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 U.S. 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.
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.”
One might hope 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.
