Presidential Pardons and Constitutional Authority
Presidential Pardons and Constitutional Authority
Backgrounder: Presidential Pardons and Constitutional Authority
(Executive Branch Given Power Exclusively) (1020) By Stuart Gorin Washington File Staff Writer
Fri, 2 Mar 2001 21:45:14 -0500
Washington -- When former President Bill Clinton signed 140 pardons and 36 commutations of sentence -- several of them controversial -- on his last day in office, he was following a procedure that dates back to the earliest days of the Republic.
America's first chief executive, President George Washington, issued the first presidential pardons, an amnesty in 1795 for two participants in the previous year's "Whiskey Rebellion," a series of riots in protest against an excise tax placed upon alcohol.
Washington's authority to do so came from the U.S. Constitution. Article II, Section 2 states that "The president shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment."
While the framers of the Constitution drew upon English common law tradition as they established this executive power, pardons actually first appeared in the Code of Hammurabi, a series of edicts developed in ancient Babylonia nearly 4,000 years ago.
Executive mercy was then introduced into English jurisprudence in the seventh century on the grounds that all offenses are committed against the king's peace, and since it is he who is injured by fighting in his house, he alone should possess the power of forgiveness.
In debating the pardon clause at the U.S. Constitutional Convention of 1787, the framers considered three questions: 1) Should the power to pardon be formally established?, 2) Where should the power reside?, and 3) What, if any, checks should be included?
Arguing the merits of executive control, Alexander Hamilton, one of the Constitution framers who later became America's first secretary of the treasury, wrote in the Federalist Papers, "It is not to be doubted, that a single man of prudence and good sense is better fitted, in delicate conjectures, to balance the motives which may plead for and against the remission of the punishment, than any numerous body whatever."
Hamilton added, "In seasons of insurrection or rebellion, there are often critical moments, when a well-timed offer of pardon to the insurgents or rebels may restore the tranquility of the commonwealth."
Once vested as a presidential power, the pardon became exclusive to the executive branch, with no requirement for consent from any other branch of government. There have been a series of cases brought to the U.S. Supreme Court over the years questioning the constitutional boundaries within which the power to pardon can be used, but in each one the high court has determined that the president may issue full or conditional pardons before, during or after conviction, and that the power is virtually absolute.
The one way that changes can be made to the presidential pardon power is through a constitutional amendment; however, this is a process that is both difficult and time consuming, involving approval by three-fourths of the states, either through state legislatures or ratification committees. Excluding the Bill of Rights, the first 10 Amendments to the Constitution, there have been only 17 amendments passed in more than 200 years.
The use and understanding of the pardon power evolved and developed over time. It was not until 1865 that the U.S. government established the Office of the Pardon Clerk to manage the administration of the pardon process. In 1892 the duties were transferred to the Office of the Attorney in Charge of Pardons. Today, that office is under the supervision of the attorney general in the Justice Department.
Title 28 of the U.S. Code of Federal Regulations contains procedures for the submission, consideration and award of pardons, including a federal investigation of a petitioner and a pardon attorney review and recommendation to the president. However, these regulations are only advisory, and through his constitutional authority a president does not have to follow them.
Washington issued 16 pardons during his term of office, the fewest during any presidency, with the exception of William H. Harrison and James Garfield, who did not live to issue any.
During and after the Civil War, Abraham Lincoln and Andrew Johnson issued amnesties to about 200,000 people, including a controversial one for Jefferson Davis, the president of the Confederacy, in efforts to bring the nation together again and heal the wounds of war.
Franklin D. Roosevelt restored the citizenship rights of about 1,500 persons who had completed prison terms for violating the draft or for espionage acts during World War I, and he also restored them for several thousand former convicts who had served in the military and earned an honorable discharge.
Harry Truman pardoned more than 1,500 people imprisoned for evading the military draft, and another 9,000 who had been convicted of military desertion during peacetime.
Gerald Ford and Jimmy Carter granted Vietnam War clemency and amnesty to around 10,000 beneficiaries. Ford also generated controversy for pardoning Richard Nixon over his involvement in the Watergate scandal, which had divided the country. After Nixon resigned, Ford said "The tranquility to which this nation has been restored by the events of recent weeks could be irreparably lost by the prospects of bringing to trial a former president of the United States."
George H.W. Bush issued 77 pardons during his four years in office. There was controversy here, too, in the pardon he granted to former Secretary of Defense Caspar Weinberger for charges stemming from his role in the so-called "Iran-Contra" affair.
Clinton's total numbers for his eight-year presidency were 395 pardons and 61 commutations. The most controversial one was a last-day pardon for financier Marc Rich, who fled the United States 18 years ago to avoid possible prosecution. Congress scheduled separate hearings in the Senate Judiciary Committee and the House Government Reform Committee to investigate whether the pardon was influenced by financial contributions.
But regardless of how the hearings turn out, the pardon will stand, because under Article II, Section 2 of the Constitution, there are no grounds for reversal and no authority identified that could legally accomplish it.