Every other Tuesday, the team behind Civics 101 joins NHPR’s All Things Considered host Julia Furukawa to talk about how our democratic institutions actually work.
The president has the power to pardon federal crimes, and that power has been used throughout history, with some pardons more controversial than others. Civics 101’s senior producer Christina Phillips joined Julia to talk about why presidents have this power and whether a president can pardon themselves.
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Transcript
What happens when someone is pardoned by the president? Do they no longer face legal repercussions like jail time? Or is it mostly symbolic?
So first of all, the president can only issue a pardon for a federal crime. So not a state crime, not civil liability, like being sued, and not if someone has been impeached.
But if a person gets a full pardon, they have all the punishment removed, essentially. So if they're incarcerated, they could be released hours after that pardon—that's happened before. A punishment could also be reduced or suspended. There's also sometimes stipulations to that. So you may be released from prison, but you may not get your full civil rights back. You may not be able to vote, for example.
And, it could be symbolic. Presidents have posthumously pardoned people or granted a pardon to someone after they've completed their sentence. And it's also not necessarily an acknowledgment of guilt either.
Why do presidents have pardoning power?
So pardons are designed to grant leniency or mercy for a crime if the punishment was too harsh, or [if] it no longer makes sense.
Let's say we had a way of charging people for drug crimes for years, and now that sentence is more lenient. A president may pardon and has pardoned drug crimes once the punishment was deemed a little too harsh.
The Constitution gives that power to the president, in part as a check on the judicial branch by the executive, but also because the president is the single most politically accountable office in government. The president has a lot of power to make individual decisions, but they also are accountable to the voters, accountable to Congress in the way that maybe a large system or Congress is not.
Can a president pardon themselves? Does the Constitution allow it?
Well, the Constitution doesn't specifically say that a president can pardon themselves, and it also doesn't say that they can't. So this hasn't been tested yet. We don't really know what would happen if a president pardoned themselves. We can guess. [Former President Donald] Trump, when he was president, floated the idea. But because we often interpret the law by applying it and interpreting it after something has already happened, it's not really clear. I don't think we'll get a clear answer until a president actually tries to pardon themselves.
But I do think, if you think in terms of crime and punishment in the United States, let's say I was charged with a federal crime, right? I could serve in my own defense. I could be my own defense attorney if I wanted, but I couldn't be my own prosecutor or my own jury or my own judge. So logically, you would think a president wouldn't be able to do that either. But, we choose them to have the power to uphold the Constitution and serve the best interests of the country. Whether or not pardoning themselves for a crime is in the best interest of the country, [is] up for debate, and hasn't really been tested.
Christina, throughout American history, there's been some highly controversial presidential pardons. Are there any checks on the president's pardoning power?
I think the most obvious check is being voted out of office. This happened with [former] President [Gerald R.] Ford after he pardoned [former President Richard] Nixon for crimes he may or may not have committed during Watergate. He was not reelected in the following term. And a lot of people believe that part of it is because people were not happy with him pardoning Nixon for those crimes.
Of course, if somebody is not up for reelection, there's not really that power. So this is why you see a lot of the most controversial pardons at the end of a presidency when someone's leaving office. For example, [former] President [Bill] Clinton pardoning his brother. People didn't like that. What are you going to do? He's not running for reelection. There is the possibility of [a] constitutional amendment, which again, we only have 27 for a reason. They're not easy to pass. They require a lot of partisanship. They require buy-in from the states. So there's not a ton of checks on this power that we know of right now.
