The pardon power is one of the most sweeping powers the president has under the Constitution. But Trump’s pardon Applications are raising new questions about its purpose and limits.
Some frequently asked questions and answers about the pardon power:
Where does the pardon power come from?
The power has its roots in the British monarchy — where it’s been traced back to seventh century kings — and from there back to amnesties granted by Greek, Roman and biblical kings.
The founders enshrined that power in Article II, Section 2 of the Constitution, which says the president “shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.”
Why did the founders include the pardon power in the Constitution?
Alexander Hamilton explained the reasoning in Federalist No. 74: “Humanity and good policy conspire to dictate, that the benign prerogative of pardoning should be as little as possible fettered or embarrassed. The criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel.”
In other words, a robust presidential pardon power is a necessary check on the criminal justice system.
Are there any limits to whom the president can pardon?
The Constitution itself contains only two restrictions: The pardon must be an offense against the United States — that is, a federal crime and not a state crime. Also, the president cannot use the pardon power to save himself or another official from impeachment.
Can the president pardon himself?
Because no president has ever tried it, the question has never been tested.
The strongest argument that the president can pardon himself is that the Constitution doesn’t say he can’t.
Brian Kalt, a Michigan State law professor who has studied the issue of self-pardoning for 20 years, said he believes that the president cannot pardon himself — but that there is a serious argument on the other side. “It certainly would not get laughed out of court the way some people seem to think,” he said.
However, most scholars believe that such a pardon would be invalid. First, the Constitution says that the president has the power to “grant” pardons — and a grant is something given to someone else.