What's the story?
With President Donald Trump’s pardon of former Arizona Sheriff Joe Arpaio, there’s been lots of info floating around about the the power of the pardon. Here’s a roundup of some of the facts, fictions and fantasies of Article II, Section 2 of the Constitution…
How do pardons work?
The president has the power to pardon anyone for any federal crime, or to commute (lessen) their sentence. And the pardon can’t be overturned by any other branch of government.
Where’d the power come from?
Article II, Section 2 of the U.S. Constitution, which states that the president "shall have power to grant reprieves and pardons for offenses against the United States, except in the cases of impeachment."
How do I get a pardon?
First, commit a federal crime—like drug trafficking, bank fraud, mail fraud, or conspiracy.
Second, submit a petition to the Office of the Pardon Attorney.
Third, wait at least five years for an "Act of Executive Clemency."
Fourth, enjoy your Get Out Of Jail Free card.
Sheriff Joe’s pardon was unusual in this way—he hadn’t been sentenced, let alone submitted a petition. Unusual, but not unprecedented. In 1866, the Supreme Court ruled that pardon power "may be exercised at any time after its commission, either before legal proceedings are taken, or during their pendency, or after conviction and judgment." This is what President Ford did when he pardoned Nixon before any charges were brought.
Could the President use the pardon power to impede impeachment proceedings?
In late July, the Washington Post ran a story about how "some of President Trump’s lawyers are exploring ways to limit or undercut special counsel Robert S. Mueller III’s Russia investigation," which reportedly included Trump asking “his advisers about his power to pardon aides, family members and even himself in connection with the probe.”
Could he do that?
As another Washington Post article headlined: "Yes, Trump can legally pardon himself or his family. No, he shouldn’t."
As Politifact explained, "if Trump pardoned someone who was the target of the investigation, he or she would be immunized from prosecution." Ronald D. Rotunda, a law professor at Chapman University, and investigator during Watergate, said, "Mueller could not use the grand jury or other prosecutorial tools, such as search warrants, to investigate someone whom he cannot indict.”
Wait, so the President can pardon himself?
Despite the Post’s headline, the question of whether a president can pardon him (or her)self is, as yet, unanswered. Multiple news outlets, across the political spectrum, have asked "Can the president pardon himself?" and arrived at similar, but no unanimous, conclusions. For now, we’ll just have to wait and see if a president tries it.
Do pardons have to be public?
On Monday, the President defended pardoning Arpaio just as Hurricane Harvey was making landfall in Texas. "A lot of people think it was the right thing to do," Trump said. “Actually, in the middle of a hurricane, even though it was a Friday evening, I assumed the ratings would be far higher than they were normally.”
Not every president, however, wants their pardons on blast: Roosevelt and Truman tried to keep their pardons secret, claiming it was unfair for those granted clemency to be publicized. But because pardons are part of the public record, it would be near impossible to keep one secret today.
Could the President pardon over Twitter?
Yep. "Neither the constitution nor any statute prescribes the method by which Executive clemency shall be exercised or evidenced," reads a 1929 memo from the Justice Department. "It is wholly a matter for the President to decide, as a practical matter of administrative policy."
Could the President issue a blanket pardon, like Carter did for draft dodgers?
In 1977, one day after his inauguration, Jimmy Carter fulfilled a campaign promise and issued a blanket pardon for all Americans who dodged the Vietnam draft. How big of a blanket could a pardon be? Let’s say Trump was in a very generous mood: could he pardon all criminals for all crimes against the United States?
Yes. With a stroke of the pen, or "send" of a Tweet, Trump could empty all the federal prisons (except for those who’ve been impeached). However, pardons only apply for crimes that have occurred.
"No ‘future crimes’ qualify, although the president can pardon as soon as the offense happens, and he does not need to wait for a formal legal process to be started against the accused," said Jeffrey Crouch, an assistant professor of American politics at American University who specializes in studying pardons.
What do you think?
Do you support "the power of the pardon?" Or should Congress look into a Constitutional Amendment to limit the power? Hit the Take Action button, tell your reps, then comment below.
—Josh Herman
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President Trump Pardons Convicted Sheriff Joe Arpaio
(Photo Credit: erhui1979 / iStockphoto)
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