Article 2, Section 2, Clause 1 — Overview Of Pardon Power

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Article II, Section 2, Clause 1:

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.

The Constitution establishes the President’s authority to grant clemency, encompassing not only pardons of individuals but several other forms of relief from criminal punishment as well.[1](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-1/overview-of-pardon-power#fn1art2 " See Clemency, Black’s Law Dictionary (11th ed. 2019) (defining clemency, in part, as “the power of the President . . . to pardon a criminal or commute a criminal sentence” ). ") The power, which has historical roots in early English law,[2](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-1/overview-of-pardon-power#fn2art2 " 1 Benjamin Thorpe, Ancient Laws and Institutes of England 46 (1840) (reflecting law “of fighting” in the Laws of King Ine: “If any one fight in the king’s house, let him be liable in all his property, and be it in the king’s doom whether he shall or shall not have life” ). ") has been recognized by the Supreme Court as quite broad. In the 1886 case Ex parte Garland, the Court referred to the President’s authority to pardon as “unlimited” except in cases of impeachment, extending to “every offence known to the law” and able to be exercised “either before legal proceedings are taken, or during their pendency, or after conviction and judgment.” [3](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-1/overview-of-pardon-power#fn3art2 " 71 U.S. 333, 380 (1866); see also United States v. Klein, 80 U.S. 128, 147 (1871) ( “To the executive alone is intrusted the power of pardon; and it is granted without limit.” ). ") Much later, the Court wrote that the “broad power conferred” in the Constitution gives the President “plenary authority” to “'forgive’ [a] convicted person in part or entirely, to reduce a penalty in terms of a specified number of years, or to alter it” with certain conditions.[4](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-1/overview-of-pardon-power#fn4art2 " Schick v. Reed, 419 U.S. 256, 266 (1974). ")

Despite the breadth of the President’s authority under the Pardon Clause, the Constitution’s text provides for at least two limits on the power: first, clemency may only be granted for “Offenses against the United States,” [5](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-1/overview-of-pardon-power#fn5art2 " U.S. Const. art. II, § 2, cl. 1. ") meaning that state criminal offenses and federal or state civil claims are not covered.[6](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-1/overview-of-pardon-power#fn6art2 " Ex parte Grossman, 267 U.S. 87, 111, 115, 122 (1925) (acknowledging that phrase was included “presumably to make clear that the pardon of the President was to operate upon offenses against the United States as distinguished from offenses against the states” and distinguishing between civil and criminal contempt for purposes of pardon authority). ") Second, the President’s clemency authority cannot be used “in Cases of impeachment.” [7](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-1/overview-of-pardon-power#fn7art2 " U.S. Const. art. II, § 2, cl. 1; see Garland, 71 U.S. at 373 (acknowleding that the President’s authority to grant pardons is subject to the exception of “cases of impeachment” and that “[w]ith that exception the power is unlimited” ). ")

Beyond textual limits, certain external constitutional and legal considerations may act as constraints on the power. For instance, the Court has indicated that the power may be exercised “at any time after [an offense’s] commission,” [8](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-1/overview-of-pardon-power#fn8art2 " Garland, 71 U.S. at 380. ") reflecting that the President may not preemptively immunize future criminal conduct. In Schick v. Reed, the Court recognized that an exercise of clemency may include “any condition which does not otherwise offend the Constitution,” [9](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-1/overview-of-pardon-power#fn9art2 " 419 U.S. at 267. ") suggesting that the President may not make clemency subject to a condition that is prohibited by another constitutional provision.[10](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-1/overview-of-pardon-power#fn10art2 " See Id. ( “Of course, the President may not aggravate punishment.” ). ") Other apparent limitations include not affecting vested rights of third parties, such as where forfeited property is sold,[11](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-1/overview-of-pardon-power#fn11art2 " Knote v. United States, 95 U.S. 149, 154 (1877) ( “Neither does the pardon affect any rights which have vested in others directly by the execution of the judgment for the offence, or which have been acquired by others whilst that judgment was in force.” ). ") or proceeds “paid into the treasury,” which “can only be secured to the former owner . . . through an act of [C]ongress.” [12](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-1/overview-of-pardon-power#fn12art2 " Ill. Cent. R.R. Co. v. Bosworth, 133 U.S. 92, 104–05 (1890); see also Ex parte Garland, 71 U.S. 333, 381 (1866) (explaining that pardons do not “restore offices forfeited, or property or interests vested in others in consequence of the conviction and judgment” ); Semmes v. United States, 91 U.S. 21, 27 (1875) (holding that a pardon did not interfere with the right of a purchaser of forfeited property). ") The Court in The Laura also alluded to an exception for “fines . . . imposed by a co-ordinate department of the government for contempt of its authority,” [13](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-1/overview-of-pardon-power#fn13art2 " 114 U.S. 411, 413 (1885). ") though a later case recognized that the President may pardon one who is subject to criminal punishment for contempt of court.[14](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-1/overview-of-pardon-power#fn14art2 " Ex parte Grossman, 267 U.S. 87, 122 (1925). Other possible limitations—for instance, whether the President may issue a self-pardon or pardon contempt of Congress—have been the subject of debate but have not been addressed by the Supreme Court. E.g., Paul F. Eckstein & Mikaela Colby, Presidential Pardon Power: Are There Limits and, If Not, Should There Be?, 51 Ariz. St. L.J. 71, 97–100 (2019) (surveying arguments regarding authority to self-pardon); Charles D. Berger, The Effect of Presidential Pardons on Disclosure of Information: Is Our Cynicism Justified?, 52 Okla. L. Rev. 163, 181 (1999) (describing pardon of Dr. Francis Townsend for contempt of Congress, without court challenge, during the presidency of Franklin D. Roosevelt). ")

Assuming the recognized limitations are not transgressed, a full pardon granted by the President and accepted by its subject[15](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-1/overview-of-pardon-power#fn15art2 " See Burdick v. United States, 236 U.S. 79, 94 (1915) ( “Granting, then, that the pardon was legally issued and was sufficient for immunity, it was Burdick’s right to refuse it[.]” ); but cf. Biddle v. Perovich, 274 U.S. 480, 486–87 (1927) (indicating that consent is not required in the context of commutation or remission, and that “the public welfare, not [the individual’s] consent, determines what shall be done” ). ") prevents or removes “any of the penalties and disabilities consequent upon conviction . . . .” [16](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-1/overview-of-pardon-power#fn16art2 " Ex parte Garland, 71 U.S. 333, 381 (1866). ") In several nineteenth-century cases, the Supreme Court suggested that a pardon broadly obviates all legal guilt of the offender, effectively erasing the crime from existence.[17](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-1/overview-of-pardon-power#fn17art2 " See Id. at 381–82 ( “A pardon reaches both the punishment prescribed for the offense and the guilt of the offender; and when the pardon is full, it releases the punishment and blots out of existence the guilt[.]” ); Carlisle v. United States, 83 U.S. 147, 151 (1872) (reflecting understanding that pardon “not merely releases the offender from the punishment prescribed for the offence, but . . . obliterates in legal contemplation the offence itself” ). ") Subsequent cases appear to have backed away from this understanding,[18](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-1/overview-of-pardon-power#fn18art2 " See Burdick, 236 U.S. at 94 ( “[A pardon] carries an imputation of guilt; acceptance a confession of it” ). ") suggesting instead that, although a full pardon precludes punishment for the offense in question, a prior and pardoned offense may still be considered in subsequent proceedings.[19](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-1/overview-of-pardon-power#fn19art2 " See Carlesi v. New York, 233 U.S. 51, 59 (1914) (determining that pardoned offense could still be considered “as a circumstance of aggravation” under a state habitual-offender law); Nixon v. United States, 506 U.S. 224, 232 (1993) (stating in dicta that a pardon “is in no sense an overturning of a judgment of conviction by some other tribunal; it is '[a]n executive action that mitigates or sets aside punishment for a crime’” ); see also Angle v. Chicago, St. Paul, Minneapolis & Minneapolis R., 151 U.S. 1, 19 (1894) ( “An executive may pardon and thus relieve a wrongdoer from the punishment the public exacts for the wrong, but neither executive nor legislature can pardon a private wrong, or relieve the wrongdoer from civil liability to the individual he has wronged.” ). ")

Congress generally cannot substantively constrain the President’s pardon authority through legislation, as the Court has held that the “power of the President is not subject to legislative control. Congress can neither limit the effect of his pardon, nor exclude from its exercise any class of offenders. The benign prerogative of mercy reposed in him cannot be fettered by any legislative restrictions.” [20](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-1/overview-of-pardon-power#fn20art2 " Garland, 71 U.S. at 380; see also Schick v. Reed, 419 U.S. 256, 266 (1974) ( “[T]he power [of clemency] flows from the Constitution alone, not from any legislative enactments, and . . . it cannot be modified, abridged, or diminished by the Congress.” ). ") Nevertheless, there is historical precedent for legislation facilitating the exercise of the pardon power through funding of Executive Branch positions to review clemency petitions.[21](https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause