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A Review of the History of the Presidential Pardon Power

Article by Nathan Moore

In Article II, Section 2 of the Constitution, one can find the presidential pardon power

“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 Offenses against the United States, except in Cases of Impeachment.”

The pardon power is absolute except in cases of an impeachment. It is worth noting there is no legislative check on the president’s power to pardon.

From the very beginning, the pardon power was controversial. Several of the country’s founders believed it to be a problematic power, due mostly to a history of abuse by European royals. Founders supporting a plenary presidential pardon authority mostly prevailed, the only check on that power being that the president could not forgive those who had previously been impeached. This was necessary to maintain the balance of power inherent in the separation of power framework.

The 1794 pardon by George Washington of those indicted and convicted of treason in the wake of the Whiskey Rebellion began the tradition of an ongoing debate regarding those worthy of clemency, most recently broached by the decision and failure of George W. Bush to forgive the criminal transgressions of Scooter Libby, Vice President Dick Cheney’s chief of staff. Washington established early on that treason, the highest crime against the new republic, was a pardonable crime; however, the debate regarding whether the offenders were worthy is another matter entirely – this though Virginia Governor Henry Lee had already issued a general pardon covering even those who had not yet been charged with a crime.

Andrew Johnson’s pardoning of the “common Southerner” after assuming the presidency in 1865 raised eyebrows, in addition to his refusal to extend blanket amnesty to the upper classes of Southern society, making the aristocrats he blamed for starting the Civil War apply individually for his forgiveness. Fulfilling a campaign promise, Jimmy Carter conveyed a blanket pardon to those who avoided draft service during the Vietnam War, though being careful not to extend clemency to war protesters, those receiving less than honorable discharges, and deserters.

The motivating rationale behind pardon controversies is simple: second chances for serious offenses are always debatable. Every individual receiving a pardon has been subject to the system, and has been deemed worthy of some sort of stigma or punishment. The sound discretion mostly employed in executing the presidential pardon power has resulted in relatively few “scandals” relative to the number of pardons actually granted over time.

In the more modern era, Gerald Ford’s pardon of Richard Nixon, Bill Clinton’s pardon of Patty Hearst, Caspar Weinberger by George H.W. Bush and Switzerland-relocated fugitive Marc Rich by Bill Clinton have all become controversial examples of the use of the presidential pardon power.

About the Author

Nathan Moore is a criminal defense lawyer practicing in Nashville, Tennessee. If you are interested in applying for a presidential pardon, you can discover more about obtaining a pardon at his website, or by calling (615) 346-2213.

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