The Rules of Presidential Pardons

President Obama pardons Thanksgiving Day turkey
President Obama Pardons Thanksgiving Turkey. Alex Wong / Getty Images

A presidential pardon is a right granted to the President of the United States by the U.S. Constitution to forgive a person for a crime, or to excuse a person convicted of a crime from punishment.

The president’s power to pardon is granted by Article II, Section 2, Clause 1 of the Constitution, which provides: “The President … shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.”

Key Takeaways

  • Article II, Section 2, Clause 1 of the Constitution grants the President of the United States the power to pardon any person convicted for or accused of federal crimes, except in cases of impeachment.
  • The president may not pardon persons convicted for or accused of violating state or local laws.   
  • Through the power of “commutation of sentence,” the president may reduce or completely eliminate the prison sentences being served by persons convicted of federal crimes.
  • While he or she is not required to follow them, recommendations on all applications for presidential pardons must be prepared and submitted to the president by the U.S. Pardon Attorney of the Department of Justice. 

Clearly, this power can result in some controversial applications. For example, in 1972 Congress accused President Richard Nixon of obstruction of justice—a federal felony—as part of his role in the infamous Watergate scandal. On September 8, 1974, President Gerald Ford, who had assumed office following Nixon’s resignation, pardoned Nixon for any crimes he may have committed related to Watergate.

On January 21, 1997, President Jimmy Carter, on his first full day in office, made good on a campaign promise by issuing an executive order granting unconditional pardons to the nearly 500,000 young American men who had evaded the military draft during the Vietnam War by fleeing the United States or refusing to register for the draft with their Selective Service boards.

At the time, the blanket pardons came under fire from both veterans’ groups—who considered the “draft dodgers” to be unpatriotic lawbreakers—and from amnesty groups—for not including deserters, dishonorably discharged soldiers, and civilians arrested during anti-war demonstrations. In the end, the war and the draft had so deeply divided the people that only about half of the approximately 100,000 draft evaders who had fled to Canada chose to return to the United States, despite having been granted amnesty.

In 2018, President Donald Trump offered to posthumously pardon late boxing legend Muhammad Ali, who had been convicted and jailed in 1967 for refusing to be inducted into the U.S. Army during the Vietnam War. However, President Trump’s offer had been more symbolic than substantive, as the U.S. Supreme Court had overturned Mr. Ali’s conviction in 1971, confirming his status as a conscientious objector. 

On February 20, 2020, President Trump controversially hinted that he might pardon his longtime adviser Roger Stone, shortly after Stone had been sentenced to three years and four months in prison. Stone had been convicted in November 2019 of lying to Congress, witness tampering, and obstructing the Mueller investigation into alleged pro-Trump interference by Russia in the 2016 presidential elections.

“I’m not going to do anything in terms of the great powers bestowed upon a president of the United States, I want the process play out, I think that's the best thing to do,” Trump said. “Because I'd love to see Roger exonerated and I'd love to see it happen because I personally think he was treated very unfairly.”

On February 24, 2020, Stone’s attorneys filed a request for a new trial, claiming the trial jury’s foreperson had held a political bias against President Trump.

While not ruling out an eventual pardon, President Trump said he would wait to see the legal process play out. “At some point I'll make a determination, but Roger Stone and everybody has to be treated fairly. And this has not been a fair process,” the president said. 

The number of pardons issued by the presidents has varied widely.

Between 1789 and 1797, President George Washington issued 16 pardons. In his three terms—12 years—in office, President Franklin D. Roosevelt issued the most pardons of any president so far—3,687 pardons. Presidents William H. Harrison and James Garfield, both of whom died shortly after taking office, did not grant any pardons.

Under the Constitution, the president may pardon only persons convicted or accused of federal crimes and offenses prosecuted by the United States Attorney for the District of Columbia in the name of the United States in the D.C. Superior Court. Crimes that violate state or local laws are not considered crimes against the United States and thus cannot be considered for presidential clemency. Pardons for state-level crimes are typically granted by the state’s governor or a state board of pardon and parole.

Can Presidents Pardon Their Relatives?

The Constitution places few restrictions on who presidents can pardon, including their relatives or spouses.

Historically, the courts have interpreted the Constitution as giving the president virtually unlimited power to issue pardons to individuals or groups. However, presidents can only grant pardons for violations of federal laws. In addition, a presidential pardon only provides immunity from federal prosecution. It does provide protection from civil lawsuits.

Clemency: Pardon or Commutation of Sentence

“Clemency” is the general term used to describe the president’s power to grant leniency to persons who have violated federal laws.

A “commutation of sentence” partially or completely reduces a sentence being served. It does not, however, overturn the conviction, imply innocence, or remove any civil liabilities that might be imposed by the circumstances of the conviction. A commutation may apply to prison time or to payments fines or restitution. A commutation does not alter a person’s immigration or citizenship status and does not prevent their deportation or removal from the United States. Likewise, it does not protect a person from extradition requested by other countries.

A “pardon” is a presidential act of forgiving a person for a federal crime and is typically granted only after the convicted person has accepted responsibility for the crime and has demonstrated good conduct for a significant period of time after their conviction or completion of their sentence. Like a commutation, a pardon does not imply innocence. A pardon may also include forgiveness of fines and restitution imposed as part of the conviction. Unlike a commutation, however, a pardon does remove any potential civil responsibility. In some, but not all cases, a pardon eliminates the legal grounds for deportation. Under the Rules Governing Petitions for Executive Clemency, shown below, a person is not allowed to apply for a presidential pardon until at least five years after they have fully served any prison term imposed as part of their sentence.

The President and the US Pardons Attorney​

While the Constitution places virtually no limitations on the president's power to grant clemency, convicted persons who ask the president for clemency are required to meet a strict set of legal guidelines. All requests for presidential clemency for federal offenses are directed to the Office of the U.S. Pardon Attorney of the Department of Justice. The Pardon Attorney prepares a recommendation for the president on each application for presidential clemency, including pardons, commutations of sentences, remissions of fines, and reprieves. However, the president is not obliged to follow, or even consider the recommendations of the Pardon Attorney.

The Pardon Attorney is required to review each application according to the following guidelines. However, the president is not obliged to follow, or even consider the recommendations of the Pardon Attorney.

Rules Governing Petitions for Executive Clemency

The rules governing petitions for presidential clemency are contained in Title 28, Chapter 1, Part 1 of the U.S. Code of Federal Regulations as follows:

Sec. 1.1 Submission of petition; form to be used; contents of petition.

A person seeking executive clemency by pardon, reprieve, commutation of sentence, or remission of fine shall execute a formal petition. The petition shall be addressed to the President of the United States and shall be submitted to the Pardon Attorney, Department of Justice, Washington, DC 20530, except for petitions relating to military offenses. Petitions and other required forms may be obtained from the Pardon Attorney. Petition forms for commutation of sentence also may be obtained from the wardens of federal penal institutions. A petitioner applying for executive clemency with respect to military offenses should submit his or her petition directly to the Secretary of the military department that had original jurisdiction over the court-martial trial and conviction of the petitioner. In such a case, a form furnished by the Pardon Attorney may be used but should be modified to meet the needs of the particular case. Each petition for executive clemency should include the information required in the form prescribed by the Attorney General.

Sec. 1.2 Eligibility for filing petition for pardon.

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.

Sec. 1.3 Eligibility for filing petition for commutation of sentence.

No petition for commutation of sentence, including remission of fine, should be filed if other forms of judicial or administrative relief are available, except upon a showing of exceptional circumstances.

Sec. 1.4 Offenses against the laws of possessions or territories of the United States.

Petitions for executive clemency shall relate only to violations of laws of the United States. Petitions relating to violations of laws of the possessions of the United States or territories subject to the jurisdiction of the United [[Page 97]] States should be submitted to the appropriate official or agency of the possession or territory concerned.

Sec. 1.5 Disclosure of files.

Petitions, reports, memoranda, and communications submitted or furnished in connection with the consideration of a petition for executive clemency generally shall be available only to the officials concerned with the consideration of the petition. However, they may be made available for inspection, in whole or in part, when in the judgment of the Attorney General their disclosure is required by law or the ends of justice.

Sec. 1.6 Consideration of petitions; recommendations to the President.

(a) Upon receipt of a petition for executive clemency, the Attorney General shall cause such investigation to be made of the matter as he/ she may deem necessary and appropriate, using the services of, or obtaining reports from, appropriate officials and agencies of the Government, including the Federal Bureau of Investigation.

(b) The Attorney General shall review each petition and all pertinent information developed by the investigation and shall determine whether the request for clemency is of sufficient merit to warrant favorable action by the President. The Attorney General shall report in writing his or her recommendation to the President, stating whether in his or her judgment the President should grant or deny the petition.

Sec. 1.7 Notification of grant of clemency.

When a petition for pardon is granted, the petitioner or his or her attorney shall be notified of such action and the warrant of pardon shall be mailed to the petitioner. When commutation of sentence is granted, the petitioner shall be notified of such action and the warrant of commutation shall be sent to the petitioner through the officer in charge of his or her place of confinement, or directly to the petitioner if he/she is on parole, probation, or supervised release.

Sec. 1.8 Notification of denial of clemency.

(a) Whenever the President notifies the Attorney General that he has denied a request for clemency, the Attorney General shall so advise the petitioner and close the case.

(b) Except in cases in which a sentence of death has been imposed, whenever the Attorney General recommends that the President deny a request for clemency and the President does not disapprove or take other action with respect to that adverse recommendation within 30 days after the date of its submission to him, it shall be presumed that the President concurs in that adverse recommendation of the Attorney General, and the Attorney General shall so advise the petitioner and close the case.

Sec. 1.9 Delegation of authority.

The Attorney General may delegate to any officer of the Department of Justice any of his or her duties or responsibilities under Secs. 1.1 through 1.8.

Sec. 1.10 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.