Last week, President Donald Trump outlined the full scope of his presidential power to pardon. “As has been stated by numerous legal scholars, I have the absolute right to PARDON myself,” Trump tweeted, “but why would I do that when I have done nothing wrong?” Why, indeed?
It was a broad assertion of the scope of the pardoning power, leaving many to wonder if Trump was right, specifically, and what the limits of presidential pardons are, generally. So here’s a roundup of some of our posts on presidential pardons, and their limits.
Pardons either lessen or set aside completely the punishments for someone convicted of a crime. They can generally only be granted by the executive office in the jurisdiction of the conviction, so while governors can pardon people convicted in their state, they cannot pardon those convicted of federal crimes or convicted in other states. The president, on the other hand, can pardon just about anybody.
Pardons and clemency aren’t quite the same thing. While pardons can wipe out a conviction completely, clemency or commutation reduces or wipes out the punishment.
While presidents can generally pardon anyone, and pardons generally wipe out underlying convictions, there are exceptions to the rule. U.S. District Judge Susan Bolton declined to vacate former sheriff Joe Arpaio’s conviction following President’s Trump’s pardon, claiming that while the pardon spared Arpaio from punishment, it did not “revise the historical facts” of his case.
While pardons and clemency are often handed out one person at a time, they can be granted as part of a larger program. Former President Barack Obama’s Department of Justice commuted the prison sentences of 46 nonviolent drug offenders, citing long sentences (some of them lifelong) that didn’t fit their crimes.
The Supreme Court has said presidential pardoning power “extends to every offense known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken, or during their pendency, or after conviction and judgment.” So, the power of a president to pardon others appears infinite.
But what about the power to pardon oneself? The Court has also rejected claims of “an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances.” And Article II, Section 2 of the Constitution says the president “shall have Power to Grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.” [Emphasis added.]
So, while Trump may be technically right — a president might be able to vacate his or her own criminal convictions, though it’s never come up — the framers of the Constitution already considered that prospect and built in impeachment as the remedy, seemingly free from the possibility of presidential pardon.