Word from Washington DC is that the president is now considering a series of ‘pre-emptive’ pardons for aides, including Vice President Kamala Harris, former chief medical officer Anthony Fauci, and Republican Congresswoman Liz Cheney. The idea is that the pardon will protect associates from arrest and prosecution when President-elect Donald Trump takes office.
What is the root of the president’s pardon power? Is there a limit to this power? And what does a presidential pardon look like in India?
US President’s power to grant pardons
Article 2, Section 2, Clause 1 of the United States Constitution states that the President “shall have power to grant relief and pardon for offenses against the United States, except in cases of impeachment.” Effectively, a pardon removes the sentence imposed upon conviction for the crime, although it does not reverse the conviction.
In a 2020 report by the White House Historical Association, former U.S. archivist Colin Shogan wrote that the pardoning power has its roots in English history and can be traced back to the reign of King Ine of Wessex in the seventh century, who granted “the prerogative of mercy.”
The Cornell Legal Information Institute states that “Prior to the American Revolution, the king’s pardon power was exercised through delegation to colonial officials in the American colonies. The English legal tradition of pardons directly influenced the framers of the US Constitution after independence.
In 1787 delegates from 12 of the original 13 states gathered in Philadelphia for the Constitutional Convention. At the time of the Convention, Alexander Hamilton (one of the “Founders” of the United States) proposed the introduction of a presidential power for pardons. The US Senate debated whether it should have the power to approve presidential pardons. An English jurist named William Blackstone expressed his belief that the power to judge and the power to pardon should not be in the same authority. The president was empowered to be a part of the executive branch, and was kept separate from the legislative and judicial functions of the federal government.
The Office of the Pardons Attorney under the Department of Justice (DoJ) assists the President by processing the thousands of applications for pardons received annually. The process includes a preliminary review and FBI background check, with a final, non-binding recommendation given to the president who will make the final decision. Although the president can grant a pardon at any time after committing a federal crime, according to the DoJ’s rules on pardons, a person can apply for a pardon only after being released from prison, after a five-year waiting period to “demonstrate the ability to lead a responsible, productive and law-abiding life.” .
Limits on the power of the US president to grant pardons
Under Article 2 of the US Constitution, there are two clear limits on the pardon power. The first is that the president can only pardon “crimes against the United States,” which refers to criminal offenses under federal law (applicable to multiple states and investigated by federal agencies such as the FBI). The president cannot pardon an act that is a crime according to the law of a particular state. The second limitation is that the President cannot grant pardons in cases of impeachment.
Another implied limitation under Article 2 is that the President must first commit the offense and then grant the pardon. However, once a federal crime has been committed, the pardon power can be exercised at any stage including before charges are filed, as the SCOTUS ruled in the case of Ex Parte Garland (1866). The decision states that ‘the power may be exercised before legal proceedings, or during their pendency, or after conviction and judgment.
According to the Parole Attorney’s Office, a pardon “does not imply innocence” and “the pardoned offense will not be removed from your criminal record. Instead, both the federal conviction and the pardon will appear on your record.” Also, although it may not be an indication of innocence, there is no clear answer as to whether an apology is an admission of guilt.
‘Pre-emptive’ forgiveness
Can the President pardon someone ‘pre-emptively’ from future criminal prosecution? According to the Constitution Annotated – a government-approved record of constitutional interpretations – the Ex Parte Garland decision reflects that ‘the President cannot preemptively immunize future criminal conduct’.
While the president may not be able to pardon ‘ex ante’ a crime that has yet to be committed, according to Colin Shogun, it is possible for the president to pardon a person ‘ex ante’ after a crime has been committed but “before federal charges are filed or a sentence is imposed”, and it is before “It was like this when (Henry) Ford pardoned (Richard) Nixon,” she says. There are other examples of presidents ignoring the judicial process in anticipation of legal action. Abraham Lincoln issued an advance pardon during the Civil War, and so did Jimmy Carter, who pardoned Vietnam draft dodgers who were not charged for their actions.”
When Ford pardoned Nixon after the latter’s resignation, it was widely publicized that he “could or would have done it”. Lincoln pardoned soldiers who deserted the Confederacy as a tactic to encourage desertion during the American Civil War.
The Power of Forgiveness in India
Under Article 72 of the Constitution, the President of India has “power to grant pardon, remission, relief or commutation of sentence or to suspend, pardon or commute the sentence of any person convicted of any offence”.
In all cases of conviction or sentence by court martial;
In all cases of conviction or punishment for an offense against any law relating to the subject on which the executive power of the Union is extended;
In all cases where the punishment is death.
The Supreme Court has weighed in on the president’s power to grant pardons. For example, in Maru Ram v. Union of India (1980), a five-judge Constitution Bench held that the President cannot grant pardons on his own and must act on the advice of the Centre. The court said it will hear challenges to the exercise of powers under Article 72 only in ‘rare’ circumstances where the decision is “grossly irrelevant, irrational, discriminatory or corrupt.”