When Attorney General William Barr announced in early May that his Justice Department would drop its case against admitted felon Michael Flynn, it was seen by some as a way to circumvent what would have almost certainly been a contentious effort by President Trump to simply pardon his former national security adviser. Trump strongly hinted at the move while glancing at how presidential pardons actually work, when he told reporters just days earlier that "I’m not the judge, but I have a different type of power."
The "power" the president was not-so-subtly bragging about is, in all likelihood, his ability to pardon or commute the sentence of people who have broken federal law, as ordained in Article II, Section 2 of the United States Constitution.
Pardons are one of the few largely unchecked areas of presidential authority in existence, and has been used by presidents to both right perceived wrongs, and — some critics allege — repay political favors in certain cases. It's also one that Trump himself has exercised, albeit it far less than his predecessor President Barack Obama, who holds the record for presidential pardons at nearly 2,000 cases.
So, how do presidential pardons work?
First, let's make a few things clear. The phrase "presidential pardon" is sometimes used as a shorthand term for different acts: outright pardons, and commutation. As the Justice Department explains on its website:
A commutation of sentence reduces a sentence, either totally or partially, that is then being served, but it does not change the fact of conviction, imply innocence, or remove civil disabilities that apply to the convicted person as a result of the criminal conviction.
A pardon, meanwhile ...
... is an expression of the president’s forgiveness and ordinarily is granted in recognition of the applicant’s acceptance of responsibility for the crime and established good conduct for a significant period of time after conviction or completion of sentence. It does not signify innocence. It does, however, remove civil disabilities — e.g., restrictions on the right to vote, hold state or local office, or sit on a jury — imposed because of the conviction for which pardon is sought, and should lessen the stigma arising from the conviction.
So, while presidential pardons and commutations are fairly similar in some respects, they crucially don't afford a recipient the same rights after the fact. And while the president's ability to grant pardons and commutations is almost entirely unchecked, it's not absolute.
As the Constitution notes, the president "shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment." So, the president's pardoning ability extends solely to federal crimes ("offenses against the United States") and can't be applied toward impeachment.
Beyond that, however, a president has an extraordinary amount of latitude when it comes to pardoning — so much so that they can preemptively pardon someone before that person is even convicted of a crime. That, for example, is what President Gerald Ford did to his predecessor Richard Nixon in 1974, explaining that "the tranquility to which this nation has been restored by the events of recent weeks could be irreparably lost by the prospects of bringing to trial a former president of the United States," were Nixon to be brought up on charges.
Given the extraordinarily wide berth presidents have to pardon and issue commutations, there are still some basic procedures in place to help facilitate the pardoning process.
Typically people seeking a pardon apply through the Department of Justice's Office of the Pardon Attorney, which handles most requests to the White House. (For pardons stemming from a court-martial conviction, applicants must send their petition "directly to the secretary of the military department that had original jurisdiction in your case.") As part of the application, the DOJ requests people wait at least five years from the time they were released from prison before requesting a pardon — remember, commutations are what typically reduce or cancel prison time, not pardons.
In addition to waiting five years before requesting a pardon, applicants must explain why they're seeking a pardon, provide "at least three character affidavits" from people who aren't related to you by blood or marriage, as well as must list their credit status, whether or not they're currently involved in a civil lawsuit, and provide their full criminal history.
The standard process for applying for a commutation is fairly similar, although notably the DOJ points out that a commutation "only shortens the prison sentence and will not result in a change of your immigration status," unlike certain pardons which can alter someone's status. And if your request for a pardon or commutation is rejected, applicants can always reapply in a year (for commutations) or two (for pardons), although they'll have start the entire process over from scratch.
Pardons have become one of the most watched — and under Trump, most politicized — powers available to presidents.
All this is just an edifice to help organize what would otherwise be a massive and unruly process. (Trump has received more than 8,000 applications in his first term in office alone.) However, if they so choose, a president can simply pick someone to pardon without going through the full application procedure.
And just because the president offers a pardon or commutation — sometimes with certain strings attached — a person still has the right to refuse to accept. That's what Arnold Ray Jones, a convicted drug dealer, did in 2016, during the last few months of the Obama administration. Jones was one of 92 people who was granted a sentence commutation by the president, conditional upon his completing a drug treatment program. Despite having applied for a commutation to be begin with, Jones ultimately rejected the offer; his official status on the DOJ's list of Obama commutation recipients reads "commutation not effectuated."
Once a pardon has been granted, however, there's pretty much nothing anyone can do to reverse the decision. Neither Congress nor the courts have the authority to overturn a presidential pardon or commutation, much as Congress has complained about them in the past, although there have been instances where presidents themselves have rescinded pardon offers that had not been finalized yet.
Ultimately, pardons have become one of the most watched — and under Trump, most politicized — powers available to presidents. They offer a glimpse into not only how a president sees a specific criminal case, but the criminal justice system as a whole. They are a window into understanding what a president prioritizes, and how far they are willing to go to make those priorities a reality, free from the constraint of having to negotiate with any other branch of government. Whom a president does — or doesn't — pardon speaks to whom that president believes deserves forgiveness, and mercy. For better or worse, pardons and commutations offer rare moments of relatively unobstructed truth in politics.