Editor's Note: In Unpacked, Brookings experts provide analysis of Trump administration policies and news.
THE ISSUE: As the investigation into the Trump campaign’s contacts with Russia and possible obstruction of justice develops and grows closer to the president and his staff, questions about the president’s pardon power and its constitutional limits are on the rise.
When it’s the right thing to do, when it’s the ethical thing to do, when it’s the moral thing to do, the qualities of mercy in the pardon power should be extended. But they can never be extended if it’s the corrupt thing to do.
THE THINGS YOU SHOULD KNOW:
- Under Article 2, Section 2, Clause 1 of the Constitution, presidents have extremely broad power to pardon all offenses against the United States except impeachments.
- Under the Constitution, President Trump can issue pardons but there are some limitations.
- Presidents can only pardon crimes and offenses against the United States of America—that doesn’t apply to civil cases or to state cases.
- There’s been a debate about whether President Trump can pardon himself. The Constitution does not explicitly say one way or the other, but the Nixon era Department of Justice said a president cannot do so.
- It is clear that the pardon power may not be exercised corruptly. For example, nobody thinks the president could take bribes to issue pardons. Similarly, he would be acting corruptly if he were to pardon Michael Flynn, Paul Manafort, or Donald Trump Jr. to avoid being implicated by those individuals. That too would not likely be allowed by the courts.
- The idea of the pardon power is to leaven the operation of the justice system with mercy. Courts can at times produce results that are fully in accord with law, but that are also unfair.
- We’ve had individual pardons in American history. Perhaps the most famous is Gerald Ford’s pardon of Richard Nixon, granted to help the nation move on from Watergate.
- We’ve had amnesties granted to groups of people under the president’s pardon power. In the aftermath of the Civil War those who were associated with the Confederacy received amnesty in order to have national healing. Jimmy Carter pardoned those who evaded the draft in the Vietnam War for the same purpose.
- When it’s the right thing to do, when it’s the ethical thing to do, when it’s the moral thing to do, the qualities of mercy in the pardon power should be extended. But they can never be extended if it’s the corrupt thing to do.
- The most powerful utilization of the president’s pardon power is to issue a full pardon that erases all criminal penalties. If the prosecution has not yet occurred, than the individual who receives the pardon is spared from prosecution. If the prosecution and sentencing have occurred and the person has already served their time, the slate is wiped clean as if the offense never happened.
- Another level of authority under the president’s power is to grant clemency, which doesn’t wipe out the crime but erases the punishment so an individual would not have to serve his or her prison time.
Free speech shouldn’t be a partisan issue, but it has been drawn into the larger dynamics of polarization in this country.