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Platapus · 06-04-18, 03:39 PM

I wrote this post back in July 17. I hope it answers your question. This post has been updated with some new research I was able to come across.

The topic of Presidential pardons has come up on the Internets Tubes. Judging from the posts I have read on multiple forums, there are some misunderstandings about this. What better chance can I have to get all pedantic, bombastic, and pompous about something near and dear to me – policy

First of all, we need to understand the terminology. Despite the Constitution describing powers of pardon, what we are really talking about is powers of Clemency – Executive Clemency to be specific.

The President enjoys several different types of Clemency Powers

1. Commutation of Sentences – Reducing or removing the amount of time a convicted person has to serve in prison as a result of their conviction.
2. Respite– A temporary suspension of a sentence. Almost always used to delay the execution of a convicted prisoner to allow additional time for review
3. Remission – Just like a Commutation but applies to monetary fines. Commutations and Remissions are treated differently and the Executive has to render each separately.
4. Amnesty – A formal and irreversible decision that the government will not prosecute a person (or group of persons) for a specific crime or groups of crimes.
5. Pardons – The forgiveness of a crime granted after conviction. The crime and all its penalties are forgiven, but the fact of the conviction stays on the person’s record

Wait a minute. Secure the telephonic communication device there professor. Everyone on the Internet knows that President Ford pardoned Nixon and there was no trial no less a conviction. What gives?

Well technically Ford did not pardon Nixon and technically Ford did pardon Nixon.

Technically, what Ford issued was a Special Amnesty for Nixon, meaning that the federal government won’t prosecute Nixon for any crimes he may have committed. Amnesties are way better than Pardons as the issue of guilt never comes up. So why does everyone believe Ford pardoned Nixon?

Well Pardons are easier to understand and spell than Amnesty for one thing, but the real reason is that due to a circular definition, Amnesty is a type of Pardon… even though technically Amnesty is a type of Clemency, which is even harder to understand and spell. So to be really accurate, Ford issued Nixon a Type of Pardon, in which the specific type was a Special (limited) Amnesty. In the end, it really was a difference that made no difference.

This intermingling of the terms also appears in Ex Parte Garland 71 U.S. 333 (1866). It should be noted that this case only involved Mr. A.H. Garland. There is differing opinions whether this case established any precedent. This case becomes important later in this long and boring post of mine.

So now that we understand (kinda) that we are talking about Clemency, lets see what the Constitution says

“...he shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.”

We can forgive the writers for the slightly inaccurate use of the terms Reprieves and Pardons. Word meanings and what they encompass can change. Rest assured that where the Constitution states Reprieves and Pardons, what they meant was Executive Clemency.

But let’s look at the other words. The next phrase is “for offenses against the United States..” This limits what the president can apply his or her powers of Clemency to. Offenses against the United States are usually violations of Federal Law.

The President does not have Executive Clemency powers where state laws are involved. That clemency power is held by the governor of the state where the crime was involved (and that can get complicated depending on the extent of the crime). A good way to find out if a specific case is an “offense against the United States" is to look at the case title.

If the title of the case is “The United States v. John Dough it is about an offense against the United States. If the case is “The State of Ohio v. John Dough, it is not an offense against the United States, but an offense against the State of Ohio.

Is there anything other than state and federal offenses? Yes.

There are Crimes against the Court. These include perjury (but often there is a companion federal law that prohibits perjury) and Contempt of Court. It needs to be recognized that there is a difference between Contempt of Court and Criminal Contempt of Court. The former is a crime against the court and the second is a crime against the state/federal government.

The President does not have Executive Clemency power concerning Crimes against the Court. Even if the President pardons a person from violating any federal laws about perjury, the court still maintains power over Crimes against the court.

A moments careful thought should illustrate the wisdom of this exclusion from Executive Clemency. If the president could pardon anyone who commits perjury or contempt of court, it would be impossible to hold the president accountable for any wrong doings.

There are also Crimes against Congress. These also include perjury and contempt. Yes Contempt of Congress is a crime, but fortunately only when under oath so pretty much all the citizens are safe. But in any case, the President does not have Executive Clemency power concerning Crimes against the Congress.

Again, a moments careful thought should illustrate the wisdom of this exclusion from Executive Clemency. If the president could pardon anyone who commits perjury or contempt of congress, it would be impossible to hold the president accountable for any wrong doings.

The final phrase in the constitutional article is “except in Cases of Impeachment.”. Impeachment is a power of the congress and the the President does not have Executive Clemency power concerning impeachment.

Once again, a moments careful thought should illustrate the wisdom of this exclusion from Executive Clemency.

Can the President Pardon him or herself?

Yes and no. It depends on if Ex Parte Garland established precedence.
If it did then yes

If, however, Ex Parte Garland did not establish precedence, then no.

However, any presidential pardon will have no effect on any impeachment proceedings as impeachment is a power reserved to the Legislative Branch.

Some facts to consider:

1. The president enjoys a temporary immunity from prosecution of state and federal crimes during their time in office. This immunity used to cover immunity from civil prosecution but that was removed during the Bill Clinton administration. So if the president has temporary immunity from prosecution, there can’t be a conviction and therefore no way to pardon.

2. The president can, however, be impeached. As stated in the Constitution, the President does not have the power to issue pardons in cases of impeachment. Once the president is successfully impeached (meaning convicted), he or she is no longer the president and therefore has no Executive Clemency powers at all.

The only effect of a president pardoning him or herself will be that after they leave office, he or she would not be able to be tried for any of the crimes for which they received a pardon. The Supreme Court would certainly become involved in evaluating whether a president can pardon themselves.

Can the president issue a special amnesty on him or herself?

Now that’s an interesting question. Fortunately, the answer is no and the answer is not contained in the Constitution. There is a long standing tenet of Natural Justice that "no-one should be a judge in his own cause". If you want to impress people, that would be nemo judex in sua causa.

Chicks dig guys that can speak Latin....no, I can't back that up. They mostly just roll their eyes at you.

Well, technically, the president can issue a special amnesty on themselves. But there would be an excellent chance of impeachment as this would truly be flaunting presidential power over the law. Also, just as with a self-pardon, the SCotUS will become involved.

Just like a pardon, self-issuing a special amnesty won't prevent congress from using their authority to impeach.

This is one of the examples of why the interpretation of the Constitution can not be limited to only the words contained in the constitution but must incorporate those tenets that the writers felt did not need to be repeated. If a constitution were to list every single tenet, the document would be hundreds of pages long. This is why ScotUS justices spend most of their time reading both US and foreign case studies. If interpreting the constitution were just based on the text, we would not need a Supreme Court and sure would not need so many justices to agree.

Most likely much more than you ever wanted to know about Clemency. By the way, the same restrictions that apply to the President also apply to the individual Governors with respect to their legislation and courts.

So when you read that the president can pardon anyone for anything, they are mistaken. A great deal of thought has gone in to the balance of allowing Executive Clemency but also protecting against its abuse. Not a perfect system, but one that all the political parties in our country have used for their advantage.

06-04-18, 03:39 PM	#4769
Platapus Fleet Admiral Join Date: Oct 2006 Posts: 18,997 Downloads: 63 Uploads: 0	I wrote this post back in July 17. I hope it answers your question. This post has been updated with some new research I was able to come across. The topic of Presidential pardons has come up on the Internets Tubes. Judging from the posts I have read on multiple forums, there are some misunderstandings about this. What better chance can I have to get all pedantic, bombastic, and pompous about something near and dear to me – policy First of all, we need to understand the terminology. Despite the Constitution describing powers of pardon, what we are really talking about is powers of Clemency – Executive Clemency to be specific. The President enjoys several different types of Clemency Powers 1. Commutation of Sentences – Reducing or removing the amount of time a convicted person has to serve in prison as a result of their conviction. 2. Respite– A temporary suspension of a sentence. Almost always used to delay the execution of a convicted prisoner to allow additional time for review 3. Remission – Just like a Commutation but applies to monetary fines. Commutations and Remissions are treated differently and the Executive has to render each separately. 4. Amnesty – A formal and irreversible decision that the government will not prosecute a person (or group of persons) for a specific crime or groups of crimes. 5. Pardons – The forgiveness of a crime granted after conviction. The crime and all its penalties are forgiven, but the fact of the conviction stays on the person’s record Wait a minute. Secure the telephonic communication device there professor. Everyone on the Internet knows that President Ford pardoned Nixon and there was no trial no less a conviction. What gives? Well technically Ford did not pardon Nixon and technically Ford did pardon Nixon. Technically, what Ford issued was a Special Amnesty for Nixon, meaning that the federal government won’t prosecute Nixon for any crimes he may have committed. Amnesties are way better than Pardons as the issue of guilt never comes up. So why does everyone believe Ford pardoned Nixon? Well Pardons are easier to understand and spell than Amnesty for one thing, but the real reason is that due to a circular definition, Amnesty is a type of Pardon… even though technically Amnesty is a type of Clemency, which is even harder to understand and spell. So to be really accurate, Ford issued Nixon a Type of Pardon, in which the specific type was a Special (limited) Amnesty. In the end, it really was a difference that made no difference. This intermingling of the terms also appears in Ex Parte Garland 71 U.S. 333 (1866). It should be noted that this case only involved Mr. A.H. Garland. There is differing opinions whether this case established any precedent. This case becomes important later in this long and boring post of mine. So now that we understand (kinda) that we are talking about Clemency, lets see what the Constitution says “...he shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” We can forgive the writers for the slightly inaccurate use of the terms Reprieves and Pardons. Word meanings and what they encompass can change. Rest assured that where the Constitution states Reprieves and Pardons, what they meant was Executive Clemency. But let’s look at the other words. The next phrase is “for offenses against the United States..” This limits what the president can apply his or her powers of Clemency to. Offenses against the United States are usually violations of Federal Law. The President does not have Executive Clemency powers where state laws are involved. That clemency power is held by the governor of the state where the crime was involved (and that can get complicated depending on the extent of the crime). A good way to find out if a specific case is an “offense against the United States" is to look at the case title. If the title of the case is “The United States v. John Dough it is about an offense against the United States. If the case is “The State of Ohio v. John Dough, it is not an offense against the United States, but an offense against the State of Ohio. Is there anything other than state and federal offenses? Yes. There are Crimes against the Court. These include perjury (but often there is a companion federal law that prohibits perjury) and Contempt of Court. It needs to be recognized that there is a difference between Contempt of Court and Criminal Contempt of Court. The former is a crime against the court and the second is a crime against the state/federal government. The President does not have Executive Clemency power concerning Crimes against the Court. Even if the President pardons a person from violating any federal laws about perjury, the court still maintains power over Crimes against the court. A moments careful thought should illustrate the wisdom of this exclusion from Executive Clemency. If the president could pardon anyone who commits perjury or contempt of court, it would be impossible to hold the president accountable for any wrong doings. There are also Crimes against Congress. These also include perjury and contempt. Yes Contempt of Congress is a crime, but fortunately only when under oath so pretty much all the citizens are safe. But in any case, the President does not have Executive Clemency power concerning Crimes against the Congress. Again, a moments careful thought should illustrate the wisdom of this exclusion from Executive Clemency. If the president could pardon anyone who commits perjury or contempt of congress, it would be impossible to hold the president accountable for any wrong doings. The final phrase in the constitutional article is “except in Cases of Impeachment.”. Impeachment is a power of the congress and the the President does not have Executive Clemency power concerning impeachment. Once again, a moments careful thought should illustrate the wisdom of this exclusion from Executive Clemency. Can the President Pardon him or herself? Yes and no. It depends on if Ex Parte Garland established precedence. If it did then yes If, however, Ex Parte Garland did not establish precedence, then no. However, any presidential pardon will have no effect on any impeachment proceedings as impeachment is a power reserved to the Legislative Branch. Some facts to consider: 1. The president enjoys a temporary immunity from prosecution of state and federal crimes during their time in office. This immunity used to cover immunity from civil prosecution but that was removed during the Bill Clinton administration. So if the president has temporary immunity from prosecution, there can’t be a conviction and therefore no way to pardon. 2. The president can, however, be impeached. As stated in the Constitution, the President does not have the power to issue pardons in cases of impeachment. Once the president is successfully impeached (meaning convicted), he or she is no longer the president and therefore has no Executive Clemency powers at all. The only effect of a president pardoning him or herself will be that after they leave office, he or she would not be able to be tried for any of the crimes for which they received a pardon. The Supreme Court would certainly become involved in evaluating whether a president can pardon themselves. Can the president issue a special amnesty on him or herself? Now that’s an interesting question. Fortunately, the answer is no and the answer is not contained in the Constitution. There is a long standing tenet of Natural Justice that "no-one should be a judge in his own cause". If you want to impress people, that would be nemo judex in sua causa. Chicks dig guys that can speak Latin....no, I can't back that up. They mostly just roll their eyes at you. Well, technically, the president can issue a special amnesty on themselves. But there would be an excellent chance of impeachment as this would truly be flaunting presidential power over the law. Also, just as with a self-pardon, the SCotUS will become involved. Just like a pardon, self-issuing a special amnesty won't prevent congress from using their authority to impeach. This is one of the examples of why the interpretation of the Constitution can not be limited to only the words contained in the constitution but must incorporate those tenets that the writers felt did not need to be repeated. If a constitution were to list every single tenet, the document would be hundreds of pages long. This is why ScotUS justices spend most of their time reading both US and foreign case studies. If interpreting the constitution were just based on the text, we would not need a Supreme Court and sure would not need so many justices to agree. Most likely much more than you ever wanted to know about Clemency. By the way, the same restrictions that apply to the President also apply to the individual Governors with respect to their legislation and courts. So when you read that the president can pardon anyone for anything, they are mistaken. A great deal of thought has gone in to the balance of allowing Executive Clemency but also protecting against its abuse. Not a perfect system, but one that all the political parties in our country have used for their advantage. __________________ abusus non tollit usum - A right should NOT be withheld from people on the basis that some tend to abuse that right.