In the wake of the insurrection of the U.S. Capitol by armed supporters of President Donald Trump, the New York Times reported on January 7 that Trump is considering pardoning himself in the final days of his presidency. It is unclear whether Trump raised the issue with his aides because of the violence at the Capitol, but he has previously been reported to be considering granting preemptive pardons to his personal attorney, Rudolph Giuliani, as well as his oldest three children and his son-in-law.
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. Here’s why—and whether—that could soon change.
The framers' debate on 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.
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 for a period of time, 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 Pennsylvania 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.
Early 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. Jefferson’s successors James Madison and James Monroe even pardoned pirates.
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.)
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; up to 40,000 fled the Minnesota frontier. More than 500 Native Americans were killed in retaliation.
Due to long-standing racial animosity toward Native Americans and the magnitude of the crimes, 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.
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.
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. With President Trump’s allies encouraging him to do just that, the unprecedented specter of a self-pardon is generating comment and controversy. (Here’s what happens if a U.S. president refuses to leave office.)
The issue is hotly contested among legal scholars since it has never been tested. There isn’t anything in the Constitution that explicitly bars a president from self-pardoning—or prevents 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—but only if the former president were charged with a federal crime.
Pardons and the Trump Administration
As of December 2020, Trump has pardoned 70 people and commuted the sentences of 24 others. Among them are several of the President's own friends and supporters. Although Trump has been criticized for that, it’s not without precedent: In 2001, for example, President Bill Clinton pardoned his half-brother, Roger Clinton, for a 1985 conviction related to distributing cocaine.
Trump has pardoned fewer people than any of his modern predecessors. His immediate forerunner, President Barack Obama, encouraged people to apply for clemency and granted 212 pardons and commuted 1,715 sentences during his eight years in office, most for low-level drug offenses. But in the modern era, pardons are most common during the waning days of a president’s tenure. Trump’s most divisive pardons could be yet to come.
Even if Trump ultimately does grant some form of clemency to his children or himself, the presidential pardon is not a blanket protection against prosecution. Since the power only applies to federal crimes, states can still bring criminal charges against someone who has been pardoned—no matter who that person might be.
Editor's note: This story was originally published on December 4, 2020. It has been updated to reflect the latest developments.