Presidential Pardons: Possibilities, Precedents, and Problems
With presidential pardons in recent news, MWEG offers a Q&A to sort through possibilities, precedents, and potential problems with this presidential power.
Q: What are the purposes and types of presidential pardons?
A: This power allows a president to forgive criminal offenses through pardons, amnesty, commutation, and reprieve.
Informed by the British monarchy, the executive power to pardon was intended to add elements of mercy and clemency to the Constitution. The assumption held that men of virtue would exercise this power for the good of the people and not for their own purposes.
Pardons grant the person complete legal forgiveness of a crime, as if it had never happened. Amnesty does the same for an entire group of people. Commutation allows for consequences to be reduced. Reprieves pause consequences for a time. This comprehensive table shows all pardons by U.S. presidents.
Q: Are there any limits to this power?
A: Yes. Presidents do not hold power to pardon impeachments, crimes not yet committed, and/or non-federal offenses.
The Constitution’s framers held that impeachment and removal from office would cover unforgivable acts of treason by a president. Alexander Hamilton reasoned that if a president had committed treason, he would be impeached and thereby ineligible for pardon. (Note that impeachment is separate from removal from office, as in the case of President Trump, who was impeached twice but not removed from office.)
Additionally, crimes not yet committed are excluded from pardoning, as are non-federal offenses. (Most murder charges, for example, are state charges.)
Q: Does the president have power to pardon friends and family members?
A: Yes.
This particular executive power is especially broad. The Constitution allows a president to pardon anyone who has committed a federal crime. They may grant full pardons where, for example, a convicted criminal’s slate is wiped clean and they will never pay any fines nor serve a prison term. A president may also reduce charges or sentences already being served or even prevent someone from being charged for a crime they previously committed.
Historical precedent: In 1985, President Clinton pardoned his half-brother, Roger Clinton, from drug charges. In 2020, President Trump pardoned his daughter’s father-in-law, Charles Kushner, from tax fraud and witness evaluation, among other charges.
Q: What are some concerns associated with the power to pardon a friend or family member?
A: Concerns include setting precedent for future presidents and the risk of abusing power meant to be used with care for both the people of the country and the rule of law.
Once a president provides an official pardon to a family member, for example, it opens the door for future presidents to do likewise. Additionally, when presidents provide preferential treatment to those within their circles, they risk appearing self-serving. This can lead to the public’s lack of trust in its governing leaders. Pardoning someone close to them can be seen as going against the democratic principle called “rule of law,” which holds that all people are subject to laws, and, ultimately, the Constitution.
Recent precedent: On December 2, 2024, President Biden pardoned his son, Hunter Biden, from tax fraud, gun charges, and any other crimes committed (but not yet charged) within a specific 11-year window, despite promising on several occasions he would not. This pardon is shaping up to be one of the most controversial pardons in American history due to its scope. Specifically, the length of window and absolution of any crimes Hunter Biden may have committed during that time is unprecedented. President Biden preemptively offered his son legal protection since President-elect Trump said he would authorize an investigation into the Biden family during his second administration.
Q: Has a president pardoned groups of people collectively?
A: Yes, these are cases of amnesty, and they have notably occurred following war.
Historical precedent: After the Civil War, in 1871, President Andrew Johnson pardoned Confederate soldiers. And in 1977, President Jimmy Carter granted amnesty to everyone who violated Selective Service laws (“draft dodgers”) between August 4, 1964, through March 28, 1973, covering the Vietnam War.
Q: Can the president pardon him/herself?
A: This remains untested.
No president has attempted a self-pardon, so this question remains untested. President Nixon explored self-pardoning but instead received a pardon from his successor, President Ford.
During his first term, President Trump wrote on Twitter that he held “absolute right” to pardon himself. At the time, he had not been convicted; he is now the first president-elect to be charged and convicted of felony crimes.
Yes: Technically, a president could issue a pardon for him/herself. However, Congress could impeach the president for the pardon. It is probable that a self-pardon would be litigated up to the Supreme Court. Legal scholars also point to the 25th Amendment for a self-pardon workaround, where a president could declare him/herself unable to perform their duty, temporarily appointing the vice president as acting president. The vice president as acting president could then pardon the president, and the president would resume duties, fully pardoned.
No: The U.S. president is not above the law. One argument cites that under the Constitution, the framers’ intent, and subsequent rulings by judges, the president cannot self-pardon. Another point continues that under the Constitution’s oath clause and “take care” clause, a president takes an oath to work for “the public welfare” rather than self-interest, and that precludes them from self-pardoning. The president also takes these oaths and signs conflict of interest agreements meant to prevent self-interests from overtaking public interest. The president is subject to federal laws, too. In short, self-pardons would not align with the “rule of law” mentioned earlier.
For your reflection
Not all presidential pardons meet ethical standards, and the power to pardon has been abused at times in our government’s history. When presidents abuse their power to pardon, they cross the line of self-interest versus public interest and cast shadows of mistrust.
Inappropriate use of the presidential pardon may set dangerous precedents, broadening the powers of what is considered acceptable and resulting in unintended consequences that may reverberate through future presidencies and other executive actions.
As peacemakers, we respect presidents who exercise their pardoning power with the wisdom, care, and “prerogative of mercy” expected, and we oppose pardons otherwise granted.