Presidential Pardons: The (almost) Unlimited Power of The President To Pardon
“He who pardons easily invites offense” (Pierre Corneille)
There’s been a lot of talk about President Biden pardoning his son. Common complaints include it was unethical; the pardon is too sweeping; and Biden repeatedly lied when he stated he would not pardon his son. As unethical as I believe it is for Biden to grant his son such a sweeping pardon, or any pardon for that matter, it is firmly within his power as President to do so. Further, it is not the first time a President has pardoned a relative nor is it the most sweeping pardon a President has issued. Having said that, it is the most sweeping pardon a President has ever granted a relative, let alone an immediate family member.
Limitations On The Presidents Pardon Power.
The President’s pardon power is set forth in Article II, Sec. II of the Constitution which states: “The President shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.” This is a sweeping grant of power, but it is not quite an unlimited grant of power…almost unlimited yes, but not quite.
First, a presidential pardon is a federal pardon and has no effect on the states. If a President grants a pardon to a person who violated both a federal and state law, the state can still try that person under state law. Further, the “double jeopardy” clause of the 5th Amendment does not prevent states from trying a person who received a presidential pardon under state law for the same act he was pardoned for.[1] In Gamble v. United States (2019) the Supreme Court reaffirmed the longstanding “dual-sovereignty” doctrine that holds a person who is tried under state law can still be tried under federal law for the same act, and vis-a-versa. The reason is that the federal government and state governments are separate ‘sovereigns’ and are entitled to try those who violate their respective laws regardless of what the other does.
Another limitation is the President cannot pardon a person who has been impeached or removed from office through the impeachment process. It’s important to note that the impeachment process is not limited to the President and Vice President but extends to all “civil officers” of the U.S. government. The Constitution does not define “civil officers” but at the very least they include all federal judges – including Supreme Court Justices – and all cabinet secretaries (DoJ, DoD, DHS etc).[2] Though the President cannot pardon a person for impeachment, he can pardon that person for the crimes for which they were impeached.
The only other limitation on the President’s pardon powers is he cannot pardon future crimes. However, a President can pardon people for crimes they “may have” committed in the past – even if it is not known what crimes the person committed, or whether they committed any crimes.
Currently there is one question regarding the extent of the presidential pardon power that has not been answered – can a President pardon himself? This question is the subject of a long and often heated debate, alas, as of yet the Supreme Court has not had occasion to resolve the debate.
It is important to remember the debate is not about whether a President pardoning himself is a good thing, but whether the Constitution provides him the authority to do so. If it does, and I believe it does, to strip him of that power without adopting a constitutional amendment would be to violate the Constitution just as surely as the government censoring speech would violate the Constitution.
The Breadth of the President’s Pardon Powers.
With the few exceptions discussed above, the presidential pardon powers are unbounded.
A President can, and has, granted blanket pardons – including for treason. On July 10, 1795 President Washington pardoned all those involved in the Whiskey Rebellion “of all treasons, misprisions of treason, and other indictable offenses against the United States committed…” On a larger scale on December 25, 1868, President Andrew Johnson pardoned “every person who, directly or indirectly, participated in the late insurrection or rebellion…for the offense of treason against the United States or of adhering to their enemies during the late civil war…”
President Carter would again provide a sweeping blanket pardon covering nine years too tens, if not hundreds of thousands of people when he pardoned “(1) all persons who may have committed any offense between August 4, 1964 and March 28, 1973 in violation of the Military Selective Service Act or any rule or regulation promulgated thereunder; and (2) all persons heretofore convicted, irrespective of the date of conviction, of any offense committed between August 4, 1964 and March 28, 1973 in violation of the Military Selective Service Act, or any rule or regulation promulgated thereunder…” The only exceptions to this pardon were those who engaged in violence and those who were employees or agents of the U.S. when they committed the crime.
All three of these blanket pardons covered multiple years. Additionally, no one knew, or knows, how many people were pardoned, and no one knew, or knows, the specific people who were pardoned. Yet there is no argument that these pardons are constitutional.
Arguably the most controversial pardon, at least until now, was the one President Ford granted Nixon. On September 8, 1974, Ford granted Nixon “a full, free, and absolute pardon…for all offenses against the United States which he, Richard Nixon, has committed or may have committed or taken part in during the period from January 20, 1969 through August 9, 1974.”
Similarly, Biden’s pardoned his son for “FOR THOSE OFFENSES against the United States which he has committed or may have committed or taken part in during the period from January 1, 2014 through December 1, 2024, including but not limited to all offenses charged or prosecuted (including any that have resulted in convictions)…” (emphasis in original).
Both Nixon and Hunter were pardoned for all crimes they “committed or may have committed.” The only difference between the two is that Nixon’s pardon covered five and a half years and Hunter’s covers eleven-years.
A President is also free to pardon relatives, and Biden is not the first to do so. Other Presidents who have done so include Lincoln who pardoned his wife’s half-sister (married to a confederate general); Clinton pardoned his half-brother (cocaine possession and drug trafficking); and Trump pardoned his daughter’s father-in-law (illegal campaign contributions, tax evasion and witness tampering). However, Biden is the first to pardon an immediate family member – his son. He is also the first to do so after promising he would not, a promise he repeatedly made when he was seeking reelection.
The Downside To A Pardon.
First, a pardon is an admission of guilt. The Supreme Court has ruled that a Presidential Pardon is not effective until the person pardoned accepts the pardon. In Burdick v. United States (1915) the Supreme Court explained that a pardon is different from immunity in that accepting a pardon is an admission of guilt. Therefore, a pardon does not become effective unless a person accepts it, because when he does, that person admits his guilt as to crimes he has been pardoned for.
The second downside is that once a person accepts a pardon, they can no longer invoke their 5th Amendment right to remain silent as to all questions involving the crime, or crimes, they were pardoned for. The reasoning for this is the 5th Amendment’s right to remain silent is to ensure the person is not forced to self-incriminate. Since they no longer have criminal liability for the crimes they were pardoned for, they cannot self-incriminate, and therefore, they must answer all questions relating to the crimes they received a pardon for.
In Hunter’s case, this could be huge. He’s been pardoned for every crime he committed – or may have committed – since January 1, 2014, to December 1, 2024. Since, he has no criminal liability for any federal law he violated during that eleven-year period he can be forced to testify in front of Congress or a grand jury as to all crimes he committed and who were the others involved in those crimes – including his family. Likewise, a state could empanel a grand jury to investigate Hunter’s “business” ventures that occurred within the state. They could then call Hunter as a witness, grant him immunity from state charges, and force him to drop the dime on his family.
Summary
I think all reasonable people can agree that Biden pardoning his son was unethical and that the sweeping nature of the pardon is both shocking and suspicious. We can also agree that in an effort to get reelected, Biden lied when he repeatedly stated that he would not pardon his son. What reasonable people cannot do is ignore the Constitution or rewrite history. Simply put, Biden has the constitutional authority to pardon his son, and contrary to much of the teeth gnashing going on, the sweeping nature of the pardon is not unprecedented.
Even though his actions were constitutional, Biden should be condemned for pardoning his son, which at best is unethical. However, to be honest, who did not see this coming from the day Biden was sworn in as President?
[1] The “double jeopardy” clause of the 5th Amendment states: “nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.”
[2] Senators and members of the House of Representatives are not ‘civil officers’ of the U.S. and are not subject to the impeachment process. Instead, under Article I, Sec. 5 of the Constitution they can be removed from office by two-thirds of their respective chamber.
Excellent information Taz. Thank you for the clarity!