OPINION: Can Biden Pardon His Family? Some Thoughts on the Constitutional Pardon Power.

The Pardon Power of the President is found in Article II, Section 2, Clause 1 of the U.S. Constitution, which provides: “The President … shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of impeachment.”

But is this power unlimited?

Can the President —

1. Pardon his family?
2. Pardon his business associates?
3. Pardon his political donors?
4. Pardon his henchmen?
5. Pardon himself?

Some will say the power to pardon is absolute, unlimited.  If this is so:

Could the President —

1. Pardon every illegal immigrant?
2. Pardon every federal inmate?
3. Pardon everyone?

The absurd scope of assuming an absolute and unlimited pardon power is seen in these questions.  Surely there must be some limits.

As in most things, courts have traditionally ruled that where limits are not specified, reasonable limits will be inferred. 

So what sort of limits would be reasonable?

1. Limits based on conflict of interest
2. Limits based on self-dealing
3. Limits based on timing and scope

So, can the President pardon himself?  Yes, if you accept that the pardon power has no limits; No, if you believe reasonable limits must apply as in everything else.  Clearly we have no judicial ruling on this issue, so we can debate it forever (or until the Supreme Court speaks, but don’t hold your breath).

The President’s power to grant pardons does not arise in a vacuum.  It is but one of several powers that are assigned to the President in Article II of the U.S. Constitution.  These powers are enumerated in Section 2 of Article II:

Section. 2.

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

Notice that there are only three powers granted in the first paragraph of Section 2:  The President shall be Commander in Chief of the Army and Navy (and of the militias); The President can require each of his cabinet secretaries to provide an opinion in writing; and the President has the power to grant reprieves and pardons.

Let’s look at the first of these powers.  Certainly, the President is indeed the Commander in Chief.  We play, “Hail to the Chief,” when he walks into the room.  But are his duties and powers as Commander in Chief absolute and unlimited, or have Judicial and Congressional power as well as tradition placed limits on such power?  Would the nation tolerate it if he sacked all the generals and placed his personal thugs in charge?  Could he, on his own, order the military to perform non-military duties on a permanent basis, such as delivering the mail or collecting taxes?  Could he work the soldiers like Roman galley-slaves?  Could he willy-nilly launch a nuclear missile based on a grudge?  Could he use the military to encircle an American city in a blockade to force its representatives to vote in accordance with his wishes?

Surely, all of these possible presidential actions are absurd, but they are advanced to clearly demonstrate that the power given to the President is limited by a standard of reasonableness.  Why would not this same reasonableness standard apply to the power to give pardons, which appears in the same constitutional clause?

If you think the only recourse in the event of a president-run-wild is impeachment, think again — think of all the times federal courts have enjoined Executive Orders, stopping a President from using presidential authority. Democrat-appointed judges regularly placed a halt on President Trump’s activities, whether it was barring visitors from certain countries or building a wall on the Mexican border.

Let’s look at this issue yet another way:  The Constitution also provides specified powers to the Congress.  But don’t the courts regularly review legislation for reasonableness, and strike down laws when they determine that the laws are unreasonable?  True, the courts will usually not state that the law is unreasonable, but they will instead find the law to be overbroad or ambiguous or not serving its intended purpose, all subsets or analogs of reasonableness.    

So, given this view, is the pardon by President Biden of his son, Hunter Biden, reasonable?  No, it is not.  Thus, we maintain it is not lawful and should be revoked upon review by a federal court.  Will this ever happen?  We doubt it, but it should. 

Many commenters have pointed out that the unlimited scope of Hunter Biden’s pardon was only matched by the pardon of then just-former President Richard Nixon by new President Gerald Ford.  Perhaps so, but the two pardons were fundamentally different.  There was no self-dealing and no conflict of interest in Ford’s action pardoning Nixon.  Whether one agrees or disagrees with the action, it was Ford’s intention to protect the nation by not allowing show-trials of Nixon to go forward and rip the nation apart.  We find no such similarity in the pardon of Hunter Biden by his father. 

Some others have suggested that in lieu of pardoning himself, President Biden can momentarily say he is incapacitated (as for a brief surgical procedure) and temporarily elevate Vice President Harris to Acting President, so that she can pardon him.   Under this scenario, a few hours or a day later, Biden would retake his office upon leaving the hospital, and would now be pardoned for any and all crimes he may have committed during whatever time-limits appear in the pardon.  This would be pure cronyism and would not pass the reasonableness standard we are proposing is appropriate.  This is doing by delegation something that cannot be done directly, and is done for the benefit of the principal player, an obvious conflict of interest.  On the other hand, were the incoming President, Donald Trump, to pardon Biden (something we would not suggest or expect), such a pardon would not have any of the reasonableness limitations.