The Presidential Power of the Pardon: A Dramatic Shift Over Time

Why did America’s founders give presidents such broad pardon powers? How has the presidential power of the pardon evolved from a tool of justice to an instrument of political favor?

The story of presidential pardons in America reveals a dramatic shift from their original purpose of promoting national unity and showing mercy to their modern use as political weapons. From George Washington’s pardons after the Whiskey Rebellion to Joe Biden’s unprecedented pardon of his son, these executive decisions have shaped American history in profound ways.

Keep reading to explore the fascinating transformation of America’s most sweeping executive power and its impact on justice, politics, and democracy.

The Presidential Power of the Pardon

In December 2024, US President Joe Biden became the first president to pardon his child. Just days earlier, President-elect Donald Trump named Charles Kushner—whom Trump had pardoned in 2020—as his nominee for US Ambassador to France. These developments mark a new chapter in the evolving story of America’s most sweeping executive power: the presidential pardon.

America’s founders created the presidential power of the pardon for federal offenses as a tool for justice and mercy, but later presidents have arguably used it as an instrument for political gain and personal favor. Despite growing controversy and calls for reform of presidents’ pardon power, the US Constitution makes presidential pardons virtually impossible to restrict or reform.

We’ll examine experts’ views on the important issues that surround the power of the presidential pardon.

Background

America’s founders gave the nation’s leader one of the most expansive powers imaginable: the ability to forgive federal crimes. The “pardon power,” which appears in Article II, Section 2 of the Constitution, allows presidents to “grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” Congress can’t limit or modify this power.

The founders included the presidential power of the pardon to serve as a check on harsh judicial decisions, maintain public order, and show mercy when the criminal justice system falls short. They separated pardoning authority from judicial functions to prevent any single entity from controlling both. 

During Constitutional debates, some delegates wanted to limit presidents’ pardon power by requiring Senate approval of pardons or forbidding the pardoning of treason. Anti-Federalists warned that corrupt presidents might pardon co-conspirators. Despite these concerns, the final document granted presidents expansive, unilateral pardoning authority with four types of lenience: 

• Pardons, which restore civil liberties
• Amnesty, which extends pardons to groups
• Commutations, which reduce sentences
• Reprieves, which delay punishments. 

The Federalist Papers (written by Alexander Hamilton, James Madison, and John Jay) outlines how the Constitution constrains the presidential power of the pardon. Importantly, the president may not issue pardons in cases of impeachment. This means that he isn’t allowed to inoculate his co-conspirators in high crimes and misdemeanors for which they have been duly punished by Congress. But it’s important that this power is vested in the executive branch. The legislative branch, composed of representatives of many parties and factions, is less able to use the pardon power fairly, especially in situations of national insurrection. A single, more sober-minded executive is able to wield their pardons more justly, wisely, and effectively. 

The US Department of Justice’s Office of the Pardon Attorney reviews cases and makes clemency recommendations, but its role is purely advisory. 

The US’s expansive interpretation of presidential pardon power distinguishes it from other democracies. Despite pardons originating from the British monarchy, modern British rulers use them sparingly. Meanwhile, Australia and Canada rarely grant pardons, preferring to address justice issues through shorter sentences and parole. Some experts say America’s more frequent use of pardons reflects its stricter sentencing practices and more punitive justice system.

Defining Presidential Pardon Power 

Supreme Court decisions have defined the scope of presidential pardoning authority:

• The 1866 Ex parte Garland ruling established the power as “unlimited,” allowing pardons for any federal offense at any time after it’s been committed. 
• In 1915, Burdick v. The United States added an important qualification: A pardon only becomes valid if the recipient acknowledges they’ve committed the offense.
• By 1981, Connecticut Board of Pardons v. Dumschat concluded that pardons fall outside the scope of judicial review—making them a purely executive function.

Early Presidential Pardons: Tools for National Unity (1789-1865)

America’s first presidents used pardons primarily to promote national healing and protect civil liberties.  

• George Washington pardoned two men convicted of treason in the Whiskey Rebellion, establishing that presidents could use clemency to calm civil unrest and promote unity.
• Andrew Johnson pardoned thousands of Confederate soldiers after the Civil War, aiming to heal a divided nation.

The Nixon Effect: Pardons Turn Political (1971-1992)

Richard Nixon’s presidency changed the use of pardons—first through his own controversial pardons, then by being pardoned himself, setting a seeming pattern of political favoritism. Nixon commuted labor leader Jimmy Hoffa’s corruption sentence after five years, despite Hoffa’s organized crime connections.

Gerald Ford pardoned Nixon a month after Nixon’s resignation, granting him immunity for any crimes he might have committed while in office. In An Ordinary Man, Richard Norton Smith writes that the decision, made privately with minimal consultation, became a defining moment of his presidency. He shared his deliberations only with his wife, citing several reasons for the limited involvement: preventing media leaks, avoiding party division, and ensuring he had time to understand his responsibilities, particularly regarding the Vietnam conflict.

According to Smith, Ford’s pardon of Nixon was framed as an act of compassion rather than a political calculation. Ford maintained that legal matters should be evaluated on their merits, separate from humanitarian considerations, even as the justice system examined the allegations against Nixon.

Smith explains that the aftermath of the pardon shifted national attention to other pressing issues such as the economy, energy policy, and domestic stability. However, the decision significantly damaged Ford’s public image. Gallup polls showed a sharp decline in his approval ratings, and his reputation for honesty and transparency suffered, particularly as the pardon lacked strong legal precedent or public support and relied partly on religious justification.

In the 1980s and 1990s, Ronald Reagan and George H. W. Bush appeared to continue the pattern. Reagan granted clemency to Yankees owner George Steinbrenner, who faced charges related to illegal Nixon campaign donations. Bush pardoned former Defense Secretary Caspar Weinberger and five others facing illegal arms sales charges in the Iran-Contra scandal.

Modern Era: The Personal Presidency (2001-Present)

The past two decades have seen an acceleration of controversial pardons arguably based on presidents’ personal relationships and political considerations.

• Bill Clinton pardoned his half-brother Roger, jailed on drug charges. 
• Barack Obama commuted Chelsea Manning’s 35-year espionage sentence after seven years. 
• George W. Bush commuted the sentence of Scooter Libby, former chief of staff to Vice President Dick Cheney, convicted of perjury and obstructing justice. 
• Donald Trump pardoned Charles Kushner, his son-in-law’s father and current nominee for Ambassador to France, who served time for tax fraud and witness retaliation. 
• Joe Biden became the first president to pardon his child, absolving his son Hunter of any and all federal crimes over an 11-year period.

Historians say these pardons reflect a broader shift away from established procedures, with presidents increasingly bypassing the Office of the Pardon Attorney’s formal review process.

Looking Ahead 

The future of presidential pardons appears likely to bring more controversy but few meaningful reforms. Constitutional amendments require overwhelming support from Congress and states, making significant changes unlikely.

Questions for Reflection & Discussion

1. In your opinion, should there be limits on a president’s power to pardon family members? What potential consequences—both positive and negative—could such limits have?
2. Compare the founders’ original vision for presidential pardons with how they’re used today. What key differences do you notice, and what might explain this evolution?
3. How do presidential pardons in the United States differ from similar powers in other democracies such as Britain, Australia, and Canada? What might these differences reveal about each country’s approach to justice?
4. Consider Gerald Ford’s pardon of Richard Nixon. Was this decision more beneficial or harmful to the nation? Support your answer with specific reasoning.
5. If you could propose one reform to the presidential pardon system while maintaining its constitutional status, what would it be and why?

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