resident Trump’s pardon of his former national security adviser, General Michael Flynn, convicted of lying to the FBI, has understandably provoked outrage. House speaker Nancy Pelosi has publicly condemned it as “an act of grave corruption and a brazen abuse of power”. Fair or not, Trump’s controversial act of clemency is hardly unprecedented. Over the centuries, the traditional power of pardon has benefitted the good, the bad and the ugly.
As a sort of continuation of the old British royal prerogative of mercy, the presidential pardon was enshrined in article two, section two, clause one of the constitution of the United States in 1789. The power is described broadly and imprecisely: “…he shall have power to grant reprieves and pardons for offences against the United States except in cases of impeachment”.
The Supreme Court has confirmed that this includes commuting death sentences to imprisonment, early release, and broader amnesties. These bulk pardons covered confederates after the civil war (Abraham Lincoln, Andrew Johnson and Jimmy Carter), petty drug users (John F Kennedy) or Vietnam war draft dodgers (Carter). It also covers hypothetical but major crimes and misdemeanours not yet charged (Gerald Ford). However the clause only applies to federal offences rather than those in state courts, which has particular relevance for President Trump. Whether a president can pardon themselves has not been tested legally, though common sense suggests not. A pardon can be rejected; and of course it is not the same as quashing a conviction, and some argue acceptance implies guilt. Otherwise the power is unfettered, and there is no easy remedy for apparent abuse, which has been often claimed.