Biden and Trump Have Brought the Presidential Pardon Power Center Stage
December 11, 2024
Readers’ questions about the origins and scope of the presidential pardon power, triggered by President Joe Biden’s grant of a pardon to his son, Hunter, and the possibility he would issue blanket clemency—a pre-conviction pardon—to those whom President-elect Donald Trump has said should “go to jail,” coupled with Trump’s declaration that he will “most likely” pardon January 6, 2021 defendants, invite exploration of the most delicate, yet imperial, of the president’s constitutional powers. Readers wonder if the pardoning authority may be exercised, legitimately and legally, in these instances. The answer is yes, although it is easier to speak of abuses, as opposed to illegal uses, of the pardon power.
Article II, section 2 of the Constitution states: “The President shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.” The authority to grant pardons, the roots of which are traceable to the royal prerogative of the English monarchy, is the most sweeping of the president’s constitutional powers. A presidential pardon precludes punishment of someone who has committed an offense against the United States. Since the impeachment exception is the only explicit textual limitation on this power, some scholars have described it as unfettered and immune to the doctrine of checks and balances. In dictum, the Supreme Court has characterized the power as unlimited.
The pardon power always has carried with it a great potential for abuse. The Framers of the Constitution were steeped in English history. The king frequently granted pardons to aides, friends, and allies, in corrupt ways, to serve his personal, political, and pecuniary interests. Despite their familiarity with the English practice and their fear of a power-hungry executive with a penchant for usurpation, the Framers opted, by virtue of the Pardon Clause, to vest the president with broad discretion to correct miscarriages of justice and to restore tranquility in the wake of rebellion. The creation of the pardon power thus acknowledged the occurrence of judicial errors and made it possible to temper justice.
The capacious scope of the pardon authority is nonetheless subject to some restraints, as evidenced by the Impeachment Power and judicial review, as well as the court of public opinion. The Framers’ decision to vest the pardon power in the president reflected their confidence in the availability of impeachment to prevent presidential abuse of the power. The Supreme Court has held that excessive abuse of the pardon power constitutes an impeachable offense, and it has declared its willingness to invoke judicial review to check its exercise.
Judicial review is available, but the cases in which it may be invoked are few and far between. In 1925, in Ex parte Grossman, Chief Justice William Howard Taft allowed that excessive abuse of the pardon authority, as in an order to swing open the jail house doors, would provoke a test of its validity in federal court, but he noted that sufficient abuses had not yet occurred. In 1974, in Schick v. Reed, Chief Justice Warren Burger stated that under the “right” circumstances, at least, presidential conditions to pardons—those that might violate due process—could be declared invalid. A third case might arise if the president were to pardon himself. This was thought unlikely until Richard Nixon, under the crushing pressure of Watergate, briefly contemplated it, but dropped the absurd idea when his own attorney told him the thought was grotesque since a self-pardon would violate the centuries old Anglo-American legal maxim that a man may not be the judge of his own actions.
The most effective restraint on the exercise of the pardon power is public opinion, which carries its own sanction, a fact that painfully confronted former President Gerald Ford, who may well have lost the 1976 election when he issued a pardon to Richard Nixon for “all offenses against the United States” that that he committed or may have committed during his presidency. The pardon aroused public opinion in a way that surpassed the intensity of any previous act of executive clemency.
The fascinating debates on the pardon power in the Constitutional Convention illuminated the scope of the pardon power and the fear that a president, engaged in a rebellion, might hide his involvement by pardoning those whom he instigated to overthrow the government or impede its actions. We examine that discussion next week.
-David Adler