Pardon Me

It’s been a few weeks since the election and it appears as though Joe Biden will be our next president. However, Donald Trump has filed multiple lawsuits alleging fraud and he believes he will remain in office.

If, after any recounts and lawsuits are resolved, Biden is deemed the winner, it will be almost certain that Trump will follow the time-honored tradition of pardoning numerous political allies.

The president’s power to issue pardons is granted under Article II, Section 2, Clause 1, of the Constitution, and is known as the Pardon Clause. The clause says the president “shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” While the power is extremely broad, the president can only grant pardons for federal crimes, and pardons can’t be issued for impeachment cases tried and convicted by Congress.

The president has the ability to grant five types of clemency. A full pardon relieves a person of wrongdoing and restores any civil rights lost, such as the right to vote and own firearms.

Amnesty is similar to a pardon, but it applies to groups or communities of people. The first example of presidential amnesty was offered by President George Washington in 1795 to participants in the Whiskey Rebellion, a series of riots caused by an unpopular excise tax on liquor. It was a conditional amnesty, however, because the offenders’ crimes would only be forgiven if they signed an oath of loyalty to the United States.

The president can also commute, or shorten, a prison sentence. The president can remit, or forgive, fines, penalties and forfeitures. Finally, the president can issue a reprieve for a sentence, such as delay jail time or get someone off death row.

President Obama granted clemency to more people convicted of federal crimes than any commander-in-chief since Truman. However, he also received far more requests for clemency than any U.S. president on record. This is likely due to his administration’s goal to shorten prison terms for nonviolent federal inmates convicted of drug crimes.

In all, Obama granted clemency to 1,927 individuals – 1,715 commutations and 212 pardons. Truman granted clemency 2,044 times – 1,913 pardons, 118 commutations and 13 remissions. Franklin Roosevelt granted clemency the most of any president – 3,796 times. However, he was elected to four terms, although he died in his first year of his fourth term.

Some speculate as to whether Trump will pardon members of his family who served in his administration. There is precedent for this, as one of President Bill Clinton’s 450 pardons was for his brother, Roger, who was convicted for cocaine possession in Arkansas.

Throughout his term, there have been many accusations about alleged illegal activity by Trump. Many question whether he can pardon himself. It’s never happened before, but the Constitution doesn’t specifically prohibit it. Constitutional scholars, though, believe such a move would likely be challenged.

A few weeks ago, I wrote about the 25th Amendment to the Constitution, which allows the president to temporarily step down and turn control over to the vice president. Some speculate that Trump may invoke this power and have Mike Pence preemptively pardon him for any federal crimes.

When President Richard Nixon resigned in the face of the Watergate scandal, Gerald Ford preemptively pardoned him for any federal crimes he committed or might have committed while in office.

With Thanksgiving just around the corner, it’s almost certain Trump will pardon a turkey. Apparently, the turkey was in jail because he was suspected of fowl play.

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Reg P. Wydeven

Elder Law and Estate Planning Attorney at McCarty Law LLP
Hoping to follow in his father’s footsteps from a young age, Reg’s practice primarily consists of advising individuals on estate planning, estate settlement and elder law matters. As Reg represents clients in matters like guardianship proceedings and long-term care admissions, he feels grateful to be able to offer families thorough legal help in their time of need.

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