The US Pardon Power — Is Pardoning Treason an Impeachable Offense?
For the everyday American, the pardon power is an enigma, often garnering responses like “Is he really allowed to do that?” and “Surely, there are limits?” There are. But not many.
The pardon power and its limitations:
The US Constitution, Article II, states, verbatim:
“The President…shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.”
Primary laws like Constitutions, statutes, and official rules are sometimes modified, in a sense, by judicial application or construal. This comes through case law. But cases reviewing this particular power (such as Ex parte Garland [1866] and United States v. Kelin [1871]) have resulted in essentially no further limitations outside the plain language itself.
Thus, the only limitations at present are found within the power itself:
“The President…shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.”
The pardon must apply to an actual offense (read: conviction, so not just a charge) against the United States (i.e. the federal laws), except for impeachment.
So the POTUS cannot pardon State convictions for crimes, cannot pardon charges that haven’t resulted in a conviction, probably not civil convictions of any sort, and certainly cannot pardon impeachment.
Where did the power originate?
The power was proposed by Alexander Hamilton during the Constitutional Convention. Hamilton wrote about the power in the Federalist Papers, a primary-source publication regarding his thoughts and philosophies on the matter (and many others).
Some say the idea of the power was based on England’s “prerogative of mercy,” but Hamilton pointed out that many parts of the power were different, especially the fact that the person wielding the power would have been placed in that position by vote, not heredity.
At the time the pardon power was being discussed, the Governor of New York had a similar power, with one striking difference: the NY Governor’s power excluded the right to pardon acts of treason.
Why didn’t the US Constitution exclude the right to pardon Treason?
It seems like the right to pardon Treason would be incredibly expansive — too expansive a power to feel like it fits in the US government’s philosophy. Indeed, the New York Governor at the time, whose powers were being considered in some sense as a template, had that exception (could not pardon Treason).
So why expand it for the POTUS? Here is some context: Hamilton, the proponent of this power, stated the following:
“A President of the Union, on the other hand, though he may even pardon treason, when prosecuted in the ordinary course of law, could shelter no offender, in any degree, from the effects of impeachment and conviction.” (Federalist Nos. 61–70).
Indeed, historical commentary indicates that the Constitutional Convention believed impeachment of the President would serve as a deterrent to using the power to pardon Treason.
In other words: the threat of impeachment was supposed to act as a check on the power to pardon. Pardon someone who has committed treason and you may find yourself impeached.
Is Sedition the same as Treason?
The elements of Treason against the US are different than those of Sedition. Treason includes levying war against the US, adhering to the enemy of the US, or giving aid and comfort to the the enemy of the US. Sedition is, in some ways, a lighter version of this and is more about conspiring to overthrow the government, inciting discontent or insurrection, subverting the Constitution, or obstructing the execution of laws. You might think of like this: Sedition is planning, organizing, and inciting while Treason is actually following through. So if you stop something before it gets even more out of hand, you might have stopped Sedition from calling in its big brother, Treason.
Has the pardon power been used to pardon Sedition before?
Since the Constitution’s birth, every President except two (William Henry Harrison and James Garfield — both of whom died in office) has used the pardon power.
The power has technically been used to pardon acts of Sedition before 2025, but only technically. Thomas Jefferson pardoned those convicted under the Alien and Sedition Acts of 1798, but those Acts restricted free speech (among other things), making it illegal to speak out against the government.
I am not aware of any other US President who has wielded the power to pardon something so close to Treason as Trump has.
Is pardoning Sedition an impeachable offense?
It seems clear that the Founders believed that pardoning an act of Treason could be an impeachable offense. Pardoning Sedition might be different, but it might not be.
Just because Sedition (as opposed to Treason) may not have been discussed by the Constitutional Convention does not mean it doesn’t follow the same logic.
If impeachment was the failsafe, in the Founders’ minds, against a President who pardoned Treason, then Treason’s little brother, Sedition falls under the same argument. It’s a matter of degrees, not kind.
Of course, to act on this radical new use of the pardon power, you’d need a government to actually act…
