You must be charged and con­victed to be par­doned.

The Washington Post Sunday - - OUTLOOK -

So­cial me­dia dis­cus­sions about Trump and his par­dons are rife with er­rors, with hun­dreds of com­menters be­liev­ing that only peo­ple con­victed of a crime can be par­doned. “Must go to trial & *be con­victed* be­fore par­don can be of­fered,” reads one such tweet. An­other taunts, “@re­alDon­aldTrump hey dummy, you have to be CON­VICTED OF A CRIME be­fore you can par­don... your­self.” After all, some state gov­er­nors are lim­ited in this way.

Pres­i­dents are not. Most par­dons are fun­neled to the pres­i­dent through the Jus­tice De­part­ment’s Of­fice of the Par­don At­tor­ney, which con­sid­ers ap­pli­ca­tions only from peo­ple who have al­ready served their sen­tences. But pres­i­dents can, and do, by­pass that process. In Ex parte Gar­land, the Supreme Court set­tled the ques­tion of pre­emp­tive par­dons. The jus­tices in that 1866 case de­cided that while par­dons could reach only past acts, the par­don “may be ex­er­cised at any time after [the act’s] com­mis­sion, ei­ther be­fore le­gal pro­ceed­ings are taken or dur­ing their pen­dency or after con­vic­tion and judg­ment.”

Even be­fore Gar­land, Pres­i­dent Abra­ham Lin­coln (among oth­ers) par­doned dozens of peo­ple — in­clud­ing al­leged traitors — pre­emp­tively. More re­cently, Pres­i­dent Jimmy Carter par­doned hun­dreds of thou­sands of Viet­nam draft evaders, in­clud­ing those who had not been charged or con­victed. And, most fa­mously, Pres­i­dent Ger­ald Ford par­doned Pres­i­dent Richard Nixon, who had not yet been charged with any­thing.

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