U.S. President Can Forgive Federal Crimes

29 December 2008

(President Bush pardons 19 but rescinds one a day later)

By Michelle Austein Brooks
Staff Writer

Washington — President Bush granted 19 pardons and one commutation December 23, including a pardon of a man who died more than 20 years ago. But in what may be a presidential first, Bush rescinded one of those pardons a day later.

The U.S. Constitution gives the president the power to pardon, or forgive, people for their crimes. It also allows the president to issue commutations, or reductions in prison terms. Presidents can issue pardons at any time, but they are especially common in the last days of an executive’s term.

Among those pardoned by President Bush were people convicted of mail fraud, providing false statements to government offices, trafficking counterfeit goods, embezzlement and illegal drug distribution.

In a rare posthumous pardon, Bush forgave Charles Winters, who was convicted in 1949 of violating the Neutrality Act by conspiring to export aircraft to a foreign country. Winters, an Irish Protestant from Boston, helped supply arms to Jews fighting for an independent Israeli state. Although he served 18 months in a U.S. prison, Winters was considered a hero in Israel. Two others were also convicted in the case and pardoned by previous presidents. Winters died in 1984.

White House press secretary Dana Perino said the president rescinded his pardon of Robert Toussie after learning Toussie’s father had contributed more than $40,000 to the Republican Party. “The political contributions certainly were not known. It raises the appearance of impropriety, so the president prudently decided not to go through with the pardon,” Perino said December 24.

Toussie had been convicted of mail fraud and giving false statements to the U.S. Department of Housing and Urban Development. Perino said she was unaware of any other presidential pardons being rescinded; other White House officials said they are not certain if Bush is the first president to take this action. Some legal scholars have questioned in the U.S. media whether the Constitution grants the president the power to rescind a pardon.

So far, Bush has granted 190 pardons and nine commutations, less than half the number granted by Presidents Clinton and Reagan, the two most recent two-term presidents.

President's Authority

There are a few limitations on the executive power to pardon. A president can pardon only those convicted of federal crimes and cannot interfere with a state’s criminal or civil case. (Governors have the authority to pardon and commute sentences for those convicted of state law violations.) In addition, the president is prohibited from interfering with Congress’ right to impeach an official.

Specifically, Article II, Section 2, Clause 1 of the Constitution states, “The President shall … have power to grant reprieves and pardons for offences against the United States, except in cases of impeachment.”

These restrictions are an example of the checks and balances that the framers of the Constitution incorporated to ensure that each branch of government has rights and no single branch has overarching authority.

An executive pardon can be issued at any time. Typically, pardons are issued while a person is serving or after serving a sentence, but pardons can be issued even before a person is charged with a crime.

President Ford famously pardoned his predecessor, Richard Nixon, for all offenses he "committed or may have committed or taken part in" related to the Watergate scandal, though he had not been charged with any crimes. That pardon figured prominently as a campaign issue in Ford’s subsequent defeat by Jimmy Carter in the 1976 presidential campaign.

In rare cases, a president has issued a blanket pardon to an entire group, as President Carter did in 1977 when he pardoned those who avoided the military draft during the Vietnam War.

Because of the large number of people seeking a pardon or commutation, a president typically gets help from the Department of Justice in assessing these requests. The department’s Office of the Pardon Attorney reviews formal petitions. It typically receives more than 100 a month. After investigating the cases, the pardon attorney presents the petitions and related material to the attorney general. The attorney general reviews the information before deciding whether to recommend a particular pardon to the president.

A presidential pardon does not require the review or recommendation of the Department of Justice. Toussie’s case was not reviewed by the Department of Justice, but now will be as requested by the president when he rescinded the pardon. Some presidents have bypassed the department’s formal process to pardon people they knew personally.

More information on presidential pardons is available on the Web site of the Office of the Pardon Attorney.