The Constitution vests in the President the "Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment" (Art. II, sec. 2). The power to grant pardons and reprieves is exclusive in the President and cannot be restricted by Congress. Included in this power to pardon is the full discretionary power to pardon or remit, in whole or in part, any punishment to which an individual may have been sentenced by a Federal court. The President may pardon a person guilty of contempt of a Federal court or one of the houses of Congress. He may grant clemency before or during trial as well as before and after conviction, and before or after the offense is reviewed in any Federal appellate court. He may give an absolute pardon that wipes out all charges, or he may give a conditional pardon that may leave the offender with certain obligations to be performed or with certain civil disabilities. A breach of any of the conditions of a partial pardon annuls the pardon. The President may issue a reprieve, which merely postpones the execution of the penalty, or a commutation of sentence, which modifies the form and extent of the penalty. The former is not often used except in capital cases and is usually granted because of the possibility of new evidence being presented or because of humanitarian reasons. The President's power to grant pardons includes the power to grant amnesty, or general pardon, to a class of offenders without mentioning the names of the persons included therein, and to make provisions by which persons affected may become members of that class. Notable examples of the use of this pardon power were the amnesties issued during and after the Civil War to persons in rebellion, and those granted during the 1880's and 1890's to residents of the Territory of Utah who violated laws concerning bigamy and polygamy. Another form of Executive clemency is the remission of fines and forfeitures which are declared in legal proceedings to accrue to the Government for offenses against the United States.
The function of the Attorney General of the United States in matters concerning the President's exercise of his pardoning power is based solely on the request or direction of the President and is not in any sense statutory. The Office of the Attorney in Charge of Pardons, now known as the Office of the Pardon Attorney, was established in the Department of Justice by an act of Congress approved March 3, 1891 (26 Stat. 946), to assist the Attorney General in the preparation of cases for the consideration of the President. It succeeded to the functions of the Office of the Pardon Clerk, which had been set up in the Office of the Attorney General by an act of March 3, 1865 (13 Stat. 516), before the creation of the Department of Justice in 1870, and had continued in that Department, under the Attorney General.
From 1789 until about 1853, the Attorney General had shared with the Secretary of State the responsibility of making recommendations to the President on petitions for pardon. During this time pertinent records in the cases were maintained in the State Department and the Secretary of State had the main responsibility for the administrative work in connection with pardons. His office received all petitions, conducted the necessary investigation and correspondence, and issued and recorded the pardon warrants. The Attorney General at times passed upon the petitions independently of the Secretary of State.(Homer S. Cummings and Carl McFarland, Federal Justice, 149 (New York, 1937)
During the administration of President Fillmore (1850-53) it was agreed by Daniel Webster, Secretary of State, and John J. Crittenden, Attorney General, that the petitions should become wholly the charge of the Attorney General. Most of the administrative part of the pardon work thus passed to the Attorney General, although until about 1870, when the Department of Justice was established, the State Department continued to issue the pardon warrants and to receive a few other pardon papers. In 1893 John W. Foster, Secretary of State, addressed a letter to the Attorney General requesting the latter's cooperation in obtaining the issuance of an Executive order that would officially transfer the function of issuing pardon warrants from the State Department to the Department of Justice. (Pardon Warrants, vol. 17, p. 1, in Records of the Office of the Pardon Attorney, National Archives) The letter stated that the intermediate position of the State Department caused delays when time was often of vital importance, and that under the existing system there was more possibility for error and an unnecessary duplication in clerical work. As a result President Cleveland, by an Executive Order of June 16, 1893, directed that all warrants for pardon and commutation of sentence hitherto prepared at the Department of State on the requisition of the Attorney General be prepared and recorded in the Department of Justice under the seal of that Department and countersigned by the Attorney General.
The Pardon Attorney performs his specialized service under the immediate supervision of the Attorney General. He has charge of all applications for Executive clemency except those in Army, Navy, and Air Force causes, which are dealt with directly through the Departments of the Army, Navy, and Air Force, respectively. He conducts all correspondence relating to the applications; refers the applications, with accompanying papers, to the United States attorney for the judicial district where the trial took place; and directs that attorney to submit his report and recommendation and to furnish, as a basis for the preparation of the pardon warrant, excerpts from the docket entries in the case. The Pardon Attorney also obtains reports from the trial judge, the officers of the appropriate Government departments charged with the administration of the particular laws violated, the warden, the prison physician, if necessary, and from other persons having official knowledge of the case. He requests information about the applicant that the Federal Bureau of Investigation may have in its files or may have one of its field agents obtain. When none of the persons consulted for recommendations advises clemency, the papers are not sent to the President, except in capital cases or by his special request, or by special order of the Attorney General.
Related records are also in the National Archives. The pardon records of the Department of State, 1789-1893, are in Record Group 59, General Records of the Department of State. They consist mainly of petitions and related papers, requisitions by the Attorney General for the preparation of warrants of pardons, copies of pardons and remissions granted, Civil War amnesty records, registers, and indexes. A few pardons executed by various Presidents and certain remissions for fines are among the records of the United States District Courts for the Eastern District of Pennsylvania and the Southern District of New York in Record Group 21, Records of District Courts of the United States. Other records to the Attorney General's function in pardon matters are in Record Group 60, General Records of the Department of Justice. Record Group 130, Records of the White House Office, contains a few registers of pardons issued, 1869-85 and 1907-13. Certain applications made by residents of the Southern STates for amnesty under the various Presidential proclamations issued during and after the Civil War were sent to the War Department in 1894 by the Pardon Attorney and are now in Record Group 94, Records of the Adjutant General's Office. In Record Group 48, General Records of the Department of the Interior, are materials relating to the Utah Commission, which was appointed by the President in 1882 to enforce laws pertaining to registration and elections in the Territory of Utah and to the practice of bigamy and polygamy by certain residents to whom amnesties were issued.