Presidential Clemency and Pardons

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Presidential clemency refers to the constitutional power of the President of the United States to grant pardons and commutations for federal crimes. This power, established in Article II, Section 2 of the U.S. Constitution, is among the most absolute authorities granted to the executive branch and is subject to virtually no judicial review.

Constitutional Basis

The Constitution provides that the President "shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment." This language gives the president broad authority to forgive federal crimes or reduce federal sentences.

The Founders modeled this power on the English royal prerogative of mercy, believing that justice requires a mechanism for executive mercy in cases where strict application of the law would produce unjust results. Alexander Hamilton defended the pardon power in Federalist No. 74, arguing that "the criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel."

Types of Clemency

Pardons

A pardon is a complete forgiveness of a federal crime. A pardon:

  • Eliminates the legal consequences of the conviction
  • Restores civil rights lost due to conviction (voting, jury service, firearm possession in some cases)
  • Eliminates restitution obligations in most cases
  • Allows the recipient to truthfully state they have not been convicted of the pardoned offense
  • May be granted before or after conviction, and even before charges are filed

The acceptance of a pardon is traditionally considered an acknowledgment of guilt. In Burdick v. United States (1915), the Supreme Court stated that a pardon "carries an imputation of guilt; acceptance a confession of it."

Commutations

A commutation reduces or eliminates a prison sentence but leaves the underlying conviction intact. A person whose sentence is commuted:

  • Remains a convicted felon
  • Retains all disabilities associated with the conviction
  • May still owe restitution and fines
  • Must still register as required (e.g., sex offender registry)
  • Benefits only from the reduction in incarceration time

Commutations are often used when a president believes the sentence was too harsh but does not wish to overturn the conviction itself.

Reprieves

A reprieve temporarily postpones the execution of a sentence. This is most commonly used in death penalty cases to allow time for appeals or clemency petitions.

Remission of Fines and Forfeitures

The president can also remit fines and forfeitures imposed as part of federal criminal sentences.

The Clemency Process

Office of the Pardon Attorney

The formal clemency process is administered by the Office of the Pardon Attorney within the Department of Justice. Applicants must:

  • Wait five years after completing their sentence before applying (for pardons)
  • Submit a detailed petition including personal history, crime details, and reasons for seeking clemency
  • Provide character references and evidence of rehabilitation
  • Wait for investigation by the Office of the Pardon Attorney

The Pardon Attorney makes a recommendation to the Deputy Attorney General, who forwards it to the President. The President makes the final decision and is not bound by any recommendation.

Direct Presidential Action

Presidents frequently bypass the formal process, particularly for:

  • High-profile cases that receive media attention
  • Cases involving political allies or supporters
  • End-of-term clemency grants
  • Cases brought to their attention through personal connections

The Constitution places no procedural requirements on the pardon power, allowing presidents complete discretion in how they exercise it.

Historical Context

Notable Historical Pardons

George Washington issued the first presidential pardons, including pardons for participants in the Whiskey Rebellion of 1794.

Andrew Johnson issued a blanket amnesty to most former Confederates after the Civil War.

Gerald Ford pardoned Richard Nixon on September 8, 1974, before any criminal charges were filed, for any crimes Nixon may have committed during his presidency.

Jimmy Carter issued a blanket pardon for Vietnam War draft evaders on his first day in office.

Bill Clinton issued 140 pardons on his final day in office, including the controversial pardon of fugitive financier Marc Rich.

Notable Clemency Recipients

The following high-profile offenders profiled on Prisonpedia have received presidential clemency:

Pardons

Recipient Crime Original Sentence President Date Notes
Alice Marie Johnson Drug conspiracy Life without parole Trump August 28, 2020 Commuted June 2018; full pardon 2020; now serves as Trump's "pardon czar"
Michael Milken Securities fraud 10 years (served 22 months) Trump February 18, 2020 "Junk bond king" of the 1980s
Paul Manafort Tax fraud, bank fraud 7.5 years Trump December 23, 2020 Trump campaign chairman; served ~2 years
Dinesh D'Souza Campaign finance fraud 5 years probation Trump May 31, 2018 Conservative commentator; straw donor scheme
Steve Bannon Federal fraud (pardoned) N/A (pardoned pre-trial) Trump January 20, 2021 "We Build the Wall" fraud; later convicted of state fraud
Rod Blagojevich Corruption 14 years Trump February 10, 2025 Previously commuted Feb 2020; full pardon Feb 2025
Trevor Milton Securities fraud 4 years Trump March 2025 Nikola EV founder; donated $1.8M+ to Trump
Changpeng Zhao Bank Secrecy Act violation 4 months (served) Trump October 23, 2025 Binance founder; pardoned after completing sentence
Juan Orlando Hernandez Drug trafficking conspiracy 45 years Trump December 1, 2025 Former President of Honduras; served ~18 months

Commutations

Recipient Crime Original Sentence President Date Notes
Alice Marie Johnson Drug conspiracy Life without parole Trump June 6, 2018 Served 21+ years; later received full pardon
Rod Blagojevich Corruption 14 years Trump February 18, 2020 Served ~8 years; later received full pardon
Kodak Black Firearms false statement 46 months Trump January 20, 2021 Rapper; released after ~1 year served
David Gentile Securities fraud, wire fraud 7 years Trump December 1, 2025 GPB Capital Ponzi scheme; served only 12 days
Carlos Watson Securities fraud, wire fraud 116 months Trump March 28, 2025 Ozy Media founder; commuted before surrender

Controversy and Criticism

Quid Pro Quo Concerns

Critics have raised concerns about clemency being granted to individuals who:

  • Made significant political donations (Trevor Milton donated $1.8M+ to Trump)
  • Had personal or political connections to the president
  • Received clemency shortly before or after providing political support

While the pardon power is constitutionally absolute, some scholars argue that pardons granted for corrupt purposes could constitute impeachable offenses or even bribery.

Timing of Clemency

End-of-term pardons have been particularly controversial, as they leave no time for political accountability. Presidents often issue large batches of pardons on their final day in office.

Inconsistency

The clemency system has been criticized for treating well-connected individuals differently than ordinary applicants. Cases that receive media attention or have celebrity advocates are far more likely to result in clemency than routine applications through the Office of the Pardon Attorney.

Terminology

  • Clemency: A general term encompassing all forms of executive mercy, including pardons, commutations, and reprieves.
  • Pardon: Complete forgiveness of a crime that eliminates the conviction.
  • Commutation: Reduction or elimination of a sentence, leaving the conviction intact.
  • Reprieve: Temporary postponement of sentence execution.
  • Amnesty: A pardon extended to a group or class of offenders, typically for political offenses.

See also

Frequently Asked Questions

Q: What is the difference between a pardon and a commutation?

A pardon is complete forgiveness that eliminates the conviction and restores civil rights. A commutation only reduces or eliminates the prison sentence but leaves the conviction on record. A pardoned person is no longer considered convicted; a person with a commuted sentence remains a convicted felon.


Q: Can a president pardon someone before they are convicted?

Yes, the president can issue a pardon before conviction and even before charges are filed. Gerald Ford's pardon of Richard Nixon is the most famous example. However, acceptance of a pardon is traditionally considered an admission of guilt.


Q: Can a president pardon state crimes?

No, the president can only pardon federal crimes. State governors have the power to grant clemency for state crimes. This is why some individuals face state prosecution even after receiving federal pardons.


Q: How do you apply for a presidential pardon?

The formal process involves applying through the Office of the Pardon Attorney at the Department of Justice. Applicants must wait five years after completing their sentence. However, presidents often grant pardons outside this formal process.


Q: Does a pardon eliminate restitution obligations?

Generally yes, a pardon eliminates restitution and fines imposed as part of the criminal sentence. However, civil judgments and obligations unrelated to the criminal conviction remain in effect.


References


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