President Trump has approached the power of pardon in a manner that many found unexpected. He has granted forgiveness to individuals involved in the January 6th events and occasionally overlooked the usual protocols of the Department of Justice for processing pardon applications. Recently, a Wall Street Journal article described the pardon practices during Trump’s second term as akin to a “Wild West.”
In several ways, Trump has disregarded established norms, choosing to utilize pardons to expand executive power. However, he has not yet attempted to broaden the scope of his pardon authority to include civil offenses. Interestingly, he could have done just that.
Most federal penalties are civil rather than criminal, with agencies like the Securities and Exchange Commission, Environmental Protection Agency, and Consumer Financial Protection Bureau imposing hefty fines for alleged civil violations and regulating the future actions of certain entities.
If he chose to, Trump could effectively pardon these civil infractions, addressing what some view as excessive regulatory actions.
The concept of pardon is outlined in Article 2 of the Constitution, which states, “The President shall have the Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.”
While it’s widely believed that pardons only apply to criminal activities, the Constitution does not explicitly state this. This misunderstanding stems mainly from a 1925 Supreme Court decision, which ruled that the president could pardon criminal offenses but implied that civil infractions fell outside this authority.
This distinction was largely based on the court’s classification of criminal charges as “punitive” while civil infractions were seen as “corrective.” However, this doesn’t necessarily mean that the pardon power is restricted strictly to criminal cases. It could imply that federal punitive measures might also be eligible for pardons.
There’s certainly a precedent for presidents extending clemency to a range of offenses. Earlier Supreme Court decisions indicated that the president had the authority to pardon “fines, penalties, or confiscations” tied to laws passed by Congress, and the pardon power “extends to all crimes known to the law.”
Clearly, the Constitution grants the president the authority to pardon serious offenses, including violent crimes. If he could pardon such actions but not a civil infraction, it would create a significant inconsistency.
The argument that a president cannot forgive civil violations doesn’t align with a thorough constitutional interpretation. The term “crime” in pardon clauses is indeed broad and encompasses more than just felonies.
Additionally, the term “crime” appears in Article I, Section 8, which grants Congress the power to define and punish a variety of offenses, not limited to criminal behaviors. Courts and legislatures have recognized its applicability to civil law as well.
Moreover, the pardon clause implies that forgiving offenses not classified as criminal is within the authority given. If the framers had believed that pardons were limited only to crimes, they could have stated that outright.
Historically, pardons were often granted for violations that wouldn’t be considered offenses by today’s standards. In the late 18th century, federal civil crimes were virtually nonexistent, leading early presidents to issue amnesty for then-existing violations. For instance, Washington and Adams pardoned minor customs violations, while Jefferson granted amnesty for offenses like operating an unlicensed billiard hall or maintaining a disorderly establishment.
Trump has taken bold steps to curb what he sees as regulatory overreach and to reaffirm administrative authorities in line with constitutional intentions. Extending the power of pardon to encompass civil violations could be one more valid tool in his arsenal.
