The Pardon Clause isn’t as restrained as many think

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Article II, Section IV is not often talked about even though every president in history has pardoned someone before leaving office or during their time in office.  The Department of Justice’s website lists all pardons granted from Richard Nixon to Donald Trump.  A small sampling of the history behind the authority of the president to pardon can be found here, and an in-depth history via law review can be found here.

The intense recent interest over pardons came at the hands of President Donald Trump’s recent pardon of Former Sheriff Joe Arpaio that has been met mostly with criticism.  It’s telling when the American Bar Association delivers a sharp rebuke.  While my social networks are smaller than most who are both scholars and activists, the overwhelming consensus I’ve seen has been negative.  The only people who seemed to support the pardon were those that support Trump and opined that Arpaio was simply following the rule of law and was stymied by the legal system.

Since I wasn’t familiar with the terms of Arpaio’s conviction and since the pardon power is constitutional in nature, I decided to take interest.  I ended up reading the full conviction.  After reading the conviction, I decided to revisit the Pardon Clause; there is no proscribed limit on the power to pardon, Congress has never passed a law constraining the Clause, and the SCOTUS has opined that the power is unlimited and can be used however the president desires.  In the end, not only did Trump act fully within his bounds as president under Article II, but the pardon is legally incontestable.  At the most, if the House decides to initiate impeachment proceedings, this can be one of the charges.

Besides their immunity to challenge, Presidential pardons are powerful because they can be used to override any federal conviction regardless of severity and for any reason chosen by the president.  In fact, due to the lack of constraint, the president could issue a pardon whenever they disagree with someone being convicted.

Typically, when the convicted seeks a pardon, there’s an application process.  Reading through the criteria, it becomes understood why the pardon is such a remarkable act and such a big deal.  Near the bottom of the page linked, it mentions that a denial of a pardon cannot be appealed.  Typically, a pardon is issued after all evidence and support have been considered, showing that presidents aim to only pardon those who are not a nuisance while serving their time, have learned their lessons, and want to make a better life for themselves.  While these things can contribute to a successful pardon, there are no guarantees.

For what it’s worth, presidents routinely deny requests for clemency, and for any number of reasons.  Millions of people feel that they were wrongly convicted of a crime, or they feel that their sentence was overkill.  Much like the Supreme Court isn’t required to give a reason to deny certiorari, the president can deny clemency without a reason, or for reasons that won’t be shared with the public.

In a constitutional republic that relies on a system of checks and balances, it is natural to have reservations about one person having the power to grant clemency, but looking at the table of denied clemencies and the number pardons and commutations issued by previous presidents, they aren’t being issued easily.

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