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 1978.1 We 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. generally Schick 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 or prosecution has been initiated or a conviction obtained, as a policy m atter it would raise a serious question o f disparate treatment.

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 *2 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. 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 or 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 , 80 U .S. (13 W all.) 128 (1872) (President's pow 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 general 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 or exam ple, in the post-C ivil War p e rio d Congress enacted several pieces o f legislation restoring civil rights to form 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 that acts o f general am nesty passed by the legislature are invalid as an invasion o f the e xecutive’s pardoning pow er. See 20 O p. A tt’y Gen. 330 (1892) (collecting cases).

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. 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 *3 6 This O ffice also objected on the same grounds to provisions of 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 of the judicial process. Compare United States , 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).