If it wasn’t already clear – after nearly 250 years – that the pardon power is a standing invitation to abuse and corruption, two presidents confirmed it on the same day this week.

On his way out of office, Joe Biden issued a “preemptive” clemency for his siblings and their spouses; for a raft of public officials, including former medical adviser Anthony Fauci and former Chairman of the Joint Chiefs of Staff Mark Milley; and for the lawmakers and staffers who worked on the Jan. 6 committee. This followed a historic spree of pardons and commutations during Biden’s presidency and echoed his hazily rationalized pardon of son Hunter in December.

On his way into office, meanwhile, Donald Trump granted indiscriminate clemency to nearly 1,600 people charged in relation to the Jan. 6 attack – including hundreds found guilty of assaulting or impeding police officers at the US Capitol – thereby erasing years of work by federal prosecutors, grievously undermining the rule of law and setting what promises to be an awful precedent for the remainder of his term.

These acts are not equivalent. Trump is pardoning hundreds of violent rioters because they supported him politically. Biden’s family pardons are surely self-serving, but his clemency for public servants – in light of the prosecutions that Trump and his associates have threatened – is at least plausibly defensible.

Together, though, these measures make a mockery of the original rationale for the pardon power. As Alexander Hamilton summarized it in 1788: “The criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel.” The idea was to enshrine the virtue of mercy in the Constitution, not to grant the president an extrajudicial perk to protect his friends and family.

Trump’s shameful pardons had to compete for attention during a first day that included revoking dozens of his predecessor’s executive orders, withdrawing from the Paris climate treaty and the World Health Organization, ending federal diversity initiatives, delaying a ban on TikTok, limiting birthright citizenship, and much else. But they may prove to be among his most consequential acts of that day.

A president armed with a preemptive pardon power, along with the broad immunities already conferred on the office, could have vast scope for corruption. Unfortunately, the Constitution envisions that the power will be mostly self-regulating – that is, constrained by a president’s sense of responsibility or indeed shame. As one pardon attorney advised Congress in 1952: “In the exercise of the pardoning power, the president is amenable only to the dictates of his own conscience, unhampered and uncontrolled by any person or branch of government.”

Conscience is not among Trump’s most salient characteristics. Making matters worse, whatever moral high ground Democrats in Congress might’ve claimed to constrain the misuse of this power has been gravely eroded. Even if they reclaim the majority, the tools typically available to the opposition – launching investigations, issuing subpoenas, naming and shaming, and so on – will carry less credibility in light of Biden’s actions.

One might hope that such bipartisan malfeasance will finally move Congress to make a serious effort at curtailing this power; a bill introduced in 2020 offers a decent place to start. But while such reforms are worth pursuing, they’ll only help at the margin – and this perennial problem will, in all likelihood, continue.
 

(Except for the headline, this story has not been edited by NDTV staff and is published from a syndicated feed.)

U.S. President Joe Biden
| Photo Credit: AP

President Joe Biden is weighing whether to issue sweeping pardons for officials and allies who the White House considers could be targeted by President-elect Donald Trump’s administration, a preemptive move that would be a controversial use of the president’s extraordinary constitutional power.

The deliberations so far are largely at the level of White House lawyers. But Mr. Biden himself has discussed the topic with some senior aides, according to two people familiar with the matter who spoke on condition of anonymity Thursday (December 5, 2024) to discuss the sensitive subject. No decisions have been made, the people said, and it is possible Mr. Biden opts to do nothing at all.

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Pardons are historically afforded to those accused of specific crimes — and usually those who have already been convicted of an offence — but Mr. Biden’s team is considering issuing them for those who have not even been investigated, let alone charged. They fear that Mr. Trump and his allies, who have spoken of enemies lists and exacting “retribution,” could launch investigations that would be reputationally and financially costly for their targets even if they do not result in prosecutions.

While the president’s pardon power is absolute, Mr. Biden’s use in this fashion would mark a significant expansion of how they are deployed, and some Mr. Biden aides fear it could lay the groundwork for an even more drastic usage by Mr. Trump. They also worry that issuing pardons would feed into claims that the individuals committed acts that necessitated immunity.

Recipients could include infectious-disease specialist Dr. Anthony Fauci, who was at the forefront in combating the coronavirus pandemic and who conservatives have criticised for mask mandates and vaccines. Others include witnesses in Mr. Trump’s criminal or civil trials and Biden administration officials who have drawn the ire of the incoming president and his allies.

Some fearful former officials have reached out to the Biden White House preemptively seeking some sort of protection from the future Trump administration, one of the people said.

It follows Mr. Biden’s decision to pardon his son Hunter — not just for his convictions on federal gun and tax violations, but for any potential federal offence committed over an 11-year period, as the president feared that Mr. Trump’s allies would seek to prosecute his son for other offences. That could serve as a model for other pardons Mr. Biden might issue to those who could find themselves in legal jeopardy under Mr. Trump.

Mr. Biden is not the first to consider such pardons — Mr. Trump aides considered them for him and his supporters involved in his failed efforts to overturn the 2020 presidential election that culminated in a riot at the Capitol on January 6, 2021. But he could be the first to issue them since Mr. Trump’s pardons never materialised before he left office nearly four years ago.

Gerald Ford granted a “full, free, and absolute pardon” in 1974 to his predecessor, Richard Nixon, over the Watergate scandal. He believed a potential trial would “cause prolonged and divisive debate over the propriety of exposing to further punishment and degradation a man who has already paid the unprecedented penalty of relinquishing the highest elective office of the United States,” as written in the pardon proclamation.