Jordan Cash is an Assistant Professor in James Madison College at Michigan State University.
It has become something of a tradition for lame duck presidents to issue controversial pardons on their way out of office. Bill Clinton pardoned both his brother Roger and tax evader Marc Rich—whose wife also happened to be a major Democratic Party donor—on his last day in office. Similarly, Donald Trump pardoned several of his associates, most prominently his former advisor Steve Bannon, before exiting office in 2021.
Even with these precedents, however, Joe Biden’s use of the pardon power during his lame duck period is quickly shaping up to be one of the most consequential in American history. Not only did he set a record by granting clemency to nearly 1,500 people in a single-day—almost tripling the previous single-day record of 330 commutations set by Barack Obama—but the pardon of his son Hunter is also the most controversial since Gerald Ford pardoned Richard Nixon 50 years ago. Moreover, the Hunter pardon is the most expansive since the Nixon pardon. While Ford pardoned Nixon “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”—thereby covering Nixon’s six and a half year presidency—Biden wiped away any and all of his son’s indiscretions over a ten year period, from January 1, 2014 to December 1, 2024.
Yet even as commentators are bemoaning the fact that Biden did precisely what he repeatedly insisted he would not do—and bypassed the Justice Department to do it—this action raises two interesting questions regarding the pardon power. First, the basis for having a pardon power; and second, how it may be checked.
In The Spirit of the Laws, Montesquieu describes the judicial power as one which is “so terrible to mankind” that it must be structured in such a way that the people’s fears are alleviated. For Montesquieu, that meant granting judicial power primarily to juries, but the basic logic of needing to protect people from the judiciary is also applicable to the pardon power.
For among the three branches of government, the judiciary is unique in its relationship with the individual. As Thomas Jefferson, Alexander Hamilton, and Alexis de Tocqueville have noted, it is the courts which are structurally suited to act as a check on the political branches in defense of individual rights, and where individuals can plead their case against an overbearing political majority. At the same time, it is in the courts where an individual accused of a crime is confronted with the raw power of the state, and the terrifying possibility of losing his life, liberty, and/or property. It is because of this latter reality that so much care is taken in our constitutional and legal system to ensure every criminal defendant is granted certain due process rights to ensure a fair trial.
Such fairness, however, is not always manifest, highlighting the need for some check to be available when the judiciary goes too far.
In the Constitutional Convention, the issue was not whether there should be a pardon power, but rather where it should be vested and how expansive it should be. Ultimately, the delegates decided to grant the president the “Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of impeachment.” As described by Hamilton in “Federalist 74,” such a power is dictated by “Humanity and good policy,” for “without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel.” Similarly, Chief Justice William Howard Taft described the pardon as a necessary check on the judiciary, explaining in Ex Parte Grossman (1925) that “Executive clemency exists to afford relief from undue harshness or evident mistake in the operation or enforcement of the criminal law. The administration of justice is not necessarily always wise or certainly considerate of circumstances which may properly mitigate guilt.” We may, therefore, see the pardon as a regular part of separation of powers and checks and balances, operating on the judiciary in a manner akin to how the president’s veto checks the legislature.
Yet Hamilton also recognized that this power may be in tension with the very concept of the rule law, calling the pardon a “benign prerogative.” Through this terminology—derived from John Locke’s Second Treatise of Government—Hamilton suggests that the pardon, by taking a person out of the judicial process and shielding them from the full execution of the laws, is functionally acting outside or even against the law.
In a recent article in Presidential Studies Quarterly, Isabelle Thelen succinctly articulates the reason and necessity which drives this seemingly discordant relationship between the president’s pardon power as a nearly unlimited prerogative and the rule of law. Thelen notes that if there were not a pardon power, then “judges fear[ing] their sentence will be final” may “hesitate to apply the harsher punishments of the law in cases that seem to merit mercy.” Because “Opinions about what merits mercy vary between different judges and juries,” the risk is that “the application of the law becomes arbitrary. In short, the pardon power allows the law to be enforced as it is written.” In essence, the possibility of a pardon allows for the law to be enacted strictly and impartially, taking away the need for prosecutors and judges to use their own discretion in determining when mercy is necessary, thereby “protect[ing] the reputation of rule of law.” For when the impartial and strict application of the law veers into becoming unjust—and by extension threatens the core reputation of the rule of law—then the pardon may be used as a kind of safety valve, providing the necessary mercy to prevent the injustice and preserve popular respect for the law generally.
Surprisingly, in his statement preceding his son’s official pardon, Biden made a variation of this argument. According to Biden, “Hunter was treated differently,” being charged for crimes due to political pressure from the president’s congressional opponents with ultimate goal to “attack me [Biden] and oppose my election.” As described by the president, Hunter’s prosecution and conviction was “infected” by “raw politics” and “led to a miscarriage of justice.”
Taken at face value and without regard to the broader political and social context, Biden’s comments are an excellent description of the pardon’s constitutional and legal purpose in practice. A politically motivated prosecution led to a man being convicted as part of a broader political strategy, threatening the integrity of the justice system and the reputation of the rule of law itself. In order to preserve both and push back against a “selective prosecution,” the president issues a pardon taking the targeted individual out of the justice system and seeking to end a politically motivated legal attack.
In a nutshell: targeted mercy in the service of preserving the impartial and apolitical rule of law.
Unfortunately, the context of the pardon cannot be ignored. While any parent will sympathize with Biden’s predicament as a father with the power to save his son from federal prison, the circumstances and breadth of this pardon—stretching back to when Biden was vice president—does not inspire confidence in the rule of law, but rather suggests the opposite. While Biden insists Hunter was targeted and effectively under the law, the expansiveness of this pardon gives the impression that the younger Biden is above it.
That impression points to the second major consideration: how can a pardon be checked?
The lack of a readily evident check on the pardon power was a major concern for many Anti-Federalists who opposed the Constitution. George Mason—who had attended the Constitutional Convention but refused to sign the final document—listed the pardon as one of his major objections to the new government, arguing that “The President of the United States has the unrestrained power of granting pardons for treason, which may be sometimes exercised to screen from punishment those whom he had secretly instigated to commit the crime, and thereby prevent a discovery of his own.”
Notably, some congressional Republicans sound like Mason in their condemnation of the Hunter pardon, with Kentucky Rep. James Comer, chairman of the House Oversight and Accountability Committee, insisting that “the charges Hunter faced were just the tip of the iceberg in the blatant corruption that President Biden and the Biden Crime Family have lied about to the American people. It’s unfortunate that, rather than come clean about their decades of wrongdoing, President Biden and his family continue to do everything they can to avoid accountability.”
Various proposals have been made to provide explicit checks on the veto. Most notably, following the Nixon pardon, Minnesota Sen. Walter Mondale introduced an amendment to allow pardons to be overturned by a two-thirds vote of both houses of Congress, the same process as overturning a veto. Similarly, as Kevin Burns noted in an article in American Political Thought, various scholars have proposed a wide range of other options, including “suspending the president’s power during the lame duck period between an election and the inauguration, prohibiting pardons before convictions or when the president is ‘directly or indirectly involved with the recipient,’ creating a board to advise the president, and requiring the president to publicize his reasons for granting a pardon.”
These options, however, have significant problems when we consider the whole scope of the pardon power. To Mondale’s constitutional amendment, involving Congress in overturning a pardon goes back to a major problem of democratic governments: that a popular majority may improperly impose on the rights of the individual. In such a system, even a justified pardon which upholds the rule of law or which is necessary for the public good—an aspect of the pardon which Roger Abshire pointed to on this website in arguing that Biden should have pardoned Trump, although those cases have since been dropped—might be undone by a popular majority.
Similarly, banning, inhibiting, or simply limiting the president’s pardon power could dramatic ramifications on another major aspect of the pardon highlighted by Hamilton. Specifically, how “a welltimed offer of pardon” may “restore tranquility to the commonwealth” in extreme circumstances. It is because the president is a single executive that he might deploy the pardon energetically, able to take advantage of a “golden opportunity” when “The loss of a week, a day, an hour, may sometimes be fatal.” The need for “a discretionary power, with a view to such contingencies,” suggests that the pardon has broad and critical uses beyond checking the judiciary which need to be considered in any conversation surrounding pardon reform.
Despite the problems with proposed checks on the pardon, there are nevertheless ways the constitutional system affords some relief or accountability for bad pardons without undermining the function of that power.
First, as Hamilton argued in “Federalist 74,” the pardon was vested in the president partially due to his structural responsibility as a single executive. For “As the sense of responsibility is always strongest, in proportion as it is undivided, it may be inferred that a single man would be the most ready to attend to the force of those motives which might plead for a mitigation of the rigor of the law,” and thus “The reflection that the fate of a fellow-creature depended on his sole fiat, would naturally inspire scrupulousness and caution; the dread of being accused of weakness or connivance, would beget equal circumspection, though of a different kind.”
While these arguments point to why the pardon would be the most secure and effective in the hands of the single executive, elsewhere in the Federalist Papers—particularly in “Federalist 70”—Hamilton describes responsibility in the sense of being held responsible by the people. That latter sense is also applicable to the pardon, for a president might be held accountable by the people for what they perceive to be a bad or corrupt pardon. Such was the case with Ford’s pardon of Nixon, as his approval rating plummeted after he announced the pardon, likely contributing to his election loss to Jimmy Carter in 1976.
Absent an election, however, there remains the ultimate method of presidential accountability: impeachment. In the Virginia ratifying convention, James Madison directly addressed Mason’s concerns about the president pardoning criminal accomplices by insisting that
If the president be connected in any suspicious manner with any persons, and there be grounds to believe he will shelter himself; the house of representatives can impeach him: They can remove him if found guilty: They can suspend him when suspected, and the power will devolve on the vice-president: Should he be suspected also, he may likewise be suspended till he be impeached and removed, and the legislature may make a temporary appointment. This is a great security…
Similarly, in Ex Parte Grossman, Taft insisted that a president who uses the pardon power to “deprive a court of power to enforce its orders” might be subject to impeachment. Indeed, Taft goes so far as to declare it would be better to impeach presidents who abuse the pardon power “rather than [resort] to a narrow and strained construction of the general powers of the President.”
Of course, in our polarized political environment, adding another reason to impeach the president is certainly not politically appealing, particularly when Biden has been subject to several impeachment inquiries and the once and future President Donald Trump having already been impeached twice. Moreover, the impotence of these efforts to remove the president suggest that, contrary to Madison and Taft’s expectations, impeachment does not seem to be an effective check on the president generally, and especially not on the basis of a questionable pardon.
That said, if Biden proceeds with issuing preemptive pardons for figures like Dr. Anthony Fauci, retired Gen. Mark Milley, and former Wyoming Rep. Lynn Cheney with the explicit goal of hindering his predecessor, it would constitute an aggressive and unprecedented use of the pardon power on explicitly political and partisan grounds. At the same time, however, the president-elect may welcome such an expansive precedent he could use for his own purposes, both in being able to preemptively pardon his own subordinates and allies and creating a political environment that might be more accepting of his plan to issue mass pardons to the January 6th rioters.
Altogether, it is surprising, and perhaps oddly comforting, that Biden felt the need to make a constitutional argument to support pardoning his son, for it points to the continued relevance of the constitutional function of that power as one which is meant to uphold the rule of law. Yet when placed in context of being clearly for familial purposes, and with the potential preemptive pardons appearing to be for partisan purposes, it signals long-term risks for how the pardon power is used. If the pardon power becomes another routine tool of partisan warfare, it not only diminishes its core constitutional function, but may very well transform it into the kind of cover for corruption that the Anti-Federalists always feared it would be. In such an instance, the constitutional checks of elections and impeachments, even if they might contribute to an already hyperpolarized political environment, will become essential to rebalance the scales and restrain the presidency’s most imperial power.