Presidential Pardons Under Article II

The U.S. Constitution endows the president with the power to pardon individuals convicted of federal offenses. This extensive power has rarely been challenged in the Supreme Court. However, it does have its constraints; notably, the president cannot grant pardons in cases of impeachment.

This article describes the pardon power that Article II bestows the president. It first describes the pardon power and its constitutional basis. Then, it answers frequently asked questions about the power. It concludes by discussing its historical context and Supreme Court cases interpreting it.

Where Does the President's Pardon Power Come From?

Article II of the Constitution spells out the powers of the president and executive branch. Article II, Section 2, Clause 1 states the following:

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.

This section of the Constitution grants the president "executive clemency powers." Clemency is an umbrella term that encompasses the president's pardon powers.

There are several presidential powers regarding clemency. These include the following:

• Pardons effectively erase a person's punishment and guilt stemming from a federal offense.

• Amnesties are like pardons but generally apply to a group of people who may not have applied for a pardon. For example, President Abraham Lincoln granted amnesty to many Confederate soldiers and officials after the Civil War.

• Commutation refers to instances where the president uses their executive power to reduce a sentence. For example, a president may reduce a death sentence to a life sentence.

• The president may remit a fine or order to pay restitution. If the president does so, the offender does not need to pay the remaining fine or restitution. It also applies to forfeitures.

• A reprieve pauses a criminal sentence. A reprieve allows the individual to prepare an appeal for their case. Presidents often issue reprieves in situations where an individual is facing the death penalty.

These presidential powers are explained in more detail below.

Executive Clemency Powers

The presidential power to grant clemency is relatively straightforward. The President of the United States may pardon anyone who commits a federal offense against the United States. They may also pardon anyone who commits a federal offense against the District of Columbia. The president cannot grant pardons for violations of state laws.

When the president grants a pardon, it erases any punishment and guilt of the pardoned person. It also restores the civil rights of the pardoned.

However, a pardon does not remove an offense from a person's criminal record. Instead, the offense and pardon will appear on the person's record. If the pardoned person wants to remove the offense from their record, they must request the court to expunge their record.

The Office of the Pardon Attorney assists the president with clemency. The Office reviews clemency petitions and provides recommendations to the president. The Deputy Attorney General oversees the Office. The President has the final say in whether or not to grant pardons.

The extent of the pardon power is generally informed by its use throughout history and the Supreme Court's interpretation of it. Read the "History of the Pardoning Power" section below for more information. FindLaw also has more general information in its Presidential Pardons Powers article.

Frequently Asked Questions:

This section answers several frequently asked questions about the pardon power.

Can a president pardon themselves?

The full extent of the pardon power has not been tested in the courts. No president has tried to self-pardon for crimes committed while in office. Therefore, it is unknown if the courts would accept this use of the pardon power.

As explained later in this article, President Gerald Ford pardoned former President Richard Nixon for possible crimes connected with Watergate. The court did not determine the legality of that pardon.

Can a president pardon a murderer?

Yes, if the murder was a federal crime. The president can only pardon crimes committed under federal law. Most murder convictions take place under state law. However, if the murder was charged as a federal crime (e.g., the murder of a federal agent), the president could use the pardon power.

How do you get a presidential pardon?

You must apply to the Office of the Pardon Attorney to begin the pardon process. There is a five-year waiting period after being released from confinement.

A pardon is not a determination of innocence. Instead, the president usually grants it when the applicant has accepted responsibility for the crime and established good conduct after their conviction or release from confinement.

History of the Pardoning Power

As noted above, presidents' use of the pardon power has fleshed out its limits. Additionally, Supreme Court decisions have clarified pardons' effect on people, punishments, and subsequent offenses.

This section provides the historical background of the pardoning power.

Early Views of the Pardoning Power

As the Library of Congress notes, the presidential pardon power has roots in English law. In England, the Crown had an exclusive right to grant mercy regarding criminal punishment.

However, American colonists believed the Crown ultimately abused its pardon powers. For example, the English Parliament passed a law in 1701 that allowed pardons following an impeachment. Some colonists believed this allowed Parliament to shelter government officials involved in treason.

During the Constitutional Convention in 1789, the Framers debated the pardon power. The debates did not center on whether a pardon power should exist; instead, they focused on its extent and limits.

Alexander Hamilton argued that the executive branch should wield the pardon power over all criminal offenses. He and James Madison further argued that it could extend to treason convictions, subject to the Senate's approval.

The Whiskey Rebellion

President George Washington was the first president of the United States, and he had the first opportunity to use the pardon power. He used it to pardon two Pennsylvania men who had been sentenced to death for their role in the "Whiskey Rebellion."

The Whiskey Rebellion (1791-1794) involved American whiskey distillers upset at taxes levied against their businesses. The distillers banded together to resist the taxes, one strategy of which was to frustrate local tax collectors.

Eventually, the rebellion turned violent. The Whiskey Rebellion culminated when a group of approximately 500 rebels burned down the Inspector of Revenue's house in Pennsylvania. This led to additional conflicts between the U.S. militia and the rebels.

Eventually, two Pennsylvania men were convicted and sentenced to death for their role in the rebellion. Washington stayed their executions and pardoned both men. In doing so, scholars note that he helped quell the rebellion while simultaneously proving the power of presidential pardons.

United States v. Wilson

The Supreme Court first grappled with the extent of the pardon power in United States v. Wilson (1833).

The defendant, George Wilson, robbed the U.S. Mail and endangered a mail carrier. He was sentenced to death for his crimes. President Andrew Jackson ultimately granted him a pardon. However, for reasons unknown, Wilson refused to accept the pardon.

Chief Justice John Marshall wrote that the pardon was "an act of grace" that "exempts the individual . . . from the punishment the law inflicts for a crime he has committed." However, while the president may tender a pardon, the pardoned person must accept it. Because Wilson rejected the pardon, the judiciary could not enforce it. Therefore, it did not affect his guilt or punishment.

Two other cases in the 1900s dealt with people who refused to accept clemency from the president.

• In Burdick v. United States (1915), a man invoked his Fifth Amendment right against self-incrimination and chose not to testify before a federal grand jury. President Woodrow Wilson ultimately granted him a pardon, but he refused to accept it. The Supreme Court allowed the man to refuse the pardon.

• In Biddle v. Perovich (1927), President Taft commuted a man's sentence from the death penalty to life imprisonment. The Supreme Court determined that the president had the authority to do so despite the man's rejection of the commutation. The Court noted that a pardon is "part of the constitutional scheme." The president has the power to determine what best serves the public welfare. Therefore, the president may commute a sentence without the person's consent.

Biddle effectively allows the president to get their way in matters that they believe concern the public welfare. Through their power to commute a sentence, they can generally substitute any lawful penalty that does not exceed the original punishment.

Civil War Era Developments

The Civil War brought two sweeping presidential pardons from two presidents. It also led to two landmark Supreme Court cases regarding the effect of a pardon.

In 1863, during the height of the Civil War, President Lincoln issued his Proclamation of Amnesty and Reconstruction. According to The Miller Center, Lincoln's Proclamation was "a presidential pardon to all Southern whites (except for government officials and high-ranking military offices) who swore an oath of allegiance to the United States and accepted the abolition of slavery."

Just before the Civil War officially ended in 1865, President Andrew Johnson offered sweeping pardons to most Confederate soldiers and officials. Qualifying soldiers had to swear an oath of loyalty to the United States and free any enslaved people they owned.

Ex Parte Garland

In 1866, the Supreme Court issued a landmark decision that clarified the effect of a pardon. The case, Ex Parte Garland (1866), involved whether the pardon of a former Confederate congressman, Augustus Garland, allowed him to take an oath and practice law in federal court.

Before the Civil War, Garland was an attorney in U.S. federal court. He began practicing in 1860 in Arkansas, which seceded from the Union in 1861.

Garland served in the Confederate States Congress during the Civil War. After the war, President Andrew Johnson pardoned him for any federal offenses he may have committed in his role.

In 1865, Congress passed an act requiring attorneys to swear several oaths before practicing law in federal court. The oaths required them to swear they had "never voluntarily borne arms against the United States" and "never given aid or encouragement 'to persons engaged in armed hostilities' against the United States."

Having taken part in the rebellion against the Union, Garland could not take the oath. However, he was already a practicing attorney in federal court. He filed a petition alleging he did not have to take the oath to continue practicing in federal court.

The Court had to decide whether the pardon allowed him to practice in federal court despite his activities during the Civil War. In other words, the Court had to decide the extent of a pardon's effect and operation.

Writing for the majority, Justice Stephen Field wrote that pardons reach "both the punishment proscribed for the offence and the guilt of the offender; and when the pardon is full, it releases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offense."

Justice Field also noted that if the president grants a pardon before a conviction, the pardon "prevents any of the penalties and disabilities consequent upon conviction from attaching; if granted after conviction, it removes the penalties and disabilities, and restores him to all his civil rights; it makes him, as it were, a new man, and gives him a new credit and capacity."

The Court ultimately allowed Garland to continue practicing law in federal court. The president's pardon relieved him of any "penalties and disabilities" that could flow from his offenses. Therefore, he did not have to take the oath and could continue his law practice.

United States v. Klein

In 1870, Congress passed an act requiring citizens to prove their allegiance and loyalty to the United States before they could recover property sold by the federal government during the Civil War. The citizens had to swear their allegiance and loyalty regardless of whether the president had pardoned them. Moreover, the law prohibited anyone from using a pardon as evidence that they were entitled to the recovery of property (or proceeds from property) sold.

A man identified as V.F. Wilson had aided the Confederacy during the Civil War. He was one of the many Confederate supporters who received a pardon in 1863. During the Civil War, the federal government seized and sold some of Wilson's cotton.

Wilson died in 1865. Klein, the administrator of his estate, subsequently sought compensation for the government's seizure of cotton. The Court of Claims ultimately ordered the government to pay Klein over $125,000. A Court of Appeals affirmed the Court of Claims' decision.

The United States appealed the decision to the Supreme Court. It argued that because Wilson had accepted a pardon, the law of 1870 barred him from recovering money from the cotton's sale.

In United States v. Klein (1871), the Supreme Court ruled that the law was unconstitutional because it infringed on the president's pardon power. The Court wrote, "[T]he legislature cannot change the effect of such a pardon any more than the executive can change a law." It noted that the law required courts to deny the effect of a pardon, which "impair[ed] executive authority." Therefore, it struck down the law and affirmed the judgment.

Klein stands for the proposition that Congress cannot infringe on the presidential pardon power by disallowing a pardon's full effect. The case also has broader separation of powers implications, holding that Congress cannot infringe on another branch's enumerated powers.

Twentieth Century Developments

Several cases and pardons in the 1900s continued to shape the pardon power. This section describes some of these cases.

Carlesi v. New York

The Supreme Court's decision in Carlesi v. New York (1914) clarified that pardons do not erase a criminal's record. Courts may still consider a prior offense for which the convicted received a pardon in a subsequent conviction.

A jury found Frank Carlesi guilty of forgery in the second degree. He had previously served over three years in prison related to a conviction for selling and possessing "counterfeit coin." After serving his sentence, the president pardoned him for the forgery conviction.

Following the jury verdict regarding the forgery, the court convicted Carlesi as a second offender. In other words, the sentencing judge considered his prior conviction for selling and possessing counterfeit money. Carlesi argued that the pardon prevented the court from considering his conviction for which he received a pardon.

The Supreme Court held that notwithstanding the pardon, pardons do not limit courts from considering past offenses in sentencing. Although a pardon absolves the pardoned person from guilt, it does not remove the conviction from their criminal record. Carlesi clarified that point by allowing the sentencing judge to consider the past conviction despite a pardon.

Richard Nixon's Pardon

In 1974, the House of Representatives impeached President Richard Nixon following the Watergate Scandal. He resigned before the Senate could hold a trial on whether to convict him. His vice president, Gerald Ford, assumed the presidency in August 1974.

In September 1974, President Ford granted Nixon a pardon for his role in Watergate. President Ford's pardon came before the government charged Nixon with any crimes. No court issued an opinion as to the pardon.

Reactions to the pardon across America were mixed. Some people felt that it covered up parts of the Watergate Scandal. Others wrote letters of support to the White House, praising President Ford.

For more information about Richard Nixon's impeachment, read FindLaw's articles on Article II, Section 4: Impeachment and Presidential Impeachment Cases.

Recent Use of the Pardon Power

During his term, President Bill Clinton used the powers granted by the Constitution of the United States to grant clemency to over 450 people. President George W. Bush granted clemency to 200 people during his term. President Donald Trump granted clemency to 237 people during his term in office.

Pardons and Contempt of Court

Federal courts may hold someone in contempt of court in civil and criminal cases. Contempt refers to disobeying or disrespecting the court. For example, the judge can hold you in contempt if you swear in court.

The president can pardon someone held in criminal contempt in federal court. However, they cannot pardon someone held in civil contempt.

Chief Justice William Taft explained the rationale in Ex Parte Grossman (1925). He wrote that the president may pardon someone held in criminal contempt because the punishment is "punitive." The president cannot pardon someone held in civil contempt because the punishment is "remedial." He also noted English law provided the same rationale.