If you’ve heard the words “Pardon me” in our nation’s capital recently, it’s likely the phrase had nothing to do with being polite. Instead it was a plea to keep the requestor out of the big house, and I’m not referring to the White House. I mean prison. With the Trump administration drawing to a close, folks were eager to receive a presidential pardon. But exactly what is such a pardon and how does one obtain one? I’ll pardon your ignorance if you don’t know and enlighten you.
Ignorance may be bliss, but it also doesn’t help anyone understand what is going on in current events. While fully comprehending what a coronavirus is and how to combat it requires some scientific background, presidential pardons aren’t as difficult to wrap your brain around. In fact, a citizen can readily grasp the concept and its parameters without being Albert Einstein. All it takes is a short civics lesson.
Everyone’s heard of the Constitution, right? Sure. That important document contains the basis for the power of a president to issue a pardon. Article II, Section 2, Clause 1 of the Constitution states, “The President…shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in cases of impeachment.” Short and sweet, isn’t it? It’s a mere one sentence long with no mention of spike proteins and antibodies to confuse us.
This succinct constitutional provision answers some important questions, i.e., who, what, and when. The who is the President of the United States. What he can do is to grant pardons for federal offenses except in impeachment cases. When he can do that is while he is POTUS. That’s why there was a buzz of activity to seek pardons as 2020 wound down and Inauguration Day (Biden’s not Trump’s) approached. Once sworn in, Biden is POTUS and possesses the power to pardon.
Note that Article II, Section 2, Clause 1 gives the president virtually unlimited power to issue pardons. The only restrictions on his power are that he hold the office of POTUS, that he cannot pardon state offenses, and that he cannot pardon offenses in impeachment cases. He does not have to give a reason for granting a pardon, and his action is not reviewable by other branches of the government.
Just whose idea was it to allow POTUS to have such great power? Think Broadway. The answer is Alexander Hamilton, a Founding Father made even more famous by Lin Manuel-Miranda’s smash musical “Hamilton.” Hamilton pushed for this presidential power and even advocated for it in the Federalist Papers. Somehow this portion of Hamilton’s career failed to rate a song in “Hamilton.” One can only hope for a sequel to the play to address this oversight.
If someone is pardoned, the punishment for the federal crime is set aside. But POTUS simply granting a pardon isn’t all that is necessary for the punishment to be avoided. The person to whom the pardon is granted must accept the pardon. The U.S. Supreme Court decision in U.S. v. Wilson in 1833 ruled that a pardon can be rejected by a convict, and that a pardon must be affirmatively accepted for the courts to recognize it.
Why in the world would someone reject a pardon? One reason is that applying for and accepting a pardon is seen as an admission of guilt. While a pardon provides a get out of jail (or don’t go to jail) card, there is still a stain on the individual’s record of having acknowledged he did wrong.
A pardon may be granted before an individual has been found guilty or even charged with the commission of a crime. These types of pardons are known as presumptive pardons. For example, in September 1974, President Gerald Ford pardoned his predecessor, Richard Nixon, for any offenses connected to the Watergate scandal. At that point, Nixon (not so fondly known as Tricky Dick) had been accused of obstruction of justice, but he had yet to be charged.
Unresolved is whether a president can pardon himself. This issue has never been tested in the courts because, to date, no president has taken such action. That step was considered by Nixon’s lawyer and rumors swirled that President Trump might attempt that action, but no self-pardons materialized.
How does one request a pardon from POTUS? Applications for pardon must be submitted to the creatively named (NOT!) Office of the Pardon Attorney for review and recommendation as for the action to be taken. POTUS, of course, does not have to follow the recommendation of the OPA (Office of Pardon Attorney). He can also elect to pardon an individual on his own initiative. For example, on December 22, 2020, President Trump issued 20 pardons; of those pardons, only three were tied to petitions submitted to the OPA.
To no one’s surprise, presidential pardons are often controversial. Just two days before Christmas, POTUS delivered a very special present to two men to which he is connected. He pardoned Charles Kushner, his son-in-law’s father, and Paul Manafort, his former campaign manager. That wasn’t jingle bells these men heard but the sound of freedom from punishment.
But President Trump is hardly the only president to use his pardon power to take controversial actions. On his last day in office, President Jimmy Carter pardoned his own brother who was serving time for a federal drug-related offense. President Clinton pardoned billionaire tax evader and fugitive Marc Rich and his wife Denise, generous donors to Bill and Hillary. Boy did those donations ever pay off!
While President Trump issued a flurry of pardons before leaving office, including 52 on the day prior to Biden’s inauguration, he did not use the power excessively. Only 112 can be attributed to him. FDR, in contrast, issued the most pardons of any president–3,687. President Obama ranks #4 on the list of presidential pardons granted with 1,927.
Whether you agree with the existence of this presidential power or to whom the pardons are granted, having presidential pardons in the news is a positive thing. The topic provides Americans with the opportunity for a civics lesson. Even better, it offers something other than COVID and contested elections to hear about. Pardon me if I am thankful for that development!
Is the presidential pardon power too broad? Does it pass the sniff test for presidents to pardon family members and political donors? Does it surprise you that Alexander Hamilton was the Founding Father who proposed the granting of this power?