Law Library Blog

The Presidential Pardon Power by Jeffrey Crouch. Published by University of Kansas Press in 2009.  KF9696 .C76 2009

The presidential power to pardon is granted under Article II, Section 2 of the Constitution:”The President … shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.”   The Constitution provides no standards or guidelines, and only one limitation — no pardons for the impeached.

Professor Crouch explores all aspects of the pardon from historical ones to those of recent times, arguing that more recent cases have demonstrated a disturbing misapplication of power. The framers of the Constitution wanted the President to be able to use the clemency power to act quickly to defuse volatile situations that required one person to act quickly. Alexander Hamilton, in Federalist paper 74, said: “… in seasons of insurrection or rebellion, there are often critical moments, when a well-timed offer of pardon to the insurgents or rebels may restore the tranquility of the commonwealth.”

He argues that recent presidents have misused the clemency power to pardon subordinates or reward supporters. He suggests that rather than amending the constitution to “fix” the problem of pardons that abuse the system, the Congress should use the impeachment clause of Article II, Section 4 of the Constitution to punish presidents who exploit the clemency power. However, the temptation to abuse the clemency power is strongest during the final days of a presidential term, as for example, President Clinton’s 140 pardons and 36 commutations made in the two hours before he left the presidency. Crouch concludes that “we need to decide, as a nation, that last-minute clemency abuses will not be tolerated. When a president abuses the clemency power, we need to decide that his actions will trigger real sanctions… It is only by punishing presidents who exploit the clemency power that we can uphold the rule of law, and–ultimately–preserve and defend our Constitution.”