As the administration of President Donald Trump winds down, he will likely grant additional pardons before leaving office, perhaps even a significant number. Providing a series of end-of-term pardons would not be unusual as it would follow in the footsteps of most US presidents that served before him. Also, more than one president has granted clemency in situations that have involved blatant cronyism, so it is unfair for people to suggest that Mr Trump has a monopoly on this. However, the decisions that President Trump makes as far as pardons before he leaves office will be interesting because they might include a pre-emptive pardon for his personal attorney, pre-emptive pardons for certain members of his family, and / or even an unprecedented pre-emptive self-pardon. This reeks of self-dealing, although Mr Trump would not be the first president to pardon a political or personal “insider” or a family member, although perhaps he would be the first to do so pre-emptively. To my knowledge there has never been a pre-emptive self-pardon, so this would certainly be breaking new ground. I have never paid too much attention to end-of-term pardons of transitioning administrations. However, the options that Mr Trump is apparently considering adds a significant amount of spice to the equation. At the suggestion of an avid reader of emorningcoffee.com, I thought I would take a quick look at the basis of this Constitutionally-granted power of the US president and how it has been used by prior presidents during the history of the United States.
The basis for presidential pardons: the US Constitution
The basis for presidential pardons is enshrined in the US Constitution in Article II, section 2, clause 1, “Pardon Powers”, signed by the founding fathers in 1787 and ratified in 1789. The clause reads:
“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.” (source: Constitution Annotated website, which is here).
Granting the power to the US president to pardon people convicted of federal crimes did not find its way into the Constitution without a fair amount of discussion amongst the founding fathers, with the authoritative voice on this matter apparently being James Madison. Ultimately, the decision was made to grant pardon powers to the president, and the president only, at any time except when a president has been impeached (and prior to the subsequent Senate “trial”). I understand this to mean that when a president is impeached by the House of Representatives – as were Presidents Nixon, Clinton and Trump – they lose their powers to pardon because they might otherwise pardon themselves prior to a trial in and vote by the Senate. Should you be interested in learning more about the pardon powers of the president, see the Brookings Institution website: “The pardon power and original intent”.
Let me make several other points. Firstly, Presidential pardons can only be granted for federal offences, not state offences. State pardons can also be provided but only by state governors, not the president. Secondly, it is interesting to note that a pardon can only be provided five years after a person is released from incarceration or – if they didn’t go to jail – five years after being convicted. Thirdly, a pardon (or sentence commutation) does not erase the record of the person or expunge their convictions. In fact, quite to the contrary, a pardon only restores the person’s rights (see below). In essence, a pardon is forgiveness and implies an acknowledgement of guilt; it does not rewrite history as far as the conviction. And lastly, Congress is not involved in pardons and the courts are rarely if ever used – this is a tool only available to the president of the United States.
The process of granting pardons
The US Department of Justice, more specifically the Office of the Pardon Attorney, has been handling all executive clemency cases for the Executive Branch of the US government since it was established over 125 years ago. All pardon requests are handled by the Pardon Attorney, who prepares the cases – including the analysis and a recommendation – for presentation to the President. These recommendations are non-binding, so they can be accepted or rejected by the President. In addition, the president can offer pardons or sentence commutations under Article II, section 2 of the Constitution with no input from or involvement of the Department of Justice at all, as President Trump has done on several occasions.
The Acting Pardon Attorney is Rosalind Sargent-Burns, who has been part of the Pardon Department for 10 years and was named to her current position by Attorney General William Barr on May 28th 2019. You can read more about the Office of the Pardon Attorney here, which has its own section on the Department of Justice website.
Pardons and other alternatives available to the president
The clemency alternatives available to the President include pardon, commutation of sentence, remission of fine or restitution, or reprieve.
As mentioned already, a pardon is not vindication of a crime. In other words, it does not expunge the crime from the person’s record, and it does not make a person innocent that has been convicted of a federal offence. Rather, the person is essentially being forgiven and – as a result – regains all rights of a US citizen that are not available to convicted criminals, including the right to vote and the right to serve on a jury. As an aside, such pardons provided to a group or communities of people, which happens from time to time, is referred to as amnesty.
A commutation of sentence means the substitution of a less severe sentence in place of the original sentence. This normally occurs only if new information comes to light that was not available at the time of the original sentencing. A commutation rarely occurs except in cases of old age, severe illness or when the sentence is unusually harsh compared to others convicted of a similar crime. A commutation does not restate the rights of a US citizen, unless a pardon were to be granted after the commutation.
A remission of fine or restitution refers to relief from a forfeiture or a penalty, or restitution.
A reprieve is a temporary postponing of a criminal sentence, particularly a death sentence.
The history of pardons by president
As the table below from the Pew Institute shows below, President Trump has granted fewer clemency requests as a percent of those that have applied (less than 0.5%) than any other president since 1900, around the time that the Office of the Pardon Attorney was established. In fact, through November 23rd, President Trump had granted only 28 pardons and 16 sentence commutations, far lower than any other president since at least the beginning of the 20th century.
Even though the table above only goes back to 1900, presidents have been granting pardons since the first president – George Washington – was elected to office. This table from the Department of Justice provides even more detail than the table above, showing clemency decisions dating back to 1900 year-by-year for each president.
Controversial pardons and sentence commutations
There have been several controversial pardons granted that might provide some context for the potential pardons being considered by President Trump as his presidency winds down. As I mentioned above, pardons started with the first president of the U.S. and have continued to this day, so this is by no means a new topic.
Although long ago, one of the largest and perhaps most famous pardons related to former-president Andrew Johnson’s (Lincoln’s successor) pardon of former Confederates in the period (1865-1867) following the end of the Civil War, starting with a blanket pardon of those not involved in the Confederate government, and then offering a series of personal pardons of ex-Confederate government officials (Confederate Congress members and governors) that eventually totalled more than 13,000 people. Interestingly, this also resulted in one of the first cases in which a pre-emptive pardon went to the Supreme Court and was upheld (see the case of Augustus Hill Garland here for more details), confirming the presidents unfettered right to not only grant pardons but also the legality of pre-emptive pardons.
One of the more contentious “recent” pardons involved then-President Ford’s pre-emptive pardon of former-President Nixon, exonerating him from any potential (although at the time not yet charged) criminal charges related to the Watergate scandal. If you recall, former-President Nixon resigned in August 1974 facing almost certain conviction by the Senate of several impeachment charges related to Watergate. Mr Nixon was replaced by then-Vice President Gerald Ford (who interestingly, had replaced then-Vice President Spiro Agnew in October 1973). The decision was viewed as highly political and wrong by the majority of US citizens and many government officials, but this view has softened over time because it increasingly has been viewed as an important step to digging the country out of the deep hole of the Watergate scandal and the winding-down of the Vietnam War.
On former-President Carter’s first day in office (Jan 21st, 1977), he provided a blanket pardon to all “draft dodgers” that had evaded the Vietnam War by moving abroad or by simply failing to register with their local Selective Service boards. Politico.com says that this blanket pardon extended to “hundreds of thousands” of men. This decision faced criticism from the left (“didn’t go far enough”) and the right (“draft evaders should not be pardoned”), but it was intended to heal the wounds of an unpopular war involving the United States.
Former-President Clinton provided a similar number of pardons as other two-term presidents during his two term administration, but nearly one-third came on his final day in office (Jan 20th 2001), referred to by some as “Pardongate”. Of the 140 pardons and several commutations provided on his final day in office, Mr Clinton included rather high profile and controversial pardons for Marc Rich (fugitive financier, tax fraud), Susan McDougal (Whitewater scandal involving the Clintons), Dan Rostenkowski (post office scandal), Patty Hearst (sentence commuted by President Carter but pardoned by Mr Clinton), and perhaps most famously, Mr Clinton’s half-brother Roger Clinton Jr, who was convicted of drug-related charges in the mid-1980s and served a one-year sentence. This series of pardons was widely criticised and reeked of rampant cronyism.
Perhaps former President Obama’s 2017 commutation of the sentence of WikiLeaks figure Chelsea Manning (leaks of defence secrets in 2010) was one of his most controversial uses of his pardon power, but it was only one of the largest number of clemency cases (by far) ever considered by a president – refer to the table from the Pew Institute above.
Although President Trump has provided few in the way of pardons since he took office, two of the most controversial have been the pre-emptive pardon of Michael Flynn, Mr Trump’s first National Security Advisor (convicted of conspiring with Russians in 2016), and the commutation of the sentence of long-term Republican activist Roger Stone (Trump advisor, convicted of crimes of aiding Russian interference in the US election in 2016). Regarding Mr Flynn, his case was wrapped in controversy because he pled guilty in December 2017 of lying under oath, but Attorney General William Barr then dropped all charges on the basis that the Department of Justice could not prove the original charges, even though Mr Flynn pleaded guilty, apparently twice. This provided an opening for President Trump to then provide a pre-emptive pardon. As an aside and perhaps of interest to my readers that follow financial markets, President Trump also pardoned junk-bond king Michael Milken earlier this year (variety of charges to which Mr Milken pled guilty in 1990).
The current situation with President Trump
Through the date of this article, President Trump has granted relatively few pardons (28) and sentence commutations (16) during his time in office. However, most presidents tend to consider pardons and sentence commutations more seriously as they are leaving office, including the famous last day surge under former-President Clinton. Speculation is that President Trump will likely do the same. The most interesting potential pardons floating about are a potential pre-emptive pardon of close family members, the potential pre-emptive pardon of Mr Trump’s personal attorney Rudy Giuliani, and a pre-emptive self-pardon.
President Trump does not have a monopoly on controversial pardons, as you should realise by reading this paper. He is certainly not the first president to bail out those that have been convicted of crimes that aided their political ambitions. Moreover, pre-emptive pardons have been provided several times in the past, and at least one president (Mr Clinton) has used his pardon power to aid a family member. Therefore, the potential provision of pre-emptive pardons of some or all of Mr Trump’s children, and of their spouses, and even of his wife First Lady Melania Trump, would not break new ground. As with similar pardons and sentence commutations by other presidents, it would certainly be controversial, but there are ample precedents from those that have held this hallowed office before Mr. Trump. Remember though that pre-emptive pardons only cover federal charges (not state) and only relate to crimes that occurred only during the time that President Trump was in office.
The pardon of a president himself (or a “self-pardon”) would be much more controversial and would break new ground. It has never been tried, and therefore, has never been tested by the courts. A president pardoning himself was mentioned at the time that former-President Nixon was facing an impeachment trial (that he was going to lose) in the Senate, but ultimately, this did not go further because Mr. Nixon resigned and former-President Gerald Ford subsequently pardoned Mr Nixon. It also surfaced briefly when Mr Clinton was facing an impeachment trial in the Senate. Had Mr Clinton been convicted, the replacement president – then-Vice President Al Gore – could have then pardoned Mr Clinton, similar to what Mr Ford did for Mr Nixon. I suppose Mr Trump could resign from office, and similarly, then be pardoned by Vice President Michael Pence, but this seems highly unlikely and certainly complicated. Rather, I would not be surprised if President Trump tested the waters by providing a pre-emptive self-pardon, even though – at least to me – it clearly implies an admission of guilt.
Compared to these, the potential pre-emptive pardon of President Trump’s personal lawyer Rudy Giuliani to circumvent potential charges related to Ukraine and Russian interference in the 2016 election (amongst other potential crimes), is no worse than what several other presidents have done before Mr Trump. It is horribly distasteful, have no doubt. However, President Trump would not be breaking new ground in this respect on pardoning – even pre-emptively – political allies and /or personal friends like Mr Giuliani.
Conclusion
President Trump does not have a monopoly on cronyism as far as exercising his constitutional rights under Article II, Section 2 of the US Constitution to provide pardons and sentence commutations. However, the closing days of his administration will be revealing as far as how he handles pre-emptive pardons for other political insiders that helped him get elected and subsequently have defended him, and more interestingly, his immediate family, and even himself. He still has a large amount of popular support in the US, and whilst his decisions on many pending pardons might likely inflame those that don’t support the President, he is far from being the first to go down this relatively unsavoury path.
Mark, Thank you for commenting. And I would be remiss were I not to also say thanks for suggesting the idea to write about this topic - you have been unveiled! As you know, I try to always take a middle ground without veering too far one way the other. Having said this, I fully understand and in fact sympathise with your comments. "Give an inch and he'll take a yard", as they say, and the broad scope to which this president might use his right to pardon his family, those in his inner political / personal circle, and perhaps even himself, must be far beyond the realm of imagination of any of the founding fathers. However, we won'…
Thanks for this post, Tim. For a non-lawyer it demystifies the emotionally charged word "Pardon" and also places it in historical perspective. The 55 guys who wrote the US constitution had the British model clearly in mind. In today's world, the right for a standing President to grant clemency seems very 'regal" and out of step with democratic processes. However, the constitution is special because it includes so many checks and balances. This particular one provides a check on the judiciary. Unfortunately, in this day and age society is so divided and with polarisation comes considerable litigation. All Presidents have their flaws but this one is so personally flawed that he cannot be trusted to use any tools at his…
Raymond, You have made some excellent points in your comments, and I appreciate you taking the time to clarify some things I said in my original article. Your response was written like a person familiar with the law, which is obvious. On the matter of impeachment, I was not entirely clear what this implied when I was reading about it, although your logic makes sense. I researched this enough to believe that the intent was to remove the power of pardon from a standing president once he had been impeached (by the House), but that this would either become a moot point were he to be convicted in the Senate, or the pardon powers would essentially be re-instated were…
This is a very insightful post. I think that although there have been “blanket” pardons in the past, these have been issued arguably to get the country past a particular public traumatic experience (for example, Ford’s pardon of Nixon and Carter’s pardon of Vietnam war draft dodgers).
In the current case, a pre-pardon of the president’s personal attorney and his family members is quite different from those. Do these fit within the same “getting the country past a traumatic event” rationale?
A self-pardon is slightly different, even though there are serious doubts as to whether the president has this power, this would strangely arguably fall within this rationale. The argument against the validity of a purported self-pardon is that if…