Presidential Transitions: Executive Clemency

In Section 2 of the Presidential Transition Act of 1963 (as amended; 3 U.S.C. 102 note), Congress declared that “[t]he national interest requires that [presidential] transitions … be accomplished so as to assure continuity in the faithful execution of the laws and in the conduct of the affairs of the Federal Government, both foreign and domestic.” The crux of such a transition is the transfer of executive power from the incumbent to the President-elect. The executive’s power manifests in a variety of processes with application to a broad range of policy areas and issues. CRS has produced a set of products examining selected processes and policies that may be of particular interest during a presidential transition. This In Focus discusses the use of executive clemency powers during a presidential transition. Other related products examine executive orders, government records, presidential appointments (executive branch), rulemaking, and presidential transitions generally.

Background

The President has few restrictions on how and when executive clemency may be exercised other than that it may apply only to offenses against the United States—thereby precluding state criminal or civil proceedings from its scope—and may not be used to interfere with Congress’s power to impeach. Forms of clemency may be broad, such as pardons, which provide an individual with unqualified release from punishment and which the President may issue at any time following commission, even before charges have been filed. While it is not frequently done, a President may bestow amnesty—a pardon on groups—as President Abraham Lincoln did when he granted amnesty to all persons who participated in the “rebellion” against the United States (with a number of conditions and exceptions). Less expansive forms of clemency include commutation, which substitutes a less severe punishment than the one given by a federal court; reprieve, which delays the execution of a sentence; and the remission of fines and forfeitures.

The President’s use of this authority may come under increased scrutiny during a period of transition, in part because Presidents have historically granted petitions for clemency at a higher rate in the closing months of their Administrations than earlier in their terms. Table 1 shows that since 1945, every President who completed his term of office, except President Lyndon B. Johnson, increased the rate at which he granted clemency in the final four months of his Administration when compared with his previous months in office.

Table 1. Average Monthly Clemency Petitions

Granted Prior to and During the Final Four Months of

Selected Administrations

President

Prior to Final

Four Months of Administration

Final Four Months of

Administration

Harry Truman 22 per month 25 per month

Dwight D. Eisenhower

10 per month 53 per month

Lyndon B. Johnson 21 per month 0 per month

Gerald Ford 11 per month 34 per month

Jimmy Carter 11 per month 20 per month

Ronald Reagan 4 per month 8 per month

George H. W. Bush

1 per month 10 per month

Bill Clinton 2 per month 65 per month

George W. Bush 2 per month 8 per month

Barack Obama 8 per month 296 per month

Donald Trump 1 per month 50 per month

Source: U.S. Department of Justice, Office of the Pardon Attorney.

Note: Clemency statistics include pardons, commutations, and remissions of fines. Figures have been rounded to the nearest whole number.

Controversial acts of clemency may be among those granted in the final months of an Administration, such as President George H. W. Bush’s pardon of key figures in the Iran-Contra affair on December 24, 1992—less than four weeks before the end of his term—and President Bill Clinton’s pardon of commodities trader Marc Rich, which was issued on President Clinton’s last day in office. More recently, President Obama commuted the sentence of Oscar Lopez Rivera, the leader of a Marxist Puerto Rican independence group that conducted more than 100 bombings and robberies on U.S. soil in the 1970s and 1980s, killing multiple people. In a relatively uncommon step, President Trump pardoned an individual who had not yet stood trial—Steve Bannon, who had been charged with defrauding donors who contributed to a fund to build a wall on America’s southern border.

Presidential Transitions: Executive Clemency

https://crsreports.congress.gov

Possible Congressional Concerns

Acts of Clemency Might Restrict Department of Justice Oversight of the Executive Branch Acts of clemency may impede or effectively end ongoing investigations into the conduct of executive branch officials by the Department of Justice. As previously noted, President George H. W. Bush pardoned six former officials from President Reagan’s Administration for their roles in the Iran-Contra affair, including two officials who had been indicted but had not yet been to trial. These pardons essentially ended the independent counsel’s criminal investigation, which had begun six years earlier. Congress may choose to continue investigations of executive branch officials even though the individuals have been pardoned and no charges could occur.

Acts of Clemency Might Have Implications for U.S. Foreign Relations In one of his last acts before leaving office, President George W. Bush commuted the sentences of two U.S. Border Patrol agents convicted of shooting a Mexican citizen who had crossed illegally into Texas. Mexico’s deputy secretary for foreign relations, Carlos Rico, protested the decision, calling it a “message of impunity” that is “difficult to understand.” The president of Mexico had previously filed a diplomatic protest over an incident in which a U.S. Border Patrol agent shot and killed a Mexican national. Given Mexico’s ongoing concerns about the treatment of immigrants in the United States, some might deduce that President Bush’s pardons may have harmed U.S.-Mexico relations.

Recent Legislation Regarding Clemency Congress has shown an ongoing interest in enhancing oversight of executive clemency. H.R. 5048, the Protecting Our Democracy Act, was introduced in July 2023, with 169 cosponsors. Section 102 of the bill would require the Attorney General to provide Congress with all materials prepared or obtained by the Department of Justice and the prosecution team in relation to pardons for certain offenses. Covered offenses include those that arise from an investigation in which the target or subject is:

• the President,

• a relative of the President,

• a political appointee of the President,

• an employee of an authorized committee to elect the

President to the office of the President, or

• a person or entity motivated by the “direct and

significant personal or pecuniary interest” of an individual in the previous four categories.

The materials would have to be submitted to Congress not later than 30 days after the date the President grants clemency. The bill has not been taken up by any of the subcommittees to which it was referred.

Garrett Hatch, Specialist in American National Government

IF12726

Presidential Transitions: Executive Clemency

https://crsreports.congress.gov | IF12726 · VERSION 1 · NEW

Disclaimer

This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan shared staff to congressional committees and Members of Congress. It operates solely at the behest of and under the direction of Congress. Information in a CRS Report should not be relied upon for purposes other than public understanding of information that has been provided by CRS to Members of Congress in connection with CRS’s institutional role. CRS Reports, as a work of the United States Government, are not subject to copyright protection in the United States. Any CRS Report may be reproduced and distributed in its entirety without permission from CRS. However, as a CRS Report may include copyrighted images or material from a third party, you may need to obtain the permission of the copyright holder if you wish to copy or otherwise use copyrighted material.