Experts gauge the parameters of presidential pardons

By Michael R. Malone

Experts gauge the parameters of presidential pardons

By Michael R. Malone
University of Miami School of Law scholars assess the limits, context, and contours of these absolutions that are outlined, albeit broadly, by the U.S. Constitution.

While President Trump has exercised his clemency power far less frequently than other modern-day presidents, statements made by the president himself indicate he may be considering issuing a flurry of pardons in coming weeks, including for members of his family and even himself. 

Frances Hill and Caroline Mala Corbin, both professors and Dean’s Distinguished Scholars with the University of Miami School of Law, offered their perspectives on the historic purpose and legal parameters of this exceptional presidential power.

Hill pointed out that the U.S. Constitution, specifically Article Two (Section 2 and Clause 1), grants the commander-in-chief powers to grant reprieve and pardons—"for offenses against the United States, except in cases of impeachment”—but said the framers left the reference purposefully broad. 

She emphasized that those writing the Constitution inserted this clause toward the very end of their drafting process.

“This idea of pardon power sounded to many of them like powers of a king—and they didn’t like kings, but the concept of mercy was something that they thought they needed,” she said. “So, they left it uncomplicated and didn’t set many limits, though they certainly did not intend for this sense of forgiveness to undermine the law.” 

Hill, a constitutional law expert, emphasized the importance of understanding the Constitution within its full context and not as separate, independent clauses. “So, while the president has the power to pardon, he—or someday she—likewise must abide by the ‘take care’ clause—he must ensure, as part of his duties, that the laws of the land are executed carefully and faithfully,” said Hill. 

Corbin, who also specializes in constitutional law, agreed that the clause offers broad powers, yet noted that up until now few pardons have tested the limits of interpretation. 

“As with most provisions of the Constitution, the pardon clause is not self-explanatory,” Corbin said. “The text itself does not provide all the answers because there are multiple ways to interpret the text,” she added.  “The president under his pardon power can pardon anyone convicted of a federal crime. Yet, because most presidents exercise it with prudence, not a lot of litigation has resulted.” 

Both Hill and Corbin highlighted the role that the Office of the Pardon Attorney, which functions within the Department of Justice (DOJ) and in consultation with the attorney general, is supposed to play in guiding the pardon process. 

“Usually, a request is submitted to the office, and they research and evaluate the request according to certain criteria and make a recommendation—this is the process the country has created,” Corbin said. “The president does not have to rely on this process, but historically presidents generally have.”

The office, which today is comprised of a deputy pardon attorney, executive officer, and four staff attorneys, was essentially created in 1865. Affirmative recommendations may be for a pardon, commutation of sentence, remission of fine or restitution, or reprieve.

While the DOJ guides the process, Corbin noted that the U.S. Supreme Court has the final say. “They are the ultimate arbitrators of what the Constitution means, but by no means the only one. Everyone should be interpreting the Constitution and acting in accordance with it,” she said.

Among the legal questions that stir debate is whether a president can grant a preemptive pardon and under what conditions. 

Corbin pointed to Supreme Court precedent suggesting that the answer is "yes." In the Supreme Court case of Ex Parte Garland, a ruling from 1866, the Court wrote that the pardon power "may be exercised at any time after [a federal crime's] commission, either before legal proceedings are taken or during their pendency, or after conviction and judgment.”

“So, you do not have to be charged with a crime to receive a pardon from it, but you have to have committed the crime,” she pointed out. “You don’t get an ‘all crimes that you will commit in the future’—the pardon has to be for an act already committed.” 

Still, she said that legal scholars disagree on whether the crime needs to be specified. 

“Generally, you don’t have to specify the crimes—that’s another thing that people dispute, though it’s generally understood to be a very broad power. So, you forgive anyone for any federal crime committed even if you’ve not yet been charged with the crime,” she said. 

On the subject, Hill referred to Gerald Ford’s preemptive pardon in 1974 of then President Richard Nixon. 

“The pardon was for all that he’d done and appeared to be open-ended,” Hill said. “It was breathtaking at the time and a shock to the American people that you could wipe a slate clean before we’d even seen what might be written on the slate.”

A pardon, Hill explained, means that the person accepting the pardon admits to having committed crimes. “Pardons are not for the innocent or for those who wish to claim innocence, they are for the guilty,” she said. “This means that the Fifth Amendment protection against self-incrimination no longer applies and so someone who has been pardoned cannot refuse to testify in other proceedings, including those that might involve charges against the president who had pardoned them.”

What, if any, are the limits on clemency powers? Can a president pardon anyone for anything?

Hill mentioned two areas—impeachment and the election process—that serve as as safeguards against abuse of clemency powers. Impeachment has never resulted in the conviction of a president and the removal of him from office. 

“The other place where abusive power can be and must be stopped are with elections,” she said. “People are the ultimate sovereign of the whole operation, but only if we can figure out how to ensure that more people vote. Because that was the great innovation in our constitution—people would pick their rulers.” 

Hill noted that pardons are commonly granted at the very end of a presidency by a term-limited or defeated president, and that there is no structural solution in the Constitution for abusive pardons. “What should stop abusive pardons in this period are the other leaders,” she said. “This is what a group of senators did in telling Nixon that it was time for him to go and that sooner would be better than later.” 

Both scholars also weighed in on whether presidents can grant themselves a self-pardon, a topic that has been increasingly discussed lately. 

“If the president grants a pardon to protect himself and also to those who look like his co-conspirators, it looks less like a pardon and more like a violation of ensuring that the laws are faithfully executed. In other words, it begins to look like a conspiracy,” Hill said. 

To answer the question, most lawyers are focusing linguistically on the word “grant,” she said. “Can a president or anyone grant himself anything? Does that not imply that the grant is to some other person?” 

Corbin said that there isn’t unanimity, but most legal scholars reject the possibility. 

“The idea that a president can pardon himself for his own crimes is completely contrary to the foundational principle in the United States—a country which is a democracy and not a monarcy—that no one is above the law,” she said. “There are all kinds of theoretical and clever constitutional arguments of why a president cannot self-pardon, but ultimately what matters most are the foundational ideas of this country.”

In terms of a precedent, she referred to the DOJ’s stance during the Watergate era. 

“The issue arose under Nixon, and the Justice Department wrote a memo stating that the president cannot issue a self-pardon. Their argument followed the fundamental rule that no one can be a judge in his own case.” 

According to Corbin, the framers’ lack of specificity leaves the pardon clause open to wide interpretation.

“There is almost nothing explicit in the language—almost anything can be subject to interpretation. It’s just one sentence, and there’s a whole universe of questions that arise. The text is not going to answer most of them,” Corbin said. 

“A major safeguard is to have presidents that act in the interests of justice or in the interests of the country, and not in their own self-interestthey were assuming a certain kind of president,” Corbin added.