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ArtII.S2.C1.3.1 Overview of Pardon Power

https://constitution.congress.gov/browse/essay/artII-S2-C1-3-1/ALDE_00013316/

Excerpt:

.....The Constitution establishes the President’s authority to grant clemency, encompassing not only pardons of individuals but several other forms of relief from criminal punishment as well.1 The power, which has historical roots in early English law,2 has been recognized by the Supreme Court as quite broad. In the 1886 case Ex parte Garland, the Court referred to the President’s authority to pardon as unlimited except in cases of impeachment, extending to every offence known to the law and able to be exercised either before legal proceedings are taken, or during their pendency, or after conviction and judgment.3 Much later, the Court wrote that the broad power conferred in the Constitution gives the President plenary authority to ‘forgive’ [a] convicted person in part or entirely, to reduce a penalty in terms of a specified number of years, or to alter it with certain conditions.4

Despite the breadth of the President’s authority under the Pardon Clause, the Constitution’s text provides for at least two limits on the power: first, clemency may only be granted for Offenses against the United States,5 meaning that state criminal offenses and federal or state civil claims are not covered.6 Second, the President’s clemency authority cannot be used in Cases of impeachment.7

Beyond textual limits, certain external constitutional and legal considerations may act as constraints on the power. For instance, the Court has indicated that the power may be exercised at any time after [an offense’s] commission,8 reflecting that the President may not preemptively immunize future criminal conduct. In Schick v. Reed, the Court recognized that an exercise of clemency may include any condition which does not otherwise offend the Constitution,9 suggesting that the President may not make clemency subject to a condition that is prohibited by another constitutional provision.10 Other apparent limitations include not affecting vested rights of third parties, such as where forfeited property is sold,11 or proceeds paid into the treasury, which can only be secured to the former owner . . . through an act of [C]ongress.1

.....Congress generally cannot substantively constrain the President’s pardon authority through legislation, as the Court has held that the power of the President is not subject to legislative control. Congress can neither limit the effect of his pardon, nor exclude from its exercise any class of offenders. The benign prerogative of mercy reposed in him cannot be fettered by any legislative restrictions.2