Presidential Pardons: Overview and Selected Legal Issues

Summary: Article II, Section 2 of the U.S. Constitution authorizes the President "to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment." The power has its roots in the king's prerogative to grant mercy under early English law, which later traveled across the Atlantic Ocean to the American colonies. The Supreme Court has recognized that the authority vested by the Constitution in the President is quite broad, describing it as "plenary," discretionary, and largely not subject to legislative modification. Nonetheless, there are two textual limitations on the pardon power's exercise: first, the President may grant pardons only for federal criminal offenses, and second, impeachment convictions are not pardonable. The Court has also recognized some other narrow restraints, including that a pardon cannot be issued to cover crimes prior to commission.

Summary: The pardon power authorizes the President to grant several forms of relief from criminal punishment. The most common forms of relief are full pardon s (for individuals) and amnesties (for groups of people), which completely obviate the punishment for a committed or charged federal criminal offense, and commutations , which reduce the penalties associated with convictions. An administrative process has been established through the Department of Justice's Office of the Pardon Attorney for submitting and evaluating requests for these and other forms of clemency, though the process and regulations governing it are merely advisory and do not affect the President's ultimate authority to grant relief.

Summary: Legal questions concerning the President's pardon power that have arisen have included (1) the legal effect of clemency; (2) whether a President may grant a self-pardon; and (3) what role Congress may play in overseeing the exercise of the pardon power. With respect to the first question, some 19th century Supreme Court cases suggest that a full pardon broadly erases both the punishment for an offense and the guilt of the offender. However, more recent precedent recognizes a distinction between the punishment for a conviction , which the pardon obviates, and the fact of the commission of the crime , which may be considered in later proceedings or preclude the pardon recipient from engaging in certain activities. Thus, although a full pardon restores civil rights such as the right to vote that may have been revoked as part of the original punishment, pardon recipients may, for example, still be subject to censure under professional rules of conduct or precluded from practicing their chosen profession as a result of the pardoned conduct.

Summary: As for whether a President may grant a self-pardon, no past President has ever issued such a pardon. As a consequence, no federal court has addressed the matter. That said, several Presidents have considered the proposition of a self-pardon, and scholars have reached differing conclusions on whether such an action would be permissible based on the text, structure, and history of the Constitution. Ultimately, given the limited authority available, the constitutionality of a self-pardon is unclear.

Summary: Finally, regarding Congress's role in overseeing the pardon process, the Supreme Court has indicated that the President's exercise of the pardon power is largely beyond the legislature's control. Nevertheless, Congress does have constitutional tools at its disposal to address the context in which the President's pardon power is exercised, including through oversight, constitutional amendment, or impeachment.

A rticle II, Section 2 of the U.S. Constitution authorizes the President "to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment." This executive power of clemency encompasses several distinct forms of relief from criminal punishment, of which a full presidential "pardon" is only one. The power has its roots in the king's prerogative to grant mercy under early English law, which later traveled across the Atlantic Ocean to the American colonies. The Supreme Court has recognized that the authority vested by the Constitution in the President is quite broad, extending to "every offence known to the law" and available "at any time after [a crime's] commission, either before legal proceedings are taken or during their pendency, or after conviction and judgment." That said, there are some limits to the power conferred by the pardon provision of Article II: for instance, the President may grant pardons only for federal criminal offenses, and impeachment convictions are not pardonable. An administrative process has been established through the Department of Justice's (DOJ's) Office of the Pardon Attorney for submission and evaluation of requests for pardons and other forms of clemency, though this process and the regulations governing are purely advisory in nature and do not affect the President's ultimate authority to grant relief.

This report provides an overview of the President's pardon power. After briefly discussing the historical background to the power conferred by Article II, Section 2 of the Constitution, the report explores the different forms of clemency that are available, the relatively few limits on theÂ pardon power, and the process of seeking and receiving clemency. The report concludes by addressing selected legal issues related to the pardon power: (1) the legal effect of pardons andÂ other forms of clemency; (2) whether the President may grant clemency to himself; and (3)Â Congress's role in overseeing the use of the pardon power.

The concept of governmental relief from the punishment that would otherwise apply to a criminal act has deep historical roots, with some scholars tracing it as far back as ancient Greece and Rome. An English form of pardon power vested in the king, the "prerogative of mercy," first appeared during the reign of King Ine of Wessex (688-725 A.D.). Over time, perceived abuses "such as royal sales of pardons or use of pardons as bribery to join the military" prompted Parliament to impose limitations on the pardon power. The king's power to pardon nevertheless endured through the American colonial period and applied in the colonies themselves through delegation to colonial authorities.

Following the American Revolution, the English legal tradition of a pardon power held by the executive directly influenced the pardon provision included in the U.S. Constitution. At the Constitutional Convention, the two major plans offeredâthe Virginia and New Jersey plansâdid not address pardons. However, in a "sketch" of suggested amendments to the Virginia plan, Alexander Hamilton included a pardon power vested in an "Executive authority of the United States" that extended to "all offences except Treason," with a pardon for treason requiring Senate approval. It appears that the rationale for the treason limitation was, at least in part, that the head of the executive branch should not be able to absolve himself and possible conspirators of a crime threatening "the immediate being of the society." Hamilton's proposal was included in a subsequent draft of the Constitution, though the requirement of Senate approval for a pardon of treason was replaced with an exception for impeachment, apparently with the thought that exempting impeachment was sufficient to protect against abuse.

Debate at the Convention over the pardon power was limited, primarily centering on questions of (1) how broad the power should be (i.e., what restrictions or exceptions to the power should exist), and (2) whether the legislature should have a role in the power's exercise. Ultimately, proposals to impose additional limits on pardons beyond an exception for impeachmentâsuch as by calling for Senate approval of pardons or requiring conviction prior to pardon âwere rejected, resulting in the expansive power in Article II, Section 2 of the Constitution. Alexander Hamilton made the case for the breadth of this executive-held power in The Federalist , arguing that it "should be as little as possible fettered or embarrassed" to ensure "easy access to exceptions in favour of unfortunate guilt." And on this view, "a single man of prudence and good sense," that is, the President, would be "better fitted, in delicate conjunctures, to balance the motives which may plead for and against the remission of the punishment, than any numerous body whatever." In accordance with these principles, the text of the Constitution, as ratified, places few limits on the President's ability to grant pardons, as discussed in more detail below.

In light of references in scholarship and the popular press to the President's "pardon power," a casual observer might think that Article II, Section 2 of the Constitution authorizes only one form of relief from criminal punishment. That is not the case, however: the text of the Constitution speaks of "Reprieves and Pardons," and the Supreme Court has explained that the "language of the [provision] is general, that is, common to the class of pardons, or extending the power to pardon to all kinds of pardons known in the law as such, whatever may be their denomination." As such, the President has "plenary" constitutional authority under the pardon provision "to 'forgive'" an accused or convicted person "in part or entirely, to reduce a penalty in terms of a specified number of years, or to alter it with conditions which are in themselves constitutionally unobjectionable."

At least five forms of clemency fall under this authority:

1. pardon; 2. amnesty; 3. commutation; 4. remission of fines and forfeitures; 5. reprieve.

A full pardon is the most expansive form of clemency; it "releases the wrongdoer from punishment and restores the offender's civil rights without qualification." A pardon may be granted at any time prior to charge, prior to conviction, or following conviction, but it appears that it must be accepted to be effective or at least may be refused. For instance, President Woodrow Wilson issued a pardon to George Burdick, an editor at the New York Tribune , for any federal offenses he "may have committed" in connection with the publication of an article regarding alleged customs fraud, despite the fact that Burdick had not been charged with any crime at the time of the pardon. The apparent motivation for the pardon was that Burdick had refused to testify before a grand jury investigating the involvement of Treasury Department officials in leaks concerning the wrongdoing, asserting his Fifth Amendment right not to provide testimony that would tend to incriminate him. Despite President Wilson's issuance of the pardon, Burdick "refused to accept" it and continued to refuse to answer certain questions put to him before the grand jury. In Burdick v. United States , the Supreme Court assumed that the pardon was within the President's power to issue and concluded that "it was Burdick's right to refuse it" and stand on his Fifth Amendment objection.

Amnesty is essentially identical to a pardon in practical effect, with the principal distinction between the two being that amnesty typically "is extended to whole classes or communities, instead of individuals[.]" As an example, President Jimmy Carter granted amnesty to many who violated the Selective Service Act by evading the draft during the Vietnam War.

In contrast to pardons and amnesty, which obviate criminal punishments in their entirety, commutation merely substitutes the punishment imposed by a federal court for a less severe punishment, such as by reducing a sentence of imprisonment. To take a well-known example, President Richard Nixon conditionally commuted to six and a half years the 13-year sentence of famed labor union leader Jimmy Hoffa, who had been convicted of mail fraud, wire fraud, and obstruction of justice. Along the same lines, the President "may remit [criminal] fines, penalties, and forfeitures of every description arising under the laws of [C]ongress," and, apparently in contrast to a pardon, a commutation or remission is valid even in the absence of the consent of the offender whose punishment is reduced.

Finally, a reprieve merely "produces delay in the execution of a sentence" for a period of time "when the President shall think the merits of the case, or some cause connected with the offender, may require it," such as "where a female after conviction is found to be [pregnant], or where a convict becomes insane, or is alleged to be so." President Bill Clinton, for instance, issued a reprieve delaying by six months the execution date of Juan Raul Garza, who had been convicted of multiple capital homicide offenses, so that DOJ could conduct a study of "racial and geographic disparities in the federal death penalty system."

As noted above, forms of clemency such as pardons and commutations may be unconditional or may carry specific conditions that must be met for the relief to be effective.

The federal courts have recognized that the power conferred by Article II, Section 2 of the Constitution is quite broad, establishing virtually "unfettered executive discretion" to grant clemency. The judiciary accordingly has been reticent to weigh in on clemency matters within the purview of the executive branch, particularly given separation-of-powers constraints inherent in the Constitution's structure. As a result, there is very little judicial guidance regarding the limits of the President's pardon authority. Two limits are nonetheless obvious from the constitutional text: first, pardons may be granted only for "offences against the United States," that is, federal crimes, and second, pardons may not be granted "in Cases of Impeachment."

Beyond the limits established in Article II, Section 2 of the Constitution, the power to grant conditional or unconditional clemency, though broad, may also be externally limited by other constitutional provisions and guarantees. The Supreme Court has, at times, alluded to such limits, noting, for example, that the President may attach to a grant of clemency conditions "which are in themselves constitutionally unobjectionable." Notably, in Hoffa v. Saxbe , the federal district court for the District of Columbia was called upon to squarely address the relationship between the President's pardon power and "the rights and liberties of the individual" as enshrined in other constitutional provisions. The case involved a commutation that was conditioned on the recipient forgoing participation in labor union management for a period of years. The recipient of the commutation challenged the condition as a violation of his First Amendment rights of free speech and association, among other things. Faced with the issue, the court took the view that "there are obvious limits beyond which the President may not go in imposing and subsequently enforcing" clemency conditions and "arrive[d] at a two-pronged test of reasonableness in determining the lawfulness of a condition: first, that the condition be directly related to the public interest," meaning that it "must relate to the reason for the initial judgment of conviction" in a way that reflects regard for protection of the public; "and second, that the condition not unreasonably infringe on the individual commutee's constitutional freedoms." Applying this two-pronged test, the district court ultimately concluded that the condition was valid because (1)Â the commutation recipient's crimes related to participation in union activities, which the public had a strong interest in the integrity of; and (2) the condition met applicable First Amendment standards.

Because case law regarding the President's authority to grant clemency is limited, the two-pronged analysis laid out in Hoffa has not been endorsed by the Supreme Court, nor has there been extensive judicial development of alternative frameworks. Nevertheless, though the proposition remains largely theoretical given the dearth of case law, legal scholars have maintained that grants of clemency or clemency conditions at odds with certain constitutional guarantees like equal protection of the law, due process, and the prohibition of cruel and unusual punishment are subject to judicial review and potential invalidation.

While not necessary, clemency is typically granted through an administrative process established in regulations that provide for consideration of applications by the Office of the Pardon Attorney within the Department of Justice (DOJ). The regulations require any person "seeking executive clemency by pardon, reprieve, commutation of sentence, or remission of fine" to execute a "formal petition" and submit it to the Pardon Attorney. To be eligible to file a pardon petition, at least five years must have elapsed since one's release from confinement or one's conviction (if no prison sentence was imposed). Petitions for commutation generally may be filed only after all other forms of judicial and administrative relief have been pursued, though allowance may be made "upon a showing of exceptional circumstances."

Once a petition for clemency has been submitted, the Pardon Attorney is to investigate its merit by engaging "appropriate officials and agencies of the Government" like the Federal Bureau of Investigation. At the conclusion of the investigation, the Pardon Attorney submits a recommendation through the Deputy Attorney General to the Attorney General as to whether the request for clemency should be granted or denied, and the Attorney General is to then review all pertinent information to "determine whether the request for clemency is of sufficient merit to warrant favorable action by the President." The Attorney General's final recommendation is made to the President in writing.

The general standard for a pardon request "of sufficient merit" is that the petitioner has "demonstrated good conduct for a substantial period of time after conviction and service of sentence." DOJ lists five "principal factors" in determining whether a particular application warrants a favorable recommendation:

1. post-conviction conduct, character, and reputation , including, among other things, financial and employment stability, "responsibility toward family," and participation in community service; 2. the seriousness and relative recentness of the offense , with consideration of victim impact and whether sufficient time has passed "to avoid denigrating the seriousness of the offense or undermining the deterrent effect of the conviction"; 3. acceptanc e of responsibility, remorse, and atonement , including victim restitution and any attempts "to minimize or rationalize culpability"; 4. the need for relief , such as a legal disability like a bar to licensure, though "the absence of a specific need should not be held against an otherwise deserving applicant"; and 5. recommendations and reports from officials like the prosecuting attorneys and sentencing judge.

Factors considered on a request for commutation include "disparity or undue severity of sentence, critical illness or old age," the "amount of time already served," the "availability of other remedies," "meritorious service rendered to the government" (such as cooperation with investigations and prosecutions), and/or "other equitable factors" like demonstrated rehabilitation or pressing unforeseen circumstances. Similarly, "satisfactory post-conviction conduct" is considered on application for remission of a fine or restitution, as well as "the ability to pay and any good faith efforts to discharge the obligation."

During President Obama's second term, DOJ announced a "clemency initiative" to "encourage qualified federal inmates to petition to have their sentences commuted[.]" Under the initiative, DOJ prioritized applications of inmates who met special factors that included (1) being nonviolent, low-level offenders without significant ties to organized criminal enterprises; (2) lacking a significant criminal history; (3) demonstrating good conduct in prison; (4) lacking a history of violence; (5) having served at least 10 years of their sentence; and (6) serving a sentence for which they "likely would have received a substantially lower sentence" by operation of law if convicted at the time of consideration. DOJ made recommendations to President Obama on thousands of petitions received through the initiative, many of which were still pending at the end of his second term. The program ended when President Obama left office on January 20, 2017. More broadly, according to statistics kept by the Office of the Pardon Attorney, recent Presidents have granted a relatively small percentage of clemency petitionsâfor instance, President George W. Bush received over 11,000 petitions for pardon or commutation and granted a total of 200.

Though DOJ's regulations and requirements guide its consideration of requests for clemency, they do not "restrict the authority granted to the President under Article II, section 2 of the Constitution." In other words, the President is free to grant clemency as he or she sees fit (subject to the constraints described elsewhere in this report), regardless of whether a prospective recipient meets DOJ standards or even participates in the formal petition process through the Office of the Pardon Attorney. For instance, as noted above, while DOJ regulations impose a five-year waiting period for submission of a pardon application through the Pardon Attorney, the President may issue a pardon at any time after the commission of a federal offense even if no charges have been filed, as was the case with President Gerald Ford's pardon of former President Nixon.

When a pardon or commutation is granted, the recipient is notified, and a "warrant" is mailed to him or her (or sent to the officer in charge of the place of confinement in the case of a commutation of a sentence still being served). Though the requirements of notice and delivery are set out in DOJ regulations, it appears that they may be necessary for at least a full pardon to have legal effect. As noted above, an ostensible pardon recipient may be able to reject the pardon, at least when "personal rights" like assertion of the Fifth Amendment right against self-incrimination are at issue. Moreover, Presidents have, in the past, revoked pardons prior to delivery and acceptance. For instance, in 1869, after outgoing President Andrew Johnson issued but did not deliver a pardon, incoming President Ulysses S. Grant revoked the pardon, and a federal court upheld the revocation.

The President's use of the pardon power in particular circumstances can raise a number of legal questions, many of which may be unresolved given the limited authority addressing federal clemency matters. Three unresolved legal issues may be of particular interest to Congress given recent commentary: (1) the legal effect of clemency; (2) whether a President may issue a self-pardon; and (3) Congress's role in overseeing the exercise of the pardon power.

The legal effect of limited forms of clemency like commutations is fairly clear: criminal punishment is reduced "either totally or partially," but the relief "does not change the fact of conviction, imply innocence, or remove civil disabilities that apply to the convicted person as a result of the criminal conviction." The legal significance of a full pardon, however, has been a subject of shifting judicial views over time. While early cases suggested that a pardon obviates all legal guilt of the offender, effectively wiping the crime from existence, more recent case law suggests that a pardon removes only the punishment for the offense without addressing the guilt of the recipient or other consequences stemming from the underlying conduct.

In an 1866 decision, Ex parte Garland , the Supreme Court took a broad view of the nature and consequence of a pardon:

A pardon reaches both the punishment prescribed for the offense and the guilt of the offender; and when the pardon is full, it releases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offence. If granted before conviction, it prevents any of the penalties and disabilities consequent upon conviction from attaching; if granted after conviction, it removes the penalties and disabilities, and restores him to all civil rights; it makes him, as it were, a new man, and gives him a new credit and capacity.

A few years after Garland , the Court appeared to affirm that a pardon "not merely releases the offender from the punishment prescribed for the offence, but . . . obliterates in legal contemplation the offence itself." However, in subsequent decisions, the Court backed away from the broad proposition that a pardon erases both the consequences of a conviction and the underlying guilty conduct. Most notably, in Carlesi v. New York , the Court determined that a pardoned offense could still be considered "as a circumstance of aggravation" under a state habitual-offender law, and then in Burdick v. United States , the Court noted that a pardon in fact "carries an imputation of guilt; acceptance a confession of it." Based on this more recent Supreme Court case law, multiple federal Courts of Appeals have concluded that the "historical language" from early cases "was dicta and is inconsistent with current law."

Modern cases instead recognize a distinction between the punishment for a conviction, which the pardon obviates, and "the fact of the commission of the crime," which may be considered in subsequent proceedings or preclude the pardon recipient from engaging in certain activities. A pardon will accordingly relieve the recipient of legal disabilities that "would not follow from the commission of the crime without conviction," such as possession of a firearm or the right to vote, but the conduct and circumstances of the offense may still be considered for purposes of, among other things, certain benefits or licensing determinations or as a basis for censure under rules of professional conduct. Relatedly, courts have held that a pardon does not automatically expunge the record of the conviction itself or require that the court's orders be vacated. Despite the judicial trend toward a narrower understanding of the legal effect of a pardon, however, the Supreme Court has not directly revisited its broad language from Garland , and thus its precise meaning in relation to later pronouncements from the Court remains somewhat unclear.

Whether a President may pardon himself is an unresolved legal question that has been a subject of renewed interest following President Trump's statement in 2018 that he has "the absolute right" to do so. No past President has issued a self-pardon, and, as a result, no federal court has directly addressed the matter. That said, legal scholars and commentators have debated the question extensively and reached differing conclusions. Proponents of the view that the President may pardon himself tend to emphasize the lack of limitation in the constitutional language, as well as certain historical views and pronouncements of the Supreme Court as to the breadth of the President's pardoning power in general.

By contrast, those asserting that the President lacks the power of self-pardon raise competing textual arguments and suggest that self-pardons would be inconsistent with other constitutional provisions, such as the Article I provision stating that officials convicted in an impeachment trial "shall . . . be liable and subject to Indictment, Trial, Judgment, and Punishment, according to law." An Office of Legal Counsel opinion issued shortly before President Nixon's resignation in 1974 concluded that the President cannot pardon himself "[u]nder the fundamental rule that no one may be a judge in his own case," and some scholars subsequently have supported this opinion. In any event, even were a President to pardon himself, at least one commentator has noted that it is questionable whether a court would issue a definitive ruling as to that pardon's lawfulness given practical considerations and separation-of-powers concerns.

Role of Congress in President's Use of the Pardon Power

The Supreme Court has taken the view that Congress generally cannot circumscribe the President's pardon authority. In Ex parte Garland , the Court remarked that the "power of the President [to pardon] is not subject to legislative control. Congress can neither limit the effect of his pardon, nor exclude from its exercise any class of offenders. The benign prerogative of mercy reposed in him cannot be fettered by any legislative restrictions." Consistent with this broad language, the Court later rejected post-Civil War attempts by Congress to limit the effect of pardons granted to those who aided the Confederate cause on their right to recover for seized property, stating that "the legislature cannot change the effect of such a pardon any more than the executive can change the law." More recently, in rejecting the proposition that a condition attached to clemency must be authorized by statute, the Court indicated that "the power [of clemency] flows from the Constitution alone, not from any legislative enactments, and . . . it cannot be modified, abridged, or diminished by the Congress."

It thus appears that Congress lacks the authority to substantively constrain the President's power to grant clemency, though Congress may be able to take some actions that would facilitate exercise of the power, such as through appropriations. There is historical precedent for Congress funding positions in DOJ to assist in considering clemency petitions. That said, attempts to indirectly impair the pardon power through appropriations limitations could potentially be viewed as inappropriate.

Given these limitations, Congress's practice for formally conveying its views on clemency matters has typically involved passing nonbinding resolutions expressing the sense of Congress as to whether clemency should or should not be granted. Legislation has also been introduced in the 116th Congress that would impose certain post hoc procedural requirements on the Attorney General in connection with pardonsâspecifically, (1)Â requiring submission of investigative materials to congressional committees upon the grant of a pardon or commutation arising from an investigation in which the President or a relative is a target, subject, or witness; and (2) requiring publication of pardon information within three days of any grant. Although such legislation may not be a direct substantive constraint on the President's authority to grant clemency, given the relative lack of case law interpreting the pardon power and the sometimes sweeping language the Court has used to describe the President's prerogative, it is unclear whether such legislation would be viewed by the courts as an impermissible imposition on an area of executive authority.

Beyond legislation, Congress may have a role to play in pardon decisions through other constitutional processes. For instance, Congress has invoked its Article I authority to conduct oversight as a more indirect constraint on the use of the pardon power. And on that front, Congress has, in the past, been relatively successful in obtaining information from the executive branch on particular clemency decisions, up to and including congressional testimony from the President himself. Nevertheless, DOJ has taken the position that past examples of executive branch compliance with congressional requests for information regarding pardon decisions have been purely voluntary, and that in fact "Congress has no authority whatsoever to review a President's clemency decision." Whether a court, faced with an interbranch dispute regarding congressional demands for information on pardon decisions, would order the executive branch to comply with such demands would likely depend on the court's view of two possible constraints on Congress's oversight authority: (1) the existence of a valid legislative purpose, and (2)Â executive privilege.

With respect to the first constraint, the Supreme Court has said that Congress's power to conduct oversight is inherent in the legislative process and is broad, encompassing "inquiries concerning the administration of existing laws[,] . . . proposed or possibly needed statutes," and "probes into departments of the federal government to expose corruption, inefficiency, or waste." However, a congressional investigation cannot be used "to expose for the sake of exposure," meaning that a valid inquiry "must be related to, and in furtherance of, a legitimate task of the Congress." The Court has also cautioned that Congress "cannot inquire into matters which are within the exclusive province of one of the other branches of the Government." It is on the basis of this language that DOJ has maintained that Congress's oversight authority does not extend to clemency decisions, averring that "[t]he granting of clemency pursuant to the pardon power is unquestionably an exclusive province of the Executive Branch." That said, the Supreme Court has at other times framed the issue of legislative purpose in the context of executive or judicial prerogatives as being whether it is "obvious that there was a usurpation of functions exclusively vested in the Judiciary or the Executive," and a congressional committee seeking information on a clemency decision might accordingly argue that a subpoena or request for information on the decision is not a "usurpation" of the clemency function but is merely levied in aid of a "probe . . . to expose corruption, inefficiency, or waste."

Assuming a valid legislative purpose, the question would become whether materials related to a pardon decision are nevertheless protected from disclosure by executive privilege. Executive privilege "is a term that has been used to describe the President's power to 'resist disclosure of information the confidentiality of which [is] crucial to the fulfillment of the unique role and responsibilities of the executive branch of our government.'" The term encompasses at least two distinct forms of privilege that have been recognized by the federal courts: (1) a "presumptive privilege for Presidential communications" that extends to "direct communications of the President with his immediate White House advisers" made "'in performance of the President's responsibilities'" and "'in the process of shaping policies and making decisions,'" as well as "communications authored or solicited and received" by immediate White House advisers; and (2) a "deliberative process privilege" that may extend more broadly to "decisionmaking of executive officials generally," shielding "documents and other materials that would reveal advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated." Neither form of privilege is absolute, as either "can be overcome by a sufficient showing of need." However, "the presidential communications privilege is more difficult to surmount" than the deliberative process privilege; at least in the context of a congressional subpoena, the U.S. Court of Appeals for the D.C. Circuit has indicated that the former can be overcome on a showing that "the subpoenaed evidence is demonstrably critical to the responsible fulfillment of the Committee's functions," while the latter is subject to a flexible, "ad hoc" determination of need and may "disappear[] altogether when there is any reason to believe government misconduct has occurred."

It does not appear that courts have addressed the application of either form of privilege to information regarding presidential clemency decisions sought by Congress. However, the U.S. Court of Appeals for the D.C. Circuit considered whether the presidential communications privilege would apply to "internal pardon documents" of the Offices of the Pardon Attorney and Deputy Attorney General that were not solicited or received by the President or his immediate advisors in Judicial Watch v. Department of Justice , concluding that such documents fell outside the scope of the presidential communications privilege but might still be covered by the deliberative process privilege.

Based on Judicial Watch and the limited Supreme Court precedent addressing executive privilege, it seems that whether a court would order disclosure to a congressional committee of information concerning a presidential clemency decision in the face of an assertion of executive privilege could depend on whether the information sought is limited to internal agency documents (in which case the deliberative process privilege could apply) or includes communications among and between the President and/or senior White House officials (in which case the presidential communications privilege would appear to apply). Because the threshold of need is higher in the latter case than in the former, it seems more likely that Congress could obtain documents and information generated by the Pardon Attorney that are not requested by or submitted to the President or his advisors. Even in the case of presidential communications, however, a court could still conclude that a congressional committee is entitled to the information if the committee can demonstrate that it is critically needed.

An additional way in which Congress might assert itself with respect to presidential pardon decisions is through impeachment. James Madison alluded to this "great security" against abuse of the pardon power when he noted during the Virginia ratification convention that "if the President be connected, in any suspicious manner, with any person, and there be grounds to believe he will shelter him, the House of Representatives can impeach him[.]" The Supreme Court also appeared to acknowledge the possibility of impeachment for misuse of clemency in the early 20th century case of Ex parte Grossman . In concluding that the pardon power extended to criminal punishment for contempt of court, the Supreme Court in that case indicated that if the President ever sought to "deprive a court of power to enforce its orders" by issuing "successive pardons of constantly recurring contempts in particular litigation," such an "improbable" situation "would suggest a resort to impeachment, rather than a narrow and strained construction of the general powers of the President." Consistent with these authorities, several commentators have alluded to the potential availability of impeachment as a check on the President's pardon authority. That said, some have also raised doubts as to the efficacy of impeachment as a constraint on the President, arguing that it is "useless against a President .Â .Â . who grants controversial pardons in the very last hours of his tenure" as some Presidents have. Were a President to be impeached in the House of Representatives for abusing the pardon power and subsequently convicted in the Senate, the remedy would be limited by the Constitution to his removal from office and "disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States[.]"

Finally, Congress can seek to amend the Constitution to clarify or constrain the President's clemency authority. Resolutions have been introduced in the 116th Congress that would amend the Constitution to prohibit the President from granting a pardon to himself or to family members and current or former members of his campaign or administration. However, the requirements for successfully amending the Constitution are, by design, exceptionally stringentâamendments would need to be passed by a two-thirds vote of each House of Congress and ratified by three-fourths of the states. Passing a constitutional amendment as a means of addressing unpopular or controversial pardon decisions accordingly may be difficult.


U.S. Assistance to Sub-Saharan Africa: An Overview

Summary: Overview. Congress authorizes, appropriates, and oversees U.S. assistance to sub-Saharan Africa ("Africa"), which received over a quarter of U.S. aid obligated in FY2018. Annual State Department- and U.S. Agency for International Development (USAID)-administered assistance to Africa increased more than five-fold over the past two decades, primarily due to sizable increases in global health spending and more incremental growth in economic and security assistance. State Department and USAID-administered assistance allocated to African countries from FY2019 appropriations totaled roughly $7.1 billion. This does not include considerable U.S. assistance provided to Africa via global accounts, such as emergency humanitarian aid and certain kinds of development, security, and health aid. The United States channels additional funds to Africa through multilateral bodies, such as the United Nations and World Bank.

Summary: Objectives and Delivery. Over the past decade, roughly 70-75% of annual U.S. aid to Africa has sought to address health challenges, notably relating to HIV/AIDS, malaria, maternal and child health, and nutrition. Much of this assistance has been delivered via disease-specific initiatives, including the President's Emergency Plan for AIDS Relief (PEPFAR) and the President's Malaria Initiative (PMI). Other U.S. aid programs seek to foster agricultural development and economic growth; strengthen peace and security; improve education access and social service delivery; bolster democracy, human rights, and good governance; support sustainable natural resource management; and address humanitarian needs. What impacts the Coronavirus Disease 2019 (COVID-19) pandemic may have for the scale and orientation of U.S. assistance to Africa remains to be seen.

Summary: Aid to Africa during the Trump Administration. The Trump Administration has maintained many of its predecessors' aid initiatives that focus wholly or largely on Africa, and has launched its own Africa-focused trade and investment initiative, known as Prosper Africa. At the same time, the Administration has proposed sharp reductions in U.S. assistance to Africa, in line with proposed cuts to foreign aid globally. It also has proposed funding account eliminations and consolidations that, if enacted, could have implications for U.S. aid to Africa. Congressional consideration of the Administration's FY2021 budget request is underway; the Administration has requested $5.1 billion in aid for Africa, a 28% drop from FY2019 allocations. Congress has not enacted similar proposed cuts in past appropriations measures.

Summary: Selected Considerations for Congress. Policymakers, analysts, and advocates continue to debate the value and effectiveness of U.S. assistance programs in Africa. Some Members of Congress have questioned whether sectoral allocations are adequately balanced given the broad scope of Africa's needs and U.S. priorities in the region. Concern also exists as to whether funding levels are commensurate with U.S. interests. Comprehensive regional- or country-level breakouts of U.S. assistance are not routinely made publicly available in budget documents, complicating estimates of U.S. aid to the region and congressional oversight of assistance programs.

Summary: In addition to authorizing and appropriating U.S. foreign assistance, Congress has shaped U.S. aid to Africa through legislation denying or placing conditions on certain kinds of assistance to countries whose governments fail to meet standards in, for instance, human rights, debt repayment, or trafficking in persons. Congress also has restricted certain kinds of security assistance to foreign security forces implicated in human rights abuses. Some African countries periodically have been subject to other restrictions on U.S. foreign assistance, including country-specific provisions in annual aid appropriations measures restricting certain kinds of assistance. Congress may continue to debate the merits and effectiveness of such restrictions while overseeing their implementation.

This report is intended to serve as a primer on U.S. foreign assistance to sub-Saharan Africa ("Africa") to help inform Congress' authorization, appropriation, and oversight of U.S. foreign aid for the region. It focuses primarily on assistance administered by the State Department and U.S. Agency for International Development (USAID), which administer the majority of U.S. aid to the region. It covers recent funding trends and major focus areas of such assistance, select programs managed by other U.S. agencies and federal entities, and the Trump Administration's FY2021 aid budget request for Africa. In addition to discussing aid appropriations, this report notes a range of legislative measures that have authorized specific assistance programs or placed conditions or restrictions on certain types of aid, or on aid to certain countries. Select challenges for congressional oversight are discussed throughout this report. For more on U.S. engagement in Africa, see also CRS Report R45428, Sub-Saharan Africa: Key Issues and U.S. Engagement .

Definitions. Unless otherwise indicated, this report discusses State Department- and USAID-administered assistance allocated for African countries or for regional programs managed by the State Department's Bureau of African Affairs (AF), USAID's Bureau for Africa (AFR), and USAID regional missions and offices in sub-Saharan Africa. It does not comprehensively discuss funding allocated to African countries via global accounts or programs, which publicly available budget materials do not disaggregate by country or region. Except as noted, figures refer to actual allocations of funding appropriated in the referenced fiscal year (hereafter, "allocations").

Recent Assistance Trends and Key Rationales

Africa has received a growing share of annual U.S. foreign assistance funding over the past two decades: the region received 37% of State Department- and USAID-administered aid obligations in FY2018, up from 28% of global obligations in 2008 and 16% in 1998. U.S. aid to Africa grew markedly during the 2000s as Congress appropriated substantial funds to support the President's Emergency Plan for AIDS Relief (PEPFAR), which the George W. Bush Administration launched in 2003. Development and security aid to Africa also increased during that period, albeit to a lesser extent (see Figure 2 ). Assistance for Africa plateaued during the Obama Administration, fluctuating between $7.0 billion and $8.0 billion in annual allocations, excluding emergency humanitarian assistance and other funding allocated from global accounts and programs. Africa received roughly $7.0 billion in annual U.S. aid allocations in the first three years of the Trump Administration, despite the Administration's repeated proposals to curtail aid to the region.

Over the past decade, roughly 70% of U.S. assistance to African countries has supported health programs, notably focused on HIV/AIDS, malaria, nutrition, and maternal and child health. U.S. assistance also seeks to encourage economic growth and development, bolster food security, enhance governance, and improve security.

As discussed below, African countries also receive assistance administered by other federal agencies. The United States channels additional funding to Africa through multilateral bodies, such as U.N. agencies and international financial institutions like the World Bank.

Policymakers, analysts, and advocates continue to debate the value and design of assistance programs in Africa. Proponents of such assistance often contend that foreign aid advances U.S. national interests in the region, or that U.S. assistance (e.g., to respond to humanitarian need) reflects U.S. values of charity and global leadership. Critics often allege that aid has done little to improve socioeconomic outcomes in Africa overall, that aid flows may have negative unintended consequences (such as empowering undemocratic regimes), or that other countries should bear more responsibility for providing aid to the region. Assessing the effectiveness of foreign aid is complexâparticularly in areas afflicted by conflict or humanitarian crisisâfurther complicating such debates. Selected considerations concerning U.S. aid to Africa and issues for Congress are discussed in further detail below (see " Select Issues for Congress ").

U.S. Assistance to Africa: Objectives and Delivery

U.S. assistance seeks to address a range of development, governance, and security challenges in Africa, reflecting the continent's size and diversity as well as the broad scope of U.S. policy interests in the region. State Department- and USAID-administered assistance for Africa totaled roughly $7.1 billion in FY2019, not including funding allocated to Africa via global accounts and programs (see " Select Assistance Provided through Global Accounts and Programs ," below).

Health. At $5.3 billion, health assistance comprised 75% of U.S. aid to Africa in FY2019. The majority of this funding supported HIV/AIDS programs (see Figure 4 ), with substantial assistance provided through the global President's Emergency Plan for AIDS Relief (PEPFAR)âa State Department-led, interagency effort that Congress first authorized during the George W. Bush Administration and reauthorized through 2023 under P.L. 115-305 . Programs to prevent and treat malaria, a leading cause of death in Africa, constituted the second-largest category of health assistance; such funding is largely provided through the USAID-led President's Malaria Initiative (PMI), which targeted 24 countries in Africa (out of 27 globally) as of 2019.

Beyond disease-specific initiatives, U.S. assistance has supported health system strengthening, nutrition, family planning and reproductive health, and maternal and child health programs. The United States also has supported global health security efforts, including pandemic preparedness and response activities, notably through the U.S.-supported Global Health Security Agenda. In recent years, USAID and the U.S. Centers for Disease Control and Prevention (CDC) led robust U.S. responses to two Ebola outbreaks on the continent, in West Africa (2014-2016) and the Democratic Republic of Congo (DRC, 2018-present).

Agriculture and E conomic Growth. U.S. support for economic growth in Africa centers on agricultural development assistance. USAID agriculture programs seek to improve productivity by strengthening agricultural value chains, enhancing land tenure systems and market access road infrastructure, promoting climate-resilient farming practices, and funding agricultural research. Nearly 60% of U.S. agricultural assistance to Africa in FY2019 benefitted the eight African focus countries under Feed the Future (FTF)âa USAID-led, interagency initiative launched by the Obama Administration that supports agricultural development to reduce food insecurity and enhance market-based economic growth. (There are 12 FTF focus countries worldwide; the initiative supports additional countries under "aligned" and regional programs.) The Global Food Security Act of 2016 ( P.L. 114-195 , reauthorized through 2023 in P.L. 115-266 ) endorsed an approach to U.S. agricultural and food assistance similar to FTF.

Other U.S. economic assistance programs support trade capacity-building efforts, economic policy reforms and analysis, microenterprise and other private sector strengthening, and infrastructure development. Since the early 2000s, USAID has maintained three sub-regional trade and investment hubs focused on expanding intra-regional and U.S.-Africa trade, including by supporting African exports to the United States under the African Growth and Opportunity Act (AGOA, Title I, P.L. 106-200 , as amended) trade preference program. USAID also coordinates Prosper Africa, an emerging Trump Administration trade and investment initiative (see Text B ox ).

Electrification is another focus of U.S. economic assistance in Africa. Power Africa, a USAID-led initiative that the Obama Administration launched in 2013, seeks to enhance electricity access through technical assistance, grants, financial risk mitigation tools, loans, and other resourcesâaccompanied by trade promotion and diplomatic and advisory efforts. Facilitating private sector contracts is a key focus of the initiative, which aims to build power generation facilities capable of producing 30,000 megawatts of new power and establish 60 million new power connections by 2030. A sub-initiative, Beyond the Grid, supports off-grid electricity access. Power Africa involves a range of U.S. federal entities in addition to USAID, including the Millennium Challenge Corporation (MCC), DFC, Ex-Im Bank, TDA, and Departments of State, Energy, Commerce, and Agriculture. The Electrify Africa Act of 2015 ( P.L. 114-121 ) made it U.S. policy to aid electrification in Africa through an approach similar to that of Power Africa.

Peace and Security . The State Department administers a range of programs to build the capacity of African militaries and law enforcement agencies to counter security threats, participate in international peacekeeping and stabilization operations, and combat transnational crime (e.g., human and drug trafficking). State Department security assistance authorities are codified in Title 22 of the U.S. Code . Congress appropriates funds for Title 22 programs in annual Department of State, Foreign Operations, and Related Programs (SFOPS) appropriations, though the Department of Defense (DOD) implements several of these programs. (For information on DOD security cooperation, see " Assistance Administered by Other U.S. Federal Departments and Agencies .")

The Peacekeeping Operations (PKO) account is the primary vehicle for State Department-administered security assistance to African countries ( Figure 5 ). Despite its name, PKO supports not only peacekeeping capacity-building, but also counterterrorism, maritime security, and security sector reform. (A separate State Department-administered account, Contributions to International Peacekeeping Activities [CIPA], funds U.S. assessed contributions to U.N. peacekeeping budgets.) In recent years, the largest PKO allocation for Africa has been for the U.N. Support Office in Somalia (UNSOS), which supports an African Union stabilization operation in that country. PKO funding also supports two interagency counterterrorism programs in Africa: the Trans-Sahara Counter-Terrorism Partnership (TSCTP, in North-West Africa), and the Partnership for Regional East Africa Counterterrorism (PREACT, in East Africa).

The Nonproliferation, Anti-terrorism, Demining, and Related Programs (NADR) account funds counterterrorism training and other capacity-building programs for internal security forces, as well as other activities such as landmine removal. International Narcotics Control and Law Enforcement (INCLE) funds support efforts to combat transnational crime and strengthen the rule of law, including through judicial reform and law enforcement capacity-building. The International Military Education and Training (IMET) program offers training for foreign military personnel at facilities in the United States and abroad, and seeks to build military-to-military relationships, introduce participants to the U.S. judicial system, promote respect for human rights, and strengthen civilian control of the military. The United States provides grants to help countries purchase defense articles and services through the Foreign Military Financing (FMF) account.

USAID also implements programs focused on conflict prevention, mitigation, and resolution. Such assistance seeks to prevent mass atrocities, support post-conflict transitions and peace building, and counter violent extremism, among other objectives. Congress appropriates funding for such programs as economic assistance, as opposed to security assistance.

Democracy, Human Rights, and Governance (DRG). State Department- and USAID-administered DRG programs seek to enhance democratic institutions, improve government accountability and responsiveness, and strengthen the rule of law. Activities include supporting African electoral institutions and political processes; training political parties, civil society organizations, parliaments, and journalists; promoting effective and accountable governance; bolstering anti-corruption efforts; and strengthening justice sectors. U.S. assistance also provides legal aid to human rights defenders abroad and funds programs to address particular human rights issues and enable human rights monitoring and reporting.

Education and Social Services . U.S. basic, secondary, and higher education programs seek to boost access to quality education, improve learning outcomes, and support youth transitions into the workforce. Some programs specifically target marginalized students, such as girls and students in rural areas or communities affected by conflict or displacement. Youth development activities also include the Young African Leaders Initiative (YALI), which supports young African business, science, and civic leaders through training and mentorship, networking, and exchange-based fellowships. USAID supports four YALI Regional Leadership Centers on the continentâin Ghana, Kenya, Senegal, and South Africaâwhich offer training and professional development programs. Additional U.S. assistance programs enhance access to, and delivery of, other social services, such as improved water and sanitation facilities.

Environment . Environmental assistance programs in Africa focus on biodiversity conservation, climate change mitigation and adaptation, countering wildlife crime, and natural resource management. In recent years, the largest allocation of regional environmental assistance has been for the Central Africa Regional Program for the Environment (CARPE). Implemented by USAID and the U.S. Fish and Wildlife Service, CAPRE promotes conservation, sustainable resource use, and climate change mitigation in Central Africa's Congo Basin rainforest, with a present focus on landscapes in DRC, the Republic of Congo, and the Central African Republic (CAR). Congress has shown enduring interest in international conservation initiatives and efforts to curb wildlife trafficking and other environmental crime, including in Africa.

Select Assistance Provided through Global Accounts and Programs

As noted, the discussion above does not account for U.S. development, security, or health assistance allocated to African countries via global accounts and programsâfunds that are not broken out by region or country in public budget documents. This includes situation-responsive assistance, such as emergency humanitarian aid and certain kinds of governance support, which is appropriated on a global basis and allocated in response to emerging needs or opportunities. Notably, it also includes certain security assistance programs through which some African countries have received considerable funding in recent years. Gaps in region- and country-level aid data may raise challenges for congressional oversight (see " Select Issues for Congress ").

Emergency Assistance. As of early 2020, there were U.S.- or U.N.-designated humanitarian crises in Burkina Faso, CAR, DRC, Somalia, South Sudan, Sudan, and the Lake Chad Basin (including parts of Cameroon, Chad, Niger, and Nigeria). The United States administers humanitarian aid to Africa under various authorities. Key accounts and programs include:

USAID-administered Food for Peace (FFP) assistance authorized under Title II of the Food for Peace Act of 1954 (P.L. 83-480, commonly known as "P.L. 480"), which primarily provides for the purchase and distribution of U.S. in-kind food commodities. African countries consistently have received a majority of annual FFP Title II emergency assistance in recent years.

USAID-administered International Disaster Assistance (IDA), which funds food and nonfood humanitarian assistanceâincluding the Emergency Food Security Program (EFSP), which funds market-based food assistance, including cash transfers, food vouchers, and food procured locally and regionally.

State Department-administered Migration and Refugees Assistance (MRA) assistance for refugees and vulnerable migrants.

Assistance Administered by Other U.S. Federal Departments and Agencies

While the State Department and USAID administer the majority of U.S. foreign assistance to Africa, other federal departments and agencies also manage or support aid programs in the region. For example, the Departments of Agriculture, Energy, Justice, Commerce, Homeland Security, and the Treasury conduct technical assistance programs and other activities in Africa, and may help implement some State Department- and USAID-administered programs on the continent.

Other U.S. federal entities involved in administering assistance to Africa notably include:

The Department of Defense (DOD). In addition to implementing some State Department-administered security assistance programs, DOD is authorized to engage in security cooperation with foreign partner militaries and internal security entities for a range of purposes. The majority of this assistance has been provided under DOD's "global train and equip" authority, first established by Congress in the National Defense Authorization Act (NDAA) of FY2006 ( P.L. 109-163 ). In the FY2017 NDAA ( P.L. 114-328 ), Congress codified and expanded the "global train and equip" authority under 10 U.S.C. 333 ("Section 333"), consolidating various capacity-building authorities that it had granted DOD on a temporary or otherwise limited basis. Section 333 authorizes DOD to provide training and equipment to foreign military and internal security forces to build their capacity to counter terrorism, weapons of mass destruction, drug trafficking, and transnational crime, and to bolster maritime and border security and military intelligence.

Comprehensive regional- or country-level funding data for DOD security cooperation programs are not publicly available, complicating approximations of funding for African countries. A CRS calculation based on available congressional notification data suggests that Kenya, Uganda, Niger, Chad, Somalia, and Cameroon have been the top African recipients of cumulative DOD global train and equip assistance over the past decade. Congress has authorized additional DOD security cooperation programs in Africa under global or Africa-specific authorities (e.g., to help combat the Lord's Resistance Army rebel group in Central Africa between FY2012 and FY2017).

Millennium Challenge Corporation (MCC). Authorized by Congress in 2004, the MCC supports five-year development "compacts" in developing countries that meet various governance and development benchmarks. MCC recipient governments lead the development and implementation of their programs, which are tailored to address key "constraints to growth" identified during the compact design phase. The MCC also funds smaller, shorter-term "threshold programs" that assist promising candidate countries to become compact-eligible.

As shown in Appendix B , the MCC has supported 32 compacts or threshold programs in 22 African countries since its inception, valued at roughly $8.0 billion in committed funding. There are seven ongoing compacts and threshold programs in the region. The MCC has suspended or terminated compacts with some African governments for failing to maintain performance against selection benchmarks: it terminated engagement in Madagascar and Mali due to military coups, and suspended development of a second compact for Tanzania in 2016 due to a government crackdown on the political opposition. In late 2019, the MCC cancelled a $190 million tranche of funding under Ghana's second compact over concerns with the Ghanaian government's termination of a contract with a private energy utility.

The Peace Corps. The Peace Corps supports American volunteers to live in local communities abroad and conduct grassroots-level assistance programs focused on agriculture, economic development, youth engagement, health, and education. As of September 2019, 45% of Peace Corps Volunteers were serving in sub-Saharan Africaâby far the largest share by region. Conflict and other crises in Africa have episodically led the Peace Corps to suspend programming over concern for volunteer safety, with recent conflict-related suspensions in Mali (in 2015) and Burkina Faso (2017) and temporary suspensions in Guinea, Liberia, and Sierra Leone during the 2014-2016 West Africa Ebola outbreak. In 2019, the Peace Corps announced that it would resume operations in Kenya after suspending activities in 2014 due to security concerns. The Peace Corps ceased all activities and recalled all volunteers worldwide in March 2020 due to COVID-19.

African Development Foundation (USADF). A federally funded, independent nonprofit corporation created by Congress in the African Development Foundation Act of 1980 (Title V of P.L. 96-533 ), the USADF seeks to reduce poverty by providing targeted grants worth up to $250,000 that typically serve as seed capital for small-scale economic growth projects. The USADF maintains a core focus on agriculture, micro-enterprise development, and community resilience. It prioritizes support for marginalized, poor, and often remote communities as well as selected social groups, such as women and youthâoften in fragile or post-conflict countries. USADF also plays a role in selected multi-agency initiatives, such as Power Africa and YALI.

U.S. Aid to Africa During the Trump Administration

In 2018, the Trump Administration identified three core goals of its policy approach toward Africa: expanding U.S. trade and commercial ties, countering armed Islamist violence and other forms of conflict, and imposing more stringent conditions on U.S. assistance and U.N. peacekeeping missions in the region. The Administration also has emphasized efforts to counter "great power competitors" in Africa, namely China and Russia, which it has accused of challenging U.S. influence in the region through "predatory" economic practices and other means. Other stated policy objectives include promoting youth development and strengthening investment climates on the continent. Budget requests and other official documents, such as USAID country strategies, have asserted other priorities broadly similar to those pursued by past Administrations, such as boosting economic growth, investment, and trade, enhancing democracy and good governance, promoting socioeconomic development, and improving health outcomes.

The Administration has expressed skepticism of U.S. foreign aid globally, and to certain African countries in particular. For instance, then-National Security Advisor John Bolton pledged in 2018 to curtail aid to African countries whose governments are corrupt and to direct assistance toward states that govern democratically, pursue transparent business practices, and "act as responsible regional stakeholders [...and] where state failure or weakness would pose a direct threat to the United States and our citizens." These objectives do not appear to have been revoked since Bolton's departure from the White House in September 2019. Whether the Administration's budget proposals for aid to Africa have reflected such pledges is debatable, however, as discussed below ("The FY2021 Assistance Request for Africa: Overview and Analysis").

The Trump Administration has maintained several assistance initiatives focused substantially or exclusively on Africaâincluding PEPFAR, the PMI, Feed the Future, Power Africa, and YALI, among othersâand, as noted above, has launched Prosper Africa, a new Africa-focused trade and investment initiative. At the same time, the Administration has proposed to sharply reduce U.S. assistance to Africa (and globally), even as Congress has provided assistance for Africa at roughly constant levels in recent fiscal years (see Figure 7 ). The Trump Administration also has proposed changes to the manner in which the United States delivers assistance which, if enacted, could have implications for U.S. aid to Africa. These include:

C hanges to humanitarian assistance . As part of a consolidation of humanitarian aid accounts, the Administration has repeatedly proposed to eliminate FFP Title II aid, through which African countries received $1.2 billion in emergency food assistance in FY2019. The FY2021 budget request would merge the four humanitarian accountsâFFP Title II, International Disaster Assistance (IDA), Migration and Refugee Assistance (MRA), and Emergency Refugee and Migration Assistance (ERMA)âinto a single International Humanitarian Assistance (IHA) account. Budget documents assert that the consolidation would enhance the flexibility and efficiency of humanitarian assistance.

Changes to bilateral economic assistance. The Administration has repeatedly proposed to merge a number of bilateral economic assistance accountsâincluding Development Assistance (DA) and Economic Support Fund (ESF) aid, through which African countries received a cumulative $1.5 billion in FY2019âinto a new Economic Support and Development Fund (ESDF) account. The Administration has consistently requested far less in ESDF than prior-year combined allocations for the subsumed accounts. Budget documents contend the consolidation would improve efficiency.

Cutting Foreign Military Financing for Africa . Unlike previous Administrations, the Trump Administration has not requested FMF for African countries, with the exception of Djibouti, which hosts the only enduring U.S. military installation in Africa.

Eliminating the USADF. The Administration annually has proposed to eliminate the USADF and create a grants office within USAID that would assume responsibility for the agency's work. In successive budget requests, the Administration has included one-time closeout funding for the agency (e.g., $4.7 million for FY2021).

To date, Congress has maintained the existing account structures for the delivery of humanitarian aid and economic assistance and continued to appropriate operating funds to the USADFâmost recently under P.L. 116-94 at a level of $33 million for FY2020. Consideration of the President's FY2021 budget request, released in February 2020, is underway.

The FY2021 Assistance Request for Africa

Overview. The Administration's FY2021 budget request includes $5.2 billion in aid for Africa, an increase from its FY2020 request ($5.0 billion) but 28% below FY2019 allocations ($7.1 billion). These totals do not include emergency humanitarian aid or funding allocated to African countries from global accounts and programs. Funding for Africa would fall sharply from FY2019 levels across most major funding accounts, including Global Health Programs (which would see a 22% drop), PKO (23%), INCLE (46%), and IMET (16%). Non-health development assistance would see the largest decline from FY2019 levels: the request would provide $797 million in ESDF for Africa, down 48% from $1.5 billion in allocated ESF and DA in FY2019. The request includes $75 million in ESDF for Prosper Africa, up from $50 million requested in FY2020. Separate proposed decreases in U.S. funding for U.N. peacekeeping missions, most of which are in Africa, could have implications for stability and humanitarian operations.

Analysis. Overwhelmingly weighted toward health assistance, with the balance largely dedicated to traditional development and security activities, the FY2021 request aligns with long-standing U.S. priorities in the regionâwhile at the same time proposing significant cuts to U.S. assistance across all major sectors. Congress has not enacted similar proposed reductions in previous appropriations measures; several Members specifically have raised concerns over the potential ramifications of such cuts for U.S. influence and partnerships abroad. In this regard, it may be debated whether the FY2021 budget, if enacted, would be likely to advance the Administration's stated priority of countering the influence of geostrategic competitors in Africa. For instance, officials have described Prosper Africa as partly intended to counter China's growing influence in the region, yet $75 million in proposed funding for the initiative is arguably incommensurate with the Administration's goal of "vastly accelerat[ing]" two way U.S-Africa trade and investment.

Despite the Administration's pledge to curtail aid to countries that fail to govern democratically and transparently, top proposed recipients in FY2021 include several countries with poor or deteriorating governance records (e.g., Uganda, Rwanda, Nigeria, and Tanzania). Sharp proposed cuts to bilateral economic assistance, through which the United States funds most DRG activities, could have implications for U.S. democracy and governance programming in the region.

Below is a selected list of issues that Congress may consider as it weights budgetary proposals and authorizes, appropriates funding for, and oversees U.S. foreign aid programs in Africa. References to specific countries are provided solely as illustrative examples.

Scale and balance . Members may debate whether U.S. assistance to Africa is adequately balanced between sectors given the broad scope of Africa's needs and U.S. priorities on the continent, and whether overall funding levels are commensurate with U.S. interests in the region. Successive Administrations have articulated a diverse range of development, governance, and security objectives in Africaâyet U.S. assistance to the region has remained dominated by funding for health programs since the mid-2000s. Some Members of Congress have expressed concern over the relatively small share of U.S. aid dedicated to other stated U.S. priorities, such as promoting good governance , ex panding U.S.-Africa commercial ties, and mitigating conflict.

Meanwhile, the Trump Administration's repeated proposals to sharply reduce U.S. assistance to Africa have spurred pushback from some Members. Congressional objections have centered on the risks that aid cuts could potentially pose for U.S. national security, foreign policy goals, and U.S. influence and partnerships in Africa. Notably, the proposed cuts in U.S. assistance come at a time when China and other countries, including Russia, India, Turkey, and several Arab Gulf states, are seeking to expand their roles in the region.

Transparency and oversight. While this report provides approximate funding figures based largely on publicly available allocation data, comprehensive estimates of U.S. aid to Africa and amounts dedicated to specific focus areas are difficult to determine. Executive branch budget documents and congressional appropriations measures do not fully disaggregate aid allocations by country or region; meanwhile, databases such as USAID's Foreign Aid Explorer and the State Department's ForeignAssistance.gov provide data on obligations and disbursements but do not track committed funding against enacted levels, raising challenges for congressional oversight.

As noted above, gaps in region- and country-level assistance data may partly reflect efforts to maintain flexibility in U.S. assistance programsâfor instance, by appropriating humanitarian aid to global accounts and allocating it according to need. At the same time, Congress has not imposed rigorous reporting requirements evenly across U.S. foreign aid programs. For instance, while DOD "global train and equip" assistance is subject to congressional notification and reporting requirements that require detailed information about country and security force unit recipients and assistance to be provided, there is no analogous reporting requirement governing State Department security assistance. Public budget documents may thus include country- and program-level breakouts of some security assistance, while other fundsâsuch as for the Global Peace Operations Initiative (GPOI), a PKO-funded peacekeeping capacity-building program through which some African militaries have received substantial U.S. training and equipmentâare not reflected in bilateral aid budgets. A lack of data on what U.S. assistance has been provided to African countries may obscure policy dilemmas or inhibit efforts to evaluate impact.

Country Ownership. Policymakers may debate the extent to which U.S. assistance supports partner African governments in taking the lead in addressing challenges related to socioeconomic development, security, and governance. The majority of U.S. aid to Africa is provided through nongovernment actorsâsuch as U.N. agencies, humanitarian organizations, development practitioners, and civil society entitiesârather than directly to governments. (Exceptions include U.S. security assistance for African security forces and some healthcare capacity-building programs.) Channeling aid through nongovernment actors may be preferable in countries where the state is unable or unwilling to meet the needs of its population, and may additionally grant the United States greater control and oversight over the use of aid funds. At the same time, experts debate whether this method of assistance adequately equips recipient governments to take primary responsibility for service delivery and other state dutiesâas well as whether this mode of delivery may limit donor influence and leverage with the recipient country government.

Conditions on U.S. assistance. Congress has enacted legislation denying or placing conditions on assistance to countries that fail to meet certain standards in, for instance, human rights, counterterrorism, debt repayment, religious freedom, child soldier use, or trafficking in persons. In general, statutes establishing such conditions accord the executive branch the discretion to designate countries for sanction or waive such restrictions. Congress may continue to debate the merits and effectiveness of such restrictions. In FY2020, several African governments are subject to aid restrictions due to failure to meet standards related to:

Religious freedom, under the International Religious Freedom Act of 1998 ( P.L. 105-292 ), with Eritrea currently listed as a "Country of Particular Concern." The use of child soldiers, under the Child Soldiers Prevention Act (CSPA, P.L. 110-457 , as amended) and related legislation, with DRC, Mali, Somalia, South Sudan, and Sudan subject to potential security assistance restrictions in FY2020. In October 2019, President Trump exercised his authority under CSPA to waive certain restrictions for DRC, Mali, Somalia, and South Sudan. Trafficking in persons (TIP), under the Trafficking Victims Protection Act of 2000 (TVPA, P.L. 106-386 , as amended) and related legislation, with Burundi, Comoros, DRC, Equatorial Guinea, Eritrea, The Gambia, Mauritania, and South Sudan subject to potential aid restrictions in FY2020. In October 2019, President Trump partially waived such restrictions with regard to DRC and South Sudan, and fully waived them for Comoros.

Some African countries periodically have been subject to other restrictions on U.S. foreign aid, such as those imposed on governments that rose to power through a coup d'Ã©tat, support international terrorism, or are in external debt arrears. (In contrast to most legislative aid restrictions, a provision in annual appropriations legislation prohibiting most aid to governments that accede to power through a military coup does not grant the executive branch authority to waive the restrictions. ) Congress has also included provisions in annual aid appropriations measures restricting certain aid to specific African countries, notably Sudan and Zimbabwe.

In addition, the so-called "Leahy Laws" restrict most kinds of State Department- and DOD-administered security assistance to individual units or members of foreign security forces credibly implicated in a "gross violation of human rights," subject to certain exceptions. The executive branch does not publish information on which units or individual personnel have been prohibited from receiving U.S. assistance pursuant to these laws. Congress also has restricted certain kinds of security assistance deemed likely to be used for unintended purposes; for instance, language in annual foreign aid appropriations measures prohibits the use of funds for providing tear gas and other crowd control items to security forces that curtail freedoms of expression and assembly.

Unintended consequences. Some observers have raised concerns that the provision of U.S. foreign assistance may have unintended consequences, including in Africa. For instance, some analysts have questioned whether U.S. food assistance may inadvertently prolong civil conflict by enabling warring parties to sustain operations, though others have challenged that assertion. Whether providing certain forms of U.S. aid, notably security assistance, may at times jeopardize U.S. policy goals in other areas is another potential consideration. For instance, some analysts have questioned whether security assistance to African governments with poor human rights records (e.g., Chad, Cameroon, Nigeria, and Uganda) may strengthen abusive security forces or inhibit U.S. leverage on issues related to democracy and governance. Proponents of U.S. security assistance programs in Africa may contend that aspects of such engagementsâsuch as military professionalization and human rights trainingâenhance security sector governance and civil-military relations, and may thus improve human rights practices by partner militaries.

Congress commenced consideration of the President's FY2021 budget request in February 2020. To date, the 116 th Congress has not adopted many of the Administration's proposed changes regarding assistance to Africa, notably its repeated attempts to significantly reduce aid to the region. Allocated funding has instead hovered around $7 billion per year, excluding emergency humanitarian aid. As Congress debates the FY2021 Department of State, Foreign Operations, and Related Programs appropriations measure, Members may consider issues such as:

The economic, humanitarian, and health-related shocks of the COVID-19 pandemic, which is expected to have a severe impact on Africa's development trajectory;

Unfolding political transitions in Sudan and Ethiopia, which may have significant implications for governance and conflict trends in the region;

Conflicts and humanitarian crises in Burkina Faso, Cameroon, the Central African Republic, the Democratic Republic of Congo, Mali, Nigeria, Somalia, and South Sudan;

Repressive governance in several countries that rank as top recipients of U.S. assistance in Africa, including Rwanda, Tanzania, Uganda, and Zambia;

The effectiveness of existing conditions on U.S. foreign assistance to Africa, whether additional conditions and restrictions may be necessary, and the appropriate balance between ensuring congressional influence and providing executive branch flexibility;

U.S.-Africa trade and investment issues, including as they relate to funding and overseeing the Administration's Prosper Africa initiative; and

The involvement in Africa of foreign powers such as China and Russia, and the implications of such engagement for U.S. national security and policy interests.

Appendix A. U.S. Assistance to Africa, by Country

Appendix B. MCC Programs in Africa: A Snapshot