Presidential pardons rarely get much attention except for the pre-Thanksgiving news stories showing the president posed with a turkey sparred from most of its relatives’ fate. Recently though, the 2020presidential election and its aftermath suddenly thrust the pardon power of the president into a lead story for most media outlets.
Would the president pardon himself? Could the president pardon himself? Would Joe Exotic's legal team manage to obtain a pardon for the subject of the "Tiger King: Murder, Mayhem and Madness" miniseries? These and a host of other questions circulated for months as the Trump presidency entered its final days.
It may help to take a look at the pardon process, as well as the extent to which presidential pardons shield a person from prosecution. For example, Steve Bannon, former White House advisor, was facing federal criminal charges until President Trump granted him a pardon on his last day in office.
The pardon freed Mr. Bannon from the cloud of criminal prosecution by the federal government. Still, apparently it did not stop local prosecutors in New York City from opening a criminal investigation into his activities.
A brief history of presidential pardon power
The power of the president to grant pardons can be found in the first clause of Article II, section 2 of the Constitution, which gives the president the power and authority to grant "reprieves and pardons for offenses against the United States, except in cases of impeachment." By referencing "offenses against the United States," the drafters of the Constitution limited presidential pardons to federal crimes.
The U.S. has two separate and distinct systems of government. States each have their own constitution, governing bodies, court systems, and laws, as does the federal government. It’s a concept known as “federalism.” A person accused of violating a federal law has a trial in a federal court presided over by a federal judge. If convicted of the offense, the sentence is served in a federal prison.
Similarly, violations of state laws are heard in state courts with the sentence, if any, served in a state-run prison. Some types of criminal offenses overlap the two systems. For instance, the sale of controlled substances may violate both state and federal laws, so a person granted a pardon by the president could not be prosecuted or punished for the federal crime. If serving time in federal prison, they would be released from custody.
The federal pardon would not, however, affect state law violations against the person. The presidential authority only applies to "offenses against the United States." Consequently, President Trump’s pardon of Steve Bannon may not prevent state and local prosecutors from investigating and charging him for state law violations.
How are presidential pardons granted?
The U.S. Department of Justice oversees an application process for presidential pardons that includes a written application and other documentation. The DOJ investigates the application, but that agency does not make the final decision about the request. Only the president has the authority to grant or deny a pardon.
President Trump granted pardons to 143 individuals and commuted the sentences of 94 others, which represented only 2% of the submitted requests. Because the president is not required to give a reason for his decision about granting a pardon, it may lead to speculation by those left out in the cold.
Pardons to former advisers, fundraisers, and the ex-husband of a Fox News host did not sit well with Joseph Maldonado-Passage, known to fans as “Joe Exotic.” His supporters were so confident that he would be released from serving the remainder of his 22-year prison sentence that they had a limousine ready to pick him up from federal prison. Responding to the presidential snub, Passage was quoted in a news report as accusing the president of favoring his friends.
Pardons in Oklahoma
Each state has its own system for granting pardons to individuals convicted of violating state criminal laws. For example, Oklahoma has a process in place that is very similar to the federal process.
Applications for a pardon must be submitted to the Oklahoma Pardon and Parole Board. Completed applications are investigated. Unlike the federal process that does not include a hearing on the application, the board in Oklahoma schedules a hearing upon completing the investigation. Although only the governor may grant a pardon, the board has the authority to deny a request or send it on to the governor for final approval.
The governor may follow the board’s recommendation and approve the pardon or elect to deny the pardon request. When the board of the governor denies a pardon request, the subject party must wait for at least one year before reapplying. A criminal defense attorney can be an excellent source of information and advice about pardons and other remedies. Moreover, they can help the general public make sure their pardon application stands the best chance of success.