Is the presidential pardon too much power?
By Nidhi Nair
Throughout the course of American history and the foundation of our federal government, the president’s ability to pardon individuals from federal offenses has stood the test of time and sparked many debates surrounding whether it is an overreach of power. Controversial decisions made by several U.S presidents to pardon family members and high-level offenders raise many questions pertaining to the ethicality and limits of the Constitutionally granted power. This often results in heavy backlash from the American public.
The “Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment” is outlined in the first clause of Article II, Section 2 of the United States Constitution (Constitution Annotated). The Founding Fathers derived inspiration for establishing the presidential pardon from English common law, which was a traditional practice for the monarch to extend mercy to those he believed were deserving. As an integral factor of the checks and balances system, the president’s power to pardon serves as a check on the judiciary and its verdicts by “[releasing] a person from punishment and [restoring] all civil liberties” (Shogan, The White House Historical Association).
The Supreme Court ruled in the 1866 case Ex Parte Garland that (Justia), with the exception of impeachment, the presidential pardon extends to every offense under law and “may be exercised at any time after its commission,” interpreting the power as a function of plenary authority (Cornell Law Legal Information Institute). While the Constitution is vague in its description of the pardon’s applications and limitations, the Court’s decision construes the presidential pardon as a wide ranging, unlimited decision-making power which cannot be limited or controlled by legislation. The Court affirmed this precedent in the case United States v. Klein (1871), holding that “the legislature cannot change the effect of such a pardon any more than the executive can change a law” (Justia).
Historically, multiple controversial presidential pardons have been shown to significantly influence the media and public’s perceptions of each U.S president. In particular, President Andrew Johnson granted amnesty to around 13,000 Confederate officials in 1865, including Jefferson Davis, the former president of the Confederacy (The American Presidency Project). President George H.W. Bush also received criticism for pardoning officials involved in the Iran-Contra scandal. In particular, he pardoned former Secretary of Defense Caspar Weinberger, who illegally sold arms to Iran while the country was under an arms embargo (The American Presidency Project).
Perhaps the most famous exercise of the presidential pardon is President Gerald Ford’s pardoning of President Richard Nixon in 1974, which effectively released him from “all offenses against the United States,” including his involvement in the Watergate scandal (National Archives Catalog). As a result of this pardon, President Ford’s approval rating dramatically dropped, ultimately contributing to his re-election loss in 1976.
Each president carries their own distinct understanding of the power to justify their granting of pardons, demonstrating how the use of pardons can vary by administration. President Ford, in particular, believed that accepting a presidential pardon also translated to an implied acceptance of the guilt associated with the respective offenses. The Court established this concept in Burdick v United States (1915) (Justia). By extending a pardon to President Nixon, he aimed for President Nixon’s implicit guilt to restore national stability post-Watergate. Similarly, President Jimmy Carter granted a pardon proclamation in 1977 to people who evaded the Vietnam War draft with the intention of progressing the country forward from the war and healing America from its resulting divisions and trauma (National Archives).
In contrast, President Obama pardoned a total of 212 people throughout his presidency, many of whom were convicted for drug crimes; these pardons were largely justified with the belief that the individuals were unjustly forced to serve longer sentences than necessary (The White House, President Barack Obama). Through these instances, presidents harnessed the pardon as a tool to advance each administration’s goals–uniting the country during times of tension, or providing second chances to victims of the justice system’s inequities.
Several presidents have also contentiously granted pardons to family members and close friends, often with negative reactions from the media. In 2001, President Bill Clinton pardoned his half-brother, Roger Clinton Jr., who was convicted for conspiracy to distribute cocaine (Office of the Pardon Attorney, U.S. Department of Justice), and in 2020, President Donald Trump pardoned Charles Kushner, the father of his son-in-law (U.S. Department of Justice).
The annual turkeys were not the only ones who received presidential pardons this year. On Dec. 1, 2024, President Joe Biden issued a full and unconditional pardon to his son, Hunter Biden, who was convicted for multiple gun and drug-related federal charges (The White House). While President Biden’s campaign promises initially vowed to not interfere with the Justice Department, he justified the pardoning of his son by stating that he was “selectively, and unfairly, prosecuted” and that he “was singled out only because he is my son.” According to ABC News, the decision “immediately provoked a backlash from Republicans and Democrats, who viewed it as an abuse of executive branch power” and a determination that the President’s son was above the law (Hutchinson, ABC News).
The issuing of Biden’s pardon stands out in terms of its immense scope, protecting Biden from any offenses spanning the course of roughly eleven years. The vague language within the publicly released pardon statement echoes that of President Ford’s blanket pardon for President Nixon–it is unusual within the modern American presidency to see such an extensive pardon being issued. President Biden’s pardon raises red flags for many legal scholars, speculating that within the incoming administration, “Trump now has fresh precedent — and political cover — to issue expansive pardons absolving his allies not only of specific offenses, but even any undetermined crimes they may have committed” (Cheney and Swan, Politico). While President Biden’s pardon aimed to protect his son from facing further prosecution under President Trump’s justice department, it may have set the stage for President Trump to follow suit and potentially expand the pardoning power to shield his allies and supporters.
More specifically, President Trump has openly expressed his commitment to pardoning a large portion of Jan. 6 rioters early on in his next term (Terkel, NBC News). Following Biden’s pardon, President Trump took to social media (Sarnoff, ABC News), insinuating his possible future issuing of sweeping clemency to the Capitol insurrectionists in a post on Truth Social (Office of Justice Programs, U.S. Department of Justice).
In addition to the implications of pardoning the Capitol rioters, President Trump’s second term delves into unprecedented territory. As the first U.S President to hold a felony conviction, Trump’s incoming administration draws attention to a pivotal question: can the President pardon himself?
While the answer remains unclear, various Supreme Court rulings and legal scholars offer multiple interpretations. In the majority opinion of Schick v Reed (1974), Chief Justice Burger wrote that “since the pardoning power is an enumerated one, any limit on it must be found in the Constitution” (Oyez). Following the principle of stare decisis, the president may hold an implied power to pardon himself since the U.S Constitution does not indicate otherwise (Cornell Law Legal Information Institute). Jonathan Turley, a professor at the George Washington University Law School, argues in a USA Today article that President Trump pardoning himself would be a “disastrous idea,” heightening the likelihood of impeachment (Turley, USA Today). However, President Trump stated in a 2023 NBC interview that the likelihood of him pardoning himself is low (Allen, NBC News).
Alternatively, the legal principle of maxim nemo iudex in sua causa has been used by the Supreme Court as “a bedrock principle of natural justice and constitutionalism” (Vermeule, Harvard Law School). The Latin phrase translates to “no man should be judge in his own case”; this refutes the morality of pardoning oneself.
While the power of the president to pardon family members, or potentially oneself, from federal offenses often seems like an overreach of power in the eyes of the American public, it is ultimately not an overreach in the rhetoric of the U.S Constitution. Executing the vague powers expressed in Article II can, without a doubt, inadvertently result in a mistrust of federal authority and be subject to heavy criticism. Despite this, pardoning has nonetheless played a crucial role in the president’s duties and political agendas throughout the existence of our nation.
Since the birth of the United States, the Constitution has laid out a blueprint for Congress to respond to these exercises of power through congressional oversight on the executive branch, the power to impeach the president, and the ability to introduce constitutional amendments. At the end of the day, it’s up to voters to elect officials who we trust to handle these constitutionally granted powers and make informed decisions with the country’s best interests in mind.
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