In the final weeks of his presidency, US President Donald Trump has received criticism for granting a presidential pardon to his former national security adviser Michael Flynn. The general had pleaded guilty to lying to the FBI in 2017 about contacts with the Russian ambassador, although he later attempted to change his plea after information emerged that the government may not have proceeded properly, potentially even trying to entrap him. The backlash has forced presidential pardons into the news again – but what exactly are they? Why does the president have this power, and how has it been used throughout history?
As Alexander Hamilton explained in Federalist No. 74, the pardon power served to act as a necessary check on the criminal justice system
The pardon power is one of the most sweeping that the president has under the US Constitution, and it has its roots in the British monarchy. In Article II, Section 2 of the Constitution, the founders wrote that the president “shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment”. As Alexander Hamilton explained in Federalist No. 74, the pardon power served to act as a necessary check on the criminal justice system. The only restrictions are that the pardon must be an offence against the US (that is, a federal crime and not a state one), and it can’t save the president or another official from impeachment.
Several of President Trump’s picks for pardons or other forms of clemency received backlash from his Democratic rivals, in part because many had political or personal connections to the president
Pardons may be full and unconditional, or they may come with certain requirements, such as fines or drug treatment. A similar power is a commutation, in which the president may substitute a less severe punishment in place of the one originally imposed. Pardons can be issued to people who haven’t been convicted of a crime, as was documented in the 1866 case Ex Parte Garland, and they can be refused. In 2015, a man convicted of drug trafficking refused a commutation from Barack Obama because it requires drug treatment. Similarly, in 1914, Woodrow Wilson tried to pardon George Burdick, the editor of the New York Tribune, in an effort to compel him to reveal his sources in a grand jury investigation, but the Supreme Court ruled that he was under no obligation to accept it.
Several of President Trump’s picks for pardons or other forms of clemency received backlash from his Democratic rivals, in part because many had political or personal connections to the president. Examples include the conservative commentator Dinesh D’Souza, pardoned over campaign finance violations, Conrad Black, a friend of Trump charged with mail fraud and attempted obstruction of office, and the former sheriff Joe Arpaio, a controversial anti-illegal immigration figure convicted of contempt of court. He also commuted the sentence of his former adviser Roger Stone. Trump is not unique in this respect – on his last day in office, Bill Clinton pardoned his half-brother Roger over drug offences. It’s anticipated that similar pardons may follow for other Trump allies, including former advisers Rick Gates and George Papadopoulos, and well as lawyer Paul Manafort.
Among Trump’s pardons were Susan B. Anthony, a leading suffragist who was arrested after she cast a vote in 1872, although the move was criticised by many who argued that Anthony had not committed a crime. After a plea by Kim Kardashian, he also pardoned Alice Marie Johnson, who was given a life sentence in 1997 for non-violent drug-related crime. Trump initially commuted her sentence, and he also commuted the sentences of five people arrested on similar charges. With pressure groups pushing for criminal justice reform, it’s possible Trump may issue more commutations for similar crimes.
As of 23 November 2020, Trump granted clemency 44 times, including 28 pardons. This is less than 0.5% of the total requests for clemency. Obama, by contrast, granted clemency 1,927 times during his tenure
But, interestingly, Trump has actually used the power less often than any president in modern history. According to analysis by Pew Research Center, as of 23 November 2020, Trump granted clemency 44 times, including 28 pardons. This is less than 0.5% of the total requests for clemency. Obama, by contrast, granted clemency 1,927 times during his tenure, including 212 pardons and 1,715 commutations, 5% of the total requests. Presidents have generally become less forgiving – every president since George H. W. Bush has granted a single-digit percentage of clemency requests. Harry Truman granted clemency to 41% of total requests, and Franklin D. Roosevelt was responsible for 3,796 acts of clemency, including 2,819 pardons.
Presidential pardons always come with a certain degree of scrutiny and controversy, but some are more controversial than others. In August 1974, Gerald Ford became president after Richard Nixon’s resignation over Watergate, and he told the nation that “our long national nightmare is over”. The next month, he issued the most scrutinised pardon in history – he pardoned Nixon or any federal crimes committed as president, avoiding a protracted legal process and protecting the office of the president. Ford later said that he wanted to heal the wounds opened by Watergate, and that he sought “to shift our attentions from the pursuit of a fallen president to the pursuit of the urgent needs of a rising nation”. In the end, however, he received a lot of backlash, to which his narrow defeat to Jimmy Carter in 1976 has often been attributed.
The first presidential pardon was issued by George Washington in 1795, excusing two Pennsylvania men sentenced to death for treason. On Christmas Day 1868, Andrew Johnson issued a blanket pardon for every soldier who fought for the Confederate Army in order to bring the country back together. George H. W. Bush pardoned six people involved in the Iran-Contra scandal (which transpired when he was Ronald Reagan’s vice-president), while Clinton faced backlash for pardoning Patty Hearst, who was kidnapped by members of a terrorist group – a tape was later sent to the authorities claiming she’d joined the group of her own accord and footage showed her committing a slew of armed robberies with them. Most recently, Obama drew criticism for commuting the sentence of Chelsea Manning, who leaked classified documents. He also commuted the sentences of low-level drug offenders, something he put down to “the basic belief in our democracy that people deserve a second chance after having made a mistake in their lives”.
The topic [of whether a president can pardon himself] has re-entered national conversation as Trump faces a litany of criminal charges and prosecutions once he leaves office
An interesting question about the pardon power is whether the president can pardon himself. It was talked about during the Watergate scandal under the Nixon administration, but the topic has re-entered national conversation as Trump faces a litany of criminal charges and prosecutions once he leaves office. Courts have never officially decided on the question, and the Constitution is unclear – it doesn’t explicitly forbid it, but it violates the principle that no-one should be the judge in their own trial. If Trump attempted to self-pardon, it would likely lead to lawsuits and a major constitutional crisis, so the likelier option (if he was genuinely concerned about criminal prosecution) is that he would resign at some point prior to leaving office, passing over pardon power to vice-president Mike Pence.
There is another possible option for Trump – a pardon likely to attract more controversy than any ever issued. That would be the case if Joe Biden chose to pardon the president. Before the election, Biden said he would not pardon Trump because “it wouldn’t unite the country”, but this was a pledge made before the closeness of the election revealed how many Americans wanted Trump to remain in office. Biden said he won’t order an investigation of Trump, but a prosecution of the president could fuel an escalation of the existing partisan divide. A Trump pardon would be hugely unpopular with his base, but it would demonstrate that he is truly serious about bringing the country closer together.
Expect more pardons and commutations towards the end of Trump’s term, because that’s what presidents do before they leave office, and then expect the question of a Trump pardon to float around a Biden administration. As unthinkable as it may be to a lot of Americans, a pardon for Trump could be the best way for America to go. For his supporters, it will show a genuine urge to cross party lines. For Trump’s detractors, a pardon comes with the implicit admission of guilt. Trump hasn’t been the biggest user of pardons by any stretch but, going forward, a pardon may define his legacy and his future.