Affirmative Action

A  U.S. president has broad powers to issue pardons to individuals involved in criminal investigations. But are those powers unlimited? No, there are some limitations such as for offenses on a state level. And, it is unsettled whether a president can pardon him- or herself.

A  U.S. president has broad but not unlimited powers to pardon. For example, a president cannot pardon someone for a state crime. And constitutional experts are divided on whether a president can pardon him- or herself.

The U.S. Constitution, Article II, Section 2, Clause 1 reads: “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 (emphasis added).”

There is a strong consensus among legal experts that a president cannot pardon someone for a state offense, as the Constitution notes “offenses against the United States.” In other words, state law enforcement authorities could review any criminal allegations, without presidential intervention, to determine if they rise to the level of a state offense.

The legal record is also clear that a president can pardon for a presumptive crime, like what then-President Gerald Ford did with his predecessor Richard Nixon on Sept. 8, 1974. In the aftermath of Watergate, Ford gave Nixon, who resigned from the presidency a month earlier, an “absolute pardon for all offenses against the United States which he, Richard Nixon, has committed or may have committed or taken part in during the period from Jan. 20, 1969 through Aug. 9, 1974.”

The U.S. Supreme Court affirmed the presidential power to pardon in ex parte Garland, an 1866 case involving a former Confederate senator who had been pardoned by President Andrew Johnson. In that case, the high court made clear that the pardon 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.”

One unsettled legal question is whether a president can pardon himself. The Constitution says a president cannot pardon “in cases of impeachment.” Expert legal opinions on this question vary, and the U.S. Supreme Court has not weighed in on this issue.

Posted 8/17/2017

American Bar Association

Ethics and Environmental Practice