PARDONING POWER

The power of pardon—the power to relieve a person of the legal sanctions imposed for illegal conduct—was reluctantly put in the hands of the President by the constitutional convention of 1787. The reluctance derived from the fact that it was too much akin to the royal prerogative to afford dispensation to favorites from obedience to the law, a prerogative supposedly eliminated by the English bill of rights in 1689. The Framers were concerned lest the power should be used to shelter the treasonous activities of a President and his henchmen. The most persuasive argument on behalf of a presidential pardoning power was its potential use to reconcile warring factions. Because it would, for this purpose, be an effective tool only if it were readily available to strike a deal at any time, and because Congress was not expected to be in session all, or even most, of the time, it properly devolved on the executive.

The power of pardoning for criminal activities is all but plenary. There is the constitutional limitation that pardon may not be used to relieve from impeachment or its sanctions. Otherwise, a pardon can be granted before conviction, indeed before indictment, and it can be conferred absolutely or conditionally, provided that the conditions themselves are not unconstitutional. However, whether a pardon can be conferred over the objection of the grantee is not clear, for acceptance of a pardon is generally thought to be an acknowledgment of commission of a crime.

On the whole, the pardon power has not been used for political ends as was anticipated. The partisan strife of the Old World did not, with rare exceptions, see its counterpart on the American scene. The political nature of the power can be seen in the pardons to the whiskey rebels, to those convicted under the alien and sedition acts, and in the amnesty—granted by Congress—to the rebels of the civil war. President gerald r. ford's pardon of ex-President richard m. nixon after the watergate affair was, perhaps, the most blatant partisan use of the power.

The Supreme Court, in schick v. reed (1974), has legitimated the almost unlimited power of executive pardon. Although the history of the origins as recounted in Schick is somewhat suspect, Schick remains the definitive statement, unless and until the Court revises it through later opinions.

Phillip B. Kurland
(1986)

Bibliography

Corwin, Edward S. 1957 The President: Office and Powers 1787–1957, 4th ed. New York: New York University Press.