Beyond The Turkey: Presidential Pardon Power

Posted On Wednesday, November 25, 2015

The President’s annual tradition of pardoning a turkey dates back to the 1870’s when turkeys became a regular gift to the White House for a holiday meal.  While some sources erroneously trace the origin of turkey pardoning to President Truman, his presidential library denies the claim and the White House Historical Association instead reports that, in 1989, President George H. W. Bush was the first President to “officially” pardon a turkey.  With the impending Thanksgiving holiday, and the final year of the Obama presidency approaching, we thought it would be appropriate to briefly examine Presidential pardon powers, albeit separate from turkeys per se.

Presidential pardon authority originates directly from the U.S. Constitution in Article II, Section 2:  “The President…shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.”  Beyond this broad power, there are federal rules and regulations governing presidential pardons as found in 28 CFR §§ 1.1 et seq., 28 C.F.R. §§ 0.35-0.36, and the Rules Governing Petitions for Executive Clemency.  Federal regulations also empower the DOJ’s Office of the Pardon Attorney to assist the President in the exercise of executive clemency, a general phrase which includes pardon, commutation of sentence, remission of fine, remission of restitution, or reprieve.  Requests for executive clemency begin with an application detailing the basis for the request which are submitted to the Office of Pardon Attorney.  The office investigates the request and prepares a report and recommendation for the President’s consideration and final approval.

Contrary to popular belief, though, a pardon does not “undo” a conviction.  As the Office of Pardon Attorney explains, a pardon is “an expression of the President’s forgiveness and ordinarily is granted in recognition of the applicant’s acceptance of responsibility for the crime and established good conduct for a significant period of time after conviction or completion of sentence.”  The Office of Pardon Attorney notes that a pardon “does not signify innocence” but it does “remove civil disabilities” resulting from a conviction.

Additionally, there are several procedural hurdles to obtaining a presidential pardon or clemency.  For example, naturally the President does not have authority to grant a pardon or clemency for a state conviction because the U.S. Constitution limits pardon power to “offenses against the United States.”  Further, 28 C.F.R. §1.2 states that defendants are not eligible to file a petition for pardon until at least five years after release from prison or five years after the date of conviction if imprisonment is not imposed.  Defendants seeking to have a sentence commuted must also exhaust all judicial or administrative remedies before filing a petition for commutation of sentence.