ArtII.S2.C1.3.5 Scope of Pardon Power

Article II, Section 2, Clause 1:

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

Regardless of the type of clemency at issue, the President’s power extends only to “offences against the United States,” meaning federal crimes but not state or civil wrongs.1 One question the Supreme Court has addressed concerns the extent to which the pardon power reaches contempt of another branch’s authority; specifically, contempt of court. In the 1885 case The Laura, the Court recognized that the pardon power includes the power to remit fines, penalties, and forfeitures but noted an exception for “fines . . . imposed by a co-ordinate department of the government for contempt of its authority.” 2 Forty years later, the Court in Ex parte Grossman held that the President may pardon criminal (but not civil) contempts of a federal court.3 The Court explained that the independence of each branch of the federal government was “qualified” by “co-ordinating checks and balances of the Constitution” and thus did not “constitute a broadly positive injunction or a necessarily controlling rule of construction” on the question of the scope of the President’s pardon authority.4

Whether the Court’s ruling in Grossman extends to contempt of Congress is an open question.5 Supreme Court Justice Joseph Story, in his famous 1833 treatise Commentaries on the Constitution of the United States, asserted that contempt of Congress is excluded from the scope of the pardon power “by implication,” as presidential authority to pardon congressional contemnors would result in Congress being “wholly dependent upon his good will and pleasure for the exercise of their own powers.” 6 Nevertheless, in Grossman, the Court suggested that the remedy of impeachment would be sufficient to counter abuse of the pardon power.7 It appears that there is at least one historical example of a pardon of contempt of Congress, granted by President Franklin D. Roosevelt, which apparently went unchallenged in court.8

The textual exception to the pardon power, “in Cases of Impeachment,” likewise has not been the subject of sustained Supreme Court analysis. Historically, a similar exception under English law prevented a pardon from being pleaded to bar impeachment but still permitted pardon following conviction.9 The exception in the U.S. Constitution appears to have been understood to reach more broadly, however, with James Iredell remarking during the ratification debates that such “authority [is] not given to our President.” 10 And in Ex parte Wells, the Supreme Court noted in passing the English provision and referred to the impeachment exception in the Constitution as “an improvement upon the same.” 11

Ex parte Grossman, 267 U.S. 87, 113 (1925) (stating that phrase was included “presumably to make clear that the pardon of the President was to operate upon offenses against the United States as distinguished from offenses against the states” and recognizing that criminal, but not civil, contempt is pardonable); Young v. United States, 97 U.S. 39, 66 (1877) ( “But if there is no offence against the laws of the United States, there can be no pardon by the President.” ). back
114 U.S. 411, 413 (1885). back
267 U.S. at 122. back
Id. at 120, 122. Although the Court in Grossman did not find that separation of powers concerns warranted an exclusion of contempt of court from clemency’s reach, the Court had previously suggested that permanent judicial suspension of a required and legally valid final sentence “based upon considerations extraneous to the legality of the conviction or the duty to enforce the sentence” is an incursion on the President’s pardon authority. Ex parte United States, 242 U.S. 27, 37(1916); see id. at 42 (referring to “disregard of the Constitution which would result” from contrary ruling, as, among other things, “the right to relieve from the punishment fixed by law and ascertained according to the methods by it provided, belongs to the executive department.” ); but cf. United States v. Benz, 282 U.S. 304, 311 (1931) (concluding that judicial amendment of sentence during same court term to reduce length of imprisonment was judicial act “readily distinguishable” from act of clemency that “abridges the enforcement of the judgment” ). back
See Grossman, 267 U.S. at 118 (acknowledging view of former Attorney General that “the pardoning power did not include impeachments or contempts” but noting that “the author’s exception of contempts had reference only to contempts of a House of Congress” ). back
3 Joseph Story, Commentaries on the Constitution of the United States 353 (1833). back
Grossman, 267 U.S. at 121. back
See Townsend Freed, Feels ‘Vindicated,’ N.Y. Times (Apr. 19, 1938), back
4 William Blackstone, Commentaries on the Laws of England 399–400 (1765). back
Pamphlets on The Constitution of the United States 351 n.* (P. Ford ed., 1888); see also 3 Story, supra note 6, at 352 (stating that the President “possesses no such power in any case of impeachment” ). back
59 U.S. 307, 312 (1855); see also Nixon v. United States, 506 U.S. 224, 232 (1993) ( “The exception from the President’s pardon authority of cases of impeachment was a separate determination by the Framers that executive clemency should not be available in such cases.” ); ArtII.S2.C1.3.2 Historical Background on Pardon Power. back