History & Culture
Ever since George Washington, presidents have bestowed mercy on both the treasonous and their own allies. But there’s still one kind of pardon that no one has ever tried.
ByErin Blakemore
Published August 8, 2023
• 9 min read
Presidential pardons are once again in the news as Donald Trump—former president and likely GOP candidate for the 2024 presidential election—contends with a third federal indictment charging him with election interference. Could Trump pardon himself if he is re-elected? Or will another future president pardon him, as Gerald Ford did for his disgraced, scandal-ridden predecessor Richard Nixon?
A U.S. president’s pardon authority is as old as the office itself, but controversy over whether and how the chief executive should exercise the privilege has persisted since the nation’s founding. Despite a rich history of pardoning controversial figures after and even before they’re convicted of federal crimes, there’s still one kind of pardon of that no president has ever tested: the self-pardon.
Why we have presidential pardons
At the 1787 Constitutional Convention, Alexander Hamilton proposed the president be given the power to pardon those who have committed crimes or reduce their sentences, later explaining that pardons might help “restore the tranquillity of the commonwealth” in times of rebellion. The concept wasn’t new: English laws had long given monarchs the power to grant mercy to their subjects, and the practice extended to the governors of British colonies in America.
Most of the framers agreed with Hamilton and subsequently voted down a competing last-minute proposal to deny the president the ability to grant pardons in cases of treason. Article II of the Constitution gives a president “power to grant reprieves and pardons for offenses against the United States.” The one exception enumerated in the Constitution is that presidents may not use their clemency powers to stop themselves or others from being impeached by Congress.
(How the Founding Fathers defined treason and other high crimes.)
President have four kinds of pardon power which apply only to federal—not state—crimes. They may issue a pardon that wipes out the crime entirely, shorten or do away with a criminal sentence with a commutation, release a person from a legal obligation like a fine with a remission, or put off a person’s sentence, known as respite.
The issue of a president’s almost unlimited pardon power was contentious enough that it factored into the decision of George Mason, a Virginia delegate who feared a strong federal government, to abstain from signing the Constitution. A president with the power to pardon the treasonous, he warned, “might make dangerous use of it” by pardoning crimes in which he was a co-conspirator—which Mason believed could destroy the republic.
Earliest presidential pardons
As it turned out, the first presidential pardons did offer mercy to men who committed treason. In 1795, President George Washington pardoned two men who had organized the 1794 Whiskey Rebellion, an uprising in western Pennsylvania in response to a costly federal tax on spirits; it took a militia of 13,000 to quell. Washington pardoned the last of the insurgents on the final day of his second term in 1797, indicating his “desire to temper the administration of justice with a reasonable extension of mercy.”
The tradition of pardoning rebels and polarizing figures continued through the years. After his election in 1800, Thomas Jefferson pardoned all of those convicted under the Sedition Act of 1798, a law passed during his predecessor’s term that made it illegal to defame the government.
One early presidential pardon was rejected by the person it was designed to save. In 1833, President Andrew Jackson pardoned George Wilson, who had been sentenced to death for stealing U.S. mail and putting the life of a mail carrier in jeopardy. For unclear reasons, Wilson refused the pardon. The case was heard by the U.S. Supreme Court, which ruled that a pardon can be rejected. Wilson was later executed by hanging.
(These American suffragists also refused a presidential pardon.)
Mass pardons
In 1862, Abraham Lincoln made another controversial—if unofficial—pardon when he refused to authorize the executions of 265 Dakota men in Minnesota. Suffering from hunger and repeated treaty violations, these men had attempted to drive white settlers from Native ancestral lands by burning settlements and murdering civilians. Between 600 and 700 settlers were killed in what was the worst massacre in American history. More than 500 Native Americans were killed in retaliation.
Lincoln’s decision not to order the execution was politically unpopular. But Lincoln, horrified by the unjust and unprofessional trials that led to the convictions of many obviously innocent men, said he “could not afford to hang men for votes.” (Still, the 1862 hanging of the 38 men who were not pardoned remains the largest mass execution in the nation’s history.)
In the wake of the Civil War in 1865, Lincoln’s successor, Andrew Johnson, waded into even more contentious territory by offering a blanket pardon to former Confederates, with exceptions for those who had personally helped orchestrate the South’s secession from and war against the Union. Soon after, Johnson began exercising his clemency power with abandon as he granted personal pardons to those exempted by the blanket pardon.
(North America’s Native nations reassert their sovereignty: “We are here.”)
Ultimately, Johnson granted pardons to up to 90 percent of applicants—more than 13,000 in all—including many high-level Confederate officials. By 1867, writes historian Jonathan Truman Dorris, Johnson had pardoned “86 members of the lower house of the Confederate congress, a smaller number of the upper house, and perhaps a dozen Confederate governors.” Many of those leaders later became the architects of Jim Crow, the racist laws designed to re-establish a brutal racial hierarchy in the former Confederacy.
Augustus Hill Garland, a former Confederate senator and attorney, received one of the pardons in 1865, but remained disbarred under a law passed earlier that year that stripped law licenses from former Confederates. He took the case to the U.S. Supreme Court, arguing that he shouldn’t be subject to the law since his crime had been wiped away. The justices agreed, and in the ruling they affirmed the president’s broad power to issue pardons—including the power to grant a pardon before a person has been charged with a crime.
Preemptive pardons
That power was put to the test during the nation’s most controversial pardon of all—that of a former president. In September 1974, a month after President Richard Nixon resigned in the wake of the Watergate scandal, his successor Gerald Ford granted him unconditional pardon for all offenses that he may have committed.
Although Nixon had not been formally charged with any crimes, he was now a private citizen and could be prosecuted for his involvement in covering up the attempt to surveil the Democratic National Committee’s headquarters. Ford, who had served as Nixon’s vice president, believed the nation could not withstand the divisiveness of a potential criminal trial of the disgraced president. But his decision backfired, prompting a public and Congressional backlash, and is thought to have cost Ford his political career.
The Nixon pardon was followed by another high-profile preemptive pardon. On President Jimmy Carter’s first day in office in January 1977, he issued unconditional pardons to most people who evaded the draft during the Vietnam War, including those who had not yet been prosecuted. Although the pardon was an attempt to heal the deep rifts caused by the war, it was condemned by veterans’ groups.
Can a president self-pardon?
When it comes to presidential pardons, there’s only a sliver of truly untested territory: whether a president can pardon himself.
The issue is hotly contested among legal scholars since it has never been attempted. There isn’t anything in the Constitution explicitly barring a president from self-pardoning—or preventing a president from temporarily stepping down so that his vice president can pardon him while serving as acting president.
Some legal scholars note that the lack of a specific Constitutional safeguard against self-pardon could be interpreted as meaning that a president has the right to do so.
But others believe a self-pardon would be explicitly illegal given the Constitution’s prohibition of serving as one’s own judge. They also point to precedent that prevents a chief executive from obstructing federal criminal investigations. That opinion was shared by former deputy attorney general Mary C. Lawton, who researched the matter in 1974 at Nixon’s behest. If a president were to grant a self-pardon, the act would likely trigger a legal challenge to settle this debate once and for all.
If a president ultimately did grant some form of clemency to themselves, it would not be a blanket protection against prosecution. Since the power only applies to federal crimes, states can still bring criminal charges against recipients of federal pardons—no matter who they might be.
Editor’s note: This story was originally published on December 4, 2020. It has been updated.
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