SALT LAKE CITY (ABC4) – Over the last few weeks, we’ve heard the word “pardon” almost ad nauseam as people continue to wonder who President Donald Trump will pardon before leaving office. Most presidents do take action, but up until now, Up until his very last day, President Trump has used this authority the least of any President in the modern era.
As he left office, President Trump granted pardons to 73 individuals, and commuted the sentences of 70 additional people.
But what is a presidential pardon?
It’s really called a federal pardon, and it is an action taken by the President of the United States that sets aside the punishment for a federal crime. The President’s authority comes from the Constitution of the United States from Article II Section 2 Clause 1: “and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.”
Leah A Murray, Ph.D. Brady Presidential Distinguished Professor at Weber State University tells ABC4, “We have them because pardon power is part of the executive prerogative that is a holdover from British politics. It comes from British politics because the political argument goes like this: if you commit a crime in the UK, you are committing a crime against the sovereign, which in England is the monarch. So if the crime is against the monarch, then the monarch can forgive the crime. “
According to WhiteHouseHistory.org, the concept from British law was known as the “prerogative of mercy” and first appeared during the 7th century.
Alexander Hamilton introduced the concept of a pardon power at the Constitutional convention.
Professor Murray adds, “If you read the Constitutional Convention notes, you will hear the founders discussing what powers a president should have because they were inventing that position. They wanted the president to be able to have energy and efficiency, but not become tyranny, and there was no model in history for a democratic executive in that way. So, they discuss a number of British political grants of power that the king has, and they choose to grant the president some vaguely and some specifically.”
Murray gave ABC4 a little context. “Clearly in the United States, the people are sovereign, but the pardon power can be used to calm tensions – think Lincoln pardoning people after the Civil War, or Carter pardoning Vietnam War draft dodgers, or Ford pardoning Nixon – the idea is if things are tense, a pardon can calm everyone down,” Murray says. “But if you get the pardon power for that, you also get to use it for your personal friends. So the founders basically decide that the benefits of pardons outweighed the potential downsides.”
The founders did separate the pardon power from the judicial system because they felt the same person should not be doing the judging and pardoning. They also reasoned that pardoning subordinates would subject the president to threats of impeachment and removal from office.
The President actually can use four different types of clemency.
- Pardon – releases a person from punishment and restores all civil liberties
- Amnesty – is the same as a pardon but extended to an entire class of individuals
- Commutation – reduces the sentences imposed by a federal court
- Reprieve – delays sentencing or imposition of punishment
In light of reports, people are taking money to get access to President Trump and the pardons. ABC4 asked Professor Murray if people have historically tried to buy pardons? She said, “there is always money in politics. So the answer is yes. It is probably not the case that you would bribe a president directly, but you would donate to a party. Think Clinton with his pardon of Marc Rich, which was widely criticized in 2001, and then you get the pardon.”
Is President Trump misusing pardon power? The answer is how you define misuse of a pardon.
Murray adds, “Every president is accused by people who do not agree with him of misusing the pardon power. So, if you define misuse of pardon as using it to free a donor like Clinton did, it’s a misuse. But, the pardon power is a broad grant of power, so I would argue, technically there is no misuse of it.”
According to an article published by the Pew Research Center on how presidents have used the power of pardon, President Trump has used it the very least.
Through the end of fiscal year 2020, President Trump has pardoned “less than half of 1% of the more than 10,000 people who petitioned him for it through the end of the 2020” according to the Pew report.
One of his pardons is for women’s suffrage leader Susan B. Anthony. Trump’s pardon came 100 years after the ratification of the 19th Amendment, which ensured women the right to vote. It’s also known as the Susan B. Anthony Amendment.
The Presidents who have used it the most in modern times have been Franklin Delano Roosevelt, Harry Truman, and Barack Obama. But as time has moved forward, all the POTUS have used it less and less, including Obama.
Over the years, some of the presidents have taken serious public consequences for how they used the power of the pardon. Ford’s public approval rating fell 44 points when he pardoned Nixon.
Professor Murray says “But the deal is this – Article II of the United States Constitution grants a lot of vague power to the president and some specific powers – like the pardon. When the Constitution is specific, there is no negotiating. He gets to pardon whomever he wants. You can disagree and you can criticize – and people do and are within their rights to do so. But I would argue there is no moral or constitutional high ground, if you will, in this conversation.”