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About Presidential Pardons

Souce and Limitations of Power

By

Dateline: Feb. 21, 2001

Not even President Ford's pardon of Richard Nixon caused as much political and legal flak as former President Clinton's pardon of Marc Rich, indicted in 1983 on charges of racketeering and mail and wire fraud, arising out of his oil business.

And then, before the Rich stew had reached a rolling boil, Sen. Hillary Clinton (D-NY) disclosed that her lawyer brother Hugh Rodham had accepted some $400,000 in fees to help two other felons get pardons from President Clinton. The two pardoned were Glen Braswell, who had served three years for a 1983 mail fraud conviction, and Carlos Vignali, who had served six years of a 15 year sentence for cocaine trafficking in Los Angeles.

Sen. Clinton said she was "very disappointed and saddened," and told her brother to give the money back and he did, but the damage had been done. Except to Braswell and Vignalie, who ended up drawing "Get Out of Jail Free" cards, after all.

Now, President Bush has stated, "Should I decide to grant pardons, I will do so in a fair way. I will have the highest of high standards." [From: Press Conference - Feb. 22, 2001]

What are those high standards? Are they written down, and what gives the President of the United States the power to pardon anybody?

Constitutional Authority for Presidential Pardons
The presidential power to pardon is granted under Article II, Section 2 of the Constitution.

"The President ... shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment."

No standards, and only one limitation -- no pardons for the impeached.

What the Founding Fathers Said
The whole subject of presidential pardons stirred little debate at the Constitutional Convention of 1787. No less estimable Founding Father than Alexander Hamilton, writing in Federalist No. 74, suggests that, "... in seasons of insurrection or rebellion, there are often critical moments, when a well-timed offer of pardon to the insurgents or rebels may restore the tranquility of the commonwealth."

While a few Founders suggested involving Congress in the pardons business, Hamilton remained certain the power should rest solely with the president. "It is not to be doubted, that a single man of prudence and good sense is better fitted, in delicate conjunctures, to balance the motives which may plead for and against the remission of the punishment, than any numerous body [Congress] whatever," he writes in Federalist No. 74.

So, except for impeachment, the Constitution places no restrictions whatsoever on the president in granting pardons. But what about those "standards" President Bush has promised to apply to any pardons he may grant? Where and what are they?

Loose Legal Standards for Presidential Pardons
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 of 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.

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.

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