Presidential Transitions: Executive Clemency

Presidential Transitions: Executive Clemency

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INSIGHTi
Presidential Transitions: Executive Clemency
November 24, 2020
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
Insight 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 general y.
Background
The President has few restrictions on how and when executive clemency may be exercised, other than it
may apply only to offenses against the United States—thereby precluding state criminal or civil
proceedings from its scope—and it 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 not frequently done, a President may bestow amnesty—a pardon on
groups—as President Abraham Lincoln did when he granted amnesty to al persons who participated in
the “rebel ion” 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 historical y have 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.
Congressional Research Service
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CRS INSIGHT
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Table 1. Average Monthly Clemency Petitions Granted, Prior to and During the Final Four
Months of Selected Administrations
Prior to Final Four Months of
Final Four Months of
President
Administration
Administration
Harry S. 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 R. Ford
11 per month
34 per month
Jimmy Carter
11 per month
20 per month
Ronald W. Reagan
4 per month
8 per month
George H.W. Bush
1 per month
10 per month
Wil iam J. Clinton
2 per month
65 per month
George W. Bush
2 per month
8 per month
Barack Obama
8 per month
300 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 Wil iam J. Clinton’s pardon of
commodities trader Marc Rich, which was issued on President Clinton’s last day in office.
Possible Congressional Concerns
Acts of Clemency Might Restrict Department of Justice Oversight of the Executive
Branch
Ongoing investigations into the conduct of executive branch officials by the Department of Justice may
be impeded or effectively ended by acts of clemency. 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
essential y 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 c rossed il egal y into Texas.
Mexico’s Deputy Secretary for Foreign Relations, Carlos Rico, protested the decision, cal ing it a
“message of impunity” that is “difficult to understand.” The President of Mexico previously had filed a
diplomatic protest over an incident in which a U.S. Border Patrol agent shot and kil ed a Mexican
national. Given Mexico’s ongoing concerns about the treatment of immigrants in the U.S., some might
deduce that President Bush’s pardons may have harmed U.S.-Mexico relations.

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Author Information

Garrett Hatch

Specialist in American National Government

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.
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