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since 1914
July 31, 2024
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.
ackground
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 I. Average Monthly Clemency Petitions
Granted Prior to and During the Final Four Months of
Selected Administrations
Prior to Final Final Four
Four Months of Months of
President Administration Administration
Harry Truman 22 per month 25 per month
Dwight D. 10 per month 53 per month
Eisenhower
Lyndon B. Johnson 21 per month 0 per month
Gerald Ford II per month 34 per month
jimmy Carter II per month 20 per month
Ronald Reagan 4 per month 8 per month
George H. W. I per month 10 per month
Bush
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 I 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.
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