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VERIFY: What's a pardon, and how does it work?

There's been a lot of talk about presidential pardoning powers. Here's what a president can, and can't, do.

WASHINGTON — Pardons are common for presidents to issue, especially toward the end of their term in office. But what does it mean to pardon someone? And can you pardon anybody for... well, anything? 

The Verify team is here to get to the bottom of your questions. So let's take a look at the process.

SOURCES:

What's a pardon?

In a broad definition, a pardon is a governmental decision that exempts punishment from some of, or all of, a crime. Pardons are typically addressed to specific individuals, but they can also be addressed to a group.

The power to pardon and its limitations are usually spelled out in government powers. In the US, pardoning is an executive power that grants the president the option to go back and revoke legal consequences for certain types of offenses, offering protection from past crimes. Governors in almost all 50 states also have the power to issue pardons relieving people from offenses against state laws, so it's not only found in the presidency.

As for executive power, and what outgoing President Donald Trump can or cannot do, that's laid out in Article 2 of the Constitution.

What does the Constitution say about pardoning?

Article 2 of the U.S. Constitution provides a pretty broad definition, saying the president has the power to "grant reprieves and pardons for offenses against the United States." The Supreme Court has interpreted that language over the years to include other nuances, like conditional pardons, commutations of sentences, respites, and amnesties. 

We'll get to that in a second.

Can a president pardon anyone for anything?

No. There are some restrictions that come along with the process. 

For example, the president can only grant pardons for federal crimes, meaning other crimes like tax evasion or fraud could still be prosecuted by state or local authorities. And a pardon doesn’t apply to any civil legal actions.

While it's possible that someone could get pardoned for their involvement in a crime on a federal level, they could still be hit with a slew of charges on those state and local levels, all of which could have their own sentencing. 

What about impeachment issues and other risks?

A president can’t issue any pardons related to impeachment, according to the Constitution. So it’s not a silver bullet protecting the recipient from all crimes or lawsuits.

Also, the president doesn't have the power to stop state or local prosecutors from investigating those matters. In the state of New York, prosecutors are looking into financial matters involving President Trump, and he can't shut those down.

There is another risk that comes with being pardoned for a federal crime: whoever is the recipient of the pardon doesn't get prosecuted federally, but they also no longer get to invoke the Fifth Amendment in regards to self-incrimination, so they couldn't avoid testifying about the crime later. 

There’s a presumption of guilt that comes with these types of pardons, even if no official charges were filed. The Justice Department explains that while technically a pardon doesn’t make someone legally guilty, accepting a pardon is often perceived as accepting guilt.

Legal professor Frank Bowman clarified this.

"A president can pardon someone for conduct that occurred before the pardon, but not for conduct that occurred after the pardon (or that is ongoing from before the pardon and continues after it)," Bowman told Verify in an email.

What are the different types of pardons?

  • Full: This absolves a person of conviction in full, and from all of the consequence of the crime
  • Partial: Like its title, this only relieves a part of the crime or punishment, but not all.
  • Absolute: This is granted without any conditions or terms.
  • Conditional: There's something that must be fulfilled by the person who is looking to be pardoned before it would actually kick in. That could be by helping law enforcement with ID'ing a suspect, or helping with evidence.

You might also hear the word commutation thrown around. Those are similar to pardons, but instead, a commutation reduces a sentence -- either totally or just partially -- after a conviction for a crime, according to the U.S. Department of Justice. 

Someone can only get a commutation if they are already serving a sentence and aren't appealing their conviction.

According to the U.S. Department of Justice, a commutation reduces a sentence, either totally or partially, but does not change the fact of conviction, imply innocence, or remove civil disabilities, such as the right to vote or to hold public office.

So how do pardons work? Does anyone have to approve them?

There is a couple of ways that pardons work. People can petition to be pardoned --- those petitions are addressed to the president, who would then deny or accept the request. And as previously mentioned, presidents also have the power to issue a pardon on their own accord. But most of the time, those applying for pardons get reviewed by the Office of the Pardon Attorney, located in the Department of Justice.

Can a president pardon himself?

Back in 2018, Trump claimed it was possible, tweeting:  “As has been stated by numerous legal scholars, I have the absolute right to PARDON myself, but why would I do that when I have done nothing wrong?”

So, is that true? Well, the reality is a little more complicated. No one knows for sure because it’s never been done before, and there’s no official guidance in the Constitution. Here’s Professor Bowman’s take:

“My view is that constitutionally, he cannot," he told Verify. "Now that too is unresolved, nobody's ever tried it. Nobody in the history of Anglo-American law has ever tried it, including kings and queens."

Is it possible for Trump to pardon someone before they’ve even been charged with a crime? 

Yes, this is possible. Our source here is an 1866 Supreme Court case involving a Confederate attorney pardoned by President Andrew Johnson.

In that case, the Supreme Court said "the power of pardon conferred by the Constitution upon the President is unlimited except in cases of impeachment. It extends to every offense 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.”

So basically, there’s no requirement that a person must already have been charged or convicted in order to be eligible for a pardon. And past presidents have issued these types of pardons before. 

“If you remember after Nixon resigned, Ford ascends to the office as his vice president, and he pardons Nixon for any and all federal offenses that Nixon might have committed from the date of his inauguration to the date of his resignation, the broadest part in American history," Bowman explained.

A pardon as broad as Ford’s could face legal challenges, according to professor Bowman, but so far there’s never been an instance of a US presidential pardon being overturned.

So, can the president pardon... well, anybody?

For example, there's been some talk that President Donald Trump could pre-pardon members of his inner circle like attorney Rudy Giuliani, or even family members like Ivanka Trump and Donald Trump Jr. Could President Trump pardon his family members or inner circle?

We can verify that yes, this is possible. The Constitution doesn't restrict who can be pardoned, and a president has pardoned family members in the past. Back in 2001, President Bill Clinton issued a handful of pardons, one of which went to his half-brother Roger for a drug conviction. 

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