The Presidential Clemency Power and Chelsea Manning


By: Caitlin Opperman, Volume 101 Staff Member

On his last day in office, President Obama commuted the sentences of 330 people serving time for drug offenses, bringing the total number of commutations issued throughout his presidency to 1,715.[1] Issued mostly throughout his second term, President Obama granted more commutations to clemency applicants than any other U.S. President in history.[2] Although President Obama granted most of these requests with the purpose of countering, in his opinion, excessively severe sentences for drug offenders,[3] his commutation of Chelsea Manning’s sentence during his last week in office generated the most commentary.

In 2010, Chelsea Manning, then known as Bradley Manning, used her position as an Army intelligence analyst to leak hundreds of thousands of military documents to WikiLeaks, who then disclosed them to mainstream news organizations.[4] The documents included records of incident logs documenting abuses of detainees and civilian deaths in Iraq, confidential diplomatic cables from American embassies, evaluations of Guantánamo detainees, and a video of a deadly American helicopter attack.[5] Manning confessed to her actions, was charged under the Espionage Act, tried in military court, and ultimately sentenced to 35 years in prison.[6] At that time, Manning revealed that she had been struggling with gender dysphoria and began transitioning to life as a woman despite roadblocks posed by military standards.[7] Manning has since attempted suicide several times in prison.[8] She is set to be released on May 17, 2017.[9]

Politicians and commentators responded divisively to President Obama’s decision to commute Manning’s sentence.[10] Some felt that it was necessary in the interest of justice to correct an excessive sentence and, perhaps, save Manning’s life.[11] Others argued that Manning placed the lives of numerous people and America’s security at risk and that leniency set a dangerous precedent.[12] But how controversial was President Obama’s decision, really? A look back at the history of the clemency power suggests, perhaps, not so much.

Article II, Section 2 of the U.S. Constitution vests the president with the “power to grant reprieves and pardons for offenses against the United States, except in the cases of impeachment.”[13] This power is practically unlimited, other than the explicit impeachment exception. The pardon power is generally understood to encompass a range of clemency actions that may be applied to federal criminal offenses,[14] including amnesties (i.e. general pardons that relieve a class of citizens from prosecution or punishment), commutations (i.e. reductions of sentences), and full pardons (i.e. pardons that eliminate all sanctions and restore full civil rights).[15] Conditions, so long as they are constitutional, may be attached to grants of clemency.[16]

The Framers’ intent in delegating this power solely to the president can be gleaned from Alexander Hamilton:

As the sense of responsibility is always strongest in proportion as it is undivided, it may be inferred that a single man would be most ready to attend to the force of those motives, which might plead for a mitigation of law, and least apt to yield to considerations, which were calculated to shelter a fit object of its vengeance.[17]

Despite a history of abuse of the pardon power by the crown in Great Britain,[18] the Framers still chose to vest it in the president with the idea that its purpose would be twofold: (1) to mitigate punishment with mercy when justice so required[19] and (2) to serve a political and public welfare function in “put[ting] down rebellions . . . and heal[ing] the wounds of war.”[20] The clemency power was not to be used, however, as a personal gift or in the president’s personal interest.[21] Although legal scholars have recognized an “atrophying” of the clemency power in recent years, particularly since the Department of Justice took over review of clemency requests,[22] advocates for its resurgence have remained true to this original intent. These advocates argue that Presidents ought to use their clemency power with increased frequency, both as a way to balance the often retributive nature of the criminal justice system and as a means of strengthening the perceived legitimacy of the power.[23]

Despite discussions and proposals to amend the clemency power over the past several decades,[24] it remains untouched. There are no limits or guidelines other than those set by the Framers and the text of the Constitution itself. Therefore, the type of offense should not, in and of itself, dictate whether or not clemency is granted, much to the dismay of critics of Manning’s commutation. Though Hamilton proposed a revised version of the pardon clause on June 18, 1787, giving the President the power to pardon “all offences except treason, which he shall not pardon without the approbation of the senate,” this language was not included in the final version ratified by the Constitutional Convention on September 15, 1787.[25] In fact, numerous Presidents have pardoned individuals convicted of rebellion, treason, or other acts committed against the government.[26] The question, therefore, is whether Manning’s commutation falls within the dual purposes of the pardon power laid out by the Framers.

Given the length of Manning’s original sentence, her court statement that she never intended to place any individuals at risk, and the impact of prison on her mental health status,[27] it seems evident that President Obama acted in the interest of justice in granting Manning’s commutation, an objective consistent with that of the Framers. President Obama’s resistance to granting clemency to other notorious offenders, such as Edward Snowden, and his administration’s tough record on prosecuting leakers of government secrets[28] suggest that he was not acting from a place of personal interest or against the public welfare in his decision in Manning’s case. While the breadth of the clemency power and its check on our criminal justice system creates wide latitude for presidential discretion, clemency in Chelsea Manning’s case falls squarely within the exercise of the pardon power as envisioned by the Framers.

  1. Josh Lederman, Obama Commutes 330 Drug Sentences on Last Day as President, AP News (Jan. 19, 2017),; see also Office of the Pardon Attorney, Current Fiscal Year Clemency Statistics, U.S. Dep’t of Justice, (last updated Jan. 19, 2017). Note from these statistics that President Obama also issued 212 full pardons throughout his time in office, though commutations were far more common.
  2. Lederman, supra note 1. Ironically, earlier in Obama’s presidency, he was criticized by numerous legal scholars for using the clemency power, in their opinion, too sparingly. See, e.g., Paul Rosenzweig, Reflections on the Atrophying Pardon Power, 102 J. Crim. L. & Criminology 593, 603 (2012) (noting a significant decrease in the pardoning rate with Obama’s record at that time being an example); P.S. Ruckman, Preparing the Pardon Power for the 21st Century, 12 U. St. Thomas L.J. 446 (2016) (opining that President Obama’s administration was on track to be “one of the least merciful in history.”).
  3. Lederman, supra note 1.
  4. Charlie Savage, Chelsea Manning to Be Released Early as Obama Commutes Sentence, N.Y. Times (Jan. 17, 2017),
  5. Id.
  6. Id.
  7. Id.
  8. Id.
  9. Id.
  10. See Sana Saleem, Commuting Chelsea Manning’s Sentence Is Not Enough, Al Jazeera (Jan. 19, 2017),; Benjamin Wittes & Susan Hennessey, Obama Is Right on Chelsea Manning, Lawfare (Jan. 17, 2017, 5:32 PM), Contra Kori Schake, Why Obama Made the Wrong Call on Chelsea Manning, Foreign Pol’y (Jan. 18, 2017, 3:12 PM),; Cully Stimson & Hans Von Spakovsky, Manning Commutation Sends Dangerous Message, Missoulian (Jan. 23, 2017),
  11. See Saleem, supra note 10; Wittes & Hennessey, supra note 10.
  12. See Schake, supra note 10; Stimson & Von Spakovsy, supra note 10.
  13. U.S. Const. art. II, § 2.
  14. But see Noah A. Messing, A New Power?: Civil Offenses and Presidential Clemency, 64 Buff. L. Rev. 661 (2016) (proposing a system of using mass civil pardons as “cloud cover” to provide relief from problematic legislation and regulations).
  15. Leonard B. Boudin, The Presidential Pardons of James R. Hoffa and Richard M. Nixon: Have the Limitations on the Pardon Power Been Exceeded?, 48 U. Colo. L. Rev. 1, 2–3 (1976).
  16. Id. at 4; Messing, supra note 14, at 676; see, e.g., Office of the Pardon Attorney, Clemency Recipients, U.S. Dep’t of Justice, (providing lists of clemency recipients sorted by president and including the terms of each grant where applicable). Note, grantees are under no obligation to accept an offer of clemency. See, e.g., Gregory Korte, Obama Grants Clemency to Inmate—But Inmate Refuses, USA Today (Oct. 14, 2016), (noting that many of Obama’s commutations have required offenders to complete drug treatment as a condition of clemency).
  17. Paul Rosenzweig, A Federalist Conception of the Pardon Power, Legal Memorandum (The Heritage Foundation), Dec. 4, 2012, at 3 (citing The Federalist No. 74 (Alexander Hamilton)).
  18. Jeffrey Crouch, Presidential Misuse of the Pardon Power, 38 Presidential Stud. Q. 722, 723 (2008).
  19. Rosenzweig, supra note 17, at 1–2.
  20. Margaret C. Love, Reinventing the President’s Power, Am. Const. Soc’y for L. & Pol’y, Oct. 2007, at 1, 3. Multiple iterations of the Supreme Court later opined on the pardon power, with Justice Marshall calling it an “act of grace” and Justice Holmes rejecting that view, declaring it “a part of the Constitutional scheme.” Crouch, supra note 18, at 724.
  21. See Crouch, supra note 18, at 723; see also, e.g., Jeffrey Crouch, The President’s Power to Commute: Is It Still Relevant?, 9 U. St. Thomas L.J. 681, 690 (2011) (citing President Clinton’s offers of clemency to FALN members and President Bush’s commutation of “Scooter” Libby as examples of “regrettable” clemency decisions made “more for the president’s personal interest than to pursue justice.”).
  22. See Rachel E. Barkow, Clemency and Presidential Administration of Criminal Law, 90 N.Y.U. L. Rev. 802, 818 (2015); Rosenzweig, supra note 2.
  23. Love, supra note 19, at 3; Rosenzweig, supra note 17, at 7. See generally Jonathan T. Menitove, Short Essay, The Problematic Presidential Pardon: A Proposal for Reforming Federal Clemency, 3 Harv. L. & Pol’y Rev. 447 (2009) and Ruckman, supra note 2, for thoughts on the future of the clemency power.
  24. See, e.g., Presidential Pardon Power: Hearing Before the Subcomm. on the Constitution of the H. Comm. on the Judiciary, 107th Cong. (2001); Crouch, supra note 18, at 732 (referencing Senator Mondale’s 1974 proposal to give Congress the authority to disapprove a clemency grant).
  25. Messing, supra note 14, at 703–04.
  26. For example, President George Washington granted amnesty to participants in the Whiskey Rebellion and Presidents Abraham Lincoln and Andrew Johnson granted amnesty to Confederate soldiers who fought in the Civil War. See Rosenzweig, supra note 17, at 3. President Ford pardoned the infamous “Tokyo Rose,” an American woman imprisoned for making treasonous radio broadcasts during World War II. See Adam Bernstein, Iva Toguri D’Aquino, 90: “Tokyo Rose” in WWII, Wash. Post (Sept. 28, 2006),; Jennifer Latson, How “Tokyo Rose” Was Convicted of Treason—And Then Pardoned, Time (Jan. 19, 2015),
  27. Savage, supra note 4.
  28. Id.

Editor’s note: a previous version of this post misquoted Alexander Hamilton’s proposed revision of the pardon clause and inaccurately stated that this proposal was made in 1718. The quotation has been altered and the year has been corrected.

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