Former President Gerald Ford died on December 26, 2006. When Ford took the Presidential oath of office on August 9, 1974, he declared, “I assume the Presidency under extraordinary circumstances . . . This is an hour of history that troubles our minds and hurts our hearts.” In stating this he was referring to the Watergate scandal and President Nixon’s involvement in its cover-up. Shortly after taking office, President Ford made the most controversial decision of his presidency – he granted a Presidential pardon to former President Nixon for official misconduct which gave rise to the Watergate scandal.

The Presidential power to pardon is granted under Article II, Section 2 of the United States Constitution which states, “The President … shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.” Presidential pardons where discussed during the 1787 constitutional Convention with little fanfare. Alexander Hamilton, a Founding Father suggested that, “[I]n seasons of insurrection or rebellion, there are often critical moments, when a well-timed offer of pardon to the insurgents or rebels may restore the tranquility of the commonwealth.” In addition to restoring peace, it has often been argued that a pardon is a tool that can be used to resolve judicial error when all legal appeals have been exhausted.

In recent times, we have seen many controversial Presidential pardons. In addition to the Nixon pardon, Jimmy Carter granted pardons to Vietnam-era draft evaders. George Bush senior pardoned six Reagan administration officials connected to the Iran-Contra affair. On Bill Clinton’s last day in office he pardoned 140 people including convicted fugitive Marc Rich. The power to pardon is available to the president largely without limitation – the only exception being for the crime of impeachment. In making the decision on who to pardon, the president will often turn to the federal Office of the Pardon Attorney for assistance.

The Office of the Pardon Attorney, in consultation with the Attorney General or his designee, assists the President in the exercise of Presidential pardons as authorized under Article II, Section 2, of the Constitution. Under the Constitution, the President’s pardon power extends only to federal criminal offenses. All requests for executive pardon for federal offenses are directed to the Pardon Attorney for investigation and review. The Pardon Attorney prepares the Department’s recommendation to the President for final disposition of each application. Executive clemency may take several forms, including pardon, commutation of sentence, remission of fine or restitution, and reprieve. Although the Pardon Attorney will make recommendations, the president is not bound in any way to abide by those recommendations.

Given the nature of a presidential pardon, one will rarely be given that does not generate controversy at the time that it is granted. In some instances, the controversy will never subside, in others, like Nixon, history will demonstrate that the decision to grant a pardon was indeed the right decision.

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