We need to talk about all these pardons being issued by both Biden and President Trump. What — exactly — are they? And what do they mean? Let’s take a look at these and other important questions relevant to these pardons
As always, we start with the basics. In this case, we start with the section of the Constitution granting pardon powers to the President:
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CONSTITUTIONAL AUTHORITY
Section. 2.
The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.
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LEGAL DEFINITIONS
A pardon is the use of executive power that exempts the individual to whom it was given from punishment. The president’s pardon power is based on Article II of the Constitution which says, “…he shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment. Unlike a commutation , which shortens or eliminates an individual’s punishment, a pardon absolves the individual of guilt. For example, President Trump commuted Roger Stone’s prison sentence so that Mr. Stone did not serve the punishment for his guilty conduct. On the other hand, President John F. Kennedy pardoned all first time offenders convicted of crimes under the Narcotics Control Act of 1956 to signal to Congress that the law needed to be changed.
Pardon Law and Legal Definition
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Amnesty is to grant a pardon to those who have committed an offense . Under immigration law , is a governmental pardon for a person or group of persons who violated policies related to immigration. Immigration amnesty would include the government forgiving individuals for using forged/false documentation to gain employment in the U.S. and to remain in the country, and would allow illegal immigrants or undocumented immigrant aliens to gain permanent residency in the United States.
For example, through the Immigration Reform and Control Act of 1986 , the U.S. government provided amnesty for all undocumented aliens present in the country that had arrived prior to January 1, 1982.
Amnesty Law and Legal Definition
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Commutation means the substitution of one thing for another.
Some common uses of the term “commutation” in a legal sense include:
- In criminal law, commutation refers to reducing or lessening a sentence or punishment resulting from a criminal conviction , which can be done by the governor of a state (for state convictions) or president of the United States (for federal convictions). For example, a death sentence may be commuted to a sentence of life imprisonment. Some grounds for commutation of a sentence are good behavior, illness, old age, or when the sentence is unreasonably harsh in comparison to other similar cases. Commutation is different from pardon in that pardon nullifies the conviction and forgives the individual for the crime whereas commutation is a reduction of a punishment.
Commutation Law and Legal Definition
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Clemency is the power of the President of the United States or a state governor to pardon a criminal or to commute a sentence . The term itself means “leniency” or “mercy.”
See, e.g.; Herrera v. Collins, 506 US 390 (1993) .
Clemency Law and Legal Definition
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Reprieve means the temporary suspension or delay in the implementation of a criminal sentence ordered by the court. During the time of the reprieve, the implementation of the sentence is postponed. Nevertheless, that does not imply that the sentencing and its legal effects are no longer enforceable. Once the reprieve expires, the criminal sentence will be executed as ordered by the court unless there are legal circumstances that change the initial sentencing, like the result of an appeal . In no case shall the reprieve indefinitely postpone the sentence.
Classified as a form of executive clemency power, granting reprieve is within the scope of authority of the executive branch . At the federal level, according to Article II Section 2 of the U.S. Constitution , except in cases of impeachment , the President has the power to grant reprieves for offenses against the United States (federal crimes). At the state level, the governors may be entitled to grant reprieves under the rules of each state’s constitution. For example:
Reprieve Law and Legal Definition
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Immunity refers to legal protection that exempts a person from liability , punishment, or legal action that would otherwise apply. Immunity can be granted in various contexts, including criminal and civil cases, administrative proceedings , and legislative inquiries. For example, see ” immunity from prosecution ”
The concept of immunity has its roots in the common law , but it has been codified in various statutes and legal codes . For example, the U.S. Constitution’s Supremacy Clause grants immunity to federal officials performing their official duties.
See also presidential immunity and Trump v. U.S.
See also: Diplomatic immunity ; Qualified Immunity ; Sovereign immunity
Immunity Law and Legal Definition
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PRESIDENTIAL PARDON POWERS (LIMITS THEREOF)
Constitutional Basis and Historical Origins
Scope and Limitations of the Pardon Power
The presidential pardon power allows for pardons, amnesties, commutations, and reprieves for federal offenses. Here’s a breakdown of these terms:
- Pardon: Fully restores an individual’s rights, erasing legal guilt and penalties.
- Amnesty: Applies to groups, often used for political reconciliation.
- Commutation: Reduces sentences without nullifying convictions.
- Reprieve: Temporarily postpones punishment.
Key limitations include:
- No application to state crimes, preserving state judicial autonomy.
- Exclusion from cases of impeachment, safeguarding legislative checks on executive misconduct.
Supreme Court rulings have further defined the power’s scope:
- Ex parte Garland (1866): Affirmed the President’s ability to issue pardons at any point after a federal offense.
- Schick v. Reed (1974): Recognized the President’s authority to attach conditions to pardons, provided they don’t violate constitutional provisions.
- Burdick v. United States (1915): Suggested that accepting a pardon might imply guilt, though this remains debated.
- United States v. Klein (1871): Prohibited congressional attempts to limit pardon effects.
These constitutional boundaries and judicial interpretations outline a pardon power that balances justice with mercy within the system of checks and balances envisioned by the Founding Fathers.
Presidential Pardon Power and its Limits
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PREEMPTIVE PARDONS
Preemptive Pardons: Constitutional Authority and Real World Implications
The Supreme Court’s decision in Ex Parte Garland (1866) is central to understanding the scope of this power. In this case, the Court unequivocally stated:
“The power of pardon conferred by the Constitution upon the President is unlimited except in cases of impeachment. It extends to every offence 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.”
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BLANKET PARDONS
Are Blanket Pardons Constitutional?
The pardon power of the U.S. president is very broad. A president may pardon any federal crime committed prior to the date of the pardon, and may issue pardons to individuals or groups of persons for offenses committed in connection with multiple discrete events. However, the Constitution’s text and British and American precedent suggest that a valid pardon presupposes awareness by the President of that which is being pardoned as a logical and legal precondition for an exercise of judgment about the propriety of granting clemency. Accordingly, a pardon of the type issued by President Gerald Ford to former President Richard Nixon, purporting to pardon Nixon for all federal offenses committed during his terms of office, irrespective of Ford’s knowledge of them, should be deemed unconstitutional.
The Supreme Court and the president’s pardon power
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RELEVANT RULINGS
Burdick v. United States, 236 U.S. 79 (1915)
There are substantial differences between legislative immunity and a pardon; the latter carries an imputation of guilt and acceptance of a confession of it, while the former is noncommittal, and tantamount to silence of the witness.
There is a distinction between amnesty and pardon; the former overlooks the offense, and is usually addressed to crimes against the sovereignty of the state and political offenses, the latter remits punishment and condones infractions of the peace of the state.
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If You Accept a Pardon Does it Admit Guilt?
In the 1833 case of United States v. Wilson, the Supreme Court ruled that a pardon could be rejected by the convict. Due to the findings in the 1925 case, Burdick v. United States, it seems as though accepting a pardon is, in fact, admitting guilt. In Burdick the appellant was offered a pardon but declined it, also refusing to testify in criminal court. The opinion of the case given by the justices seemed to uncover that 1) a pardon can be given before a conviction and sentence; 2) a pardon can be refused, and 3) acceptance of a pardon implies acceptance of guilt.
- The president MAY issue pardons pre-emptively for unknown crimes against the United States.
That means, of course, that the president can’t issue pardons for state crimes, only federal crimes. Think about that, Tony Fauci—you harmed people all across the nation.
- The grant of a pardon imputes guilt to the person receiving the pardon.
- Therefore, the recipient must accept the pardon for it to be valid, and accepting a pardon is a confession of guilt.
- After accepting a pardon, the recipient loses their 5th Amendment protection against testifying.
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Do presidential pardons remove the Fifth Amendment rights of recipients?
This precedent dates back to 1896 and the Supreme Court decision in Brown v. Walker. In his majority opinion, Justice Henry Billings Brown found that if a “witness has already received a pardon, he cannot longer set up his [Fifth Amendment] privilege, since he stands, with respect to such offense, as if it had never been committed.” Brown cited cases dating back to English law and the Aaron Burr treason trial as supporting that conclusion.
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ADDITIONAL AND RELATED READING
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