5 minute read
Presidential Pardons: Power, Controversy, and Potential for Abuse
© LAZYLLAMA / ADOBE STOCK.
BY DAVID GRAY ADLER
President Joe Biden’s controversial use of the pardon power in his final days in office, coupled with President-elect Donald Trump’s declaration that he would “most likely” pardon the January 6 rioters has reignited public curiosity about the origins and limits of this presidential authority. Not since President Gerald Ford’s 1974 pardon of Richard Nixon has the pardon power drawn such intense scrutiny.
Biden’s pardoning of his son, Hunter Biden, along with a record number of clemencies and commutations, has brought the issue into sharp focus. His consideration of pre-conviction pardons for those allegedly targeted by Trump highlights the power’s broad and discretionary nature and has placed it center stage in our national consciousness.
This power, rooted in the English monarchy’s royal prerogative, 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 the power, some have incautiously described it as immune to checks and balances.
The pardon power is laden with potential for abuse.
The Framers were aware of the monarchy’s abuse of pardon power, including kings granting pardons to aides, friends, and allies to serve their personal, political, and pecuniary interests. As notorious spendthrifts, they sold pardons to those who could afford them. Those without financial means could secure a pardon, with a pledge to “pay later,” a practice that surely introduced what shoppers recognize as the “layaway plan.” On occasion, kings cynically screened themselves from parliamentary inquiry by pardoning those whom they had instigated to violate the law. The historical practice constituted a parade of horribles.
Despite concerns of a power-hungry executive with a penchant for usurpation, the Framers saw value in granting the president this authority to correct judicial errors, extend mercy, and address national crises like rebellions.
What persuaded the Founders—a generation that feared expansive executive power—to vest in one person such sweeping authority?
Alexander Hamilton, in Federalist No. 74, argued that public scrutiny would compel presidents to exercise this power cautiously, fearing accusations of weakness or corruption—with “scrupulousness and caution; the dread of being accused of weakness or connivance would beget equal circumspection.” The court also declared its willingness to invoke judicial review to restrain the exercise of the authority as in, for example, a presidential order to swing open the jail house doors. The breadth of the pardon power means that it is easier to identify potential abuses than illegal uses. In drafting the Constitution to create a republican government, to borrow from the founders, it was true then, as it will remain true, that there is no substitute to electing candidates with integrity. A blueprint for government can go only so far.
Still, the Framers sought constitutional guardrails. Edmund Randolph and George Mason of Virginia, in terms that stirred images of a presidential coup, warned that the president might pardon the “traytors to prevent discovery of his own guilt”— scenarios where a president might use pardons to conceal their own crimes.
James Wilson of Pennsylvania pointed to impeachment as a deterrent, a sentiment echoed by the Supreme Court in 1925, which affirmed that excessive abuses could lead to impeachment.
Nevertheless, the pardon authority is subject to few practical limitations. Impeachment, which likened the founders to the “sword of Damocles,” doesn’t instill the fear it once did. The courts are less inclined to intervene, often dismissing challenges to presidential pardons as political questions beyond judicial review.
One clear boundary, however, is that a president may not pardon himself. Nixon, under the crushing pressure of Watergate, raised the concept, but dropped it when his own attorney told him the idea was “grotesque.” A self-pardon would violate the centuries-old Anglo-American maxim that no man may be the judge of his own actions, and it would exalt the president above the law, defying accountability at every turn.
The breadth of the pardon power means that it is easier to identify potential abuses than illegal uses. In drafting the Constitution to create a republican government, to borrow from the founders, it was true then, as it will remain true, that there is no substitute to electing candidates with integrity. A blueprint for government can go only so far.
