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The pardon power in the United States Constitution has its roots in English history, where it was known as the "prerogative of mercy." This practice dates back to the seventh century during King Ine of Wessex's reign. Over time, there were many abuses of this power, which led to some restrictions on it. Nevertheless, the pardon power continued during the colonial period in America. At the Constitutional Convention, Alexander Hamilton proposed incorporating a pardon power. There was discussion about whether Congress should be involved in this power, and the Senate ultimately had a say in approving presidential pardons. The delegates also considered whether treason could be pardoned. In the end, the Constitution granted the president broad pardon powers in Article II, showcasing a strong example of executive authority. The framers made sure to keep the judicial function separate from the pardon power. They were influenced by English jurist William Blackstone, who warned against giving the same person the power to judge and pardon. Additionally, they believed that if the president could pardon subordinates for treason, it might lead to risks of impeachment and removal from office.
There are many different types of clemency that fall under the president’s power. They include: pardon, amnesty, commutation, and reprieve. A pardon releases a person from punishment and restores all civil liberties. Amnesty is the same as the pardon but is extended to an entire class of individuals. Commutation reduces the sentence imposed by a federal court. A reprieve delays the imposition of a sentence or punishment.
Why do presidents have pardoning power in the first place?
Why do presidents have pardoning power in the first place?
Alexander Hamilton, articulated the rationale for presidential pardons in the Federalist Papers when he wrote in No. 74 that “without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel.” So, as with so many things in the American civic structure, the idea is that the pardon provides checks and balances against the judiciary system; there has to be an out somewhere in the system.
Alexander Hamilton, articulated the rationale for presidential pardons in the Federalist Papers when he wrote in No. 74 that “without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel.” So, as with so many things in the American civic structure, the idea is that the pardon provides checks and balances against the judiciary system; there has to be an out somewhere in the system.
In the Constitution, the president’s power to pardon for federal crimes is outlined in Article II, Section 2, which gives the Commander-in-Chief power to “grant Reprieves and Pardons for Offenses against the United States” (though not in “cases of impeachment”). But, though other historical documents like the Federalist Papers can offer clues into the Founding Fathers’ mindsets, suggesting they were concerned with mercy and justice, nothing is specified in the Constitution itself about why and when that power should be used.
The power to give pardons is strong but comes with three key limits. First, a pardon can only be given if a crime has been committed. Second, the president can only grant pardons for federal crimes. Finally, pardons cannot be issued in cases of impeachment. Aside from these points, there are no other constitutional limits on the president's authority to grant pardons.
Since then, presidents have used the power for a number of reasons that go beyond addressing miscarriages of justice. Those reasons—in which there’s no argument that the person is innocent but rather some other factor in play—range from maintaining public order to appealing to minority voters to simply pardoning old friends or political allies.
Gerald Ford pardoned his predecessor Richard Nixon over the Watergate scandal.
He argued it was essential for the nation to move on. It is a decision still debated today - some say it cost him the 1976 election, others that he made the difficult, but right, choice.
Presidents have made sweeping pardons to heal national wounds, such as when President Andrew Johnson pardoned Southerners after the Civil War.
Bill Clinton caused uproar when he pardoned scores of people on his last day in office, including a brother-in-law and Marc Rich, a fugitive who had been indicted for tax evasion and fraud.
Obama has pardoned more than a dozen drug offenders convicted of using or distributing cocaine. He described the moves as an attempt to rectify disparities in the justice system that sent more African-American offenders to prison for crack cocaine convictions.
Obama described the system as unfair that more harshly penalized crack-cocaine offenses compared to powder-cocaine distribution and use.
In using his power to pardon these offenders, Obama called on lawmakers to ensure "taxpayer dollars are spent wisely, and that our justice system keeps its basic promise of equal treatment for all."
Perhaps the most famous beneficiary of President Obama's clemency was Chelsea Manning, the US Army Private sentenced to 35 years in jail for leaking documents to Wikileaks.JoeUS President
Joe Biden issued an official pardon for his son Hunter, who was set to face sentencing this month on federal felony gun and tax convictions Republicans criticised Biden's decision after the president previously said he would not pardon his son.
"With this decision, Biden has now made it easier for Trump to abuse the clemency power again," Jeffrey Crouch, a legal expert from American University, told CBS, the BBC's US partner. "If presidents from both political parties feel free to abuse clemency without consequence, the pardon power becomes less a tool of grace and more of a political instrument."
Presient elect Trump announced that he was nominating one of his 2021 pardon recipients - Charles Kushner, the father of his son-in-law Jared Kushner – to be US ambassador to France. Kushner had been convicted of campaign finance violations, tax evasion and witness tampering in 2005 and served two years in prison.
'Under the US constitution, the president has broad, unilateral pardon powers, but pardons are traditionally reviewed by the justice department. Many of Trump’s pardons, however, seem to clash with department standards – and are instead bestowed as a means to reward allies or act on grudges. Only five of 65 pardons and commutations Trump issued before Wednesday were recommended by the justice department pardon attorney, according to a tally by the Harvard law professor Jack Goldsmith.
Manafort, 71, was sentenced for convictions including unregistered lobbying, tax fraud, bank fraud and money laundering. Stone, 68, was convicted of lying to Congress and obstructing a congressional investigation into whether the Trump campaign colluded with Russia to win the 2016 election. “Mr President, my family & I humbly thank you for the Presidential Pardon you bestowed on me. Words cannot fully convey how grateful we are,” Manafort tweeted on Wednesday night.
A presidential pardon does not shield someone from state charges, and the Manhattan district attorney, Cyrus Vance Jr, is still looking to prosecute Manafort for state crimes. Trump’s pardon “underscores the urgent need to hold Mr Manafort accountable for his crimes against the People of New York as alleged in our indictment, and we will continue to pursue our appellate remedies”, Danny Frost, a spokesman for Vance, told CNBC. A judge had previously blocked Vance from advancing his case, to protect Manafort from being prosecuted twice for the same crimes.
A Trump lawyer reportedly offered pardons to Manafort and Flynn as they were approached by federal investigators – raising suspicions that the pardons were proffered in exchange for loyalty to Trump. The New York Times first reported the news in 2018. In his report following the investigation, Mueller wrote: “Many of the president’s acts directed at witnesses, including discouragement of cooperation with the government and suggestions of possible future pardons, occurred in public view.”
Adam Schiff, the Democratic representative of California who prosecuted the impeachment trial of Trump, said: “During the Mueller investigation, Trump’s lawyer floated a pardon to Manafort. Manafort withdrew his cooperation with prosecutors, lied, was convicted, and then Trump praised him for not ‘ratting’. Trump’s pardon now completes the corrupt scheme.”
“Lawless until the bitter end,” Schiff tweeted.
The congressman also noted that many serving time in federal prisons had been convicted of non-violent crimes and deserved a reprieve. “But who does Trump pardon? Those who lie, cheat or steal for him and his family,” Schiff said.
Charles Kushner, 66, pleaded guilty to tax evasion and lying to the Federal Election Commission. He also pleaded guilty to witness tampering, after he retaliated against his brother-in-law William Schulder, who was cooperating with federal investigators. Kushner was accused of hiring a sex worker to seduce Schulder, videotaping the encounter and sending the tape to Schulder’s wife – Kushner’s sister.
Another twist: Kushner was prosecuted by Chris Christie, a former US attorney and New Jersey governor who has been a Trump loyalist.
The executive director of the watchdog group Citizens for Responsibility and Ethics, said: “In pardoning Paul Manafort, Roger Stone and Charles Kushner, President Trump has made it clear that he believes the purpose of the pardon is to bail out rich white men connected to him. Trump has turned an instrument of mercy and justice into just another way for him to be corrupt.”
So could Trump pardon himself?
So could Trump pardon himself?
The short answer is we do not know, given the short wording but broad application of the constitution, and the fact there is no precedent for a US leader issuing such a pardon.
Some legal experts say no, citing an opinion issued by the Justice Department days before Richard Nixon's resignation that he could not pardon himself "under the fundamental rule that no one may be a judge in his own case".
"The Justice Department was right that guidance could be found in the enduring principles that no one can be both the judge and the defendant in the same matter, and that no one is above the law," wrote Laurence H Tribe, Richard Painter and Norman Eisen in the Washington Post
Others though say the Constitution does not preclude a self-pardon.
"A self-pardon might well be outrageously improper... but the response the Constitution creates for such misconduct is impeachment, a political rather than criminal remedy," Mark Tushnet, a law professor at Harvard University.
Legal analysts are divided on whether a president can pardon themselves. A recent study of law school faculty showed that there is no clear agreement among legal experts about the constitutionality of self-pardons, especially since no U.S. president has ever tried it. Some constitutional scholars believe that the Constitution does not specifically ban this action since Article II places few limits on presidential pardon powers. Others argue that a president cannot pardon themselves because of the principle that one cannot judge their own case and the rule that a president cannot grant a pardon in cases of impeachment. Nonetheless, the question remains unresolved, as there is no historical precedent to clarify the issue.
Is accepting a pardon an admission of guilt?
Is accepting a pardon an admission of guilt?
President Gerald Ford argued that it was and pointed out a quote from the Burdick v. United States (1915) decision that concluded a pardon “carries an imputation of guilt; acceptance a confession of it.” However, such statement was included in dicta, or legal commentary found within a judicial opinion that does not establish precedent. Other presidents have not shared Ford’s belief that a pardon’s acceptance signified guilt. For example, President George H.W. Bush pardoned former Secretary of Defense Caspar Weinberger and others involved in the Iran-Contra scandal because he felt they were innocent of wrongdoing; he claimed such individuals had fallen victim to “the criminalization of policy differences” and used the pardon power to correct legal judgments and prevent other errors from occurring.
Who might Trump Pardon in his second term?
Who might Trump Pardon in his second term?
Steve Bannon, a right-wing figure and former chief strategist for Trump, was found guilty of two counts of contempt of Congress for not following a subpoena related to the January 6, 2021, Capitol riot. He was sentenced to four months in prison, which he completed in October. Bannon might receive clemency from Trump, who had previously pardoned him for his involvement in a fundraising scheme for the U.S.-Mexico border wall. Following that, New York state prosecutors began their own investigation into the situation.
Peter Navarro, a former adviser in Trump's White House, was released from a Miami federal prison in July after serving a four-month sentence for avoiding the House committee investigating January 6. Although he could be a candidate for a pardon from Trump, Navarro has stated he is not seeking clemency and hopes that his ongoing appeal will reach the Supreme Court.
In the case regarding federal classified documents, Trump faces charges along with two others: his valet, Walt Nauta, and Carlos De Oliveira, the property manager at Mar-a-Lago. Although the case against them was dismissed, special counsel Jack Smith is appealing that decision for Nauta and De Oliveira, as they do not enjoy the temporary immunity that applies to Trump. This means Trump might still pardon his former co-defendants.
Many of Trump's associates are unlikely to receive pardons, as they face state charges related to attempts to overturn the 2020 presidential election, while presidential pardons only apply to federal offenses.
Trump has consistently promised to pardon those accused of storming the Capitol on January 6. He stated that once he wins, he would review the cases of political prisoners unfairly treated by the current administration and would sign their pardons immediately.
Trump has expressed sympathy for New York City Mayor Eric Adams, who is facing federal corruption charges. He mentioned that he predicted Adams would be indicted. When asked if he had discussed a pardon with Trump, Adams deflected the question, stating that his legal team would manage his situation and that a pardon was not on his agenda.
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