Analysis of the presidential pardon clause of the US Constitution

The pardon power of President Trump is getting some news coverage these days due to the Russia probe. Here’s the introduction to a CRS report titled The President’s Pardon Power and Legal Effects on Collateral Consequences, (July 26, 2016, R44571):

Article II of the U.S. Constitution vests the President with the power “to Grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.” The President’s pardon power, which derives from English custom, is an extraordinary remedy that is sought by many but received by few. The President may use his clemency authority only for criminal penalties, not civil. Moreover, he may use his clemency authority to pardon federal offenses but not state offenses.

Typically, individuals receive either a pardon or a commutation of sentence, each of which is a type of executive clemency with different legal effects. The Department of Justice in 2014 announced a clemency initiative to prioritize the applications of federal inmates seeking a commutation of sentence, which has reportedly led to an influx of petitions. A commutation of sentence generally results in a reduced sentence, either totally or partially, but such individual will still likely face collateral consequences, that is post-sentence civil penalties or disqualifications that flow from a federal conviction. In contrast, a pardon is the President’s forgiveness for commission of the offense, which removes civil disabilities and collateral consequences. However, given the evolution of jurisprudence on the President’s pardon power, some recipients of a pardon may still face legal consequences from a criminal conviction despite receiving a pardon.

This report reviews the text and jurisprudence of the Pardon Clause of the U.S. Constitution, as well as the types of pardons the clemency power includes, when pardons may be issued, and how pardons are granted. The remainder of the report analyzes the effect of a presidential pardon on collateral consequences. Also discussed in the report are some alternative ways in which a former federal felon may have his or her civil rights restored and certain legal disabilities removed absent a pardon. Lastly, the report covers what role, if any, Congress may play in defining the scope of the pardon power and its effect on collateral consequences.

— Joe

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