Article II, Section 2, Clause 1:

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.

The Constitution establishes the President’s authority to grant clemency, encompassing not only pardons of individuals but several other forms of relief from criminal punishment as well.1 The power, which has historical roots in early English law,2 has been recognized by the Supreme Court as quite broad. In the 1886 case Ex parte Garland, the Court referred to the President’s authority to pardon as “unlimited” except in cases of impeachment, extending to “every offence known to the law” and able to be exercised “either before legal proceedings are taken, or during their pendency, or after conviction and judgment.” 3 Much later, the Court wrote that the “broad power conferred” in the Constitution gives the President “plenary authority” to “‘forgive’ [a] convicted person in part or entirely, to reduce a penalty in terms of a specified number of years, or to alter it” with certain conditions.4

Despite the breadth of the President’s authority under the Pardon Clause, the Constitution’s text provides for at least two limits on the power: first, clemency may only be granted for “Offenses against the United States,” 5 meaning that state criminal offenses and federal or state civil claims are not covered.6 Second, the President’s clemency authority cannot be used “in Cases of impeachment.” 7

Beyond textual limits, certain external constitutional and legal considerations may act as constraints on the power. For instance, the Court has indicated that the power may be exercised “at any time after [an offense’s] commission,” 8 reflecting that the President may not preemptively immunize future criminal conduct. In Schick v. Reed, the Court recognized that an exercise of clemency may include “any condition which does not otherwise offend the Constitution,” 9 suggesting that the President may not make clemency subject to a condition that is prohibited by another constitutional provision.10 Other apparent limitations include not affecting vested rights of third parties, such as where forfeited property is sold,11 or proceeds “paid into the treasury,” which “can only be secured to the former owner . . . through an act of [C]ongress.” 12 The Court in The Laura also alluded to an exception for “fines . . . imposed by a co-ordinate department of the government for contempt of its authority,” 13 though a later case recognized that the President may pardon one who is subject to criminal punishment for contempt of court.14

Assuming the recognized limitations are not transgressed, a full pardon granted by the President and accepted by its subject15 prevents or removes “any of the penalties and disabilities consequent upon conviction . . . .” 16 In several nineteenth-century cases, the Supreme Court suggested that a pardon broadly obviates all legal guilt of the offender, effectively erasing the crime from existence.17 Subsequent cases appear to have backed away from this understanding,18 suggesting instead that, although a full pardon precludes punishment for the offense in question, a prior and pardoned offense may still be considered in subsequent proceedings.19

Congress generally cannot substantively constrain the President’s pardon authority through legislation, as the Court has held that the “power of the President is not subject to legislative control. Congress can neither limit the effect of his pardon, nor exclude from its exercise any class of offenders. The benign prerogative of mercy reposed in him cannot be fettered by any legislative restrictions.” 20 Nevertheless, there is historical precedent for legislation facilitating the exercise of the pardon power through funding of executive branch positions to review clemency petitions.21 Congress also has other constitutional tools that it may use in relation to the President’s pardon authority, provided the legal conditions associated with those tools are met, such as oversight,22 impeachment,23 and constitutional amendment.24

Footnotes

1

See Clemency, Black’s Law Dictionary (11th ed. 2019) (defining clemency, in part, as “the power of the President . . . to pardon a criminal or commute a criminal sentence” ).

2

1 Benjamin Thorpe, Ancient Laws and Institutes of England 46 (1840) (reflecting law “of fighting” in the Laws of King Ine: “If any one fight in the king’s house, let him be liable in all his property, and be it in the king’s doom whether he shall or shall not have life” ).

3

71 U.S. 333, 380 (1866); see also United States v. Klein, 80 U.S. 128, 147 (1871) ( “To the executive alone is intrusted the power of pardon; and it is granted without limit.” ).

4

Schick v. Reed, 419 U.S. 256, 266 (1974).

5

U.S. Const. art. II, § 2, cl. 1.

6

Ex parte Grossman, 267 U.S. 87, 111, 115, 122 (1925) (acknowledging that phrase was included “presumably to make clear that the pardon of the President was to operate upon offenses against the United States as distinguished from offenses against the states” and distinguishing between civil and criminal contempt for purposes of pardon authority).

7

U.S. Const. art. II, § 2, cl. 1; see Garland, 71 U.S. at 373 (acknowleding that the President’s authority to grant pardons is subject to the exception of “cases of impeachment” and that “[w]ith that exception the power is unlimited” ).

8

Garland, 71 U.S. at 380.

9

419 U.S. at 267.

10

See id. ( “Of course, the President may not aggravate punishment.” ).

11

Knote v. United States, 95 U.S. 149, 154 (1877) ( “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.” ).

12

Ill. C.R. Co. v. Bosworth, 133 U.S. 92, 104–05 (1890); see also Ex parte Garland, 71 U.S. 333, 381 (1866) (explaining that pardons do not “restore offices forfeited, or property or interests vested in others in consequence of the conviction and judgment” ); Semmes v. United States, 91 U.S. 21, 27 (1875) (holding that a pardon did not interfere with the right of a purchaser of forfeited property).

13

114 U.S. 411, 413 (1885).

14

Ex parte Grossman, 267 U.S. 87, 122 (1925). Other possible limitations—for instance, whether the President may issue a self-pardon or pardon contempt of Congress—have been the subject of debate but have not been addressed by the Supreme Court. E.g., Paul F. Eckstein & Mikaela Colby, Presidential Pardon Power: Are There Limits and, If Not, Should There Be?, 51 Ariz. St. L.J. 71, 97–100 (2019) (surveying arguments regarding authority to self-pardon); Charles D. Berger, The Effect of Presidential Pardons on Disclosure of Information: Is Our Cynicism Justified?, 52 Okla. L. Rev. 163, 181 (1999) (describing pardon of Dr. Francis Townsend for contempt of Congress, without court challenge, during the presidency of Franklin D. Roosevelt).

15

See Burdick v. United States, 236 U.S. 79, 94 (1915) ( “Granting, then, that the pardon was legally issued and was sufficient for immunity, it was Burdick’s right to refuse it[.]” ); but cf. Biddle v. Perovich, 274 U.S. 480, 486–87 (1927) (indicating that consent is not required in the context of commutation or remission, and that “the public welfare, not [the individual’s] consent, determines what shall be done” ).

16

Ex parte Garland, 71 U.S. 333, 381 (1866).

17

See id. at 381–82 ( “A pardon reaches both the punishment prescribed for the offense and the guilt of the offender; and when the pardon is full, it releases the punishment and blots out of existence the guilt[.]” ); Carlisle v. United States, 83 U.S. 147, 151 (1872) (reflecting understanding that pardon “not merely releases the offender from the punishment prescribed for the offence, but . . . obliterates in legal contemplation the offence itself” ).

18

See Burdick, 236 U.S. at 94 ( “[A pardon] carries an imputation of guilt; acceptance a confession of it” ).

19

See Carlesi v. New York, 233 U.S. 51, 59 (1914) (determining that pardoned offense could still be considered “as a circumstance of aggravation” under a state habitual-offender law); Nixon v. United States, 506 U.S. 224, 232 (1993) (stating in dicta that a pardon “is in no sense an overturning of a judgment of conviction by some other tribunal; it is ‘[a]n executive action that mitigates or sets aside punishment for a crime’” ); see also Angle v. Chicago, St. P., M. & O. Ry. Co., 151 U.S. 1, 19 (1894) ( “An executive may pardon and thus relieve a wrongdoer from the punishment the public exacts for the wrong, but neither executive nor legislature can pardon a private wrong, or relieve the wrongdoer from civil liability to the individual he has wronged.” ).

20

Garland, 71 U.S. at 380; see also Schick v. Reed, 419 U.S. 256, 266 (1974) ( “[T]he power [of clemency] flows from the Constitution alone, not from any legislative enactments, and . . . it cannot be modified, abridged, or diminished by the Congress.” ).

21

E.g., An Act Amendatory of the Acts Relative to the Attorney-General’s Office, and to Fix the Compensation of his Assistant and Clerks, ch. 98, 13 Stat. 516 (1865) (authorizing Attorney General to employ and provide salary for “pardon clerk,” among others). Some early Supreme Court language also suggested Congress can itself grant pardons or amnesties through legislation, see Brown v. Walker, 161 U.S. 591, 601 (1896) (noting that pardon power of President “has never been held to take from congress the power to pass acts of general amnesty” ), though the continued vitality of this ostensible authority is unclear.

22

E.g., Pardon of Richard M. Nixon, and Related Matters: Hearings Before the Subcomm. on Criminal Justice of the H. Comm. on the Judiciary, 93d Cong. 90–151 (1974) (testimony of President Gerald Ford).

23

See Ex parte Grossman, 267 U.S. 87, 121 (1925) (indicating that hypothetical effort by President to “deprive a court of power to enforce its orders” through successive pardons “would suggest a resort to impeachment” ).

24

E.g., S.J.Res. 241, 93rd Cong. (1974) (proposing constitutional amendment to provide mechanism for congressional disapproval of pardons).