Rick Morain is the former publisher and owner of the Jefferson Herald, for which he writes a regular column.
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 used the pardoning power for the benefit of his political cronies during his first term (2017-2021).
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 U.S. Representative Liz Cheney, former Representative and now 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 January 1, 2014, and December 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 eleven 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 Gerald Ford pardoned former President Richard Nixon after Watergate. President Jimmy Carter pardoned Vietnam draft dodgers. President George H.W. Bush pardoned former Defense Secretary Caspar Weinberger. 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 pardoning power. 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 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 U.S. Supreme Court may have opened the door for a self-pardon when it ruled in July that the president is immune from prosecution for official acts he or she takes, even if those acts break the law.
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. They anticipated that president who went beyond that boundary, using the pardon to keep his or her associates, friends, or family members out of jail, would face impeachment.
That theory has been proven wrong, as presidents of both parties have shown little compunction about doing precisely what the Founders thought would not happen. To my knowledge, Congress has never considered impeaching a president for issuing pardons, whether justified or not.
To put 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 it in recent years. Just last week, Republican House Speaker 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 seems unlikely to limit Trump’s power in any way.
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.
In hindsight, the pardoning power 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 tool for autocracy, if a president chooses to use it in that way.
Top image: President Joe Biden participates in a phone call with Jewish faith leaders, rabbis and members of the Jewish community for the High Holidays, Wednesday, October 9, 2024, in the Oval Office. (Official White House Photo by Cameron Smith, originally published on the president’s official Facebook page)