# Pardon Power The president's clemency authority under **Article II, Section 2, Clause 1**. This page owns the **mechanism** — what the power is, what limits it, and what remains unsettled. The vault's critique of how it has been *used* lives at [[Pardons as Currency]]; the instances live at [[J6 Mass Pardons]], [[Trump 2025 Pardon Spree]], and the Hunter Biden pardon recorded at [[Hunter Biden]]. ## The text > [!quote] Article II, Section 2, Clause 1 > "…he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment." Twenty-two words, and only **two express limits**: the offense must be federal, and it cannot be an impeachment. Everything else about the power is either judicial gloss or unsettled. ## What it reaches | Reaches | Does not reach | |---|---| | Any federal criminal offense | State crimes — *Ex parte Grossman* (1925); no federal official may commute a state sentence | | Conduct **before** charges are filed | Civil liability | | Conduct during a pending prosecution | Impeachment and removal | | Conduct after conviction and judgment | Civil contempt of court | | **Criminal** contempt of federal court — *Grossman* | | **Pre-charge pardons are settled law**, not a loophole. *Ex parte Garland* (decided **January 14, 1867**, October Term 1866, 5–4) held the power "extends to every offence known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken, or during their pendency, or after conviction and judgment," and that "Congress can neither limit the effect of his pardon, nor exclude from its exercise any class of offenders." This was deliberate. At the Constitutional Convention a proposal to allow pardons only *after conviction* was withdrawn once James Wilson pointed out that pre-conviction pardons might be needed to secure accomplice testimony. The canonical application is **Proclamation 4311** of **September 8, 1974**, in which Gerald Ford pardoned an unindicted Richard Nixon for "all offenses against the United States which he … has committed or may have committed or taken part in" over a defined period. Upheld in *Murphy v. Ford* (W.D. Mich. 1975). The Hunter Biden pardon of December 1, 2024 used near-identical wording. **Whether it reaches contempt of Congress is an open question.** *Grossman* covered contempt of court; Justice Story argued in 1833 that congressional contempt is excluded by implication. Never resolved. ## The cases - **Ex parte Garland (1867), 5–4** — the power is "unlimited, with the exception stated," and immune from legislative control. Also said a full pardon "blots out of existence the guilt," language later courts have walked back. - **Burdick v. United States (1915)** — a pardon may be **refused**; delivery alone is not enough, acceptance is required. Wilson had pardoned a newspaper editor pre-charge specifically to strip his Fifth Amendment privilege; the Court held he could decline. Source of the famous line that a pardon "carries an imputation of guilt; acceptance a confession of it." - **Biddle v. Perovich (1927)** — a commutation needs no consent. A pardon "is not a private act of grace" but "the determination of the ultimate authority that the public welfare will be better served by inflicting less than what the judgment fixed." - **Schick v. Reed (1974), 6–3** — the power "flows from the Constitution alone… it cannot be modified, abridged, or diminished by the Congress." The president may attach **any condition** that does not itself offend the Constitution — but "may not aggravate punishment." > [!warning] "Accepting a pardon is a legal confession of guilt" is not the law > That claim, ubiquitous in commentary, rests on one sentence of reasoning in *Burdick* about why a pardon differs from statutory immunity. No holding establishes it. *Biddle* rejected the "private act of grace" premise the acceptance rule was built on; *Nixon v. United States* (1993) stated that a pardon "is in no sense an overturning of a judgment of conviction," only an executive act mitigating punishment. A pardoned offense can still count against you — *Carlesi v. New York* (1914) allowed a pardoned crime to be used as an aggravating circumstance under a state habitual-offender law. ## Conditions and revocation **Conditional pardons are valid** — *Ex parte Wells* (1856), *Schick v. Reed* (1974). **Revocation before delivery is valid**; after delivery and acceptance is untested. *In re De Puy* (S.D.N.Y. 1869) upheld Grant's withdrawal of a Johnson pardon that had not yet been delivered. In **December 2008** Bush sent a clemency warrant covering 19 people to the Pardon Attorney, then directed one day later that it not be executed as to Isaac Toussie. Scholars including Brian Kalt have argued there is no precedent validating that move where a pardon has been signed, communicated *and* accepted. **No court has ruled either way.** ## The self-pardon question Unresolved, untested, and the only real authority is an **outline**. The Office of Legal Counsel memorandum of **August 5, 1974** — four days before Nixon's resignation, written by Acting Assistant Attorney General **Mary C. Lawton** — concludes: *"Under the fundamental rule that no one may be a judge in his own case, the President cannot pardon himself."* The body hedges more than the headnote: "it **would seem** that the question should be answered in the negative." The memo opens by describing itself as "an outline" and asking whether a "more definitive memorandum" is required. It also proposes a workaround that has never been used: under Section 3 of the Twenty-Fifth Amendment the president could declare himself temporarily unable to serve, have the acting president issue the pardon, and then resume office. Constitution Annotated states the position plainly: "no President has issued a self-pardon, and no federal court has directly addressed the matter." Multiple constitutional amendments to bar self-pardons have been introduced across the 116th–118th Congresses; none adopted. There is a justiciability wrinkle. [[Trump v. United States]] (2024) described the pardon power in dicta as "conclusive and preclusive" — which, if applied, could mean a court would decline to review a self-pardon at all rather than rule it invalid. That is dicta about immunity, not a holding about pardons, and should not be overstated. ## Hamilton's argument Hamilton defended the power in **Federalist No. 74** (March 25, 1788): "Humanity and good policy conspire to dictate, that the benign prerogative of pardoning should be as little as possible fettered or embarrassed," and one person is "a more eligible dispenser of the mercy of government, than a body of men." His specific justification is the one worth noting now: > [!quote] Federalist No. 74 > "…in seasons of insurrection or rebellion, there are often critical moments, when a welltimed offer of pardon to the insurgents or rebels may restore the tranquillity of the commonwealth." **A caution about [[Federalist No. 69]].** That essay is routinely cited for the idea that the pardon power is king-like. It argues the opposite — that the president is *weaker* than both the British king and the governor of New York, because the governor "may pardon in all cases, even in those of impeachment," and a president "could shelter no offender, in any degree, from the effects of impeachment and conviction." Anyone citing No. 69 for presidential pardon supremacy has it backwards. ## Why it matters here **It is the one executive power with no check.** Congress cannot limit it, courts have said they will not second-guess its exercise, and it requires no one's agreement. Every other Article II power the vault tracks — appointments, war powers, emergency authorities — has some countervailing institution. This one has none, which is why it is the natural terminus of a [[Unitary Executive Theory]] argument. The live question in 2025–26 is not validity but **scope**, and it is being litigated. In *United States v. Wilson* (D.C. Cir., April 2, 2025) the court read Proclamation 10887 — the January 20, 2025 blanket January 6 clemency — as **not** covering unrelated firearms offenses discovered during a January 6 investigation: "The pardon does not cover offenses wholly independent of events at the Capitol on January 6… We do not here presume to review the validity of the pardon, only its proper scope." A second pardon covering those counts was issued in mid-November 2025, mooting the case. That is the shape of the modern fight. Nobody can stop a pardon. What courts will still do is read one. ## See Also - [[The Pardon and Clemency Pipeline]] — the ASCII process map: 28 C.F.R. Part 1 drawn beside the informal route, the five forms of clemency, and the checks that do not exist - [[Pardons as Currency]] — the patronage critique; this page is the mechanism, that one is the abuse - [[J6 Mass Pardons]] · [[Trump 2025 Pardon Spree]] · [[Steve Bannon Pardon and We Build the Wall Fraud]] — instances - [[Hunter Biden]] — the December 2024 pardon and its ten-year prospective scope - [[Federalist No. 69]] — frequently miscited on this subject - [[Impeachment and Removal Process Flow]] — the one thing pardons cannot touch - [[Trump v. United States]] · [[Unitary Executive Theory]] · [[Separation of Powers]] - [[Office of Legal Counsel]] — author of the 1974 self-pardon memo