The issue of presidential pardons becomes the subject of debate every time a president’s term comes to an end. Although presidents have the authority to grant pardons at any time, they usually wait to issue them in recognition that pardons often lead to controversy and could interfere with other items the president and Congress need to address.
A president’s pardon powers are very broad. A president can forgive someone convicted of a federal crime, end their sentence and restore their rights — or can do a mix of those things. A president can commute a convicted person’s sentence for a crime, which enables that person to get out of jail, but doesn’t remove the conviction. Or the president can grant a full pardon, which wipes the slate clean.
Presidents can grant amnesty to large groups of people like Jimmy Carter did for Vietnam draft dodgers. President Joe Biden just commuted the sentences of some 1,500 individuals who have been serving home sentences under a pandemic-era law that allowed for extended home confinement for certain prisoners. And presidents can pardon someone before that person is charged with a crime. That kind of pardon — for any offenses the person “may have committed” — blocks any federal investigation of that person’s past activities.
President Biden’s recent pardon of his son Hunter touches almost all the extraordinarily broad features of presidential pardoning power: Hunter Biden’s conviction on gun and tax crimes went away with his pardon. He will not face sentencing or jail time. And the pardon also protects Hunter from any further federal examination of his activities for the past 11 years.
Biden’s pardon of his son has been criticized, in part, because the president repeatedly pledged not to do so and promised to allow the legal process to run its course without interference. The move was also criticized because in announcing and seeking to justify his understandable act of mercy toward his only surviving son, Biden criticized the underlying prosecutions, claiming they were politically motivated, in a disturbing echo of similar claims of political persecution asserted by President-elect Donald Trump.
We suspect there is more to come. Presidents usually grant clemency to hundreds of people at the end of their term, recognizing those who have a story of redemption while in jail or low-level drug offenders whose sentences are too severe under current federal law. And Biden will inevitably grant clemency or pardons to some of his political allies.
Trump did precisely that at the conclusion of his first term, pardoning several of his allies and friends for crimes such as lying to Congress and witness tampering. And throughout his recent campaign, Trump has made clear his intention to pardon the “patriots” and “heroes” who were convicted of crimes in connection with the Jan. 6, 2021, attack on the
U.S. Capitol.
As Trump enters office, we expect him to test the limits of his power and authority in myriad ways. And one of the levers of power he will almost certainly use will be his unmatched pardon power.
The pardon power sits at the intersection of mercy versus corruption. Most consequential intersections have traffic lights to regulate activity. The U.S. Constitution imposes very limited restraints on a president’s pardon power. We hope that’s not a cause for concern.
