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Presidential Clemency and Pardons

From Prisonpedia


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. Since 1900, presidents have granted over 22,000 acts of clemency, though the frequency, timing, and criteria have varied dramatically from one administration to the next.

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."

Scope and Limitations

The presidential pardon power is remarkably broad but has specific limitations:

What the President CAN do:

  • Pardon any federal crime (before or after conviction)
  • Commute federal sentences (reduce or eliminate prison time)
  • Grant reprieves (temporarily postpone sentences)
  • Remit fines and forfeitures
  • Issue blanket pardons to classes of offenders (amnesty)
  • Bypass the formal clemency application process entirely

What the President CANNOT do:

  • Pardon state crimes (only state governors can do this)
  • Pardon cases of impeachment
  • Pardon civil liabilities unrelated to criminal conviction
  • Expunge or seal criminal records
  • Pardon crimes that have not yet been committed

Types of Clemency

Pardons

A pardon is a complete forgiveness of a federal crime. Understanding what a pardon does—and critically, what it does not do—is essential for anyone affected by the clemency process.

What a Pardon DOES

A presidential pardon:

  • Forgives the offense – The legal consequences of the conviction are eliminated
  • Restores civil rights – Voting rights, jury service eligibility, and the ability to hold public office are typically restored
  • May restore firearm rights – A full and unconditional pardon generally restores federal firearm rights, though state restrictions may still apply
  • Eliminates restitution obligations – Criminal restitution and fines imposed as part of the sentence are typically eliminated
  • Removes employment barriers – Many professional licenses and government positions that were closed due to the conviction become available again
  • Allows denial of conviction – The recipient may truthfully state they have not been convicted of the pardoned offense on most applications

What a Pardon Does NOT Do

Critically, a presidential pardon has significant limitations that are often misunderstood:

  • Does NOT expunge the criminal record – The conviction remains on your record. Both the original conviction AND the pardon will appear on federal background checks, including FBI fingerprint checks and federal security clearance investigations. For more information on record clearing, see Expungement.
  • Does NOT seal records – Court records, arrest records, and related documents remain publicly accessible. The pardon does not make these records private or confidential.
  • Does NOT eliminate disclosure requirements – A pardoned person must still disclose the conviction on forms where such information is required, though they may also disclose that a pardon was received.
  • Does NOT affect civil liability – Civil judgments, lawsuits, and obligations unrelated to the criminal conviction remain in effect. A pardon forgives the crime but does not make the victim whole.
  • Does NOT guarantee restoration of all rights – State laws may still impose restrictions even after a federal pardon. Some states do not recognize federal pardons as sufficient to restore firearm rights or professional licenses within their jurisdiction.
  • Does NOT prevent state prosecution – A federal pardon only covers federal offenses. If the same conduct violates state law, state prosecutors may still bring charges. This is why Steve Bannon, despite receiving a federal pardon, was later convicted of state fraud charges in New York.

Pardons and Background Checks

One of the most important practical limitations of a presidential pardon relates to background checks. When employers, licensing agencies, or government entities run FBI fingerprint checks or federal criminal history searches:

  • The original conviction will appear
  • The pardon will also appear as a notation
  • The individual is not entitled to claim they have never been convicted—only that the conviction was pardoned

This means that while a pardon carries significant legal and symbolic weight, it does not make the conviction "disappear." Between October 2022 and December 2023, President Biden pardoned over 6,500 people for federal marijuana possession, but none had their records expunged—both the conviction and the pardon now appear on their background checks.

The 2024 Corkern Decision

On December 23, 2024, the U.S. Court of Appeals for the Fifth Circuit ruled in United States v. Corkern that presidential pardons do NOT create jurisdiction for federal courts to order expungement. Dr. Robert Corkern, who received a pardon from President Trump for federal bribery, sought to have his criminal record expunged. Both the district court and the Fifth Circuit denied his motion, holding that courts lack jurisdiction to expunge records absent specific statutory authority or constitutional violations—even with a presidential pardon. This decision reinforced that pardons and expungement are fundamentally different legal concepts.

Acceptance and Admission of Guilt

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." This principle has led some individuals to refuse pardons when they maintained their innocence and wished to continue pursuing exoneration through the courts.

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 with all associated disabilities
  • Retains the conviction on their criminal record
  • May still owe restitution and fines
  • Must still register as required (e.g., sex offender registry)
  • Benefits only from the reduction in incarceration time
  • Cannot claim they were not convicted

Commutations are often used when a president believes the sentence was too harsh but does not wish to overturn the conviction itself. They are particularly common in drug cases where mandatory minimum sentences resulted in disproportionate punishment.

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. Unlike pardons or commutations, a reprieve does not forgive or reduce the sentence—it merely delays its implementation.

Amnesty

Amnesty refers to a pardon extended to a group or class of offenders, typically for political offenses. Notable examples include:

  • Andrew Johnson's blanket amnesty for former Confederates (1868)
  • Jimmy Carter's pardon of Vietnam War draft evaders (1977)
  • Joe Biden's categorical pardon for simple marijuana possession (2022)

Remission of Fines and Forfeitures

The president can also remit fines and forfeitures imposed as part of federal criminal sentences, either as part of a broader clemency grant or as a standalone action.

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. The formal application requirements include:

  • Waiting period – Applicants must wait five years after completing their sentence before applying for a pardon (no waiting period for commutations)
  • Detailed petition – Applicants must submit comprehensive documentation including personal history, crime details, and reasons for seeking clemency
  • Character references – Letters from employers, community members, and others attesting to rehabilitation
  • Evidence of rehabilitation – Documentation of post-conviction conduct, employment, education, and community involvement

The Pardon Attorney's office investigates each petition, which can take years. 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.

Grant Rates Through the Formal Process

The formal clemency process has historically had extremely low success rates:

  • Presidents from William McKinley through Jimmy Carter granted at least 20% of clemency requests
  • Ronald Reagan granted approximately 12% of requests
  • Every subsequent president through Trump granted single-digit percentages
  • The Obama administration's Clemency Initiative generated over 36,000 applications but resulted in fewer than 2,000 grants

Direct Presidential Action

Presidents frequently bypass the formal process entirely, particularly for:

  • High-profile cases that receive media attention
  • Cases involving political allies or supporters
  • Cases brought to their attention through personal connections or advocacy
  • End-of-term clemency grants
  • Categorical pardons affecting entire classes of offenders

The Constitution places no procedural requirements on the pardon power, allowing presidents complete discretion in how they exercise it. This has led to significant variation in how different presidents approach clemency.

Historical Context

The Early Republic

George Washington established the precedent for presidential clemency when he pardoned participants in the Whiskey Rebellion of 1794. Washington viewed clemency as a tool for national reconciliation, pardoning rebels who had taken up arms against federal tax collectors rather than pursuing harsh punishment that might further divide the young nation.

Thomas Jefferson continued this reconciliatory approach, pardoning those convicted under the Alien and Sedition Acts—laws he had vehemently opposed as unconstitutional restrictions on free speech.

Civil War and Reconstruction

Abraham Lincoln used clemency extensively during the Civil War, pardoning Confederate soldiers and issuing proclamations of amnesty to encourage desertion from the Confederate Army. Lincoln pardoned, commuted, or rescinded convictions for 343 people during his presidency.

Andrew Johnson granted the most sweeping amnesty in American history on Christmas Day 1868, issuing a "full pardon and amnesty" to all former Confederates, including those who had not applied for individual pardons. The decision was controversial—many believed Confederate leaders should face punishment for treason—but Johnson argued it was necessary to reunite the nation.

The Progressive Era Through World War II

Theodore Roosevelt granted approximately 981 acts of clemency during his presidency, often using the power to address cases where he believed sentences were unjust.

Woodrow Wilson faced difficult clemency decisions related to World War I, including cases of conscientious objectors and those convicted under the Espionage Act.

Franklin D. Roosevelt holds the record for most pardons by any president in a single administration. During his nearly four terms in office (1933-1945), FDR granted 3,687 pardons—an average of more than one per day. This high volume reflected both the length of his presidency and a more liberal approach to clemency than subsequent presidents would adopt.

The Nixon Pardon and Its Aftermath

Gerald Ford's pardon of Richard Nixon on September 8, 1974, remains the most consequential and controversial presidential pardon in American history. Ford granted Nixon a "full, free and absolute pardon" for any crimes he may have committed during his presidency—before any charges were filed. This was the first pre-emptive pardon of a former president.

The pardon was deeply unpopular. Ford's approval ratings plummeted from 71% to 50% within days, and the decision is widely believed to have contributed to his loss in the 1976 election. Critics accused Ford of making a secret deal with Nixon: resignation in exchange for a pardon. Ford denied this, testifying before Congress that his only motivation was to end the "national nightmare" and allow the country to move forward.

The Nixon pardon established an important precedent: presidents can pardon individuals who have not been charged, tried, or convicted of any specific crime.

The Carter Amnesty

Jimmy Carter began his presidency on January 21, 1977, by issuing a blanket pardon to approximately 200,000 Vietnam War draft evaders. The decision was controversial—Senator Barry Goldwater called it "the most disgraceful thing that a President has ever done"—but Carter believed it was necessary to heal divisions from the war.

Iran-Contra and the Bush Pardons

George H.W. Bush issued pardons on December 24, 1992, to six officials involved in the Iran-Contra affair, including former Secretary of Defense Caspar Weinberger, who was awaiting trial. Special Counsel Lawrence Walsh, who had been prosecuting the case, called the pardons the completion of a "cover-up" and accused Bush of "misconduct." Critics noted that Bush himself had been implicated in the affair and the pardons prevented further investigation that might have revealed his involvement.

The Clinton Controversies

Bill Clinton issued 140 pardons on his final day in office, January 20, 2001, creating significant controversy. The most criticized was the pardon of Marc Rich, a fugitive financier who had fled to Switzerland after being indicted for evading $48 million in taxes and making illegal deals with Iran during the hostage crisis. Rich's ex-wife, Denise Rich, had donated over $1 million to Democratic causes and the Clinton Presidential Library. The pardon was investigated by Congress and the Justice Department but no charges were filed.

Clinton also pardoned his half-brother Roger Clinton for a drug conviction, drawing accusations of nepotism.

Modern Approaches to Clemency

Barack Obama (2009-2017)

Obama granted 1,927 acts of clemency (212 pardons and 1,715 commutations), the most by any president at that time since Harry Truman. However, this represented only about 5% of the 36,000+ applications received—among the lowest grant rates in history.

In 2014, Obama launched the Clemency Initiative, encouraging federal prisoners—particularly those serving lengthy sentences for nonviolent drug offenses—to apply for commutation. The program generated unprecedented demand but was criticized for its slow pace and low success rate. Of the 36,544 petitions filed under the Initiative, only 1,696 were granted.

Obama saved most of his clemency grants for his final year in office, including 330 acts of clemency on his second-to-last day (January 19, 2017). He commuted the sentences of 568 people serving life sentences, the most in a single term by any president.

Donald Trump (First Term: 2017-2021)

Trump's first-term approach to clemency was characterized by low volume but high-profile grants. He issued only 237 acts of clemency (143 pardons and 94 commutations)—fewer than any president since George H.W. Bush—but many went to political allies, supporters, or cases championed by celebrities.

Trump drew criticism for frequently bypassing the formal Pardon Attorney process in favor of direct grants to individuals with personal or political connections. Notable first-term clemency recipients included Sheriff Joe Arpaio (contempt of court), Dinesh D'Souza (campaign finance fraud), and Alice Marie Johnson (drug conspiracy, championed by Kim Kardashian).

Like his predecessors, Trump saved many grants for the end of his term. On January 19, 2021, his second-to-last day, he issued 116 acts of clemency including pardons for Steve Bannon (fraud), Paul Manafort (tax and bank fraud), and commutations for Kodak Black (firearms) and Lil Wayne (firearms).

Joe Biden (2021-2025)

Biden fundamentally changed the scale of presidential clemency, granting 4,245 acts of clemency—more than any president in history, including Franklin Roosevelt. This included:

  • Categorical marijuana pardons – In October 2022 and later expansions, Biden pardoned all federal convictions for simple marijuana possession, affecting thousands of people
  • Record single-day clemency – On December 12, 2024, Biden granted clemency to 1,538 people (39 pardons, 1,499 commutations), the largest single-day act of clemency in modern history
  • Final acts – Biden granted clemency to nearly 2,500 additional people in his final weeks

More than 90% of Biden's clemency grants came in his final fiscal year in office. His grant rate was significantly higher than his recent predecessors, though the volume was driven largely by categorical pardons affecting marijuana offenses.

Controversially, Biden also granted a full pardon to his son, Hunter Biden, on December 1, 2024, covering all federal crimes Hunter "committed or may have committed" from January 1, 2014, through December 1, 2024—including gun and tax charges for which Hunter had already been convicted.

Donald Trump (Second Term: 2025-Present)

Trump's second term has seen continued use of clemency power for high-profile and politically connected individuals. Notable grants include:

  • Rod Blagojevich – Full pardon (February 2025) after previous commutation
  • Trevor Milton – Pardon for Nikola EV fraud (March 2025); Milton had donated over $1.8 million to Trump
  • Carlos Watson – Commutation for Ozy Media fraud (March 2025)
  • Changpeng Zhao – Pardon for Bank Secrecy Act violations (October 2025); Binance founder had completed his sentence
  • David Gentile – Commutation for GPB Capital fraud (December 2025); had served only 12 days
  • Juan Orlando Hernández – Pardon for former Honduran president convicted of drug trafficking (December 2025)
  • Henry Cuellar – Pre-trial pardon for sitting Democratic congressman indicted on bribery (December 2025)

Notable Clemency Recipients

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

Pardons

Recipient Crime Original Sentence President Date Notes
Steve Bannon Federal fraud N/A (pardoned pre-trial) Trump January 20, 2021 "We Build the Wall" fraud; later convicted of state fraud in NY
Rod Blagojevich Corruption 14 years Trump February 10, 2025 Previously commuted Feb 2020; full pardon Feb 2025
Henry Cuellar Bribery, money laundering, FARA N/A (pardoned pre-trial) Trump December 3, 2025 Sitting Democratic congressman from Texas; charges dismissed
Dinesh D'Souza Campaign finance fraud 5 years probation Trump May 31, 2018 Conservative commentator; straw donor scheme
Juan Orlando Hernandez Drug trafficking conspiracy 45 years Trump December 1, 2025 Former President of Honduras; served ~18 months
Paul Manafort Tax fraud, bank fraud 7.5 years Trump December 23, 2020 Trump campaign chairman; served ~2 years
Michael Milken Securities fraud 10 years (served 22 months) Trump February 18, 2020 "Junk bond king" of the 1980s
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

Commutations

Recipient Crime Original Sentence President Date Notes
Kodak Black Firearms false statement 46 months Trump January 20, 2021 Rapper; released after ~1 year served
Rod Blagojevich Corruption 14 years Trump February 18, 2020 Served ~8 years; later received full pardon
David Gentile Securities fraud, wire fraud 7 years Trump December 1, 2025 GPB Capital Ponzi scheme; served only 12 days
Alice Marie Johnson Drug conspiracy Life without parole Trump June 6, 2018 Served 21+ years; later received full pardon Aug 2020
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; Marc Rich's ex-wife donated heavily to Clinton)
  • Had personal or political connections to the president
  • Received clemency shortly before or after providing political support
  • Were pardoned by family members (Clinton pardoning his brother; Biden pardoning his son)

While the pardon power is constitutionally absolute, some scholars argue that pardons granted for corrupt purposes could constitute impeachable offenses or even bribery. No president has ever been successfully impeached or prosecuted for abuse of the pardon power.

Self-Pardons and Family Pardons

The question of whether a president can pardon himself has never been definitively resolved. No president has attempted a self-pardon, though Trump reportedly considered it. Most legal scholars believe a self-pardon would be unconstitutional under the principle that no one should be a judge in their own case.

Presidential pardons of family members, while legal, have drawn criticism. Clinton's pardon of his half-brother and Biden's pardon of his son Hunter raised questions about whether family relationships should disqualify individuals from clemency consideration.

Timing and Transparency

The concentration of clemency grants in a president's final days has been criticized for several reasons:

  • No political accountability – Presidents leaving office face no electoral consequences for controversial pardons
  • Limited review – Last-minute pardons often bypass normal vetting processes
  • Appearance of impropriety – Pardons issued while "walking out the door" invite suspicion

However, it's worth noting that some last-minute clemency grants have been widely praised, including commutations for nonviolent drug offenders serving disproportionate sentences.

Inconsistency and Access

The clemency system has been criticized for treating well-connected individuals differently than ordinary applicants:

  • Cases with celebrity advocates (Kim Kardashian for Alice Marie Johnson) are far more likely to succeed
  • Wealthy defendants can hire pardon attorneys and lobbyists
  • Politically connected individuals often bypass the formal process entirely
  • Ordinary applicants through the Pardon Attorney process face years-long waits and single-digit success rates

Terminology

  • Clemency: A general term encompassing all forms of executive mercy, including pardons, commutations, reprieves, and amnesty.
  • Pardon: Complete forgiveness of a crime that eliminates the conviction but does not expunge the record.
  • 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.
  • Expungement: The sealing or destruction of criminal records—distinct from and not accomplished by a pardon. See Expungement for more information.

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: Does a presidential pardon expunge your criminal record?

No. A presidential pardon does NOT expunge or erase your criminal record. Both the original conviction and the pardon will appear on federal background checks, including FBI fingerprint checks. You must still disclose the conviction on forms requiring such information. For information about clearing records, see Expungement.


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 and Trump's pardons of Steve Bannon and Henry Cuellar are examples. 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: Does a presidential pardon restore gun rights?

A full and unconditional presidential pardon generally restores federal firearm rights. However, state laws may still impose restrictions. Some states do not recognize a federal pardon as sufficient to restore firearm rights within their jurisdiction. A presidential pardon is currently the only practical path to restoring federal firearm rights for federal felons, as Congress has not funded ATF's relief program since 1992.


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.


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, particularly for high-profile cases or those brought to their attention through personal connections.


Q: Can a president pardon themselves?

This question has never been definitively resolved by courts. No president has attempted a self-pardon. Most legal scholars believe a self-pardon would be unconstitutional under the principle that no one should be a judge in their own case. The Justice Department's Office of Legal Counsel issued an opinion in 1974 stating a president cannot pardon himself, but this is not binding law.


Q: How long does the presidential pardon process take?

Through the formal Office of the Pardon Attorney process, applications typically take 2-5 years to process. The Pardon Attorney investigates each petition, makes a recommendation to the Deputy Attorney General, who forwards it to the President. However, presidents can bypass this process entirely and grant pardons immediately for cases brought to their attention through other channels.


Q: Can a presidential pardon be revoked?

Once accepted, a presidential pardon generally cannot be revoked. The pardon becomes final upon acceptance by the recipient. However, a pardon obtained through fraud or bribery could potentially be challenged. Courts have held that acceptance of a pardon creates a binding contract between the government and the recipient.


Q: What is the success rate for pardon applications?

The formal pardon application process has extremely low success rates. Presidents from McKinley through Carter granted at least 20% of requests. Ronald Reagan granted about 12%. Every president since has granted single-digit percentages through the formal process. Most successful pardons now come through direct presidential action bypassing the Pardon Attorney.


Q: Does a pardon make you innocent?

No. A pardon is forgiveness, not exoneration. The Supreme Court stated in Burdick v. United States (1915) that accepting a pardon carries an imputation of guilt and acceptance is a confession of it. The underlying conviction remains on record alongside the pardon. For actual innocence claims, the proper remedy is vacating the conviction through the courts, not a pardon.


Q: Can family members of the president receive pardons?

Yes, there is no legal prohibition against presidents pardoning family members. Bill Clinton pardoned his half-brother Roger Clinton, and Joe Biden pardoned his son Hunter Biden in 2024. While legal, such pardons are controversial and raise concerns about abuse of the pardon power. Critics argue family relationships should ethically disqualify individuals from consideration.


References

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