About the Presidential Power to Pardon

More of this Feature • 1: Source of the Power to Pardon    Join the Discussion "Everyone involved in this [the Rich pardon] needs to be locked up." PETMUR Read or Reply? "He had the power to pardon. He did it. No prosecutor is going to be able to prove he did it for gain." JHSWAN Read or Reply?     Related Resources • 'Guidelines' of Presidential Clemency • Clinton - Pardon Himself? • The Constitution • Federalist Papers    From Other Guides • Pardon? Hillary's Brother - $400K • About the US Courts • Constitutional Issues    Elsewhere on the Web • Clinton: Why I Pardoned Marc Rich • Famous Pardons • All Clinton Pardons • A Pardon Bibliography • US Pardon Attorney • How To Get a Pardon

While the Constitution places no significant limitations on them in granting pardons, we have certainly now witnessed the grief that can come to presidents or former presidents who appear to grant them haphazardly, or show favoritism in the act. Surely, presidents have some legal resources to draw upon when saying, "I granted the pardon because..."

Operating under the guidelines of Title 28 of the U.S. Code of Federal Regulations, Sections 1.1 - 1.10, the U.S. Pardon Attorney, of the Justice Department's Office of Pardon Attorney "assists" the president by reviewing and investigating all requests for pardons. For each request considered, the Pardon Attorney prepares the Justice Department's recommendation to the president for the final granting or denial of the pardon. Besides pardons, the president may also grant commutations (reductions) of sentences, remissions of fines, and reprieves.

For the exact wording or the guidelines used by the Pardon Attorney in reviewing requests for pardons, see: Presidential Pardons: Legal Guidelines.

Keep in mind that the recommendations of the Pardon Attorney to the president are just that -- recommendations and nothing more. The president, bound by no higher authority than Article II, Section 2, of the Constitution, is in no way required to follow them and retains the ultimate power to grant or deny clemency.

Should this presidential power be limited?
At the Constitutional Convention of 1787, delegates easily defeated proposals to make presidential pardons subject to the approval of the Senate, and to limit pardons to persons actually convicted of crimes.

Proposals for constitutional amendments limiting the president's pardoning power have been offered in Congress. 

A 1993 resolution in the House suggested that, "The President shall only have the power to grant a reprieve or a pardon for an offense against the United States to an individual who has been convicted of such an offense." Basically, the same idea proposed in 1787, the resolution was never acted on by the House Judiciary Committee, where it slowly died.

As recently as 2000, a Senate joint resolution proposed an amendment to the Constitution that would have allowed crime victims the right "to reasonable notice of and an opportunity to submit a statement concerning any proposed pardon or commutation of a sentence." After officers of the Justice Department testified against the amendment, it was withdrawn from consideration in April of 2000.

New proposals to limit the presidential pardon power may come from the House Government Reform Committee, as it begins hearings on former President Clinton's pardon of commodity trader Marc Rich. [Documents and testimony from first hearing.]

Finally, keep in mind that any limitation or change to the president's power to grant pardons will require an amendment to the Constitution. And those, are hard to come by.