The presidential pardon power is found in the Constitution, Article II, Section 2, which states
The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any subject relating to the Duties of their respective Offices, and he shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.
The pardon power is absolute except in cases of an impeachment. It is also noteworthy that there is no congressional check on the president’s pardon power.
From the very beginning, the pardon power was controversial. Many Founding Fathers found it a troublesome topic, primarily due to a history of its abuse by European regents. However, proponents of the power prevailed, with the only check being that of impeachment, which was necessary to maintain the balanced separation of powers as envisioned by the Founders.
Beginning with George Washington and the pardoning of those indicted and convicted of treason in the wake of the 1791 Whiskey Rebellion, the decisions on whom to pardon and when has resulted in ongoing debate, most recently culminating in the failure of President George W. Bush to pardon vice presidential chief of staff Scooter Libby. Washington did establish that the penultimate crime against the country (treason) was a pardonable one, but whether or not the offenders deserved it was another matter entirely – this though Virginia Governor Henry Lee had already issued a general pardon covering even those who had not yet been charged with a crime.
Andrew Johnson’s pardoning of the “common Southerner” after assuming the presidency in 1865 raised eyebrows, in addition to his refusal to extend blanket amnesty to the upper classes of Southern society, making the aristocrats he blamed for starting the Civil War apply individually for his forgiveness. President Jimmy Carter fulfilled a campaign promise by issuing a blanket pardon of Vietnam era draft dodgers (though, strategically, not pardoning war protesters, deserters, and those who received less-than-honorable discharges).
The primary reason for the controversy underlying many pardons is a simple one: second chances for serious offenses are always debatable. Every individual receiving a pardon has been subject to the system, and has been deemed worthy of some sort of stigma or punishment. It is a testament to the soundness of the pardon power, however, that pardon controversies are relatively rare in relation to the number of pardons actually granted (table showing pardon statistics, by administration, since 1945).
In recent years, the pardons of Richard Nixon by Gerald Ford, Patty Hearst by Bill Clinton (though her sentence was commuted by Jimmy Carter in 1976), Caspar Weinberger by George H.W. Bush and fugitive Marc Rich by Bill Clinton have become infamous examples of the use of the pardon power.
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