Article 2, Section 2, of the Constitution states: “The President . . . shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” The authority to grant pardons, the roots of which are traceable to the royal prerogative of the English monarchy, is at once the most imperial and delicate of the President’s powers. A presidential pardon precludes the punishment of a person who has committed an offense against the United States. In view of the fact that the impeachment exception is the only explicit textual limitation on the exercise of the power, scholars have described the authority as unfettered and immune to the doctrine of checks and balances. In dictum, the Supreme Court has characterized the pardon power as “unlimited.” The apparently untrammeled power always has carried with it a great potential for abuse. The Framers of the Constitution were steeped in English history; the King frequently used pardons as partisan indulgences for friends and supporters. In spite of their familiarity with absolutist Stuart claims and their fear of a power-hungry executive with a proclivity for usurpation, the Framers opted, by the Pardon Clause, to vest the President with a broad discretion to correct miscarriages of justice and to restore tranquility in the wake of rebellion.
The presidential pardon power was forged by the Constitutional Convention in light of English practice. Executive mercy, found in ancient Mosaic, Greek and Roman law, was introduced into English jurisprudence in the seventh century, according to Blackstone, on the grounds that all offenses are committed against the King’s peace, and since it is the King who is injured by fighting in his house, it is reasonable that he alone should possess the power of forgiveness. The act of mercy, then, would be dispensed by the King in his grand role as the “fountain of justice.” The historical record suggests, however, that the grant of a pardon was not so much an act of grace as it was the tool of pecuniary and political aggrandizement. Pardons often were sold for fees and used as an instrument of conscription to entice convicted felons and murderers to support military adventures. Evidently, pardons were so easily obtainable for persons who had committed such crimes as homicide, larceny and robbery that law-abiding subjects who had accused them feared retribution, a prospect that also discouraged others from making accusations. The systematic abuse of the pardon power across several centuries provoked numerous complaints from Parliament, which feared for its statutes, and eventuated in a constitutional crisis in the late 17th Century between the House of Commons and the Crown. The bold attempt by Charles II to use the pardon power as a means to preempt the impeachment in 1678 of the Earl of Danby, Lord High Treasurer of England, triggered a constitutional crisis that would have resounding implications for the presidential pardon power: May a royal pardon prevent an impeachment? For members of the Commons, who viewed the impeachment power as a means of bringing corrupt ministers to heel, the act of executive clemency could not be tolerated. It was feared that a pardon before trial would stifle testimony and therefore bury the facts surrounding the plot. Had the Commons acquiesced in the pardon, the pretended accountability of the ministers would have ceased, for the King would have been free to exercise the prerogative to screen them from parliamentary inquiry. Charles did not want to lose his trusted aide, but Danby was not worth another civil war. Therefore, in spite of the pardon, Danby spent five years in the Tower of London, without trial. In legislation that effectuated the arguments and sentiments expressed by the Commons during the Danby Affair, Parliament passed the Act of Settlement in 1700, which declared that an impeachment could not be impeded by a pardon.
English practice was constantly before the eyes of those who drafted the state constitutions during the Revolutionary War period. For most states, it was the norm: a pardon may not be pleaded to bar impeachment. Exceptions to this practice were more restrictive of the pardoning authority, as reflected, for example, in the absolute denial to the governor of a pardon power, in the requirement that pardons were contingent upon approval from the legislature, or in the prohibition of pre-conviction pardons.
The Constitutional Convention refused to embrace these restrictions. The debate on the pardon power was framed by a proposal from Charles Pinckney of South Carolina that mirrored the English practice. The impeachment exception evoked no controversy since the Framers were familiar with the Danby Affair and they had no desire to vest the President with a power that had been denied to the Crown. The Convention focused principally on the question of whether the President should be empowered to grant pardons for treason, an issue that occasioned an impassioned debate. Some delegates, including Alexander Hamilton, would have permitted pardons for treason, but only if the Senate approved. In rhetoric that stirred images of a presidential coup and sharply echoed the concerns of the Commons a century before, George Mason warned that a President might issue pardons “to screen from punishment those whom he had secretly instigated to commit the crime, and thereby prevent a discovery of his own guilt.” In the end, in spite of their fear of the subversion of the Republic by pardons, the Framers could not bring themselves to fashion an exception for treason. From history and first-hand experience in the form of Shays’ Rebellion, the Framers were familiar with the seductive potential of a well-aimed and well-timed pardon to quell rebellions and restore tranquility. Without such an option, rebels might just as well die on the battlefield than by the gallows. The wisdom and the potential benefits of that policy, however, would not have overcome fears of presidential complicity in treasonous activities without assurances from James Wilson of the availability of impeachment to curb abuse of the pardon power. In fact, every warning that the President might use the pardon power to exonerate accomplices to forestall investigations and generally to subvert law and government was met with assurances that the threat of impeachment would prevent such conduct.
The debate on treason focused attention on the Presidency, and not Congress, as the repository of the pardon power. Since the timing of a pardon offered to rebels was critical and since Congress was not expected to be in continuous session, there was little choice but to vest the power in the President. But the Framers’ reluctance was alleviated by Wilson’s reassuring remarks about the restraining impact of impeachment, and by a rationale, later explained by Hamilton in Federalist No. 74, that the President’s realization that the very fate of an individual might rest on his shoulders, would assure a scrupulous exercise of the authority in order to avoid accusations of weakness or connivance.
The Convention’s creation of a virtually unlimited presidential pardon power has been confirmed by the judiciary. A pardon may be issued before conviction, but not before an offense has been committed, for such an act would amount to the power to dispense with the laws, the claim to which led to King James II’s forced abdication. A pardon may be conferred absolutely or conditionally, provided the conditions are constitutional. However, whether a pardon may be conferred over the objections of the recipient is not clear since the acceptance of a pardon is generally considered an admission of a crime. The power to pardon also includes the authority to commute sentences, and to remit fines, penalties and forfeitures. It has been held that the pardon power, which includes authority to issue a general amnesty, may not be restricted by congressional legislation, but since Congress also has authority to grant general amnesties, the exercise of its power may confer clemency in terms more generous than the President’s.
While the Supreme Court has viewed the President’s pardon power as virtually unfettered, it also has held that the abuse of the power is vulnerable to judicial review and impeachment. Two decisions have established a foundation, however slim, for judicial review of the pardon power, in light of considerations of due process and separation of powers. In 1925, in Ex parte Grossman, Chief Justice William Howard Taft allowed for the possibility that excessive abuses of the pardoning power might provoke a test of its validity in federal court, but he noted that sufficient abuses had not yet occurred. In 1974, in Schick v. Reed, Chief Justice Warren Burger stated that under the right circumstances, conditions to pardons could be declared invalid.