Edward Snowden, the Constitution and presidential pardons
Former government contractor Edward Snowden is lobbying President Barack Obama for a pardon. So under the Constitution, how does the President get his pardon powers and who can the President actually pardon?
Snowden has been living in Russia ever since he sent a huge cache of documents from the National Security Agency to journalists back in 2013. After the massive security leak, the Justice Department filed espionage charges against Snowden.
On Tuesday, Snowden told The Guardian he wants a pardon from President Obama.
“There are laws on the books that say one thing, but perhaps this is why the pardon power exists — for the exceptions, for the things that may seem unlawful in letters on a page but when we look at them morally, when we look at them ethically, and when we look at the results, it seems obvious that these were necessary things,” Snowden said in an interview via a video connection to Moscow.
The White House wants Snowden to return to the United States to face the espionage charges. Snowden is reluctant to do so, since he believes he won’t get a fair trial.
The President has pardon or clemency power under Article II, Section 2, clause 1, of the Constitution, under the Pardon Clause. The clause says the President “shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.”
The Office of the Pardon Attorney, which is part of the Justice Department, has handled such matters for the President since 1893, and it has a detailed description of the pardon and clemency process on its website.
Although the terms clemency and pardon seemed to be interchangeable in the Snowden discussion, in general terms executive federal clemency is granted after someone had allegedly committed a crime. In most cases, that person is convicted of a crime, and then granted a form of clemency.
In the case of President Richard Nixon, he was granted a pardon for any crimes he might have committed during the Watergate scandal, even though Nixon wasn’t charged with or convicted of federal crimes. (This is known as a pre-emptive pardon.) Another way a person can receive clemency after a conviction is through a commutation of a sentence.
“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,” says the Office of the Pardon Attorney.
A pardon allows a convicted person to reclaim lost civil rights after a conviction. “A pardon 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,” says the Office of the Pardon Attorney.
In the case of President Nixon, he was able to receive a pardon under the precedent of an 1866 Supreme Court ruling called Ex parte Garland, which allowed for a pardon granted by President Andrew Johnson to remain in force for a former Confederate politician.
Pre-emptive pardons remain rare. In addition to Ford’s Nixon pardon, President George H.W. Bush pardoned former Defense Secretary Caspar Weinberger and former CIA official Duane Clarridge in late 1992 before they were tried on Iran-contra Affair charges. (Four others were convicted in the case and also pardoned.)
In general, President Obama has issued fewer pardons than other recent Presidents. Last month, Obama also told USA Today that he wouldn’t make last-minute, politically motivated pardons and he thought pardon-seekers should follow Justice Department guidelines that require a five-year wait after a conviction.
White House spokesman Josh Earnest said on Monday that the Obama administration wanted Snowden to return to the United States to face charges.
“He, of course, will be afforded due process, and there are mechanisms in our criminal justice system to ensure that he’s treated fairly and consistent with the law. And that’s what the President believes,” Earnest said.
Recent Stories on Constitution Daily
Does conviction of a serious crime always mean the loss of gun rights?
Supreme Court acts on Ohio early voting, web ads
Constitution Check: Do online publishers have a right to gather news?
