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Congressional
Research Servik
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 ofthe 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 presidentialtransition. 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 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 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 historically 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, exc ept 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
https://crsreports.congress.gov
IN11543
CRS NSIGHT
Prepared for Membersand
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