A Presidential Pardon Primer

Jack Johnson, Scooter Libby and Danesh D’Souza were all recently pardoned by former President Donald Trump, trending a lot of talk about just how a president’s pardon power is to someone. It certainly sounds like an incredible thing. But just what does a pardon from the president mean? And how do you get one?

A presidential pardon is ordinarily a sign of forgiveness, and grant reprieves are granted in recognition of the applicant’s acceptance of responsibility for their committed crime. A full pardon is not a sign of vindication, and does not connote or establish innocence. For that reason, when considering the merits of a presidential pardon petition, officials take into account the petitioner’s acceptance of responsibility, remorse and atonement for the offense.

The process of receiving a presidential pardon may take many years, and, as in the case the Trump pardon of Jack Johnson, may only conclude after your death. To qualify for a relief, the petitioner must wait five years from the end of their release from any confinement or sentencing. A request by the office of the pardon attorney for a waiver of this waiting period may be requested but is very rarely granted.

The president’s pardon power, granted by the U.S. Constitution, can also only pardon federal criminal convictions; governors and other state authorities have the power to pardon state criminal convictions. In Washington, D.C., there is an unresolved dispute as to who has the power of clemency for criminal convictions—the Mayor of D.C. or the President of the United States?

The first step to then receiving a presidential pardon requires a detailed application. Pardon officials conduct a very thorough review in determining a petitioner’s worthiness for relief. Accordingly, you should be prepared for a detailed inquiry into your personal background, family members and current activities.

Among the factors entering into this determination are the nature, seriousness and recentness of your offense(s), your overall criminal record, any specific hardship(s) you may be suffering from because of the conviction(s), and the nature and extent of your post-conviction involvement in community service, or charitable or other meritorious activities.

The Constitution grants that presidential pardon power pardons is vested in the president alone, and no hearing is held on the pardon application. You will be notified, in writing directed to the last address you provided during the pardon process, when a final decision is made on your petition. If your petition is denied, you may not receive any information as to why, and you may submit a new petition for consideration two years from the date of denial.

If you become one of the lucky recipients of a presidential pardon, it may not be what you’re expecting: While a pardon will restore various rights lost, and should lessen some of the stigma from your conviction, it will not erase or expunge the record of your conviction. Therefore, even if you are granted a pardon, you must still disclose your conviction on any form where such information is required—although you may also disclose the fact that you received a pardon.

In addition, civil disabilities, such as the loss of the right to vote and hold state public office, are imposed by state rather than federal law; they may also be removed by state action. Because the federal pardon process may be more exacting than a state procedure, you may wish to consult with the appropriate authorities in your state to restore your civil rights.

The process of obtaining a pardon can be confusing and extensive. A petitioner will be extensively benefitted by seeking the advice of a reputable and experienced attorney who can assist in preparing and filing the application correctly. 

For more information on this area of law, see our overviews of white collar crime, criminal defense and federal crimes.