Pardoning Corporations

Abstract

In 1977, a company convicted of conspiring with the mob asked President Carter for a pardon. The government speculated that the President could grant the request, but ultimately the President decided not to. Nearly fifty years later, President Trump pardoned a company convicted of violating the Bank Secrecy Act. People are again speculating that the pardon power covers companies, but few can offer evidence either way.

History shows that the pardon power covers companies. Before the Founding, the King would often pardon corporations. Both the city of London and the Massachusetts Bay Company were pardoned before the Founders were even born. This tradition was the background against which the Pardon Clause and many of its state analogs were drafted.

That the President can pardon companies might feel surprising or even unsettling. But the prerogative fits comfortably into the nation’s separation of powers. Congress can make exercising the power less attractive by withholding refunded fines or replacing crimes with civil infractions. These checks come with more tradeoffs when exercised in the context of human beings, which might explain why Congress has not exercised them yet.

Keywords: pardon, executive power, presidential power, history, originalism, original law, common law, pardon power, clemency, corporate law, corporations