President Donald Trump was recently reported to have asked his lawyers to research the topic of how presidential pardons are given. See for example this online article by the NY Daily News. The speculation has been that, if investigations into alleged Russian interference with the 2016 US Presidential election implicate members of Mr Trump’s family, or even the President himself, he might exercise this power to excuse the accused person(s) from criminal penalties.
This raises some interesting questions, such as: what is a “presidential pardon”? And do equivalent powers exist in other countries?
A presidential pardon is an exercise of executive clemency, which means that a government official is given authority to override normal prosecution and criminal punishment processes. A process of this kind exists in most countries. Sometimes it can even be exercised after a person’s death, for example by making a declaration that a person will no longer be considered guilty of a crime they were found by a court to have committed.
In the US, the President’s power to grant pardons is established by the US Constitution, Article II, section 2. This power has been interpreted widely by the US Supreme Court, and the Constitution’s words don’t restrict the persons to whom the power can be applied. There is, however, a restriction on the power being used in the case of impeachment, which means a process to remove a person from office because of serious misconduct. Whether Mr Trump or any other US President could use the power to exonerate themselves is an interesting question, which would probably end up being settled by the US Supreme Court. But it is at least clear that it can’t be used to rescue a person from impeachment.
The idea of execuitive pardons has been around for a long time. In the UK, it is called the royal preorogative of mercy, and is exercisied by the monarch (HM Queen Elizabeth) to pardon persons who have been convicted of criminal offences. This might be done for a range of different reasons. For example, in 2013 a royal pardon was given to the pioneer British computer scientist, Alan Turing, who was convicted of indecency offences in 1955 because he was a homosexual. Times have changed, gay people are no longer treated as criminals in most Western countries, and it was considered appropriate to give Mr Turing, who had worked brilliantly behind the scenes for his country duting World War 2, a pardon.
We can see, by this example, how the power to pardon can be a corrective factor for injustices perpetrated by outdated laws and attitudes. But, like any other governmental power, it also has the potential to be abused.
[This post was written by James Irving of Irving Law, Australian commercial lawyers based in Perth, Western Australia. It is not intended as legal advice for any particular person. Photo credit: Donald Trump by Gage Skidmore, a public domain image pubished by Wikimedia Commons and used here under a CC BY-SA 2.0 licence.]