Pardon Power

My Thoughts on the President's Pardon Power

Article II, Section 2 of the United States Constitution states that the President has the authority to “grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” The United States Supreme Court has interpreted this power as “plenary,” meaning that is considerably broad and not generally subject to congressional modification. In both Ex parte Garland (1866) and United States v. Klein (1871), the Court ruled that legislation could not restrict the president’s pardon power.

Carl Higbie asked Gen. Bruce Castor recently on FOX much about Pardon power. Honestly, like many Americans, are struggling with the likelihood that anyone, even the president of the United States, should have unlimited pardon power. The underlying issue or question is if it is even possible for a President to abuse the power of the pardon. I'd like to opine in general, on this broad power.

When considering the granting of the power to pardon, our founders debated for one, the persecution of political allies of a President and course. They also reasoned that pardoning subordinates for treason would subject the president to threats of impeachment and removal from office. A pardon releases a person from punishment and restores all civil liberties. The origins of the pardon power in the United States Constitution can be found in English history, known previously as the “prerogative of mercy.” It first appeared during the reign of King Ine of Wessex in the seventh century. Although abuses of the pardon power increased over time, leading to limitations on it, the pardon power persisted through the American colonial period. Alexander Hamilton introduced the concept of a pardon power at the Constitutional Convention. There was debate about whether Congress should have a role in the pardon power, with the Senate approving presidential pardons. Delegates also debated whether treason should be excluded from pardonable offenses. However, the final result was an expansive power for the president in Article II, the strongest example of constitutional executive unilateralism. The framers of the Constitution deliberately separated the judicial function of government from the pardon power, therefore obviating concern from English jurist William Blackstone that the power of judging and pardoning should not be delegated to the same person or entity. They also reasoned that pardoning subordinates for treason would subject the president to threats of impeachment and removal from office. However, Amnesty is the same as a pardon but is extended to an entire class of individuals. There is an estimated 21 million illegals domiciled in the United States. While the pardon power is robust, there are three important limitations to it. First, a crime must have been committed for a pardon to be issued. Second, the presidential power is limited to federal crimes. Lastly, the president may not issue pardons in cases of impeachment. Other than these criteria, there are no constitutional restrictions on a president’s pardon power. As decided in Ex Parte Garland (1866), presidents may issue pardons at any time after the commission of a federal offense, even before federal charges have been filed or a sentence has been imposed.

 Such was the case when Ford pardoned Nixon. There are other instances of presidents circumventing judicial processes in anticipation of legal action. Abraham Lincoln issued preemptive pardons during the Civil War and so did Jimmy Carter, who pardoned Vietnam draft evaders who had not been charged for their actions. Of course, all of this is well established. Recently, although not dealing with pardon power directly, interesting are the conclusions of Special Counsel Robert Hur, when declining to indict, that President Biden would not likely be convicted based on his age and feeble condition. The Special Counsel's conclusion, of course, is related to prosecutorial discretion, not directly implicating pardon power. Special Counsel Hur left no doubt that President Biden committed serious crimes. If President Biden had been indicted it would then give rise to the question of whether President Biden would have tried or will attempt to pardon himself before he left office. Legal analysts are not settled on the question concerning the ability of a president to self-pardon. A recent review of law school faculty opinion on the power to self-pardon stated: “There is no clear consensus among legal professionals concerning the constitutionality of the presidential self-pardon, which has never been attempted by a U.S. President.” Some constitutional scholars argue that the Constitution does not explicitly prevent such an action, given the minimal restrictions placed on the pardon power in Article II. Other experts contend that a president cannot pardon himself or herself due to the established legal precedent that no one may be a judge in his own case and the constitutional restriction that a president cannot issue a pardon in relation to impeachment. Richard Nixon did consider a self-pardon in 1974. At that time, the Justice Department produced a memorandum that concluded the president did not have the constitutional power to issue a self-pardon. However, constitutional law and interpretation are undetermined in this situation since historical precedent has not been established. The Special Counsel's opinion raises another important question regarding the power of pardons. Special Counsel Hurs suggests that there are concerns about President Biden's mental competency. Although the framers of the Constitution did not explicitly state that a president must be of sound mind when issuing a pardon, it is widely accepted that questions about a president's mental competency—such as those addressed by the 25th Amendment—are legitimate and sustainable.

 

Additionally, we can refer to the well-established principle of legislative intent, particularly in the context of constitutional intent regarding pardons. It is generally understood that legislation is subject to judicial review. When a statute is ambiguous or when the congressional record does not provide clarity on specific language, it is reasonable to presume that the founders intended for a president to be of sound mind when issuing pardons and performing their duties.

 

Moreover, the framers likely considered the potential for a president or a citizen to commit treasonous or seditious felonies without consequence. However, given the jurisprudence of the founding era, it does not seem that the framers contemplated how a president's incompetency could lead to widespread criminal behavior that negatively impacts the United States and its citizens. The authority to remove a president from office due to incompetence was only addressed with the ratification of the 25th Amendment in 1967, which focused on the presidential succession process.

 

Most would agree that arguments claiming an otherwise sane president abused their discretion in issuing pardons, absent questions of competency, are unlikely to succeed. The only other case where the language and intent of the framers is clear and unambiguous is found in the Second Amendment. Despite the straightforward text of the Second Amendment, there is extensive case law and jurisprudence surrounding its interpretation, particularly the phrase "shall not be infringed," which is explicit.

 

Finally, the Declaration of Independence, which formally severed political ties between the American colonies and Great Britain, articulated the principles behind a just and fair government. The Constitution subsequently outlined how this government would function. We must adhere to these foundational principles to avoid the risk of tyranny.