The authority of a president to issue a pardon is almost an afterthought in the last clause of the first paragraph of Section II of the Constitution of the United States: “…and he shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.”  (The capitalization of nouns in the document reflects an 18^th century grammar practice that gradually fell into disfavor in the 19^th century.) The pardon power is based on early English law and reinforced by the Supreme Court in later decisions.  The Court has ruled that the Constitution permits the President to forgive, partially or fully, a convicted person, or reduce a penalty to a specified number of years.  A President also can alter the length of a sentence, with certain conditions. Pardons legally wipe away the existence of criminal charges. With clemency, the charges stand; they are not erased. 

There are two limits to the Pardon Clause: clemency applies only to “offenses against the United States,” not to state criminal offenses or federal or state civil claims.  The recent corruption case against the Culpeper County sheriff, who was found guilty by a jury of his peers, involved federal charges, not state ones.  Additionally, a President’s pardon authority cannot be used in cases of impeachment.  President Gerald Ford’s preemptive pardon of Richard Nixon, probably the most famous and notorious pardon, did not involve impeachment as Nixon resigned before he faced charges being prepared by the House of Representatives and trial by the Senate.  Although some January 6 rioters have attempted to use their pardons to avoid being prosecuted for offenses committed after the Capitol was attacked, pardons cannot immunize against future criminal acts.  The presidential exercise of pardons is absolute; it is not subject to legislative control.  When President Bill Clinton pardoned the FALN, a paramilitary organization that advocated for Puerto Rican independence via dozens of bombings in New York, both the Senate and House of Representatives voted to condemn the action.  The vote to condemn was overwhelming in both chambers but could not rescind Clinton’s pardon.

Many presidents issue pardons and clemency petitions at the end of their terms, when voter backlash has little effect on election results. This year, however, Donald Trump issued pardons for about 1500 January 6 rioters on the very day he was inaugurated for a second term, and he has issued additional pardons off-and-on for the past several weeks.  One pardon was issued after the convicted man’s mother paid a million dollars to dine at a Mar-A-Lago event with Trump; a reality television couple, convicted of fraud in excess of $20 million, were pardoned after their daughter befriended Lara Trump. The Constitution is silent on what appears to be “pay to play,” but Trump’s new pardon attorney, Ed Martin, posted a “no MAGA left behind” message on social media, portending more political pardons.  The pardoning of the January 6 rioters did not involve numbers as large as Andrew Johnson’s action to pardon thousands who fought for the Confederacy, and Jimmy Carter’s pardon of 200,000 Vietnam War draft dodgers.  However, Trump’s pardons did enrage millions who had viewed the assault on the Capitol attempting to stop the counting of electoral college votes as a vicious assault on democracy, instigated and encouraged by the vanquished president.  

There have been other controversial pardons: James Buchanan pardoned Brigham Young, George H.W. Bush pardoned Oliver North, Casper Weinberger and other Iran-Contra participants, Abraham Lincoln pardoned his Confederate sister-in-law, Donald Trump pardoned his son-in-law’s father, and Joe Biden pardoned his son, Hunter.  

George Washington issued just 16 pardons in eight years.  William Henry Harrison and James A. Garfield issued none, but both men served only months as president before dying in office.  The Founding Fathers likely expected that a president’s pardon powers would be exercised prudently and rarely, remedying injustice and abuse without political overtones.  A review of recent history does not bear that out, diminishing both law and politics.