Sure. it’s all the rage at the moment, but Joe Biden’s pardon of his son is hardly a novel concept, either as to pardoning a family member (think Charles Kushner) or issuing a pardon on the way out the door. But it still emits an unpleasant odor, both because the president asserted that he would not do so, undermining whatever integrity he had left, and that there is no accountability for the exploit of a power possessed solely by the president.
Presidents have the constitutional “Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.” There’s nothing Congress can do about that.
It’s worth noting that this is one of the powers for which the Supreme Court held immunity applied. It’s not just presumed, subject to argument to the contrary, but immune per se. While some in the past have argued that the corrupt grant of a pardon would be prosecutable, a contention of dubious merit to begin with, the question was put to rest with United States v. Trump. Presidents can pardon anybody for any reason, good, bad or otherwise. And they have.
But the President is only accountable to the electorate so long as he or his party are up for election. Once the election is over, there’s no one for voters to punish. That’s why Biden waited until after the election to pardon Hunter; why Trump did the same for Steve Bannon and Roger Stone; why Obama did the same when commuting the sentences of Chelsea Manning and the terrorist Oscar López Rivera. And, most notoriously, that’s why Bill Clinton waited until his last full day in office to pardon the fugitive Marc Rich, who had fled to Switzerland to avoid prosecution and whose ex-wife donated $450,000 to the Clinton Library.
When a president pardons someone with whom he has no connection, familial, financial or otherwise, it has the imprimatur of grace. And one of the running criticisms of President Biden is that he’s shown too little grace to others, most notably his failure to commute the death sentences of federal prisoners to life imprisonment. He’s been, well, pretty darn stingy about it.
But to date, he has issued only 26 pardons and 132 commutations. (In eight years, President Barack Obama issued 212 pardons and 1,715 commutations.) Mr. Biden had earlier made two grand announcements about pardons, but they amounted to less than they appeared. Last December, he said that he was planning to pardon everyone who had been prosecuted for simple possession of marijuana under federal or District of Columbia law. This past June, he announced that he was going to pardon members of the armed services who had in previous years been subjected to courts-martial for being lesbian, gay, bisexual, transgender, queer or intersex. But those actions were mostly symbolic. Though thousands of people were theoretically eligible for these pardons, few chose to go through the cumbersome process: about 200 for marijuana and not even 100 for the courts-martial.
And yet, Papa Joe has shown his wayward son the grace he hasn’t shown others. Does this give rise to one of those rare moments when we are sufficiently unified to agree to a modest amendment of the constitutional pardon power by banning lame duck pardons? At Volokh Conspiracy, Harvard lawprof Stephen Sacks proposes such an amendment.
The power to grant reprieves and pardons for offenses against the United States may not be exercised without a public proclamation of the same; nor may it be exercised from one month prior to the time of choosing the electors until the next presidential term begins, except to grant temporary reprieves extending no longer than the tenth day of such term.
On the one hand, lame duck pardons enable a president to show grace to people who would be politically difficult to pardon otherwise, due to unpopularity despite being otherwise deserving. Let’s face it, Americans tend to be very harsh about retribution, particularly when it involves someone notorious. If the president pardoned a particularly unpopular person who, for whatever reason, the president deemed worthy, it could be political suicide before an election. Should that be the defining factor in the exercise of the pardon power?
On the other hand, the president can pay back favors to friends and family, not to mention contributors, on his way out of the door. That certainly smells bad and seems an abuse of the power. Should it be banned? Is now the time to ban it? If it was banned, would we gain more than we lose?
*Tuesday Talk rules apply.
The pardon power is an important safety valve. It should not be limited. It may certainly be abused which is why the electorate needs to carefully consider the character of each candidate running for the presidency. Character and personal integrity matter. On an aside, I question whether President Biden did his son a favor by issuing him this pardon. As a father I believe it’s my responsibility to instill a sense of responsibility and accountability in my children. What the President did for Hunter is enabling behavior that will just encourage more bad and personally destructive behavior by Hunter Biden. I suspect this has been a long term pattern in this father son relationship.
Is it really an important safety valve, or more of a symbolic and arbitrary one? This seems like calling a lottery an important economic assistance program.
Or perhaps a lottery is too random and self-qualifying…maybe a legacy scholarship program. To the extent they are viewed as important – for the recipients at least, rather than for the grantor – it seems a pale substitute for a systemic remedy.
Maybe it’s even a “safety valve” against something more systemic. This would be a more cynical take on it….that the mercy it enables is a way to siphon off that sentiment from elsewhere where it may be more far-reaching. (See Yost and Flowers in the Harvard Law Review.) But mainly it feels like a relic from the divine rights of kings who operated above the law, and rather than a bulwark against politics and power it is inherently steered by it.
Sorry, Harvard Journal of Law & Public Policy. Why some people are still permitted to post here is beyond me.
Twofer Tuesday.
“If the president pardoned a particularly unpopular person who, for whatever reason, the president deemed worthy, it could be political suicide before an election.”
This is no less true of anything else a president might do–heavy the head that wears the crown and all that. So I don’t accept that as a reason the president *can’t* pardon people before an election.
OTOH, the president is the president, until he isn’t. He can appoint a Supreme Court Justice on January 19, he can pardon people, he can send troops. I kind of like the idea of making him politically accountable for pardons, but I don’t think I’m willing to accept that his status between the election and the inauguration is something less than “the president.”
“Though thousands of people were theoretically eligible for these pardons, few chose to go through the cumbersome process: about 200 for marijuana and not even 100 for the courts-martial.”
If the process is so cumbersome that many who are worthy don’t apply, maybe the process should be changed or streamlined. Is there good reason for the cumbersomeness? Seems like for the LGBT in the military court’s martial Biden could have issued a blanket pardon for them all as Carter did for those who evaded the Vietnam draft.
The pardon power can be abused, has been abused, will continue to be abused. Put in a restriction and the pardon power will still be abused. (Consider that even one day into a President’s second term, the electorate can’t punish the Pres.)
But while some restriction may limit some abuse, it will also limit some honorable but politically problematic decisions. (Disclosure: I strongly support efforts to have Biden commute the sentences of all those on federal death row; an act he could and should have years ago but that may have been politically problematic earlier but can be done without regard to any such consequence now.)
Those who know me are aware that I am both a believer in fairness, but also in mercy – which is not about the recipient but about the giver. The pardon power is vital even though it can and will be abused.
I would say the founders set it up the way they did for a reason, and the power was intentionally established in a way that allowed its use without accountability to the electorate. Also, as politicians even in that day were prone to having a few rascals among their friends and supporters, I would say corrupt uses of the power were anticipated. For the same reasons, the major parties today would never back a proposal restricting it, so the proposed amendment would be dead on arrival. There is the silver lining that the power could be used to free unpopular people dubiously targeted via the “lying to federal investigators” mechanism, or railroaded via show trials in the course of some outrage du jour. Politicians being what they are, that probably won’t happen often, but it’s possible.
Leave it alone. I might need a pardon someday and the unseemly fact that a president’s son or bagman may have been pardoned in the past will mean exactly nothing to me in that moment.
I agree with the leave it alone philosophy, but for a different reason. Once the Constitutional Convention is called, there’s nothing restricting them from proposing other amendments.
In continued heavy trading, the United States today gained an additional 5/8ths of a banana.
Well, if the banana was duct-taped to a wall, that’s better than a poke with a sharp stick.
In realpolitik, Bill Clinton pardons Marc Rich, and Joe Biden protects his son from the articulated threats of the president-elect and attorney general nominee. In fantasy, maybe Trump won’t pardon the J6-ERS.
Any attempt to regulate the pardon power of the president would put the power straight into the political maelstrom. That can’t be better.
Isn’t the issue with this pardon the broad range of years and scope?
My (non-legal) understanding of pardons is the absolution of a conviction. In Hunter’s case, he was convicted of three felony counts for lying on a federal firearms application and pleaded guilty to tax evasion.
Was the pardon restricted to those convictions?
What about the Ukranian lobbying and influence peddling that also benefitted “The Big Man”?
I would have expected those charges to be much more serious.
Does he now have a retroactive Never Get Jailed card?
If Biden was a judge he would have to recuse himself from deciding his son’s criminal case. If he didn’t he could be impeached and perhaps disbarred. Basic decency required Biden to recuse himself. The fact that it took almost two centuries before any president even considered pardoning himself or a family member shows how far the imperial presidency strayed from the Founder’s intent to establish a republican form of government with checks and balances.
Or maybe it just took two centuries for the moral character of US politicians to sink to such levels that it would become necessary to pardon their children and in-laws.