How Presidential Pardons Work—or Should

AP Photo/Andrew Harnik

The (tiny) hands of President Donald Trump as he meets with members of Congress in the Cabinet Room of the White House

President Trump recently pardoned two Oregon cattle ranchers—father and son—who were imprisoned for setting fire to federal land, in what one publication referred to as the latest in his “clemency spree.”

He has also pardoned conservative political commentator and Trump supporter Dinesh D’Souza because he thought “he was treated very unfairly by our government.” He has said he plans to pardon Martha Stewart and commute the sentence of disgraced former Illinois Governor Rod Blagojevich. CNN has reported the president is considering “at least 30 more;” and he has already pardoned one (deserving) person at the urging of Kim Kardashian. He seems to hand out pardons as party favors, for his own reasons and outside settled practices. 

Some wonder if these instances of this president’s idiosyncratic, personalized use of the constitutional pardon power may be a signal to colleagues and friends under investigation by Special Counsel Robert Mueller. 

How does—or should—the pardon power work?

When President Trump posthumously pardoned the late Jack Johnson, the famed first black heavyweight boxing champion (1908-1915), that was an act to correct a historical vestige of racism. Johnson had been convicted for a Mann Act violation for the “crime” of traveling across state lines with his white girlfriend, for which he served a year in prison. Other presidents have reached back into the past to correct notorious errors, as President Obama did when he used his clemency power to correct excesses of our drug laws. These examples comport with the standard procedures governing the implementation of the pardon power.

Trump, however, has used his pardon power idiosyncratically, to be used for his own reasons and apparently without regard to traditional practices or historic precedents. Other presidents have misused their pardon powers, as President Bill Clinton did in pardoning fugitive financier Marc Rich, but they usually did so on the eve of leaving office to minimize the political blowback.            

President Trump began his eccentric practice by providing clemency to a political ally, Arizona sheriff Joe Arpaio. That raises the possibility that that he might do so prospectively to other allies, supporters and cronies now under investigation and indictment, which would be wholly outside the traditional invocation of the pardon power by presidents before him. Apparently, the president believes he has the right any time to pardon anyone, including his family and potentially even himself.

In writing my book on the American correction system, I studied our pardon power and interviewed the officials who managed the system in the Office of the Pardon Attorney, the Justice Department, and White House during multiple (Democratic and Republican) administrations for the chapter on clemency (commendation, reprieve, amnesty.) These powers were created to permit compassion and moderation and the correction of prior mistakes and excesses. The federal pardon power has been governed by standing precedents and historic procedures that all recent administrations have followed, usually without controversy, and erring on the side of restraint.

Under present practices in the federal system (states have their own procedures, but they are generally comparable) between 500 and 1000 formal applications are made annually to the Pardon Attorney, a presidential appointee, at least three years after the applicant has been convicted or released from prison. Specific ground rules are followed. The prosecutor in the case is asked for his or her recommendation, as is the Director of the Bureau of Prisons. The opinion of the Pardon Attorney is usually (95 percent of the time) followed. 

In one typical year, of more than 15,000 appeals, there were 222 pardons and 23 commutations. 

Next, the pardon attorney file goes to the attorney general, whose assistant in charge of this work either endorses the recommendation of the pardon attorney or in rare cases overrules them. The general rule is to avoid pardons that would appear to be the result of political pressure. 

The attorney general’s report and the full files then go to the president, who has a special assistant in his office to review the accumulated records and make recommendations to the president. In most cases the president then signs a warrant concluding the review and finally taking his action.

Most cases are routine, clear-cut, and the action recommended by the pardon attorney is adopted and affirmed. Usually the only cases that involve discussion with the president are those with potential political repercussions. Most officials say that the pardon applicant’s demonstrated rehabilitation and useful reintegration into the community are key factors in the decision to grant clemency. The central idea of pardons is to add an element of mercy to the criminal justice system, and to return civil rights to convicts, such as voting and professional licensing. They are to be administered by objective standards, avoiding the reality and appearance of employing political criteria or bowing to political pressure. That’s not the way that Trump has been operating. As one former pardon attorney was quoted as saying, “They operate like a lottery. Except a lottery is fair.”

The speculation that Trump has engendered—that the president can pardon himself, and by extension family members, for federal crimes, before or after their convictions—is an audacious notion. The silence of the Constitution and American law about the issue of the personal application of the pardon power is likely because the very idea of self-pardons was so farfetched as to not require an explicit statement forbidding it. Our country’s revolution was premised on the fundamental point that kingly powers had no place under our system of government. In America, the king could indeed commit wrongs; that is what democracy is all about. If a president pardoned himself for a crime, no American court would condone that action. If it did, we would be taken back to 1775.

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