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Here a pardon, there a pardon

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President Joe Biden’s recent pardon of his son Hunter Biden has reignited the debate over the presidential pardoning power. And argument over this constitutionally protected prerogative of the President will not go away with Donald Trump’s return to power next month. Trump already has his own history of using the pardoning power during his first presidential term (2017-21) for the benefit of his political cronies.

Biden is reportedly mulling whether he should go further in light of Trump’s threats to bring charges against some of his political enemies after he returns to office in 2025. In light of those threats, Biden is reportedly considering preemptive pardons for former Representative Liz Cheney, Representative and soon-to-be Senator Adam Schiff, former Director of the National Institute of Allergy and Infectious Diseases Anthony Fauci, and General Mark Milley, former Chairman of the Joint Chiefs of Staff.

Trump has butted heads with all four of the above in recent years. Preemptive pardons for one or more of them would assure they would not face prosecution for actions they have taken in opposing the President-elect, whether legitimate or not.

Hunter Biden received his father’s official clemency not only for federal tax and gun charges for which he was awaiting sentencing, but also for any federal crimes he might possibly have committed between Jan. 1, 2014, and Dec. 1, 2024. President Biden granted the pardon despite his promise not to do so, a move that dismayed many of his supporters.

The pardon for the possible crimes of those 11 years is an example of “preemptive” pardoning, an unusual use of the pardoning power but not unprecedented.

After the Civil War, President Andrew Johnson pardoned large numbers of Confederate officials and soldiers. President Ford pardoned former President Nixon after Watergate. President Carter pardoned Vietnam draft dodgers. President George H.W. Bush pardoned former Defense Secretary Caspar Weinberger. President Trump pardoned Sheriff Joe Arpaio of Phoenix, among others, who was charged and convicted, but had not yet been sentenced.

A strong case can be made to eliminate or restrict the President’s power to pardon. It would be difficult, since the Constitution states that the President “shall have Power to Grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.” The power is absolute; there’s no constitutional provision for overriding it. Changing the power would almost certainly require a constitutional amendment.

When the Founders drafted the Constitution in the summer of 1787 in Philadelphia, they debated whether to limit the President’s ability to pardon. They considered making treason an exception to that power, and also mulled requiring Senate approval of any presidential pardon. But neither suggestion survived the Founders’ debates.

The pardoning power is so strong that it remains unclear whether a President can pardon himself for federal offenses. That possibility seems illogical to most Americans, but the question has yet to be decided by the courts. It will remain an open one until some President—might it be Trump?—initiates a self-pardon. At that point, the question will have to work its way through the judicial system.

The Supreme Court this past summer may have opened the door for a self-pardon when it ruled that the President is immune from prosecution for official acts he or she takes, whether those acts break the law or not.

The Founders’ reasoning for writing an unlimited pardoning power into the Constitution sounds quaint today. They created the power to pardon as a check against unfair or erroneous court decisions. A President who went beyond that boundary and used the pardon to keep his or her associates, friends, or family members out of jail, the Founders thought, would face impeachment.

That theory has proved totally toothless, as Presidents of both parties have shown little compunction about doing precisely what the Founders thought would not happen. And Congress, to my knowledge, has never considered impeachment of a President for issuing pardons, whether justified or not.

To say it bluntly, the pardoning power enables a President to invalidate any federal court conviction, no matter how justified. That surely goes beyond what the Constitution’s authors intended. It certainly upends the balance of power among the three branches of government.

Even though altering the pardoning power would be a steep uphill climb, some members of Congress have attempted to do just that in recent years. Just last week, the Speaker of the House, Republican Mike Johnson, promised that reform of the pardoning power system is “on the way, and it cannot happen soon enough.” That remains to be seen: Johnson appears totally devoted to President-elect Trump, and for him to take steps to limit Trump’s power in any way seems highly unlikely.

Bottom line: for the foreseeable future, Presidents will continue to enjoy unlimited power to grant clemency, commutations, amnesty, and pardons to anyone convicted of a federal crime or in jeopardy of such a conviction.

The pardoning power, in hindsight, looks to me like an error on the part of the Constitution’s drafters. It has turned out to be not a benign limitation on erroneous courts, but rather an enormous step toward presidential autocracy if a President chooses to use it in that way.

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