Pardon Power Questions Answered, From Washington to Ex parte Garland

Can a president really do that? It is the first question out of everyone's mouth when a pardon lands in the news, and the rest follow fast. Is there a limit? Does a pardon mean the person was innocent? Can anybody overrule it? The questions fly around dinner tables, radio call-in lines and comment sections. The answers are not secret, but they are scattered across a single clause of the Constitution and about a dozen Supreme Court cases, and most people never see them in one place.

So here they are. I am going to answer the questions the way a straight-talking friend would, with the sources named so you can check my work. Where the law is settled, I will say so. Where it has never been tested, I will say that too. And whichever party holds the White House, the answers are the same.

The basics

What does the Constitution actually say?

Article II, Section 2 says the president "shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment." That is the entire grant. There is no list of conditions, no requirement that anyone approve it, and no mention of a Justice Department process. The founders wanted a safety valve for mercy and for national emergencies. Alexander Hamilton defended it in the Federalist as a way to calm a rebellion or a crisis when a quick act of grace might save more than a slow prosecution.

What is the one exception?

Impeachment. The president can't pardon someone to undo an impeachment. The sensible reason is that impeachment exists to remove officials who have abused power, and a president who could pardon the officials being impeached could shield them. The process for that is in How Impeachment Works, Step by Step, From the House Floor to the Senate Trial. The exception is about the impeachment process itself: a pardon cannot reverse a removal from office.

What is the difference between a pardon and a commutation?

A pardon forgives the offense. A commutation reduces the punishment without erasing the conviction. A person whose sentence is commuted is still a convicted person, with a shorter sentence or a lighter penalty. A reprieve, the other word in the text, is a delay of punishment. Presidents use all three. The Constitution does not mention commutation by name, but the Court has long treated it as part of the pardon power.

Does the president need to explain a pardon?

No. There is no legal requirement to give reasons, to consult the Justice Department or to wait for a recommendation. The Office of the Pardon Attorney, which sits inside the Department of Justice, reviews petitions and recommends cases to the president, and the department has rules that normally require several years to pass after a sentence is complete before a person applies. Those are internal rules, and the president is not bound by them. If you want to understand how a petition is filed in the ordinary course, the Justice Department's pardon pages explain it.

The cases that set the boundaries

What did Washington do with the Whiskey Rebellion?

It is the first big example. In 1791 Congress put an excise tax on distilled spirits. Farmers in western Pennsylvania, who often turned grain into whiskey because it was easier to ship than grain, resisted violently in 1794. President George Washington called out the militia and rode part of the way with the army. The rebellion collapsed. Two men, Philip Vigol and John Mitchell, were convicted of treason and sentenced to hang, and Washington pardoned both in 1795. He also issued a general pardon in July 1795 to most of the participants who would swear loyalty. The lesson from the first president is that the pardon is a tool of statecraft: enforce the law, show it can be enforced, then use mercy to close the wound.

What did Ex parte Garland decide?

This 1866 case is the foundation. Augustus Garland was an Arkansas lawyer who had served in the Confederate Congress. After the Civil War, President Andrew Johnson gave him a full pardon in July 1865. Meanwhile Congress had passed a law requiring every lawyer who wanted to practice in the federal courts to swear an oath that he had never supported the Confederacy. Garland could not honestly swear it. He argued that his pardon wiped out the offense and that Congress could not use the old offense to keep him from his profession.

The Court agreed, five to four, in an opinion by Justice Stephen Field. Its core points were broad. The pardon power is not limited by Congress. It reaches every offense known to the law. It may be exercised at any time after the offense is committed, before legal proceedings begin, during them, or after conviction. And a full pardon removes the penalties and disabilities of the offense, so Congress cannot treat the person as if the offense had not been forgiven. A related case, United States v. Klein in 1872, made a similar point: Congress cannot pass a law that tells the courts to disregard a pardon.

Do you have to accept a pardon?

Yes, in the sense that the law treats acceptance as part of it. In 1915, in Burdick v. United States, George Burdick, an editor at the New York Tribune, refused to answer a grand jury's questions, saying that his answers might incriminate him. President Woodrow Wilson offered him a pardon, intending to remove his Fifth Amendment protection and force him to testify. Burdick turned it down. The Supreme Court unanimously held that a pardon is a deed that must be delivered and accepted, and that a person is free to refuse it. So the pardon could not be used to compel him to testify.

Burdick also left behind a line that people still argue about, suggesting that accepting a pardon carries an imputation of guilt. Scholars disagree about how much weight that statement has, and the sentence in Garland about the pardon blotting out guilt points in the other direction. If you are writing a paper, cite both.

Can a person be forced to take a commutation?

Yes. In Biddle v. Perovich (1927), a man sentenced to death had his sentence changed to life in prison without his consent, and he objected. Justice Holmes wrote that the pardon is not a private act of grace but part of the constitutional scheme, and the Court held that a commutation can be imposed without the person's agreement. That is the sharp contrast with Burdick: a pardon that gives a benefit can be refused, while a commutation that substitutes a lesser sentence can be imposed.

Can a president attach conditions?

Yes, within limits. In Schick v. Reed (1974), the Court upheld a commutation of a death sentence to life without parole. The condition was legal as long as it did not violate another part of the Constitution. A president can, for example, commute a sentence on the condition that the person serve a different term or follow certain rules. He cannot attach a condition that is itself unconstitutional.

The famous uses

What was the Ford pardon of Nixon?

On September 8, 1974, a month after Richard Nixon resigned the presidency, President Gerald Ford granted him a "full, free, and absolute pardon" for all offenses against the United States that he had committed or might have committed between January 20, 1969, and August 9, 1974. Nixon had not been charged with any crime. The pardon was a pre-emptive one, and it raised the question whether a pardon can come before a charge. Garland's language, "before legal proceedings are taken," says yes. Ford said he acted to close a long and divisive chapter and to spare the country a drawn-out trial. The decision was bitterly criticized at the time and cost Ford politically. Many historians have since judged it more kindly. The legal point is that Garland settled it: the pardon is valid. For the Nixon legal story that preceded it, see United States v. Nixon and What the Court Really Said About Executive Privilege.

What was Carter's draft pardon?

On January 21, 1977, the day after taking office, President Jimmy Carter issued a proclamation pardoning most people who had evaded the draft during the Vietnam War era. It covered violations of the Selective Service law between August 1964 and March 1973. It did not cover deserters from the military, who were handled separately. The proclamation was a classic use of the power for a whole class of people rather than one person. It is a reminder that the clause is not limited to individuals.

What the power does not reach

Does it cover state crimes?

No. The text says "Offences against the United States." A president cannot pardon someone for violating a state's criminal law. For state offenses, the power belongs to the governor, a state board, or both, depending on what each state's constitution says. If you want to know how pardons work in your state, look up your state constitution on your legislature's website. The rules vary a lot, and a few states give the power to a board rather than to the governor.

Does it cover civil lawsuits?

No. A pardon forgives an offense against the government. It does not cancel a private person's right to sue for damages, and it does not reach a civil suit by someone harmed. It also does not undo what has already happened to the money. In Knote v. United States (1877), the Court held that a pardon restores rights going forward, but it does not give back property or money that has already been paid into the Treasury under a judgment. In general, once the government has finished with the money, the pardon cannot reclaim it.

Can a president pardon himself, or pardon crimes not yet committed?

Nobody knows, because it has never been tested. A 1974 opinion from the Justice Department's Office of Legal Counsel, written as Nixon's presidency was ending, concluded that a president cannot pardon himself, on the principle that no one may be a judge in his own cause. Others argue that the text has no such limit. As to future crimes, most scholars think a pardon can only forgive an offense that has already happened, since a pardon for future acts would amount to a license to break the law. The Court has said nothing on either point. When someone tells you the answer is obvious, ask them which case decided it. None did.

Does it cover contempt of court?

Often yes. In Ex parte Grossman (1925), a case under Chief Justice William Howard Taft, the Court held that the pardon power reaches criminal contempt of court. This is important because it means a president can forgive a sentence imposed by a judge for defying a court order. The reasoning was that the pardon power had long been understood to reach all criminal offenses, including this one.

Putting it to use

How should a citizen think about all this?

Use the same standard you would for any power. Ask whether the person using it can be held responsible. The pardon power is one of the few that a president holds almost alone. There is no check except the voters and the political cost of a bad decision, and impeachment for an abuse. That is a lot of trust. Conservatives who like strong executive power should remember that a pardon is the cleanest example of it, and that the next person to hold it may not share your values. Conservatives who worry about it should remember that the founders knew the danger and gave it to the executive anyway, because mercy has to be quick to be useful. For another way of thinking about how the president's powers fit with Congress's, see Justice Jackson's Three-Box Test for Presidential Power, Put to Work, and for a bigger look at how the founders divided the powers, see Madison Built a Government Where Ambition Fights Ambition, and It Works.

The bottom line

• Read the clause. Article II, Section 2: reprieves and pardons for offenses against the United States, except in cases of impeachment. Everything else is case law.
• Remember the two big cases. Garland (1866) says the power is broad and Congress cannot undercut it. Burdick (1915) says a pardon must be accepted.
• Know what it does not reach. State crimes, civil lawsuits and money already paid into the Treasury are outside it, and a self-pardon has never been tested.
• If you need clemency, use the front door. The Office of the Pardon Attorney at the Justice Department takes petitions for federal offenses. For a state offense, go to your state's governor or board.
• Judge the use, not the party. Ask the same questions of a pardon you like and a pardon you don't. Then tell your representatives what you think about the power itself.