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Monday, January 25, 2021

President’s powers to pardon — in US, India

With less than two months of his tenure remaining, US President Donald Trump on Wednesday exercised his powers under the Constitution to pardon Michael Flynn, his former National Security Advisor, who had twice pleaded guilty to lying to the FBI.

Written by Om Marathe | New Delhi | Updated: November 29, 2020 10:04:23 am
michael flynn, michael flynn pardon, donald trump, Trump presidential pardon, us presidential pardon explained, india presidential pardon, indian expressMichael Flynn, President Donald Trump's former national security adviser, departs a federal courthouse after a hearing, Monday, June 24, 2019, in Washington. (AP Photo: Patrick Semansky, File)

With less than two months of his tenure remaining, US President Donald Trump on Wednesday exercised his powers under the Constitution to pardon Michael Flynn, his former National Security Advisor, who had twice pleaded guilty to lying to the FBI.

What is the extent of the US President’s power to pardon?

How US President pardons

The President of the US has the constitutional right to pardon or commute sentences related to federal crimes. The US Supreme Court has held that this power is “granted without limit” and cannot be restricted by Congress.

Clemency is a broad executive power, and is discretionary — meaning the President is not answerable for his pardons, and does not have to provide a reason for issuing one. But there are a few limitations.

For instance, Article II, Section 2 of the US Constitution says all Presidents “shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment”.

Further, the power only applies to federal crimes and not state crimes — those pardoned by the President can still be tried under the laws of individual states.

Pardons by Trump, others

The Flynn pardon is not the first by Trump to raise eyebrows. In 2017, Trump pardoned former Maricopa County Sheriff Joe Arpaio, who was found guilty of being in contempt of court for ignoring a federal judge’s order to stop arresting immigrants solely on the suspicion that they were residing in the US illegally.

Others include right-wing commentator and convicted campaign fraudster Dinesh D’Souza, and Michael Milken, a financier convicted of securities fraud.

Yet, Trump happens to have used his pardon powers less than any president in modern history, Pew Research data show. In his four years, Trump has granted pardons to 29 people (including Flynn) and 16 commutations.

In contrast, President Barack Obama had, during his eight-year tenure, issued 212 pardons and 1,715 commutations. The only other President who can be compared with Trump for infrequent use of the power is George H W Bush, who granted 77 clemency requests during his one-term tenure.

The highest number of clemency grants by a US President (3,796) came during Franklin D Roosevelt’s 12-year tenure, which coincided with World War II.

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michael flynn, michael flynn pardon, donald trump, Trump presidential pardon, us presidential pardon explained, india presidential pardon, indian express Trump gives a thumbs up as he speaks with retired Lt. Gen. Michael Flynn during a town hall, Tuesday, Sept. 6, 2016, in Virginia Beach, Va. (AP Photo: Evan Vucci, File)

How Indian President pardons

Unlike the US President, whose powers to grant pardons are almost unfettered, the President of India has to act on the advice of the Cabinet.

Under Article 72 of the Constitution, “the President shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence where the sentence is a sentence of death”. Under Article 161, the Governor too has pardoning powers, but these do not extend to death sentences.

The President cannot exercise his power of pardon independent of the government. Rashtrapati Bhawan forwards the mercy plea to the Home Ministry, seeking the Cabinet’s advice. The Ministry in turn forwards this to the concerned state government; based on the reply, it formulates its advice on behalf of the Council of Ministers.

In several cases, the SC has ruled that the President has to act on the advice of the Council of Ministers while deciding mercy pleas. These include Maru Ram vs Union of India in 1980, and Dhananjoy Chatterjee vs State of West Bengal in 1994.

Although the President is bound by the Cabinet’s advice, Article 74(1) empowers him to return it for reconsideration once. If the Council of Ministers decides against any change, the President has no option but to accept it. 📣 Express Explained is now on Telegram

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