The events of the last week relating to the guilty pleas of Michael Cohen to eight felonies including violations of federal campaign finance law and a guilty verdict on eight felony counts against former Trump Campaign Chair Paul Manafort raise the specter of the power of a President to forgive crimes.
The United States Constitution allows a president to “grant Reprieves and Pardons for Offences against the United States, except in cases of Impeachment.” (Art. II, Sect. 2, Cl. 1) That means that in the event that a person is convicted of a Federal crime, either by a jury of their peers or by their own guilty plea, the president has some power. Let’s sort things out a bit more.
Pardon- Complete forgiveness of a crime; it is wiped off a person’s criminal record forever. For example, if a person is imprisoned and then pardoned by the President, they may go free and pay no fines, etc.
Commutation- A president also can “commute” or shorten a person’s sentence for being convicted of a crime. In other words, if a person’s sentence is commuted, the person can go free, but the crime is still on their record. If the crime being commuted is a felony crime, there are likely still post felony consequences, such as prohibition of ownership of certain weapons.
Who may a President pardon? The short answer is that a President may pardon anyone who is either charged or convicted of a federal crime, from the time that a charge is filed to after a sentence is served. The President may not pardon someone who has not yet committed an offense. There are formal applications that persons may make to receive a Presidential pardon, but there is no constitutional requirement that a pardon request must go through a committee or any other formal process. If a pardon is accepted prior to a criminal conviction, the practical effect is that a person who accepts a pardon agrees that they are guilty of a federal crime. Burdick v. United States, 236 U.S. 79 (1915).
May a president pardon himself or herself? The United States Constitution does not prohibit it, but the matter has never been litigated, nor has a President ever attempted to pardon himself for any acts. This issue would likely need to be decided by the United States Supreme Court.
What about state crimes? Certain state constitutions permit Governors the power to pardon persons. The State of North Dakota and the State of Minnesota vest the power to pardon and commute criminal sentences to their Governors, though each state’s process is slightly different. See N.D. Const., Art. V, Section 7; Minn. Const., Art. V, Sect. 7.
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