The Constitution of the United States of America grants the president the pardon power, but not many think it is truly unlimited. If it were, the President would be above the law, and in America, no one is above the law. This was settled in 1215 with the Magna Carta and held up in various courts for 800 years including in America in 1974 with United States v. Nixon, 418 U.S. 683.

In this article we’ll take a look at the limits of the presidential pardon power including what the Constitution says, how the Supreme Court has interpreted the pardon law, what the Federalist papers say about it, what current DOJ policy is, as well as answer a few frequently asked questions.

U.S. Constitution

Article 2 gives the President the authority to pardon people for specific federal crimes they have committed. The “offenses against the United States” phrase refers to specific federal crimes and does not apply to state crimes nor civil actions. Although most belief the president must specify the federal crimes in a pardon, some do not and the Supreme Court has yet to weigh in on this subject.

Article 2, Section 2: “The President…shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.”

The US President has the authority to pardon individuals for specific federal crimes they have committed under Article 2, Section 2 of the Constitution. However, it does not apply to state crimes or civil actions. While most believe the President must specify the federal crimes in a pardon, some do not, and the Supreme Court has not yet ruled on this matter. The Federalist Papers provide further insight into the Founding Fathers’ intent.

The Federalist Papers

The Federalist Papers is propaganda written by 3 founding fathers: Alexander Hamilton, James Madison, and John Jay. The goal of the Federalist Papers was to persuade the most resistant among the citizens to support the constitution. They were used during the first few years of our country starting in 1788. The Constitution was ratified the next year. The Federalist Essays are not legal documents, but can be used to backup and bolster the meaning behind the words in the constitution as well as explain details not directly in the constitution.

Essay 69: Alexander Hamilton

In essay 69, Hamilton compares the Presidency to the kings and such to expound the character of the Presidency. He argues that the President cannot pardon crimes related to impeachment. The constitution reflects this sentiment.

“The President is to be the commander-in-chief of the army and navy of the United States, and of the militia of the several States… He is to have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment;“

There seems to be little to no debate on this. The president cannot avoid impeachment of himself nor anyone else using the presidential pardon power. This makes since because the impeachment process is more of a political process to remove or punish an elected official.

Although the Federalist Papers may be seen as propaganda written by the Founding Fathers to support the Constitution’s ratification, they are a valuable resource in understanding it. Especially the meaning and intent of the constitution. Essay 69 emphasizes that the President cannot use the pardon power to avoid impeachment, as it is a political process for removing elected officials. This clarification leaves little room for debate and reinforces the Constitution’s checks and balances system.

Department of Justice (DOJ)

The Department of Justice requires that anyone requesting a pardon wait five years after conviction or release prior to receiving a pardon. Most presidents have expedited a few pardons during their term. 

Supreme Court Rulings

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 amnesty.

A Pardon Equals Guilt
The Supreme Court stated in Burdick v. United States that a pardon carries an imputation of guilt, and acceptance of a pardon is a confession to such guilt. A pardon does not overturn a conviction, it is a form of mercy for the guilty.

In Associate Justice Joseph McKenna majority opinion in the case Burdick v. United States, a pardon

“carries an imputation of guilt; acceptance a confession of it.”

You can refuse a pardon
SCOTUS ruled in United States v. Wilson in 1833 that a pardon can be rejected by the convict.

In Burdick v. United States in 1915, SCOTUS specifically said:

“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, preferring to be the victim of the law rather than its acknowledged transgressor, preferring death even to such certain infamy.”

It is interesting to contrast this with commutations which are a reduction in prison sentence. Unlike pardons, commutations may not be refused. In Biddle v. Perovich 274 U.S. 480 in 1927, the subject of the commutation did not want to accept life in prison but wanted the death penalty restored. The Supreme Court said,

“[A] pardon in our days 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.”

Courts can compel someone pardoned to testify about their crimes
If there is no prospect of criminal liability, then the 5th Amendment privilege against self-incrimination also disappears. This is true whether one is granted adequate immunity by a prosecutor, or because of the acceptance of a presidential pardon. Anyone pardoned is required to testify under oath against others or they face going to prison.

In 1895, SCOTUS ruled in Brown v. Walker:

“[I]f the witness has already received a pardon, he cannot longer set up his privilege, since he stands with respect to such offence as if it had never been committed.”

Receiving a presidential pardon does not grant immunity from testifying against others. As the 1895 Supreme Court ruling in Brown v. Walker stated, a pardoned individual cannot claim the 5th Amendment privilege against self-incrimination because they are considered to have never committed the offense. Therefore, they can be compelled to testify under oath without fear of criminal liability. This serves as a reminder that even after receiving a pardon, individuals are still accountable for their actions and may be required to cooperate with investigations.

FAQ

(Submitted frequently asked questions. To participate, comment below,
or submit a question or comment.)

Q. Can a president self-pardon?
A President cannot pardon himself or herself for the impeachment process in the House of Representatives and Senate because that is a political process and not a matter of law. One of the tenets of our Constitution is that no one is their own judge. If that were true, the President could literally murder someone and then pardon himself. That’s just plain crazy talk. However, it’s an untested question if a president can pre-pardon themself for indictment by the DOJ. Meaning, the Supreme Court has not specifically ruled one way or the other.

Q. Is someone pardoned still guilty?
Yes. See the Supreme Court Burdick v. United States case.

Q. Was Ford’s pre-pardon of Nixon Constitutional?
The constitutionality of open pardons, such as Ford’s pardon of Nixon, has never been judicially tested in the Supreme Court and is an open question.

Q. Can a President pardon someone before a conviction?
I think the short answer is yes, but that the Supreme Court can step in and interpret the Constitution to close this loophole. Either way, the person pardoned is admitting guilt and Presidential mercy by accepting the pardon. For example, President Ford used the pardon power to pardon Nixon prior to conviction. By accepting the pardon, Nixon was guilty of everything he was pardoned for and he accepted the “mercy” from any penalty by President Ford.

“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.” — William F. Duker, 1976. From The President’s Power to Pardon: A Constitutional History.

Although tradition dictates that pardons are granted after a guilty plea or conviction, many believe there are few limitations for the President to grant a pardon for criminal behavior for past crimes. Their belief includes the ability to pardon prior to a DOJ indictment. And, in fact, presidents have done this several times.

Q. Can a president pardon for future crimes?
No. If he could, that would mean the president had the ability to waive laws for specific individuals.

Q. Does a pardon protect one from a future conviction?
Yes. But only for the specific past crimes specified in the pardon and only at the Federal level. Meaning, if one is pardoned for a conviction of stabbing someone, if they stab them again, that’s a separate specific crime and they can be charged again for stabbing their mother. In addition, if one was put under oath, they would have to tell the truth, the whole truth, and nothing but the truth with regard to the past crime of stabbing their mother; otherwise, they could be charged with perjury.

In addition, if one is convicted and pardoned for federal tax evasion, a state could still charge one for state tax evasion. Furthermore, the state tax evasion may be part of the federal tax evasion charge, but could still be prosecuted at the state level for state crimes. Why and how? Federal and state laws are separate laws and their jurisdictions are limited to federal and state courts respectively.

Q. Can a President pardon someone prior to their impeachment by the House of Representatives?
No. The Constitution clearly says the criminal pardon power does not apply to the political impeachment power.

Q. Can a President pardon his or her kids and others for the crimes that are part of the charges of impeachment?
Short answer: Yes, but only for Federal crimes and acceptance of a pardon for specific crimes is an admission of guilt. Furthermore, anyone given a pardon can still be prosecuted for future crimes and must tell the truth, the whole truth, and nothing but the truth regarding all pardoned crimes when testifying under oath.

Regarding pending Trump pardons

Want more?
This article was just an introduction to the mindset of our Founding Fathers. For more, read the Federalist Papers and the Anti-Federalist Papers which contain interesting background information. Finally, if you’re in a historical mood, consider reading the notes from our Constitutional Conventions which contain the thoughts of the citizens of the time.