The most famous case of a preemptive pardon was in 1974 when President Gerald Ford granted his predecessor Richard Nixon a “full, free and absolute pardon” over the Watergate scandal.

Ford reasoned that any trial of Nixon would “cause prolonged and divisive debate over the propriety of exposing to further punishment and degradation a man who has already paid the unprecedented penalty of relinquishing the highest elective office of the United States.”

In 1992, outgoing President George H.W. Bush pardoned former Defense Secretary Caspar Weinberger before he was brought to trial over the Iran-Contra affair.

Abraham Lincoln issued preemptive pardons in the Civil War and Jimmy Carter also preemptively pardoned Vietnam draft-dodgers in 1977.

Trump announceed nearly 1,500 pardons for January 6 defendants

Following through with one of his frequent campaign-trail promises, Trump announced that he has pardoned all defendants who had been charged for their role in the 2021 attack on the US Capitol.

In addition to the nearly 1,500 defendants he pardoned, Trump also issued multiple “J6” commutations, according to a statement from the White House.

They include figures like Stewart Rhodes, the founder of the far-right militia the Oath Keepers who was convicted of seditious conspiracy in 2022.

Trump has reportedly called on the Justice Department to drop all pending cases against January 6 defendants. An estimated 1,583 people had faced federal charges in total, according to Reuters.

The origins of the pardon power in the United States Constitution can be found in English history, known previously as the “prerogative of mercy.” It first appeared during the reign of King Ine of Wessex in the seventh century. Although abuses of the pardon power increased over time, leading to limitations on it, the pardon power persisted through the American colonial period. Alexander Hamilton introduced the concept of a pardon power at the Constitutional Convention. There was debate about whether Congress should have a role in the pardon power, with the Senate approving presidential pardons. Delegates also debated whether treason should be excluded from pardonable offenses. However, the final result was an expansive power for the president in Article II, the strongest example of constitutional executive unilateralism.

The framers of the Constitution deliberately separated the judicial function of government from the pardon power, therefore obviating concern from English jurist William Blackstone that the power of judging and pardoning should not be delegated to the same person or entity.

They also reasoned that pardoning subordinates for treason would subject the president to threats of impeachment and removal from office.

Article II, Section 2 of the United States Constitution states that the President has the authority to “grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” The United States Supreme Court has interpreted this power as “plenary,” meaning that is considerably broad and not generally subject to congressional modification.

In both Ex parte Garland (1866) and United States v. Klein (1871), the Court ruled that legislation could not restrict the president’s pardon power.

Although some pardons are controversial, executive grants of clemency are not rare in American history. In fact, most clemency cases are “all but anonymous.”

According to Department of Justice statistics, the total number of executive clemency actions from 1900 to 2017 is 22,485. In recent decades, the number of issued clemency grants have declined as well as the percentage of granted petitions.

From the beginning of Ronald Reagan’sadministration (1981) to the conclusion of Barack Obama’s presidency (2017), there have been 3,069 acts of executive clemency. There is also considerable variation amongst presidents. Since the mid-twentieth century, Barack Obama issued the most pardons and commutations (1,927) for two-term presidents. In comparison, George W. Bush issued the fewest number of clemency actions (200) for a two-term president.

The Office of the Pardon Attorney at the Department of Justice issues guidelines for the application of clemency, but presidents do not need to follow them

The Pardon Attorney serves in an advisory, not decision making, capacity. Recommendations for pardons are routed through the Deputy Attorney General, who supervises the Pardon Attorney

Final recommendations are made to the Office of White House Counsel, who advises the president on such petitions.

As decided in Ex Parte Garland (1866), presidents may issue pardons at any time after the commission of a federal offense, even before federal charges have been filed or a sentence has been imposed

Such was the case when Ford pardoned Nixon. There are other instances of presidents circumventing judicial processes in anticipation of legal action. Abraham Lincoln issued preemptive pardons during the Civil War and so did Jimmy Carter, who pardoned Vietnam draft evaders who had not been charged for their actions.

It is unclear whether accepting a pardon is a legal admission of guilt. President Gerald Ford argued as such; he carried with him a quote from the Burdick v. United States (1915) decision that concluded a pardon “carries an imputation of guilt; acceptance a confession of it.” However, such statement was included in dicta, or legal commentary found within a judicial opinion that does not establish precedent. Other presidents have not shared Ford’s belief that a pardon’s acceptance signified guilt. For example, President George H.W. Bush pardoned former Secretary of Defense Caspar Weinberger and others involved in the Iran-Contra scandal because he felt they were innocent of wrongdoing; he claimed such individuals had fallen victim to “the criminalization of policy differences” and used the pardon power to correct legal judgments and prevent other errors from occurring.

Legal analysts are not settled on the question concerning the ability of a president to self-pardon. A recent review of law school faculty opinion on the power to self-pardon stated: “There is no clear consensus among legal professionals concerning the constitutionality of the presidential self-pardon, which has never been attempted by a U.S. President.

Some constitutional scholars argue that the Constitution does not explicitly prevent such an action, given the minimal restrictions placed on the pardon power in Article II. Other experts contend that a president cannot pardon himself or herself due to the established legal precedent that no one may be a judge in his own case and the constitutional restriction that a president cannot issue a pardon in relation to impeachment. Richard Nixon did consider a self-pardon in 1974. At that time, the Justice Department produced a memorandum that concluded the president did not have the constitutional power to issue a self-pardon

However, constitutional law and interpretation is undetermined in this situation since historical precedent has not been established.