Are There Rules Governing Presidential Pardons?

by Kevin Jon Heller

It’s not international law, strictly speaking, but I rarely get to defend Bush’s executive power so I’m making an exception. A very prominent liberal blogger suggested today that Bush would violate the Rules Governing Petitions for Executive Clemency if he pardoned Scooter Libby anytime soon:

[Y]esterday, when Tony Snow was asked about the possibility, he refused to rule a pardon out, saying “Anybody in the United States of America who has been convicted can apply for a pardon. I am not going to characterize one way or another what happens in this case when it comes to a pardon, because it’s inappropriate.

But what everyone is ignoring are the Rules Governing Petitions For Executive Clemency:

No petition for pardon should be filed until the expiration of a waiting period of at least five years after the date of the release of the petitioner from confinement or, in case no prison sentence was imposed, until the expiration of a period of at least five years after the date of the conviction of the petitioner. Generally, no petition should be submitted by a person who is on probation, parole, or supervised release.

Perhaps some intrepid journalist could ask Mr. Snow if this is just another rule that the White House plans to ignore.

I think pardoning Libby would be a terrible thing to do. But it’s obvious that there are no “rules” governing when or why a President can issue a pardon. Article II, Section 2, of the U.S. Constitution is rather clear on that point:

The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States; he may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices, and he shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.

Not surprisingly, the clemency “rules” themselves recognize that fact:

§ 1.11 Advisory nature of regulations.

The regulations contained in this part are advisory only and for the internal guidance of Department of Justice personnel. They create no enforceable rights in persons applying for executive clemency, nor do they restrict the authority granted to the President under Article II, Section 2 of the Constitution.

The idea that the President should have complete discretion to issue pardons seems to have been relatively uncontroversial at the Constitutional Convention, although the Framers did consider a couple of proposals to limit that discretion:

A proposal introduced by Connecticut’s Roger Sherman to make Presidential pardons subject to the consent of the Senate was considered but quickly rejected by the Convention (the Senate was deemed to be powerful enough already). So was Luther Martin’s suggestion of confining pardons to convicted persons only; the Framers concluded that pre-conviction pardons might be useful to further national interests – immediately pardoning a captured spy, for instance, might produce yield important military intelligence. The Constitutional Convention did, however, agree that pardons could not be issued “in cases of impeachment”; this may have been prompted by concerns arising from a 17th century English constitutional crisis which had developed after King Charles II pardoned the Earl of Danby, Thomas Osborne, who had been impeached by Parliament.

There have also been a few attempts to limit the President’s discretion though a constitutional amendment. Most notably, after Ford pardoned Nixon, then-Senator Walter Mondale proposed adding the following sentence to the pardon clause:

No pardon granted an individual by the President under section 2 of Article II shall be effective if Congress by resolution, two-thirds of the members of each House concurring therein, disapproves the granting of the pardon within 180 days of its issuance.

Mondale’s proposal went nowhere.

UPDATE: Article II, Section 2, mentions both pardons and “reprieves.” Could one of our more constitutionally-inclined readers tell me what the difference is?

One Response

  1. I’d be inclined to guess that a reprieve is a pardon handed out prior to an actual conviction, such as in the case of Nixon or Weinberger’s pardons, although I could see it being interpreted as a mere waiver of punishment rather than erasure of the charge (via a normal pardon.)

    I’m curious as well.

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