The Power of Presidential Pardon
The Power of Presidential Pardon
by Julia Fair and Adrienne Tong
“The pardon power is absolute.”
-Susan Bloch, Georgetown University constitutional law professor
“But the principal argument for reposing the power of pardoning in this case to the Chief Magistrate is this: 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; and which, if suffered to pass unimproved, it may never be possible afterwards to recall.”
Recently, pardoning has been thrown into the spotlight because of President Trump's choice to pardon Sheriff Joe Arpaio. This breaks the historical convention in multiple ways.
The primary concern regarding this is the potential that the current president might be more free with his use of pardons. If he is already willing to use them this early in his presidency, is this an indicator he will use more? With only several months under his belt, it is difficult to decide if this is an emerging pattern, an outlier, or even significant in any way.
Most pardons issued by sitting presidents have happened after the person has served some of the sentence they are given. In this case, President Trump pardoned the Sheriff before the case had even gone to trial. As indicated earlier, it is difficult to determine how significant this is so early in a presidency.
Previously Pardoned
Previously Pardoned
Historically, most presidents are incredibly hesitant to use the power of the pardon. Frequently this is attributed to the potential effect it would have on their ability to get re-elected. Many used this power sparingly, recognizing that it would impact them and the lives of many others.
Over time, the use of presidential pardon has decreased significantly. However, there is a clear trend that most presidents wait until their last year of their last term in office to do the majority of their pardons.
The Self Pardon
The Self Pardon
Another one of the reasons that the power of presidential pardon has burst into the spotlight recently is the murmurs that President Trump is looking into the legal ability to pardon oneself. This topic is very closely tied with the Russia investigation.
Scholars are divided on the question of whether a president can pardon themselves, and many find multiple issues with it.
Bloch said if President Trump pardons himself, it might be so he could obstruct justice, bypassing what a judge might see fit for punishment.
Some scholars have posed that the precedent Gerald Ford created when he pardoned former President Nixon after the Watergate Scandal might happen again, but with a twist.
Bloch said Trump could pardon his son, son-in-law and other admins possibly involved in the Russian investigation. Then, Mike Pence could pardon President Trump.
No other President has ever pardoned their own relative, Boch said. If that happens, it will be a completely new scenario for the public to digest.
