There’s Reason To Be Worried About The Plethora Of Pardons From Trump And Biden

Over a span of 12 hours, two presidents went on a clemency spree.

The extraordinary wave of pardons Monday — from Joe Biden as he left the White House and from Donald Trump as soon as he returned to it — demonstrate the potency of the Constitution’s pardon power, but also expose its perils, constitutional scholars say.

The pardon power — a relic of English monarchs that was adopted by America’s founders as a way to extend grace and mercy in exceptional circumstances — can’t be checked by Congress or the courts. And in a country gripped by political rancor, that power is increasingly prone to abuse, experts say.

Both presidents, on the same day, stretched the pardon power to new, questionable frontiers in wildly different ways.

“It was perhaps a constitutional mistake to give the president this one unchecked, unilateral power,” said Mark Rozell, a George Mason University expert on presidential power. “Madison believed that any power granted without institutional checks would be abused. The recent exercises of the pardon power by two presidents proves he was right.”

Biden kicked off the pardon binge when he granted preemptive clemency to political allies, including Gen. Mark Milley, a former chair of the Joint Chiefs of Staff, Covid czar Anthony Fauci, members of the Jan. 6 committee and, minutes before departing the White House, his own siblings and their spouses. In each case, Biden described them as potential targets of a vengeful Trump administration.

Trump, on the other hand, delivered massive blanket clemency to virtually all of the roughly 1,600 people who have been prosecuted in connection with the attack on the Capitol on Jan. 6, 2021, including hundreds of people who assaulted police and a dozen convicted of a sedition plot.

Both sets of pardons drew bipartisan condemnation but also a recognition that pardons are purely at the discretion of the president and there’s little recourse for abuses.

“The pardons by outgoing President Biden and incoming President Trump yesterday signal a dangerous new era in pardoning,” said Bernadette Meyler, a constitutional law expert at Stanford University. “We haven’t seen these kind of blanket indemnifications in a long time — perhaps since Congress and President [Andrew] Johnson sparred over amnesties for members of the former Confederacy.”

Alexander Hamilton wrote that he envisioned the pardon power as a “benign prerogative” to be exercised with “scrupulousness and caution” by presidents who would fear public condemnation for misuse.

Yet all presidents in modern history have engaged in politically suspect pardons, typically at the end of their terms. Experts say a combination of other factors has encouraged more dangerous abuses of the power. Among them: the Supreme Court’s recent ruling granting sweeping immunity to presidents for their official acts — including pardons — as well as the increasingly corrosive effect of the nation’s polarized politics.

The misuse of the pardon, they add, will lead to public cynicism about the power’s original intended use as a tool of mercy.

“Stigmatizing good pardons and making the ordinary expectation that allies and people in your camp get automatic pardons is what this changes the landscape to,” said John Barrett, a St. John’s University constitutional law scholar. “I think the expectation now is that a departing president in the last hour of serving in office pardons every family member, hanger-on, et cetera, for whatever they did. … This kind of green-lights going for it as a crook.”

To be sure, Biden did deploy his clemency power in the final days of his presidency in ways that seem more closely aligned with its original purpose. He commuted the sentences of 2,500 nonviolent offenders, and he granted clemency to 37 of the 40 people on federal death row, converting their death sentences to life in prison. Trump made similar pardons to nonviolent drug offenders and others in the final months of his first term as well.

But the Biden pardon that will be best remembered is the sweeping pardon he granted in December to his son Hunter, who was facing sentencing in two federal felony cases. That pardon, it turned out, was a prelude to the other Biden family pardons he issued on his final day in office.

Some legal experts emphasized that the entire debate around pardon abuse is really about Trump, who has repeatedly promised retribution against his political adversaries — notably including the Biden family. And Trump showed in his first term that he is willing to hand out pardons to protect his own allies (like Steve Bannon, Roger Stone, Paul Manafort and Michael Flynn) and family members (like Charles Kushner). Notably, Biden did not extend clemency to other ostensible political allies like former Sen. Robert Menendez or New York Mayor Eric Adams.

Monday’s pardons from both Biden and Trump “are evidence of the pressure that Trump is placing on the kind of rules of the road that made democratic institutions at the national level work,” said Aziz Huq, a constitutional expert at the University of Chicago. “What’s going on here is that Trump is exerting a gravitational force on his opponents and through his own behavior.”

Edward Foley, a constitutional scholar from Ohio State University, said the misuse of the pardon is just one symptom of a larger problem with America’s political framework: the failure of impeachment proceedings to deter improper conduct and a political primary process that encourages extreme, unpopular positions.

“The recent precedents are disturbing,” Rozell said, “and will be seen by some future presidents as a license to pardon friends, family, cronies without any consequence other than history’s judgment.”