Presidential Pardon The 2019 Stack Overflow Developer Survey Results Are In Announcing the arrival of Valued Associate #679: Cesar Manara Planned maintenance scheduled April 17/18, 2019 at 00:00UTC (8:00pm US/Eastern)Does the concept of presidential pardon have a justification in terms of separation between the executive and the judiciary? (France)Does the President's Pardon authority extend to crimes not committed at the time of the pardon?Is there something legally stronger than a pardon that does not constitute an admission of guilt?Can use of a pre-emptive pardon also be illegal obstruction of justice?Do (any) US State Governors have legal authority to preemptively pardon persons of a state crime?Can the POTUS really pardon via tweet? If so, what would one actually look like?Can a Presidential pardon nullify a search warrant?Can Congress issue a legislative pardon?Overturning a presidential pardon and double jeopardyCan a U.S. President pardon an accessory to murder if the murder occurred in a foreign country?

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Presidential Pardon



The 2019 Stack Overflow Developer Survey Results Are In
Announcing the arrival of Valued Associate #679: Cesar Manara
Planned maintenance scheduled April 17/18, 2019 at 00:00UTC (8:00pm US/Eastern)Does the concept of presidential pardon have a justification in terms of separation between the executive and the judiciary? (France)Does the President's Pardon authority extend to crimes not committed at the time of the pardon?Is there something legally stronger than a pardon that does not constitute an admission of guilt?Can use of a pre-emptive pardon also be illegal obstruction of justice?Do (any) US State Governors have legal authority to preemptively pardon persons of a state crime?Can the POTUS really pardon via tweet? If so, what would one actually look like?Can a Presidential pardon nullify a search warrant?Can Congress issue a legislative pardon?Overturning a presidential pardon and double jeopardyCan a U.S. President pardon an accessory to murder if the murder occurred in a foreign country?










1















When and how are pardons supposed to be used? Why does the Constitution even grant the president the power to pardon? Can it be used to pardon any crime?



On the surface, it seems to make the president above the law. CNN just reported that president Trump promised to pardon the head of CBP if he broke the law. It would seem the president could just do this for any law or policy he doesn't like and thereby bypass Congress or the courts.










share|improve this question


























    1















    When and how are pardons supposed to be used? Why does the Constitution even grant the president the power to pardon? Can it be used to pardon any crime?



    On the surface, it seems to make the president above the law. CNN just reported that president Trump promised to pardon the head of CBP if he broke the law. It would seem the president could just do this for any law or policy he doesn't like and thereby bypass Congress or the courts.










    share|improve this question
























      1












      1








      1








      When and how are pardons supposed to be used? Why does the Constitution even grant the president the power to pardon? Can it be used to pardon any crime?



      On the surface, it seems to make the president above the law. CNN just reported that president Trump promised to pardon the head of CBP if he broke the law. It would seem the president could just do this for any law or policy he doesn't like and thereby bypass Congress or the courts.










      share|improve this question














      When and how are pardons supposed to be used? Why does the Constitution even grant the president the power to pardon? Can it be used to pardon any crime?



      On the surface, it seems to make the president above the law. CNN just reported that president Trump promised to pardon the head of CBP if he broke the law. It would seem the president could just do this for any law or policy he doesn't like and thereby bypass Congress or the courts.







      pardon






      share|improve this question













      share|improve this question











      share|improve this question




      share|improve this question










      asked 3 hours ago









      user27343user27343

      756




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          3 Answers
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          Presidential pardons can be used to pardon someone for any federal crime, if you are convicted of a state crime, the governor of that state has the right to pardon you. Impeachment is the only instance where the constitution prohibits pardons.



          Of the founding fathters, Alexander Hamaliton was the most supportive of Pardons and wrote about the need for them in the Federalist Paper No. 74. The idea behind them was that some situations negate the need to punish someone or to punish them severely.




          The criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel.
          http://avalon.law.yale.edu/18th_century/fed74.asp




          Some people do view some pardons as inappropriate because they take away the ability of the courts to enforce their rulings. Who gets one is in the discretion of the President though.






          share|improve this answer






























            3














            If a President uses pardons too freely, and in what seems to be a corrupt manner, Congress could, in theory, impeach the President and remove him or her from office. This has never happened. How likely it might be in future is more a subject for the politics forum.



            A pardon cannot immunize a person from an individual damage suit, or even from a later governmental civil penalty, only from a criminal prosecution.



            A President probably cannot pardon himself (or herself). We can't be sure, no US President has ever tried, so no court has ever ruled on this. Gerald Ford's pardon of Nixon is as close as the US has gotten to such a case.



            Pardons, like most governmental powers, can be abused. There are various checks to try to deter and limit abuse, but they are not perfect. If the President (or any high official) is abusive, powers will be abused.



            The constitutional power of the president to grant pardons is copied from the power that the King of England had to grant pardons. Federalist #74, as Putvi points out, justifies the power and its scope at some length.






            share|improve this answer























            • Upon what do you base the claim that the president can be impeached for using pardons too freely? I understand you said it's not likely, I just don't think it meets the standard.

              – Putvi
              2 hours ago











            • @Putvi the president can be impeached and removed for whatever a majority of the House and 2/3rds of the Senate think proper. There is no enforceable standard beyond the good judgement of Congress. Read a history of the impeachment and trial of President Johnson (who came within 1 vote of conviction and removal) to see what reasons have passed muster in the past. But as to this case, i think in the section on impeachment, the Federalist says that it is the general remedy for the abuse of presidential power. And I think that has been the general understanding ever since. Who says otherwise?

              – David Siegel
              2 hours ago






            • 1





              @Putvi corrupt conduct would fall within the ambit of high crimes and misdemeanours

              – Dale M
              2 hours ago






            • 1





              @DaleM I guess you could try for anything being a high crime or misdemeanor, but I don't think many people would agree.

              – Putvi
              2 hours ago






            • 1





              @Putvi Congress defines "high crimes and misdemeanors". If Congress declares that failing to click one's heels when entering the White House is a "high crime" they can impeach for it. (Provided that enough of Congress agrees.) In the case of Johnson, violation of the Tenure of Office Act (later declared unconstitutional) was a "High Misdemeanor" because the act said it was.

              – David Siegel
              2 hours ago



















            2














            When and how are pardons supposed to be used? Why does the Constitution even grant the president the power to pardon?



            The Constitution provides very little guidance regarding this point, and it isn't clear that the Founders were of one mind about how it was intended to be used.



            Relieving Wrongful Or Doubtful Convictions



            One important point to keep in mind is that until about 1890 (a century after the U.S. Constitution came into force in 1789), there were no direct appeals of criminal convictions in the federal courts and collateral attacks on convictions via writs of habeas corpus were very limited. To this day, there is not a constitutional right to a direct appeal of a criminal conviction, although there is a statutory right to one and there are constitutional rules governing how appeals must be handled if they are allowed.



            Historically a writ of habeas corpus could be defeated simply by proving that someone had been convicted of a crime by a court with jurisdiction over that crime and the person convicted, without regard to the details of the proceedings.



            The pardon power provided an important safety valve to guard against wrongful convictions and was used frequently for that purpose even for a few decades after direct appeals from criminal convictions to appellate courts became available. Once direct appeals from criminal convictions became established as a means of relief from unfair convictions, however, the rate at which pardons were granted plummeted. The rate fell further as the scope of reasons for which habeas corpus review of a conviction could be granted was expanded.



            This was the main use of the pardon power described by Alexander Hamilton in Federalist Paper No. 74, which was a document used by supporters of the Constitution to help secure its ratification. It says with respect to this purpose:




            Humanity and good policy conspire to dictate, that the benign
            prerogative of pardoning should be as little as possible fettered or
            embarrassed. The criminal code of every country partakes so much of
            necessary severity, that without an easy access to exceptions in favor
            of unfortunate guilt, justice would wear a countenance too sanguinary
            and cruel. As the sense of responsibility is always strongest, in
            proportion as it is undivided, it may be inferred that a single man
            would be most ready to attend to the force of those motives which
            might plead for a mitigation of the rigor of the law, and least apt to
            yield to considerations which were calculated to shelter a fit object
            of its vengeance. The reflection that the fate of a fellow-creature
            depended on his sole fiat, would naturally inspire scrupulousness and
            caution; the dread of being accused of weakness or connivance, would
            beget equal circumspection, though of a different kind. On the other
            hand, as men generally derive confidence from their numbers, they
            might often encourage each other in an act of obduracy, and might be
            less sensible to the apprehension of suspicion or censure for an
            injudicious or affected clemency. On these accounts, one man appears
            to be a more eligible dispenser of the mercy of government, than a
            body of men




            A Tool To End Insurgencies



            Another important historical use of the pardon power was to resolve once and for all instances of rebellions, uprisings, civil wars, and the mass protests to prevent ongoing criminal prosecutions (including convictions for treason) and detentions of figures whose cooperation was needed to secure peace from stirring up the public. This was done in the Whiskey Rebellion and in every almost ever major insurgency in the U.S. since then. Usually, pardons were only granted in these cases who swore loyalty to the U.S. in a public manner and renounced the insurgency.



            Federalist Paper No. 74 also discusses this justification for the pardon power:




            The expediency of vesting the power of pardoning in the President has,
            if I mistake not, been only contested in relation to the crime of
            treason. This, it has been urged, ought to have depended upon the
            assent of one, or both, of the branches of the legislative body. I
            shall not deny that there are strong reasons to be assigned for
            requiring in this particular the concurrence of that body, or of a
            part of it. As treason is a crime levelled at the immediate being of
            the society, when the laws have once ascertained the guilt of the
            offender, there seems a fitness in referring the expediency of an act
            of mercy towards him to the judgment of the legislature. And this
            ought the rather to be the case, as the supposition of the connivance
            of the Chief Magistrate ought not to be entirely excluded. But there
            are also strong objections to such a plan. It is not to be doubted,
            that a single man of prudence and good sense is better fitted, in
            delicate conjunctures, to balance the motives which may plead for and
            against the remission of the punishment, than any numerous body
            whatever. It deserves particular attention, that treason will often be
            connected with seditions which embrace a large proportion of the
            community; as lately happened in Massachusetts. In every such case, we
            might expect to see the representation of the people tainted with the
            same spirit which had given birth to the offense. And when parties
            were pretty equally matched, the secret sympathy of the friends and
            favorers of the condemned person, availing itself of the good-nature
            and weakness of others, might frequently bestow impunity where the
            terror of an example was necessary.



            On the other hand, when the sedition had proceeded from causes which
            had inflamed the resentments of the major party, they might often be
            found obstinate and inexorable, when policy demanded a conduct of
            forbearance and clemency. But the principal argument for reposing the
            power of pardoning in this case to the Chief Magistrate is this: in
            seasons of insurrection or rebellion, there are often critical
            moments, when a welltimed offer of pardon to the insurgents or rebels
            may restore the tranquillity of the commonwealth; and which, if
            suffered to pass unimproved, it may never be possible afterwards to
            recall. The dilatory process of convening the legislature, or one of
            its branches, for the purpose of obtaining its sanction to the
            measure, would frequently be the occasion of letting slip the golden
            opportunity. The loss of a week, a day, an hour, may sometimes be
            fatal. If it should be observed, that a discretionary power, with a
            view to such contingencies, might be occasionally conferred upon the
            President, it may be answered in the first place, that it is
            questionable, whether, in a limited Constitution, that power could be
            delegated by law; and in the second place, that it would generally be
            impolitic beforehand to take any step which might hold out the
            prospect of impunity. A proceeding of this kind, out of the usual
            course, would be likely to be construed into an argument of timidity
            or of weakness, and would have a tendency to embolden guilt.




            Restoring Civil Rights



            In modern, peacetime U.S. practice, the main use of the pardon power has been to restore the civil rights of people who admit to having committed crimes and have served their sentences and reformed, so that they can, for example, apply for a job not available to felons, or vote, or get a hunting license and use a firearm. Only a tiny share of modern pardons are granted to people who are currently serving sentences for the crimes of which they were convicted or to people who have not yet been convicted of crimes.



            This was not a major concern in the very early days of the Republic because, at first, most really serious crimes were capital offenses. In cases where capital punishment was not imposed, in those days, the weak government bureaucracies of the early United States did not have the bureaucratic capacity to meaningfully enforce collateral consequences of felony convictions.



            Moreover, in those days, there were fewer kinds of conduct that required permits or licenses or involved regulated occupations. For example, most formal qualifications to be a lawyer such as nearly universal law school and the bar exam, date from after the U.S. Civil War.



            Other Reasons For Modern Persons



            It is also a modern historical reality that a significant minority of pardons are granted as political favors to people connected to the incumbent President's political supporters. And, this has probably always been the case.



            Only the most Machiavellian law professors and political scientists would argue that this is an important or legitimate use of the power (although there is that argument to be made), but most would argue that the Founders acknowledged the risk but felt that it was an acceptable risk due to the expected good character of future U.S. Presidents.



            But, a small but non-zero share of modern pardons are granted to people who were convicted of crimes and are serving sentences that are morally unjust in some way and unlikely to be remedied by the courts.



            Another small but significant share of modern pardons are issued to commute the death penalty either to life in prison or as a remedy for a probably wrongful conviction, in part, due to the official's opposition to the death penalty generally or in certain kinds of cases.



            Can it be used to pardon any crime?



            The pardon power can be used to pardon any federal crime that has actually been committed, whether or not someone has been charged with it or convicted of it. A pardon cannot prevent a federal government official from being impeached, however. A pardon also cannot be granted for a crime that has not yet been committed at the time it is granted.



            Pardons can be granted to identifiable groups of people, in addition to specific individuals.



            There is debate over whether the President can pardon himself. This singular issue dealt with in another Q and A in this forum. In my opinion, the better reading of the law is that the President cannot pardon himself, but there are legitimate legal scholars who would disagree, and there are no precedents for this one way or the other at the Presidential level.






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              3 Answers
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              3 Answers
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              Presidential pardons can be used to pardon someone for any federal crime, if you are convicted of a state crime, the governor of that state has the right to pardon you. Impeachment is the only instance where the constitution prohibits pardons.



              Of the founding fathters, Alexander Hamaliton was the most supportive of Pardons and wrote about the need for them in the Federalist Paper No. 74. The idea behind them was that some situations negate the need to punish someone or to punish them severely.




              The criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel.
              http://avalon.law.yale.edu/18th_century/fed74.asp




              Some people do view some pardons as inappropriate because they take away the ability of the courts to enforce their rulings. Who gets one is in the discretion of the President though.






              share|improve this answer



























                4














                Presidential pardons can be used to pardon someone for any federal crime, if you are convicted of a state crime, the governor of that state has the right to pardon you. Impeachment is the only instance where the constitution prohibits pardons.



                Of the founding fathters, Alexander Hamaliton was the most supportive of Pardons and wrote about the need for them in the Federalist Paper No. 74. The idea behind them was that some situations negate the need to punish someone or to punish them severely.




                The criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel.
                http://avalon.law.yale.edu/18th_century/fed74.asp




                Some people do view some pardons as inappropriate because they take away the ability of the courts to enforce their rulings. Who gets one is in the discretion of the President though.






                share|improve this answer

























                  4












                  4








                  4







                  Presidential pardons can be used to pardon someone for any federal crime, if you are convicted of a state crime, the governor of that state has the right to pardon you. Impeachment is the only instance where the constitution prohibits pardons.



                  Of the founding fathters, Alexander Hamaliton was the most supportive of Pardons and wrote about the need for them in the Federalist Paper No. 74. The idea behind them was that some situations negate the need to punish someone or to punish them severely.




                  The criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel.
                  http://avalon.law.yale.edu/18th_century/fed74.asp




                  Some people do view some pardons as inappropriate because they take away the ability of the courts to enforce their rulings. Who gets one is in the discretion of the President though.






                  share|improve this answer













                  Presidential pardons can be used to pardon someone for any federal crime, if you are convicted of a state crime, the governor of that state has the right to pardon you. Impeachment is the only instance where the constitution prohibits pardons.



                  Of the founding fathters, Alexander Hamaliton was the most supportive of Pardons and wrote about the need for them in the Federalist Paper No. 74. The idea behind them was that some situations negate the need to punish someone or to punish them severely.




                  The criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel.
                  http://avalon.law.yale.edu/18th_century/fed74.asp




                  Some people do view some pardons as inappropriate because they take away the ability of the courts to enforce their rulings. Who gets one is in the discretion of the President though.







                  share|improve this answer












                  share|improve this answer



                  share|improve this answer










                  answered 3 hours ago









                  PutviPutvi

                  86718




                  86718





















                      3














                      If a President uses pardons too freely, and in what seems to be a corrupt manner, Congress could, in theory, impeach the President and remove him or her from office. This has never happened. How likely it might be in future is more a subject for the politics forum.



                      A pardon cannot immunize a person from an individual damage suit, or even from a later governmental civil penalty, only from a criminal prosecution.



                      A President probably cannot pardon himself (or herself). We can't be sure, no US President has ever tried, so no court has ever ruled on this. Gerald Ford's pardon of Nixon is as close as the US has gotten to such a case.



                      Pardons, like most governmental powers, can be abused. There are various checks to try to deter and limit abuse, but they are not perfect. If the President (or any high official) is abusive, powers will be abused.



                      The constitutional power of the president to grant pardons is copied from the power that the King of England had to grant pardons. Federalist #74, as Putvi points out, justifies the power and its scope at some length.






                      share|improve this answer























                      • Upon what do you base the claim that the president can be impeached for using pardons too freely? I understand you said it's not likely, I just don't think it meets the standard.

                        – Putvi
                        2 hours ago











                      • @Putvi the president can be impeached and removed for whatever a majority of the House and 2/3rds of the Senate think proper. There is no enforceable standard beyond the good judgement of Congress. Read a history of the impeachment and trial of President Johnson (who came within 1 vote of conviction and removal) to see what reasons have passed muster in the past. But as to this case, i think in the section on impeachment, the Federalist says that it is the general remedy for the abuse of presidential power. And I think that has been the general understanding ever since. Who says otherwise?

                        – David Siegel
                        2 hours ago






                      • 1





                        @Putvi corrupt conduct would fall within the ambit of high crimes and misdemeanours

                        – Dale M
                        2 hours ago






                      • 1





                        @DaleM I guess you could try for anything being a high crime or misdemeanor, but I don't think many people would agree.

                        – Putvi
                        2 hours ago






                      • 1





                        @Putvi Congress defines "high crimes and misdemeanors". If Congress declares that failing to click one's heels when entering the White House is a "high crime" they can impeach for it. (Provided that enough of Congress agrees.) In the case of Johnson, violation of the Tenure of Office Act (later declared unconstitutional) was a "High Misdemeanor" because the act said it was.

                        – David Siegel
                        2 hours ago
















                      3














                      If a President uses pardons too freely, and in what seems to be a corrupt manner, Congress could, in theory, impeach the President and remove him or her from office. This has never happened. How likely it might be in future is more a subject for the politics forum.



                      A pardon cannot immunize a person from an individual damage suit, or even from a later governmental civil penalty, only from a criminal prosecution.



                      A President probably cannot pardon himself (or herself). We can't be sure, no US President has ever tried, so no court has ever ruled on this. Gerald Ford's pardon of Nixon is as close as the US has gotten to such a case.



                      Pardons, like most governmental powers, can be abused. There are various checks to try to deter and limit abuse, but they are not perfect. If the President (or any high official) is abusive, powers will be abused.



                      The constitutional power of the president to grant pardons is copied from the power that the King of England had to grant pardons. Federalist #74, as Putvi points out, justifies the power and its scope at some length.






                      share|improve this answer























                      • Upon what do you base the claim that the president can be impeached for using pardons too freely? I understand you said it's not likely, I just don't think it meets the standard.

                        – Putvi
                        2 hours ago











                      • @Putvi the president can be impeached and removed for whatever a majority of the House and 2/3rds of the Senate think proper. There is no enforceable standard beyond the good judgement of Congress. Read a history of the impeachment and trial of President Johnson (who came within 1 vote of conviction and removal) to see what reasons have passed muster in the past. But as to this case, i think in the section on impeachment, the Federalist says that it is the general remedy for the abuse of presidential power. And I think that has been the general understanding ever since. Who says otherwise?

                        – David Siegel
                        2 hours ago






                      • 1





                        @Putvi corrupt conduct would fall within the ambit of high crimes and misdemeanours

                        – Dale M
                        2 hours ago






                      • 1





                        @DaleM I guess you could try for anything being a high crime or misdemeanor, but I don't think many people would agree.

                        – Putvi
                        2 hours ago






                      • 1





                        @Putvi Congress defines "high crimes and misdemeanors". If Congress declares that failing to click one's heels when entering the White House is a "high crime" they can impeach for it. (Provided that enough of Congress agrees.) In the case of Johnson, violation of the Tenure of Office Act (later declared unconstitutional) was a "High Misdemeanor" because the act said it was.

                        – David Siegel
                        2 hours ago














                      3












                      3








                      3







                      If a President uses pardons too freely, and in what seems to be a corrupt manner, Congress could, in theory, impeach the President and remove him or her from office. This has never happened. How likely it might be in future is more a subject for the politics forum.



                      A pardon cannot immunize a person from an individual damage suit, or even from a later governmental civil penalty, only from a criminal prosecution.



                      A President probably cannot pardon himself (or herself). We can't be sure, no US President has ever tried, so no court has ever ruled on this. Gerald Ford's pardon of Nixon is as close as the US has gotten to such a case.



                      Pardons, like most governmental powers, can be abused. There are various checks to try to deter and limit abuse, but they are not perfect. If the President (or any high official) is abusive, powers will be abused.



                      The constitutional power of the president to grant pardons is copied from the power that the King of England had to grant pardons. Federalist #74, as Putvi points out, justifies the power and its scope at some length.






                      share|improve this answer













                      If a President uses pardons too freely, and in what seems to be a corrupt manner, Congress could, in theory, impeach the President and remove him or her from office. This has never happened. How likely it might be in future is more a subject for the politics forum.



                      A pardon cannot immunize a person from an individual damage suit, or even from a later governmental civil penalty, only from a criminal prosecution.



                      A President probably cannot pardon himself (or herself). We can't be sure, no US President has ever tried, so no court has ever ruled on this. Gerald Ford's pardon of Nixon is as close as the US has gotten to such a case.



                      Pardons, like most governmental powers, can be abused. There are various checks to try to deter and limit abuse, but they are not perfect. If the President (or any high official) is abusive, powers will be abused.



                      The constitutional power of the president to grant pardons is copied from the power that the King of England had to grant pardons. Federalist #74, as Putvi points out, justifies the power and its scope at some length.







                      share|improve this answer












                      share|improve this answer



                      share|improve this answer










                      answered 2 hours ago









                      David SiegelDavid Siegel

                      16.9k3665




                      16.9k3665












                      • Upon what do you base the claim that the president can be impeached for using pardons too freely? I understand you said it's not likely, I just don't think it meets the standard.

                        – Putvi
                        2 hours ago











                      • @Putvi the president can be impeached and removed for whatever a majority of the House and 2/3rds of the Senate think proper. There is no enforceable standard beyond the good judgement of Congress. Read a history of the impeachment and trial of President Johnson (who came within 1 vote of conviction and removal) to see what reasons have passed muster in the past. But as to this case, i think in the section on impeachment, the Federalist says that it is the general remedy for the abuse of presidential power. And I think that has been the general understanding ever since. Who says otherwise?

                        – David Siegel
                        2 hours ago






                      • 1





                        @Putvi corrupt conduct would fall within the ambit of high crimes and misdemeanours

                        – Dale M
                        2 hours ago






                      • 1





                        @DaleM I guess you could try for anything being a high crime or misdemeanor, but I don't think many people would agree.

                        – Putvi
                        2 hours ago






                      • 1





                        @Putvi Congress defines "high crimes and misdemeanors". If Congress declares that failing to click one's heels when entering the White House is a "high crime" they can impeach for it. (Provided that enough of Congress agrees.) In the case of Johnson, violation of the Tenure of Office Act (later declared unconstitutional) was a "High Misdemeanor" because the act said it was.

                        – David Siegel
                        2 hours ago


















                      • Upon what do you base the claim that the president can be impeached for using pardons too freely? I understand you said it's not likely, I just don't think it meets the standard.

                        – Putvi
                        2 hours ago











                      • @Putvi the president can be impeached and removed for whatever a majority of the House and 2/3rds of the Senate think proper. There is no enforceable standard beyond the good judgement of Congress. Read a history of the impeachment and trial of President Johnson (who came within 1 vote of conviction and removal) to see what reasons have passed muster in the past. But as to this case, i think in the section on impeachment, the Federalist says that it is the general remedy for the abuse of presidential power. And I think that has been the general understanding ever since. Who says otherwise?

                        – David Siegel
                        2 hours ago






                      • 1





                        @Putvi corrupt conduct would fall within the ambit of high crimes and misdemeanours

                        – Dale M
                        2 hours ago






                      • 1





                        @DaleM I guess you could try for anything being a high crime or misdemeanor, but I don't think many people would agree.

                        – Putvi
                        2 hours ago






                      • 1





                        @Putvi Congress defines "high crimes and misdemeanors". If Congress declares that failing to click one's heels when entering the White House is a "high crime" they can impeach for it. (Provided that enough of Congress agrees.) In the case of Johnson, violation of the Tenure of Office Act (later declared unconstitutional) was a "High Misdemeanor" because the act said it was.

                        – David Siegel
                        2 hours ago

















                      Upon what do you base the claim that the president can be impeached for using pardons too freely? I understand you said it's not likely, I just don't think it meets the standard.

                      – Putvi
                      2 hours ago





                      Upon what do you base the claim that the president can be impeached for using pardons too freely? I understand you said it's not likely, I just don't think it meets the standard.

                      – Putvi
                      2 hours ago













                      @Putvi the president can be impeached and removed for whatever a majority of the House and 2/3rds of the Senate think proper. There is no enforceable standard beyond the good judgement of Congress. Read a history of the impeachment and trial of President Johnson (who came within 1 vote of conviction and removal) to see what reasons have passed muster in the past. But as to this case, i think in the section on impeachment, the Federalist says that it is the general remedy for the abuse of presidential power. And I think that has been the general understanding ever since. Who says otherwise?

                      – David Siegel
                      2 hours ago





                      @Putvi the president can be impeached and removed for whatever a majority of the House and 2/3rds of the Senate think proper. There is no enforceable standard beyond the good judgement of Congress. Read a history of the impeachment and trial of President Johnson (who came within 1 vote of conviction and removal) to see what reasons have passed muster in the past. But as to this case, i think in the section on impeachment, the Federalist says that it is the general remedy for the abuse of presidential power. And I think that has been the general understanding ever since. Who says otherwise?

                      – David Siegel
                      2 hours ago




                      1




                      1





                      @Putvi corrupt conduct would fall within the ambit of high crimes and misdemeanours

                      – Dale M
                      2 hours ago





                      @Putvi corrupt conduct would fall within the ambit of high crimes and misdemeanours

                      – Dale M
                      2 hours ago




                      1




                      1





                      @DaleM I guess you could try for anything being a high crime or misdemeanor, but I don't think many people would agree.

                      – Putvi
                      2 hours ago





                      @DaleM I guess you could try for anything being a high crime or misdemeanor, but I don't think many people would agree.

                      – Putvi
                      2 hours ago




                      1




                      1





                      @Putvi Congress defines "high crimes and misdemeanors". If Congress declares that failing to click one's heels when entering the White House is a "high crime" they can impeach for it. (Provided that enough of Congress agrees.) In the case of Johnson, violation of the Tenure of Office Act (later declared unconstitutional) was a "High Misdemeanor" because the act said it was.

                      – David Siegel
                      2 hours ago






                      @Putvi Congress defines "high crimes and misdemeanors". If Congress declares that failing to click one's heels when entering the White House is a "high crime" they can impeach for it. (Provided that enough of Congress agrees.) In the case of Johnson, violation of the Tenure of Office Act (later declared unconstitutional) was a "High Misdemeanor" because the act said it was.

                      – David Siegel
                      2 hours ago












                      2














                      When and how are pardons supposed to be used? Why does the Constitution even grant the president the power to pardon?



                      The Constitution provides very little guidance regarding this point, and it isn't clear that the Founders were of one mind about how it was intended to be used.



                      Relieving Wrongful Or Doubtful Convictions



                      One important point to keep in mind is that until about 1890 (a century after the U.S. Constitution came into force in 1789), there were no direct appeals of criminal convictions in the federal courts and collateral attacks on convictions via writs of habeas corpus were very limited. To this day, there is not a constitutional right to a direct appeal of a criminal conviction, although there is a statutory right to one and there are constitutional rules governing how appeals must be handled if they are allowed.



                      Historically a writ of habeas corpus could be defeated simply by proving that someone had been convicted of a crime by a court with jurisdiction over that crime and the person convicted, without regard to the details of the proceedings.



                      The pardon power provided an important safety valve to guard against wrongful convictions and was used frequently for that purpose even for a few decades after direct appeals from criminal convictions to appellate courts became available. Once direct appeals from criminal convictions became established as a means of relief from unfair convictions, however, the rate at which pardons were granted plummeted. The rate fell further as the scope of reasons for which habeas corpus review of a conviction could be granted was expanded.



                      This was the main use of the pardon power described by Alexander Hamilton in Federalist Paper No. 74, which was a document used by supporters of the Constitution to help secure its ratification. It says with respect to this purpose:




                      Humanity and good policy conspire to dictate, that the benign
                      prerogative of pardoning should be as little as possible fettered or
                      embarrassed. The criminal code of every country partakes so much of
                      necessary severity, that without an easy access to exceptions in favor
                      of unfortunate guilt, justice would wear a countenance too sanguinary
                      and cruel. As the sense of responsibility is always strongest, in
                      proportion as it is undivided, it may be inferred that a single man
                      would be most ready to attend to the force of those motives which
                      might plead for a mitigation of the rigor of the law, and least apt to
                      yield to considerations which were calculated to shelter a fit object
                      of its vengeance. The reflection that the fate of a fellow-creature
                      depended on his sole fiat, would naturally inspire scrupulousness and
                      caution; the dread of being accused of weakness or connivance, would
                      beget equal circumspection, though of a different kind. On the other
                      hand, as men generally derive confidence from their numbers, they
                      might often encourage each other in an act of obduracy, and might be
                      less sensible to the apprehension of suspicion or censure for an
                      injudicious or affected clemency. On these accounts, one man appears
                      to be a more eligible dispenser of the mercy of government, than a
                      body of men




                      A Tool To End Insurgencies



                      Another important historical use of the pardon power was to resolve once and for all instances of rebellions, uprisings, civil wars, and the mass protests to prevent ongoing criminal prosecutions (including convictions for treason) and detentions of figures whose cooperation was needed to secure peace from stirring up the public. This was done in the Whiskey Rebellion and in every almost ever major insurgency in the U.S. since then. Usually, pardons were only granted in these cases who swore loyalty to the U.S. in a public manner and renounced the insurgency.



                      Federalist Paper No. 74 also discusses this justification for the pardon power:




                      The expediency of vesting the power of pardoning in the President has,
                      if I mistake not, been only contested in relation to the crime of
                      treason. This, it has been urged, ought to have depended upon the
                      assent of one, or both, of the branches of the legislative body. I
                      shall not deny that there are strong reasons to be assigned for
                      requiring in this particular the concurrence of that body, or of a
                      part of it. As treason is a crime levelled at the immediate being of
                      the society, when the laws have once ascertained the guilt of the
                      offender, there seems a fitness in referring the expediency of an act
                      of mercy towards him to the judgment of the legislature. And this
                      ought the rather to be the case, as the supposition of the connivance
                      of the Chief Magistrate ought not to be entirely excluded. But there
                      are also strong objections to such a plan. It is not to be doubted,
                      that a single man of prudence and good sense is better fitted, in
                      delicate conjunctures, to balance the motives which may plead for and
                      against the remission of the punishment, than any numerous body
                      whatever. It deserves particular attention, that treason will often be
                      connected with seditions which embrace a large proportion of the
                      community; as lately happened in Massachusetts. In every such case, we
                      might expect to see the representation of the people tainted with the
                      same spirit which had given birth to the offense. And when parties
                      were pretty equally matched, the secret sympathy of the friends and
                      favorers of the condemned person, availing itself of the good-nature
                      and weakness of others, might frequently bestow impunity where the
                      terror of an example was necessary.



                      On the other hand, when the sedition had proceeded from causes which
                      had inflamed the resentments of the major party, they might often be
                      found obstinate and inexorable, when policy demanded a conduct of
                      forbearance and clemency. But the principal argument for reposing the
                      power of pardoning in this case to the Chief Magistrate is this: in
                      seasons of insurrection or rebellion, there are often critical
                      moments, when a welltimed offer of pardon to the insurgents or rebels
                      may restore the tranquillity of the commonwealth; and which, if
                      suffered to pass unimproved, it may never be possible afterwards to
                      recall. The dilatory process of convening the legislature, or one of
                      its branches, for the purpose of obtaining its sanction to the
                      measure, would frequently be the occasion of letting slip the golden
                      opportunity. The loss of a week, a day, an hour, may sometimes be
                      fatal. If it should be observed, that a discretionary power, with a
                      view to such contingencies, might be occasionally conferred upon the
                      President, it may be answered in the first place, that it is
                      questionable, whether, in a limited Constitution, that power could be
                      delegated by law; and in the second place, that it would generally be
                      impolitic beforehand to take any step which might hold out the
                      prospect of impunity. A proceeding of this kind, out of the usual
                      course, would be likely to be construed into an argument of timidity
                      or of weakness, and would have a tendency to embolden guilt.




                      Restoring Civil Rights



                      In modern, peacetime U.S. practice, the main use of the pardon power has been to restore the civil rights of people who admit to having committed crimes and have served their sentences and reformed, so that they can, for example, apply for a job not available to felons, or vote, or get a hunting license and use a firearm. Only a tiny share of modern pardons are granted to people who are currently serving sentences for the crimes of which they were convicted or to people who have not yet been convicted of crimes.



                      This was not a major concern in the very early days of the Republic because, at first, most really serious crimes were capital offenses. In cases where capital punishment was not imposed, in those days, the weak government bureaucracies of the early United States did not have the bureaucratic capacity to meaningfully enforce collateral consequences of felony convictions.



                      Moreover, in those days, there were fewer kinds of conduct that required permits or licenses or involved regulated occupations. For example, most formal qualifications to be a lawyer such as nearly universal law school and the bar exam, date from after the U.S. Civil War.



                      Other Reasons For Modern Persons



                      It is also a modern historical reality that a significant minority of pardons are granted as political favors to people connected to the incumbent President's political supporters. And, this has probably always been the case.



                      Only the most Machiavellian law professors and political scientists would argue that this is an important or legitimate use of the power (although there is that argument to be made), but most would argue that the Founders acknowledged the risk but felt that it was an acceptable risk due to the expected good character of future U.S. Presidents.



                      But, a small but non-zero share of modern pardons are granted to people who were convicted of crimes and are serving sentences that are morally unjust in some way and unlikely to be remedied by the courts.



                      Another small but significant share of modern pardons are issued to commute the death penalty either to life in prison or as a remedy for a probably wrongful conviction, in part, due to the official's opposition to the death penalty generally or in certain kinds of cases.



                      Can it be used to pardon any crime?



                      The pardon power can be used to pardon any federal crime that has actually been committed, whether or not someone has been charged with it or convicted of it. A pardon cannot prevent a federal government official from being impeached, however. A pardon also cannot be granted for a crime that has not yet been committed at the time it is granted.



                      Pardons can be granted to identifiable groups of people, in addition to specific individuals.



                      There is debate over whether the President can pardon himself. This singular issue dealt with in another Q and A in this forum. In my opinion, the better reading of the law is that the President cannot pardon himself, but there are legitimate legal scholars who would disagree, and there are no precedents for this one way or the other at the Presidential level.






                      share|improve this answer





























                        2














                        When and how are pardons supposed to be used? Why does the Constitution even grant the president the power to pardon?



                        The Constitution provides very little guidance regarding this point, and it isn't clear that the Founders were of one mind about how it was intended to be used.



                        Relieving Wrongful Or Doubtful Convictions



                        One important point to keep in mind is that until about 1890 (a century after the U.S. Constitution came into force in 1789), there were no direct appeals of criminal convictions in the federal courts and collateral attacks on convictions via writs of habeas corpus were very limited. To this day, there is not a constitutional right to a direct appeal of a criminal conviction, although there is a statutory right to one and there are constitutional rules governing how appeals must be handled if they are allowed.



                        Historically a writ of habeas corpus could be defeated simply by proving that someone had been convicted of a crime by a court with jurisdiction over that crime and the person convicted, without regard to the details of the proceedings.



                        The pardon power provided an important safety valve to guard against wrongful convictions and was used frequently for that purpose even for a few decades after direct appeals from criminal convictions to appellate courts became available. Once direct appeals from criminal convictions became established as a means of relief from unfair convictions, however, the rate at which pardons were granted plummeted. The rate fell further as the scope of reasons for which habeas corpus review of a conviction could be granted was expanded.



                        This was the main use of the pardon power described by Alexander Hamilton in Federalist Paper No. 74, which was a document used by supporters of the Constitution to help secure its ratification. It says with respect to this purpose:




                        Humanity and good policy conspire to dictate, that the benign
                        prerogative of pardoning should be as little as possible fettered or
                        embarrassed. The criminal code of every country partakes so much of
                        necessary severity, that without an easy access to exceptions in favor
                        of unfortunate guilt, justice would wear a countenance too sanguinary
                        and cruel. As the sense of responsibility is always strongest, in
                        proportion as it is undivided, it may be inferred that a single man
                        would be most ready to attend to the force of those motives which
                        might plead for a mitigation of the rigor of the law, and least apt to
                        yield to considerations which were calculated to shelter a fit object
                        of its vengeance. The reflection that the fate of a fellow-creature
                        depended on his sole fiat, would naturally inspire scrupulousness and
                        caution; the dread of being accused of weakness or connivance, would
                        beget equal circumspection, though of a different kind. On the other
                        hand, as men generally derive confidence from their numbers, they
                        might often encourage each other in an act of obduracy, and might be
                        less sensible to the apprehension of suspicion or censure for an
                        injudicious or affected clemency. On these accounts, one man appears
                        to be a more eligible dispenser of the mercy of government, than a
                        body of men




                        A Tool To End Insurgencies



                        Another important historical use of the pardon power was to resolve once and for all instances of rebellions, uprisings, civil wars, and the mass protests to prevent ongoing criminal prosecutions (including convictions for treason) and detentions of figures whose cooperation was needed to secure peace from stirring up the public. This was done in the Whiskey Rebellion and in every almost ever major insurgency in the U.S. since then. Usually, pardons were only granted in these cases who swore loyalty to the U.S. in a public manner and renounced the insurgency.



                        Federalist Paper No. 74 also discusses this justification for the pardon power:




                        The expediency of vesting the power of pardoning in the President has,
                        if I mistake not, been only contested in relation to the crime of
                        treason. This, it has been urged, ought to have depended upon the
                        assent of one, or both, of the branches of the legislative body. I
                        shall not deny that there are strong reasons to be assigned for
                        requiring in this particular the concurrence of that body, or of a
                        part of it. As treason is a crime levelled at the immediate being of
                        the society, when the laws have once ascertained the guilt of the
                        offender, there seems a fitness in referring the expediency of an act
                        of mercy towards him to the judgment of the legislature. And this
                        ought the rather to be the case, as the supposition of the connivance
                        of the Chief Magistrate ought not to be entirely excluded. But there
                        are also strong objections to such a plan. It is not to be doubted,
                        that a single man of prudence and good sense is better fitted, in
                        delicate conjunctures, to balance the motives which may plead for and
                        against the remission of the punishment, than any numerous body
                        whatever. It deserves particular attention, that treason will often be
                        connected with seditions which embrace a large proportion of the
                        community; as lately happened in Massachusetts. In every such case, we
                        might expect to see the representation of the people tainted with the
                        same spirit which had given birth to the offense. And when parties
                        were pretty equally matched, the secret sympathy of the friends and
                        favorers of the condemned person, availing itself of the good-nature
                        and weakness of others, might frequently bestow impunity where the
                        terror of an example was necessary.



                        On the other hand, when the sedition had proceeded from causes which
                        had inflamed the resentments of the major party, they might often be
                        found obstinate and inexorable, when policy demanded a conduct of
                        forbearance and clemency. But the principal argument for reposing the
                        power of pardoning in this case to the Chief Magistrate is this: in
                        seasons of insurrection or rebellion, there are often critical
                        moments, when a welltimed offer of pardon to the insurgents or rebels
                        may restore the tranquillity of the commonwealth; and which, if
                        suffered to pass unimproved, it may never be possible afterwards to
                        recall. The dilatory process of convening the legislature, or one of
                        its branches, for the purpose of obtaining its sanction to the
                        measure, would frequently be the occasion of letting slip the golden
                        opportunity. The loss of a week, a day, an hour, may sometimes be
                        fatal. If it should be observed, that a discretionary power, with a
                        view to such contingencies, might be occasionally conferred upon the
                        President, it may be answered in the first place, that it is
                        questionable, whether, in a limited Constitution, that power could be
                        delegated by law; and in the second place, that it would generally be
                        impolitic beforehand to take any step which might hold out the
                        prospect of impunity. A proceeding of this kind, out of the usual
                        course, would be likely to be construed into an argument of timidity
                        or of weakness, and would have a tendency to embolden guilt.




                        Restoring Civil Rights



                        In modern, peacetime U.S. practice, the main use of the pardon power has been to restore the civil rights of people who admit to having committed crimes and have served their sentences and reformed, so that they can, for example, apply for a job not available to felons, or vote, or get a hunting license and use a firearm. Only a tiny share of modern pardons are granted to people who are currently serving sentences for the crimes of which they were convicted or to people who have not yet been convicted of crimes.



                        This was not a major concern in the very early days of the Republic because, at first, most really serious crimes were capital offenses. In cases where capital punishment was not imposed, in those days, the weak government bureaucracies of the early United States did not have the bureaucratic capacity to meaningfully enforce collateral consequences of felony convictions.



                        Moreover, in those days, there were fewer kinds of conduct that required permits or licenses or involved regulated occupations. For example, most formal qualifications to be a lawyer such as nearly universal law school and the bar exam, date from after the U.S. Civil War.



                        Other Reasons For Modern Persons



                        It is also a modern historical reality that a significant minority of pardons are granted as political favors to people connected to the incumbent President's political supporters. And, this has probably always been the case.



                        Only the most Machiavellian law professors and political scientists would argue that this is an important or legitimate use of the power (although there is that argument to be made), but most would argue that the Founders acknowledged the risk but felt that it was an acceptable risk due to the expected good character of future U.S. Presidents.



                        But, a small but non-zero share of modern pardons are granted to people who were convicted of crimes and are serving sentences that are morally unjust in some way and unlikely to be remedied by the courts.



                        Another small but significant share of modern pardons are issued to commute the death penalty either to life in prison or as a remedy for a probably wrongful conviction, in part, due to the official's opposition to the death penalty generally or in certain kinds of cases.



                        Can it be used to pardon any crime?



                        The pardon power can be used to pardon any federal crime that has actually been committed, whether or not someone has been charged with it or convicted of it. A pardon cannot prevent a federal government official from being impeached, however. A pardon also cannot be granted for a crime that has not yet been committed at the time it is granted.



                        Pardons can be granted to identifiable groups of people, in addition to specific individuals.



                        There is debate over whether the President can pardon himself. This singular issue dealt with in another Q and A in this forum. In my opinion, the better reading of the law is that the President cannot pardon himself, but there are legitimate legal scholars who would disagree, and there are no precedents for this one way or the other at the Presidential level.






                        share|improve this answer



























                          2












                          2








                          2







                          When and how are pardons supposed to be used? Why does the Constitution even grant the president the power to pardon?



                          The Constitution provides very little guidance regarding this point, and it isn't clear that the Founders were of one mind about how it was intended to be used.



                          Relieving Wrongful Or Doubtful Convictions



                          One important point to keep in mind is that until about 1890 (a century after the U.S. Constitution came into force in 1789), there were no direct appeals of criminal convictions in the federal courts and collateral attacks on convictions via writs of habeas corpus were very limited. To this day, there is not a constitutional right to a direct appeal of a criminal conviction, although there is a statutory right to one and there are constitutional rules governing how appeals must be handled if they are allowed.



                          Historically a writ of habeas corpus could be defeated simply by proving that someone had been convicted of a crime by a court with jurisdiction over that crime and the person convicted, without regard to the details of the proceedings.



                          The pardon power provided an important safety valve to guard against wrongful convictions and was used frequently for that purpose even for a few decades after direct appeals from criminal convictions to appellate courts became available. Once direct appeals from criminal convictions became established as a means of relief from unfair convictions, however, the rate at which pardons were granted plummeted. The rate fell further as the scope of reasons for which habeas corpus review of a conviction could be granted was expanded.



                          This was the main use of the pardon power described by Alexander Hamilton in Federalist Paper No. 74, which was a document used by supporters of the Constitution to help secure its ratification. It says with respect to this purpose:




                          Humanity and good policy conspire to dictate, that the benign
                          prerogative of pardoning should be as little as possible fettered or
                          embarrassed. The criminal code of every country partakes so much of
                          necessary severity, that without an easy access to exceptions in favor
                          of unfortunate guilt, justice would wear a countenance too sanguinary
                          and cruel. As the sense of responsibility is always strongest, in
                          proportion as it is undivided, it may be inferred that a single man
                          would be most ready to attend to the force of those motives which
                          might plead for a mitigation of the rigor of the law, and least apt to
                          yield to considerations which were calculated to shelter a fit object
                          of its vengeance. The reflection that the fate of a fellow-creature
                          depended on his sole fiat, would naturally inspire scrupulousness and
                          caution; the dread of being accused of weakness or connivance, would
                          beget equal circumspection, though of a different kind. On the other
                          hand, as men generally derive confidence from their numbers, they
                          might often encourage each other in an act of obduracy, and might be
                          less sensible to the apprehension of suspicion or censure for an
                          injudicious or affected clemency. On these accounts, one man appears
                          to be a more eligible dispenser of the mercy of government, than a
                          body of men




                          A Tool To End Insurgencies



                          Another important historical use of the pardon power was to resolve once and for all instances of rebellions, uprisings, civil wars, and the mass protests to prevent ongoing criminal prosecutions (including convictions for treason) and detentions of figures whose cooperation was needed to secure peace from stirring up the public. This was done in the Whiskey Rebellion and in every almost ever major insurgency in the U.S. since then. Usually, pardons were only granted in these cases who swore loyalty to the U.S. in a public manner and renounced the insurgency.



                          Federalist Paper No. 74 also discusses this justification for the pardon power:




                          The expediency of vesting the power of pardoning in the President has,
                          if I mistake not, been only contested in relation to the crime of
                          treason. This, it has been urged, ought to have depended upon the
                          assent of one, or both, of the branches of the legislative body. I
                          shall not deny that there are strong reasons to be assigned for
                          requiring in this particular the concurrence of that body, or of a
                          part of it. As treason is a crime levelled at the immediate being of
                          the society, when the laws have once ascertained the guilt of the
                          offender, there seems a fitness in referring the expediency of an act
                          of mercy towards him to the judgment of the legislature. And this
                          ought the rather to be the case, as the supposition of the connivance
                          of the Chief Magistrate ought not to be entirely excluded. But there
                          are also strong objections to such a plan. It is not to be doubted,
                          that a single man of prudence and good sense is better fitted, in
                          delicate conjunctures, to balance the motives which may plead for and
                          against the remission of the punishment, than any numerous body
                          whatever. It deserves particular attention, that treason will often be
                          connected with seditions which embrace a large proportion of the
                          community; as lately happened in Massachusetts. In every such case, we
                          might expect to see the representation of the people tainted with the
                          same spirit which had given birth to the offense. And when parties
                          were pretty equally matched, the secret sympathy of the friends and
                          favorers of the condemned person, availing itself of the good-nature
                          and weakness of others, might frequently bestow impunity where the
                          terror of an example was necessary.



                          On the other hand, when the sedition had proceeded from causes which
                          had inflamed the resentments of the major party, they might often be
                          found obstinate and inexorable, when policy demanded a conduct of
                          forbearance and clemency. But the principal argument for reposing the
                          power of pardoning in this case to the Chief Magistrate is this: in
                          seasons of insurrection or rebellion, there are often critical
                          moments, when a welltimed offer of pardon to the insurgents or rebels
                          may restore the tranquillity of the commonwealth; and which, if
                          suffered to pass unimproved, it may never be possible afterwards to
                          recall. The dilatory process of convening the legislature, or one of
                          its branches, for the purpose of obtaining its sanction to the
                          measure, would frequently be the occasion of letting slip the golden
                          opportunity. The loss of a week, a day, an hour, may sometimes be
                          fatal. If it should be observed, that a discretionary power, with a
                          view to such contingencies, might be occasionally conferred upon the
                          President, it may be answered in the first place, that it is
                          questionable, whether, in a limited Constitution, that power could be
                          delegated by law; and in the second place, that it would generally be
                          impolitic beforehand to take any step which might hold out the
                          prospect of impunity. A proceeding of this kind, out of the usual
                          course, would be likely to be construed into an argument of timidity
                          or of weakness, and would have a tendency to embolden guilt.




                          Restoring Civil Rights



                          In modern, peacetime U.S. practice, the main use of the pardon power has been to restore the civil rights of people who admit to having committed crimes and have served their sentences and reformed, so that they can, for example, apply for a job not available to felons, or vote, or get a hunting license and use a firearm. Only a tiny share of modern pardons are granted to people who are currently serving sentences for the crimes of which they were convicted or to people who have not yet been convicted of crimes.



                          This was not a major concern in the very early days of the Republic because, at first, most really serious crimes were capital offenses. In cases where capital punishment was not imposed, in those days, the weak government bureaucracies of the early United States did not have the bureaucratic capacity to meaningfully enforce collateral consequences of felony convictions.



                          Moreover, in those days, there were fewer kinds of conduct that required permits or licenses or involved regulated occupations. For example, most formal qualifications to be a lawyer such as nearly universal law school and the bar exam, date from after the U.S. Civil War.



                          Other Reasons For Modern Persons



                          It is also a modern historical reality that a significant minority of pardons are granted as political favors to people connected to the incumbent President's political supporters. And, this has probably always been the case.



                          Only the most Machiavellian law professors and political scientists would argue that this is an important or legitimate use of the power (although there is that argument to be made), but most would argue that the Founders acknowledged the risk but felt that it was an acceptable risk due to the expected good character of future U.S. Presidents.



                          But, a small but non-zero share of modern pardons are granted to people who were convicted of crimes and are serving sentences that are morally unjust in some way and unlikely to be remedied by the courts.



                          Another small but significant share of modern pardons are issued to commute the death penalty either to life in prison or as a remedy for a probably wrongful conviction, in part, due to the official's opposition to the death penalty generally or in certain kinds of cases.



                          Can it be used to pardon any crime?



                          The pardon power can be used to pardon any federal crime that has actually been committed, whether or not someone has been charged with it or convicted of it. A pardon cannot prevent a federal government official from being impeached, however. A pardon also cannot be granted for a crime that has not yet been committed at the time it is granted.



                          Pardons can be granted to identifiable groups of people, in addition to specific individuals.



                          There is debate over whether the President can pardon himself. This singular issue dealt with in another Q and A in this forum. In my opinion, the better reading of the law is that the President cannot pardon himself, but there are legitimate legal scholars who would disagree, and there are no precedents for this one way or the other at the Presidential level.






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                          When and how are pardons supposed to be used? Why does the Constitution even grant the president the power to pardon?



                          The Constitution provides very little guidance regarding this point, and it isn't clear that the Founders were of one mind about how it was intended to be used.



                          Relieving Wrongful Or Doubtful Convictions



                          One important point to keep in mind is that until about 1890 (a century after the U.S. Constitution came into force in 1789), there were no direct appeals of criminal convictions in the federal courts and collateral attacks on convictions via writs of habeas corpus were very limited. To this day, there is not a constitutional right to a direct appeal of a criminal conviction, although there is a statutory right to one and there are constitutional rules governing how appeals must be handled if they are allowed.



                          Historically a writ of habeas corpus could be defeated simply by proving that someone had been convicted of a crime by a court with jurisdiction over that crime and the person convicted, without regard to the details of the proceedings.



                          The pardon power provided an important safety valve to guard against wrongful convictions and was used frequently for that purpose even for a few decades after direct appeals from criminal convictions to appellate courts became available. Once direct appeals from criminal convictions became established as a means of relief from unfair convictions, however, the rate at which pardons were granted plummeted. The rate fell further as the scope of reasons for which habeas corpus review of a conviction could be granted was expanded.



                          This was the main use of the pardon power described by Alexander Hamilton in Federalist Paper No. 74, which was a document used by supporters of the Constitution to help secure its ratification. It says with respect to this purpose:




                          Humanity and good policy conspire to dictate, that the benign
                          prerogative of pardoning should be as little as possible fettered or
                          embarrassed. The criminal code of every country partakes so much of
                          necessary severity, that without an easy access to exceptions in favor
                          of unfortunate guilt, justice would wear a countenance too sanguinary
                          and cruel. As the sense of responsibility is always strongest, in
                          proportion as it is undivided, it may be inferred that a single man
                          would be most ready to attend to the force of those motives which
                          might plead for a mitigation of the rigor of the law, and least apt to
                          yield to considerations which were calculated to shelter a fit object
                          of its vengeance. The reflection that the fate of a fellow-creature
                          depended on his sole fiat, would naturally inspire scrupulousness and
                          caution; the dread of being accused of weakness or connivance, would
                          beget equal circumspection, though of a different kind. On the other
                          hand, as men generally derive confidence from their numbers, they
                          might often encourage each other in an act of obduracy, and might be
                          less sensible to the apprehension of suspicion or censure for an
                          injudicious or affected clemency. On these accounts, one man appears
                          to be a more eligible dispenser of the mercy of government, than a
                          body of men




                          A Tool To End Insurgencies



                          Another important historical use of the pardon power was to resolve once and for all instances of rebellions, uprisings, civil wars, and the mass protests to prevent ongoing criminal prosecutions (including convictions for treason) and detentions of figures whose cooperation was needed to secure peace from stirring up the public. This was done in the Whiskey Rebellion and in every almost ever major insurgency in the U.S. since then. Usually, pardons were only granted in these cases who swore loyalty to the U.S. in a public manner and renounced the insurgency.



                          Federalist Paper No. 74 also discusses this justification for the pardon power:




                          The expediency of vesting the power of pardoning in the President has,
                          if I mistake not, been only contested in relation to the crime of
                          treason. This, it has been urged, ought to have depended upon the
                          assent of one, or both, of the branches of the legislative body. I
                          shall not deny that there are strong reasons to be assigned for
                          requiring in this particular the concurrence of that body, or of a
                          part of it. As treason is a crime levelled at the immediate being of
                          the society, when the laws have once ascertained the guilt of the
                          offender, there seems a fitness in referring the expediency of an act
                          of mercy towards him to the judgment of the legislature. And this
                          ought the rather to be the case, as the supposition of the connivance
                          of the Chief Magistrate ought not to be entirely excluded. But there
                          are also strong objections to such a plan. It is not to be doubted,
                          that a single man of prudence and good sense is better fitted, in
                          delicate conjunctures, to balance the motives which may plead for and
                          against the remission of the punishment, than any numerous body
                          whatever. It deserves particular attention, that treason will often be
                          connected with seditions which embrace a large proportion of the
                          community; as lately happened in Massachusetts. In every such case, we
                          might expect to see the representation of the people tainted with the
                          same spirit which had given birth to the offense. And when parties
                          were pretty equally matched, the secret sympathy of the friends and
                          favorers of the condemned person, availing itself of the good-nature
                          and weakness of others, might frequently bestow impunity where the
                          terror of an example was necessary.



                          On the other hand, when the sedition had proceeded from causes which
                          had inflamed the resentments of the major party, they might often be
                          found obstinate and inexorable, when policy demanded a conduct of
                          forbearance and clemency. But the principal argument for reposing the
                          power of pardoning in this case to the Chief Magistrate is this: in
                          seasons of insurrection or rebellion, there are often critical
                          moments, when a welltimed offer of pardon to the insurgents or rebels
                          may restore the tranquillity of the commonwealth; and which, if
                          suffered to pass unimproved, it may never be possible afterwards to
                          recall. The dilatory process of convening the legislature, or one of
                          its branches, for the purpose of obtaining its sanction to the
                          measure, would frequently be the occasion of letting slip the golden
                          opportunity. The loss of a week, a day, an hour, may sometimes be
                          fatal. If it should be observed, that a discretionary power, with a
                          view to such contingencies, might be occasionally conferred upon the
                          President, it may be answered in the first place, that it is
                          questionable, whether, in a limited Constitution, that power could be
                          delegated by law; and in the second place, that it would generally be
                          impolitic beforehand to take any step which might hold out the
                          prospect of impunity. A proceeding of this kind, out of the usual
                          course, would be likely to be construed into an argument of timidity
                          or of weakness, and would have a tendency to embolden guilt.




                          Restoring Civil Rights



                          In modern, peacetime U.S. practice, the main use of the pardon power has been to restore the civil rights of people who admit to having committed crimes and have served their sentences and reformed, so that they can, for example, apply for a job not available to felons, or vote, or get a hunting license and use a firearm. Only a tiny share of modern pardons are granted to people who are currently serving sentences for the crimes of which they were convicted or to people who have not yet been convicted of crimes.



                          This was not a major concern in the very early days of the Republic because, at first, most really serious crimes were capital offenses. In cases where capital punishment was not imposed, in those days, the weak government bureaucracies of the early United States did not have the bureaucratic capacity to meaningfully enforce collateral consequences of felony convictions.



                          Moreover, in those days, there were fewer kinds of conduct that required permits or licenses or involved regulated occupations. For example, most formal qualifications to be a lawyer such as nearly universal law school and the bar exam, date from after the U.S. Civil War.



                          Other Reasons For Modern Persons



                          It is also a modern historical reality that a significant minority of pardons are granted as political favors to people connected to the incumbent President's political supporters. And, this has probably always been the case.



                          Only the most Machiavellian law professors and political scientists would argue that this is an important or legitimate use of the power (although there is that argument to be made), but most would argue that the Founders acknowledged the risk but felt that it was an acceptable risk due to the expected good character of future U.S. Presidents.



                          But, a small but non-zero share of modern pardons are granted to people who were convicted of crimes and are serving sentences that are morally unjust in some way and unlikely to be remedied by the courts.



                          Another small but significant share of modern pardons are issued to commute the death penalty either to life in prison or as a remedy for a probably wrongful conviction, in part, due to the official's opposition to the death penalty generally or in certain kinds of cases.



                          Can it be used to pardon any crime?



                          The pardon power can be used to pardon any federal crime that has actually been committed, whether or not someone has been charged with it or convicted of it. A pardon cannot prevent a federal government official from being impeached, however. A pardon also cannot be granted for a crime that has not yet been committed at the time it is granted.



                          Pardons can be granted to identifiable groups of people, in addition to specific individuals.



                          There is debate over whether the President can pardon himself. This singular issue dealt with in another Q and A in this forum. In my opinion, the better reading of the law is that the President cannot pardon himself, but there are legitimate legal scholars who would disagree, and there are no precedents for this one way or the other at the Presidential level.







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