As legal questions about the extent of presidential power have continued to make headlines in recent days, President Donald Trump has made ample use of one such presidential prerogative: the pardon power.
Last Thursday, President Trump pardoned conservative writer Dinesh D’Souza, who’d pleaded guilty to violating federal campaign contribution limits. A week earlier, he’d posthumously pardoned boxer Jack Johnson, whose 1913 conviction under the Mann Act has long been seen by many as an injustice. And, on Wednesday, after Kim Kardashian West advocated for the move, he commuted the sentence of Alice Johnson, who’s been serving a life sentence for her role in a former Memphis cocaine trafficking operation. (A presidential pardon restores some rights that are often revoked for those with criminal convictions; a commutation is a reduction in punishment.) He has spoken of pardoning Martha Stewart and commuting Rod Blagojevich’s sentence, and asserted that he would in theory have the right to pardon himself.
So why do presidents have pardoning power in the first place?
It starts, in part, with Alexander Hamilton, who articulated the rationale for presidential pardons in the Federalist Papers when he wrote in No. 74 that “without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel.” So, as with so many things in the American civic structure, the idea is that the pardon provides checks and balances against the judiciary system; there has to be an out somewhere in the system.
In the Constitution, the president’s power to pardon for federal crimes is outlined in Article II, Section 2, which gives the Commander-in-Chief power to “grant Reprieves and Pardons for Offenses against the United States” (though not in “cases of impeachment”). But, though other historical documents like the Federalist Papers can offer clues into the Founding Fathers’ mindsets, suggesting they were concerned with mercy and justice, nothing is specified in the Constitution itself about why and when that power should be used.
So, since then, as TIME has previously reported, presidents have used the power for number of reasons that go beyond addressing miscarriages of justice. Those reasons — in which there’s no argument that the person is innocent, but rather some other factor in play — range from maintaining public order to bolstering their own legacies.
Pardons of high-profile figures are historical exceptions; most presidential pardons, which are often issued in large batches to fairly anonymous people for non-violent crimes, don’t make the news.
The high-profile cases that do make news can spark backlash, as seen with Trump’s Dinesh D’Souza pardon — and that’s a situation that’s only increased in the 24/7 social media and cable news cycle. Such backlash is, experts say, one reason why presidents have been using the power less in recent years, ever since President Ford’s pardon of Richard Nixon after Watergate was seen as one reason why Ford lost the 1976 election. The hesitancy to pardon increased during the 1988 presidential campaign, when a famous political ad for George H.W. Bush took aim at Massachusetts Governor Michael Dukakis for supporting a program that furloughed prisoners after convicted murderer Willie Horton stabbed a man to death and raped his wife.
As to whether the president can pardon himself — which Trump tweeted he has the “absolute right” to do — an Office of Legal Counsel memo to President Nixon in the middle of the Watergate scandal in 1974 acknowledged that, while the U.S. Constitution may not explicitly prevent a president from pardoning himself, there is a fundamental legal principle that he’d be violating if he did.
Read more about the history of presidential pardons here: A Trump Pardon That Breaks With White House History