesters. Could he/should he have pardoned them?

Well, one view is that he should have foreseen everything coming and issued a blanket pardon. I think that’s requiring someone to have god-like foresight. I don’t think most of us thought the DemoKKKrats & that evil snot-dragon of an AG would go after people in this way. That said, the template used is that of the draft dodgers during the Vietnam era. The difference there was that anyone dodging the draft was on record as having committed a crime, therefore they were “criminals” who needed to be pardoned.

The danger in “pre-pardons” is that a) you identify people as “criminals” in the public mind-—even though LEGALLY they are not-—and thus negatively impact their lives. What if, for example, no charges were ever filed? You by pre-pardoning are suggesting they engaged in a crime after all. b) Second, who was “involved?” Would that only affect those in DC? But we’ve seen newsmen now who REMOTELY covered the events be investigated & charged. How far can a pardon extend? It would have had to have been brilliantly written to include all possible violators and yet not implicate those who might not be charged. c) So, wouldn’t the AG simply make up new, unrelated charges to the pardon? “any and all crimes related to J6” certainly would not mean a murder over an argument about J6, or someone who threatened someone about their J6 participation. The ripples from this rock in the pond are endless.

This therefore meant that President Trump and his AG and legal teams would have had to have had all this done in less than 14 days after J6-—when no one had been charged for anything (maybe a few arrested for vandalism at the Capitol). Further complicating matters, since we KNOW that Botoxic had her evil spawn daughter filming, thus opening a case against her and the Capitol police for incitement, would a pardon not cover them as well? What about cops/fascistBI agents who were provocateurs?

In short, I don’t think practically or legally Trump could have pardoned anyone without potentially damaging them if they were not involved, and I don’t think he had anywhere near the time for a hypothetical that hadn’t happened yet.

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