Can the Vice President of the United States issue pardons while exercising the powers of the Presidency?

Question

Can the Vice President of the United States issue pardons while exercising the powers of the Presidency under the 25th Amendment?

Answer 1

Yes. This flows from a plain reading of the text of the Twenty-Fifth Amendment and is consistent with an opinion from the Office of Legal Counsel.

The relevant text of the Twenty-Fifth Amendment regarding the Vice President exercising the powers of the Presidency is found in Sections 3 and 4:

Section 3 Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.

Section 4 Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.

Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists ...

The text makes it clear that although the Vice President does not become the President under these sections (note the continued reference to the role of the President as a separate entity in withdrawing the declaration under Section 3 or contesting the declaration under Section 4), the Vice President would have all the powers and duties of the office of the President.

In a memorandum regarding "Presidential or Legislative Pardon of the President" (5 August 1974) the Office of Legal Counsel was of the view that:

If the President declared that he was temporarily unable to perform the duties of his office, the Vice President would become Acting President and as such he could pardon the President. Thereafter the President could either resign or resume the duties of his office.

Answer 2

... such powers and duties shall be discharged by the Vice President as Acting President

The vice President is the President for the duration of the President's incapacity.