Presidential pardons: Settled Law, unsettled issues

“…certain aspects of the presidential pardoning power are so well-established that it is unlikely that any Court, conservative or liberal, will revisit them. For starters the power is extremely broad; it is vested by the Constitution in the president, and there is little that Congress can do to constrain it short of impeaching the president if they believe its exercise improper.

Although the Constitution speaks of “reprieves” and “pardons,” these words encompass more than what they might seem to entail. “Pardons,” for example, encompass amnesties and can be accorded people whose identities the president does not know and may be unable to determine. The first such pardon was issued in 1795 by George Washington to people who participated in the Pennsylvania Whiskey Rebellion, with Jimmy Carter’s pardon of Vietnam-era draft evaders being a more recent example. Pardons may also be conditioned on a person accepting certain restrictions on future behavior, including submitting to punishments not otherwise provided by law. Pardons need not follow convictions but can be issued before or during a criminal prosecution. The rationale for so-called “pre-emptive” pardons is that there is no point in requiring a person to live in fear of conviction or to go through a trial if the offense of which he is or might be accused would ultimately be pardoned. Pre-emptive pardons do, not, however apply to offenses not yet committed. The president can tell a thief not to worry about being convicted for the crime he has committed yesterday because he has pardoned him. But a pardon today cannot forgive a crime the thief commits tomorrow…”