How do pardons work? Yahoo News Explains

On Jan. 20, Joe Biden will be sworn in as the 46th president of the United States, and President Trump will lose a power many think he’ll use between now and then — the power to pardon. So how exactly do presidential pardons work? Yahoo News explains.

Video Transcript


SAM MATTHEWS: President Trump may say he's got four more years--

DONALD TRUMP: If I lost, I'd be a very gracious loser. Well, you know, in politics, I won two, so I'm 2 and 0.

SAM MATTHEWS: --but on January 20, Joe Biden will be sworn in as the 46th president, and President Trump will lose a power that many think he'll use between now and then-- the power to pardon.

JAKE TAPPER: A source tells CNN that President Trump, the outgoing president, is discussing preemptive pardons for people close to him.

MATT GAETZ: The president should pardon himself, his family, his administration officials, and any of his supporters who've been targeted.

STEPHEN COLBERT: "Tiger King Joe Exotic's attorney said he believes they're close to getting a presidential pardon." Oh, come on.

SAM MATTHEWS: And this begs a few questions, not the least of which are, who can the president pardoned? And how does it actually work? Well, like many aspects of the presidency, the power to pardon is derived from a single line in the Constitution.

In this case, it's Article II, Section 2, Clause 1, which establishes the president as the commander in chief of the military, and also says the president shall have the power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment. And that's it. Everything else about pardons has been established through practice and precedent over the last couple of centuries.

Originally, pardons were handled solely by the president. But after the Civil War, the Office of the Pardon Attorney was established to process petitions. This helped streamline things, but also protected the president from accidentally pardoning someone who is currently engaged in a life of crime. Pardons are typically granted for one of two reasons-- to mitigate the severity of the law, as Alexander Hamilton put it, or in cases of national emergency.

Presidents have often used pardons as a way to attain peace, starting with the Whiskey Rebellion, then pardoning Confederate soldiers after the Civil War, and even draft dodgers after Vietnam. A pardon, unlike simply commuting a sentence, restores the full civil rights of its recipient. They can run for office, vote in federal elections, and hold jobs that require a clean criminal record.

But it does not erase the crime altogether. For that, records need to be sealed or expunged, which is something the president can't do. Most of the time, pardons are only granted after a person has served their sentence and shown they've changed their behavior. There are, however, three notable exceptions. In 1974, President Ford pardoned Richard Nixon for any crimes he committed, or may have committed, or taken part in while in office.

GERALD FORD: I feel that Richard Nixon and his loved ones have suffered enough and will continue to suffer.

SAM MATTHEWS: This was unprecedented at the time. Nixon had been implicated in the Watergate scandal, but had not been formally charged. But Ford thought it was for the best of the country to just move on.

Nixon's pardon had an interesting consequence, though. Presidential pardons in the years that followed became harder to get. Through the '90s and early 2000s, the backlog of pending pardon applications continued to grow and become unmanageable. Margaret Love, who was the US pardon attorney from 1990 to 1997, put it this way.

MARGARET LOVE: Really, since the Clinton administration, the system has been both so burdened with backlogs and so, frankly, disrespected in the Department of Justice that any hope of regularity for individuals has kind of gone out the window. And-- and I tell people when they come-- I do this for a living and represent people in filing applications. And you have to be very clear with people this-- this is a crapshoot. This is very-- you know, it is very much like buying a lottery ticket.

SAM MATTHEWS: And that brings us to the Trump administration in the ways that they have broken pardon norms. Trump's very first pardon was Arizona Sheriff Joe Arpaio, sparing him from serving jail time after being convicted of criminal contempt. More recently, the president pardoned his former national security advisor Michael Flynn. Flynn had pled guilty to both lying to the FBI and for lobbying on behalf of the Turkish government. However, the pardon was for any and all possible offenses arising from the Mueller investigation.

Now the question on everybody's mind is, who else will Trump pardon? While it's inaccurate to say that most pardons happen at the end of a president's term, it is true that in the last few decades some presidents have used this time to grant politically unpopular ones.

And like President Ford's pardoning of President Nixon, Trump could pardon people like other members of his administration, his lawyer Rudy Giuliani, or even his own children, who haven't been formally charged with any crimes, before he leaves office. Which leaves one final question-- can the president pardon himself? I'll let Margaret Love take this one.

GERALD FORD: No. I think I am pretty confident that the structure and the wording of the Constitution would prohibit the president from attempting to pardon himself. However, he can do it, and then I guess he'll just have to be charged and see what happens.