Legislative Proposal to Nullify Criminal Convictions
          Obtained Under the Ethics in Government Act

A proposed bill would have the effect of nullifying all crim inal convictions obtained under the
  Ethics in Governm ent Act since that Act was passed in 1978. Under the Pardon Clause o f the
  Constitution, U.S. Const, art. II, § 2, cl. 1, the President has broad power to take action to
  relieve individuals who have violated federal laws. By contrast, the Constitution gives C on­
  gress no authority to legislate a pardon for any particular individual or class o f individuals.
  Therefore, the proposed bill exceeds Congress’ power to legislate and would be an unconsti­
  tutional infringem ent on the President’s pardon power.

                                                                                                  June 3, 1986

        M   em orandum           O   p in io n t o t h e   A s s is t a n t A t t o r n e y G e n e r a l ,
            O f f ic e   of   L e g is l a t iv e   and    In t e r g o v e r n m e n t a l A f f a ir s


   We have reviewed the provisions of S. 2214, “A bill to clarify that a civil
penalty is the exclusive penalty for violations of the ethics in government act.”
We defer to other components of the Department on the desirability as a policy
matter of making civil penalties the exclusive remedy for enforcing the provi­
sions of the Ethics Act. However, we have serious objections to the provision
of the bill that purports to make it effective “on the date of enactment of the
Ethics in Government Act.” We understand that this provision is intended by
the sponsors of S. 2214 to have the effect, inter alia, of nullifying all criminal
convictions under the Act since its passage in 1978.1We believe that Congress
has no authority to enact such a measure, and in addition, that it would be an
unconstitutional intrusion on the President’s constitutional power to pardon.
   Under Article II of the Constitution, the President has the power to “grant
Reprieves and Pardons for Offenses against the United States, except in Cases
of Impeachment.” U.S. Const, art. II, § 2, cl. 1. The President’s constitutional
pardon power is derived from, and has been interpreted in light of, the English
Crown authority to alter and reduce punishments as it existed in 1787. See
generally Schick v. Reed, 419 U.S. 256 (1974). The Presidential pardon power
is multifaceted, and embraces a wide variety of acts that may relieve individu­
  1 We assum e that the b ill’s “effective date" provision is also intended to effect the dism issal o f all pending
crim inal investigations and prosecutions, as well as to estop any future ones. O ur analysis here focuses only
on the attem pted legislative exoneration o f persons convicted by judicial process o f a crim e under the Act.
  O f course, if S. 2214 is intended to apply only where no governm ent prosecution has been com m enced, and
not where an investigation o r prosecution has been initiated or a conviction obtained, as a policy m atter it
would raise a serious question o f disparate treatment.

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 als who have violated the law. A pardon may take the form of release from
prison, remission of fines and forfeitures, commutation or alteration of a
 sentence, restoration of civil rights, dismissal of a prosecution, or a grant of
immunity from prosecution. It may be absolute or conditional, and extended to
a specific individual or to an entire class or community. It includes but is not
limited to the power to grant amnesty or immunity from prosecution.2
    By contrast, the Constitution gives Congress no authority to legislate a
pardon for any particular individual or class of individuals. In the first case to
be decided involving the President’s pardon power, Chief Justice Marshall
explained that a pardon is “an act of grace, proceeding with the power entrusted
with the execution o f the laws, which exempts the individual, on whom it is
bestowed, from the punishment the law inflicts for a crime he has committed.”
 United States v. Wilson, 32 U.S. (7 Pet.) 150, 160 (1833) (emphasis supplied).
Because the President’s pardon power flows directly from the Constitution, it is
not dependent on a legislative enactment, and cannot be infringed by Congress.
See Schick v. Reed, 419 U.S. at 267; United States v. Klein, 80 U.S. (13 Wall.)
 128, 148 (1872).3 Although there is some support in the case law and historical
precedent for congressional power in certain limited circumstances to effect the
same result that would flow from an exercise of the President’s pardon power,
these circumstances are limited to those involving prospective grants of am­
nesty or immunity, or restoration of civil rights, to persons who have not yet
been subjected to prosecution by the executive.4 In no case we have found has
Congress been held to have the power through self-executing legislation to
grant relief in the form of remission of a prison sentence or monetary fine to
individuals who have been convicted of violating a criminal statute.5
   We know of only one previous occasion on which Congress has even
attempted to legislate the release of convicted individuals. In S. 1145, a bill
introduced in the 94th Congress to provide amnesty to persons who failed to
register for the draft, included a provision directing the release from prison of

  2 T here has been considerable discussion o f and confusion over the difference betw een pardon and amnesty.
See , e.g.. Freem an, A Historical Justification and Legal Basis fo r Amnesty Today, 1971 Ariz. St. U. L.J. 515,
5 2 4 -5 2 7 (1971). As a general matter, am nesty is understood as referring only to preprosecution relief
extended to w hole classes o r communities. The relief available through the President’s pardon pow er may o f
course include this anticipatory immunity o r forgiveness, but is not so limited. See United States v. Klein , 80
U .S. (13 W all.) 128 (1872) (President's p o w er to offer am nesty to form er rebels); 20 Op. Att*y Gen. 330
(1892) (P re sid e n t's pow er to extend gen eral am nesty to persons residing in Utah who had been guilty of
polygam y).
   3 C ongress has been held to have the p o w er to enact law s em pow ering executive officers other than the
P resident (though responsible to him) to rem it fines o r penalties incurred for violations o f the law. See The
Laura, 114 U .S. 411 (1885).
   4 F o r exam ple, in the post-C ivil War p e rio d Congress enacted several pieces o f legislation restoring civil
rights to fo rm er rebels. Indeed, its pow er to take such action is specifically recognized in the Fourteenth
A m endm ent. See U .S. C onst, amend. X IV , § 3. In Brown v. Walker, 161 U.S. 593 (1896), the Suprem e Court
upheld a statute requiring witnesses subpoenaed in connection with Interstate Com m erce Commission
proceedings to testify in return for a g ra n t o f absolute im m unity from any subsequent prosecution. See
Burdick v. United States , 236 U.S. 79, 9 4 (1915), describing the “substantial’* differences betw een “ legisla-
tive im m unity” and a Presidential pardon.
   s A num ber o f state courts have held th at acts o f general am nesty passed by the legislature are invalid as an
invasion o f th e e x ecu tiv e’s pardoning p o w er. See 20 O p. A tt’y Gen. 330 (1892) (collecting cases).

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persons convicted and serving a sentence for so failing to register. The Depart­
ment testified in opposition to this legislation, taking the position that Congress
has no power to effect release from prison, through legislation or otherwise,
and that it may not encroach upon the President’s power in this regard. See
Memorandum from Mary C. Lawton, Deputy Assistant Attorney General,
Office of Legal Counsel to the Assistant Attorney General, Criminal Division
(May 13, 1975).6
  In sum, insofar as S. 2214 would have the effect of voiding or modifying in
any respect criminal penalties imposed as a result of violations of the Ethics in
Government Act, we believe it exceeds Congress’ power to legislate, and
would be an unconstitutional intrusion on the President’s pardon power.7

                                                                D o u g l a s W. K m i e c
                                                          Deputy Assistant Attorney General
                                                              Office o f Legal Counsel




  6 This O ffice also objected on the same grounds to provisions o f the bill granting im m unity to those who
failed to register and to deserters, requiring the dism issal o f all pending legal proceedings against such
persons, and allow ing persons serving a term o f reconciliation service pursuant to President F o rd 's C lem ency
Proclam ation 8313 to be released from such service. We did not object to provisions o f the bill that granted an
honorable discharge to all such persons who had served in the arm ed forces, and restoring the citizenship o f
form er citizens who had renounced their citizenship because o f disapproval o f United States involvem ent in
Indochina. W ith respect to the latter act, w e rem arked that <4[t]o restore the original citizenship o f such
persons may be an act o f amnesty, but it is certainly not the constitutional equivalent o f an A rticle II
‘pardon.’” M emorandum from M ary C. Lawton, D eputy A ssistant A ttorney G eneral, Office o f Legal Counsel
to the Assistant Attorney G eneral, Criminal Division (M ay 13, 1975). As authority for such a legislative
enactm ent, we cited C ongress' plenary pow er over citizenship and naturalization under A rticle I, § 8, cl. 4 o f
the C onstitution.
  7 It could also be argued that such legislation would infringe the courts' pow er to interpret and apply the
law, and intrude upon the integrity o f the ju d icial process. Compare United States v. Klein , 80 U.S. at 146—47
(legislation attem pting to w ithdraw c o u rt's jurisdiction to consider the effect o f a Presidential pardon
infringes judicial pow er and violates principle o f separation o f pow ers) with Ex Parte Grossman, 267 U.S. 87
(1925) (upholding a Presidential pardon o f a contem pt o f court against an argum ent that it violated separation
of powers).

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