Presidential Pardon Power In The Spotlight

What Happened?

On August 25, President Trump pardoned former Maricopa County, Arizona Sheriff Joe Arpaio. Arpaio was convicted last month of criminal contempt for violating a federal judge’s order that he stop detaining people based solely on suspicion of their immigration status. Arpaio’s pardon—the first of Trump’s presidency—brings attention to the pardon procedure.

The Rundown

Article II, Section 2 of the Constitution gives the President the authority to “grant Reprieves and Pardons for Offenses against the United States.” The power only applies to federal crimes, as only governors can issue pardons for state offenses. The President has the sole, almost limitless power to determine who to pardon and why. The Constitution only excludes cases of impeachment from the President’s pardon authority. While there are rules governing petitions for executive clemency, they are only advisory. 

A presidential pardon will remove legal disabilities imposed because of a criminal conviction, but will not remove the conviction from the pardoned individual’s criminal record. Criminal convictions can only be removed from an individual’s criminal record through expungement, a judicial remedy granted by the court of conviction.

In most cases, the clemency process is lengthy and involves several levels of review within the Department of Justice before reaching the President. Typically, an individual seeking a pardon submits a detailed application form and character references to the Department of Justice’s Office of the Pardon Attorney (OPA). The applicant or any third party acting in support of the applicant may also submit any additional information he or she believes may have bearing on the application. The OPA reviews the applications and communicates with any agencies that may have been involved in the applicant’s case. After the application and all other relevant information has been reviewed, OPA submits a proposed recommendation to the Deputy Attorney General. In making its recommendation, the OPA considers the applicant’s post-conviction conduct, character and reputation; the seriousness and relative recentness of the offense; the applicant’s acceptance of responsibility, remorse, and atonement; and the applicant’s need for relief. The Deputy Attorney General makes a final recommendation on behalf of DOJ to the President. 

For the Record

President Trump did not consult with the Justice Department before announcing his decision to pardon Arpaio, though a DOJ spokesman acknowledged after the pardon was granted that “[t]he President exercised his lawful authority and we respect his decision.” 

The Take Home

For the typical applicant, the clemency process is long and the likelihood of success is unpredictable. The President is not bound by any rules regarding the applications he grants, or whether he even needs to consider applications at all.