Tonight, I discuss the presidential pardon power, including the question whether or not sitting Presidents can pardon themselves. But, first, an update:
Last time, I discussed whether the appointment of Robert Mueller as special counsel was constitutional under the Appointments clause. Mark Levin spent three nights on the question, arguing strongly that Mueller’s appointment was unconstitutional because Mueller was given wide powers to investigate. This makes him like a U.S. Attorney, a principal officer who must be confirmed by the Senate. Mark Levin discussed this on May 21st, 22nd, and 23rd, and you can find the shows on the Audio Rewind page at MarkLevinShow.com.
Going on now to the pardon power, it is found in Article II, Section 2 of the U.S. Constitution. It is recognized to be a broad power with few limitations. [Chemerinsky, Constitutional Law: Principles and Policies, 4th Ed., p. 371] The Supreme Court in an 1866 case [Ex parte Garland, 71 U.S. (4 Wall.) 333,380] said the power extends to every offense known to federal law and may be exercised at any time – before criminal proceedings begin, while they are pending, or after conviction.
The major limitation specified in the Constitution is that the President may not issue a pardon in cases of impeachment. So Gerald Ford pardoned Richard Nixon for any and all crimes that Nixon may or may not have committed in a 5-year period ending in 1974. Articles of impeachment were voted out of the House Judiciary Committee, but that’s as far as they got. So Nixon had not yet been impeached, and the fact that the pardon came before criminal proceedings began was likewise not a problem. However, there was a third issue in Nixon’s case. The Supreme Court has never ruled on the validity of open pardons – for any and all potential crimes - and some question their constitutionality. [here at ftn. 7]
There are some other limitations on the pardon power. The President can’t pardon someone for state crimes, or for civil liability. So, in a 1925 case, the President pardoned someone for criminal contempt of court but would not have been able to do so if it had been civil contempt of court. [Ex parte Grossman, 267 U.S. 87, 121-122] Also, the President cannot award any compensation from the U.S. Treasury to anyone granted a pardon. [Chemerinsky, p.374]
Pardons can take the form of complete exoneration – as if the crime had never been committed – or a reduced sentence. In a 1927 case, the Supreme Court upheld the President’s power to reduce a death sentence to life imprisonment. [Biddle v. Perovich, 274 U.S. 480]. In 1974, the Supreme Court approved the President’s commutation of a death sentence on the condition that the person never be eligible for parole, even though the statute did not provide for a sentence of life without parole. Any reduction in sentence is within the President’s power, the Court said. [Schick v. Reed, 419 U.S. 256].
Can the President pardon an entire group of people? The answer is yes and it has happened at least twice. Jimmy Carter used the pardon power to grant amnesty to Vietnam War draft dodgers in 1977. [Chemerinsky at 373] In 1868, President Andrew Johnson granted amnesty from prosecution for treason and all other crimes committed while fighting in the Civil War. [id.]
Could a President pardon everyone in federal prison – just open the doors and let everybody out? Theoretically, the answer is yes, although the practice has developed over the years of following the recommendations of the Office of the Pardon Attorney at the Justice Department. Conventional practice is to let that Office screen the applications, require anyone requesting a pardon to wait five years after conviction or release and demonstrate the ability to live a responsible and productive life. But Trump did not follow convention in Dinesh D’Souza’s case this week – D’Souza didn’t ask for a pardon, Trump just did it. Some have observed that Trump is drawn to cases where the prosecution was politically motivated, Sheriff Joe Arpaio being another case in point. Pardons can be refused, by the way. George Wilson was sentenced to death for robbing the U.S. mail, but chose to hang rather than accept a presidential pardon in 1833. The Supreme Court said he was within his rights to do so. [United States v. Wilson: 32 U.S. 150 (1833)]
Rudy Giuliani said this week that, theoretically, President Trump has the power to pardon himself. That’s disputed, of course. The question came up in the Nixon era and again in 1998 when Bill Clinton was impeached. A 1974 Justice Department memo took the position that Presidents can’t pardon themselves directly, but could do so indirectly under the Twenty-Fifth Amendment. Presidents could declare themselves temporarily unable to perform the duties of the office, the Vice President as Acting President could pardon the President, then the President could resume office. Some observers said this week that impeachment would await any President that tried to exonerate themselves through the pardon power.