How Do Presidential Pardons Work?

U.S. presidents have the power to pardon anyone from punishment surrounding a federal crime, no questions asked. Learn how this clemency works in today's episode of BrainStuff.

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Episode Transcript

Speaker 1 (00:01):
Welcome to Brainstuff production of I Heart Radio. Hey brain Stuff,
Lauren bog Obam here. In late November, then President Donald J.
Trump announced on Twitter quote, it is my great honor
to announce that General Michael T. Flynn has been granted
a full pardon. Flynn, transformer National Security advisor, had been

(00:23):
the only member of the Trump administration to be charged
with a crime as part of the investigation by Special
Counsel Robert Muller into Russian interference in the presidential campaign
and the question of whether there had been links to
or coordination with the Trump campaign. Flynn pled guilty to
align to the FBI about his contacts with the Russian

(00:44):
ambassador and cooperated with prosecutors, but then changed his mind
and tried to withdraw his plea. Trump's pardon of Flynn
drew fire from critics and Congress who saw it as
an effort by Trump to erase the investigation into his
campaign's connection with Russia, which Trump angrily had denounced as
a hoax. The outcry increased after the White House released

(01:07):
the specifics of the pardon, which absolved Flynn of not
just the original charges, but also of any and all
possible offenses within the investigatory authority or jurisdiction of the
special counsel. One legal expert, Margaret Love, a former pardon
attorney for presidents George H. W. Bush and Bill Clinton,
told Politico that Trump's pardon of Flynn was the most

(01:28):
sweeping in history, even more so than President Gerald ford
pardon of his predecessor Richard Nixon for any crimes he
might have committed during Watergate, But the critics concerns didn't
make any difference. Trump, like every president before him, had
the unique ability to override the federal justice system, release

(01:49):
anyone he chose from paying a finer sentence, and return
a person to the state of innocence they had before
they ever committed a crime. The President isn't required to
explain or justify this action to view me, Congress, or
anyone else for that matter. The power to pardon is
left solely to the discretion of the President and cannot

(02:10):
be reviewed or overturned by any of the other branches
of government. So where does this power come from, Why
did it make it into the U s Constitution, What
does it do, and how exactly does it work. The
presidential pardon is based on the royal prerogative of English kings,
which gave the king the ability to overturn any sentence. Originally,

(02:34):
the king's prerogative existed without any limitations attached to it,
but during the reign of King Charles the Second of
sixteen sixty two sixty five, the English Parliament managed to
institute the single rule that impeachment was excluded from the
pardon power. This rule lives on today. When the Founding
Fathers were developing the laws for the United States the

(02:55):
late eighteenth century, the power to pardon almost didn't make
it into the Constitution. In fact, it was barely considered.
Two plans for framing the Constitution, the Virginia Plan and
the New Jersey Plan, did not include the power to pardon.
One of the Virginia Plans backers, George Mason, believed it
was a mistake to grant such power to a single person,

(03:16):
having just revolted against King George the Third, whom many
Americans considered a tyrannical king. Many of Mason's fellow framers
agreed with him, but Alexander Hamilton's, who believed in a large, powerful,
centralized federal government made up of the elite thinkers of
the Nation was able to bring the other framers of
the U. S. Constitution around to his way of thinking.

(03:39):
In number seventy four of his Federalist papers, Hamilton's extolled
the value of a pardoning power. He wrote, in seasons
of insurrection or rebellion, there are often critical moments when
a well timed offer of pardon to the insurgents or
rebels may restore the tranquility of the commonwealth, and which,
if suffered to pass an imp proved, it may never

(04:01):
be possible afterwards to recall Hamilton's and eventually the other
framers saw the value of investing in the president the
ability to, at a moment's notice, and without the consent
of any other branch of government, grant reprieves to groups
during periods of national crisis. It was reasoned that some
crises could be allayed or overcome if the belligerents could

(04:24):
be given a deal for giving them for their trespasses,
almost no sooner than the ink on the Constitution was dry.
This ability was needed when farmers in Pennsylvania revolted in
seventeen ninety four against federal taxes levied on their corn crops.
The whiskey rebellion was born. President George Washington used the

(04:44):
power to pardon for the first time in the United
States history to forgive the revolting farmers for their insurrection
against the young Nation. The action worked, and the rebellion
was quieted. The pardon has since been used in this
original intent several times. Andrew Johnson used the pardon to
redeem Confederate soldiers after the Civil War and to help

(05:06):
end the Vietnam era. President Jimmy Carter offered a blanket
pardon to any American who had dodged the draft during
the Vietnam War. There have been cases where Congress has
considered introducing bills that limit the president's pardon power or
allow oversight of pardons. Every last one of these bills
has failed. Why Because the president's power to pardon is

(05:28):
guaranteed by the Constitution. It's in the actual original document,
not just the Bill of Rights, and as such, the
judicial branch has viewed it as being protected. So what
does this power involve? A person who is convicted of
a federal felony may have to go to prison or
pay a fine, but that's not all. They lose certain

(05:50):
civil liberties, the right to vote, serve on a jury
own a firearm. But Article to Section two of the U.
S Constitution gives the president odd power to provide relief
called clemency from all of those punishments. There are five
types of clemency, from temporary postponement to full pardon. People

(06:11):
convicted of federal crimes can request clemency through the Department
of Justice, or the sitting president can go outside of
that system. In the case Ship versus Read, the Supreme
Court decreed that quote the pardoning power is an enumerated
power of the Constitution and that it's limitations, if any,

(06:32):
must be found in the Constitution itself. While a president's
power to pardon is broad, it's not completely unlimited. For
one thing, presidents can only pardon people for federal crimes,
not state or local offenses. Additionally, a pardon can't be
used to overturn a judgment in a civil lawsuit. Most importantly,

(06:54):
the impeachment process, which can be used to remove presidents,
members of Congress, and federal judges office, is excluded from
the scope of the president's pardon power. And that's why
even though former President Trump said that he had the
absolute right to pardon himself legal scholars largely disagreed, though
the question wound up being moot as he left office

(07:16):
without attempting it. However, he did grant clemency to a
hundred and forty three people on his last day in office,
including his former chief strategist Steve Bannon, who had been
charged with using hundreds of thousands of dollars in donations
to Trump's We Build the Wall campaign for personal expenses.
Bannon will now not face a trial. This brings the

(07:37):
total number of times Trump used his power of executive
pardon to over two hundred and thirty five, though that's
actually on the relatively low end of the scale, and
it's not uncommon to see a rash of clemency during
a president's final days in office. Franklin D. Roosevelt granted
the most pardons of any president three thousand, six hundred
and eighty seven during his three and off terms in office,

(08:01):
many of them for offenses occurred during World War One.
Today's episode was written by Patrick Jake Kaiger and produced
by Tyler Clang. For more on listen lots of other topics,
visit how Stuff Works dot com. Brain Stuff is a
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(08:23):
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