When it comes to using the pardon power granted to the Executive Branch in Article 2, Section 2 of the U.S. Constitution, former President Joe Biden is a frequent flyer. During his four years in office, he used these powers a whopping 8,064 times. That’s a whole lot of folks getting out jail, wouldn’t you say? What’s really sketchy about his use of pardons is that he issued five of them to members of his own family. He then tossed one out to Anthony Fauci, another to Mark Milley, and a bunch more to those who were members and staff of the House special committee that launched an investigation into the Jan. 6, 2021 Capitol incursion.
Of course, when President Donald Trump was inaugurated earlier this week, he too made use of this power, pardoning all those who were “convicted of offenses related to events that occurred at or near the United States Capitol on Jan. 6, 2021.”
Mark Meuser of The Federalist points out in a recent article that Biden paid absolutely no attention to the warning once issued by Alexander Hamilton who stated in Federalist 74 (The Federalist Papers) that the benign prerogative for pardoning should be as little as possible fettered or embarrassed.” And yet, despite a clear warning from one of our Founders, Biden issued more pardons and clemencies than the last 10 presidents over a period of 57 years served.
James Wilson, the most prolific speaker during the debate over the United States Constitution with more than 172 speeches and later an associate justice of the Supreme Court, called the presidential pardon power “extraordinary.” In his 1791 Lectures on Law, he taught us that this extraordinary power was to be used “after they have been apprehended, tried, convicted, and condemned.” Let us be clear, Biden’s family, Fauci, Milley, and the members of the House J6 Committee have never been apprehended, tried, or convicted, let alone condemned. They were not eligible for a presidential pardon.
Article 2, Section 2 of the Constitution clearly states that the president has the power to pardon “for Offences against the United States.” However, Biden understands that these individuals he has pardoned have not committed an offense against the United States because his pardon statement says, “The issuance of these pardons should not be mistaken as an acknowledgment that any individual engaged in any wrongdoing, nor should acceptance be misconstrued as an admission of guilt for any offense.” How can former President Biden pardon someone for an offense against the United States when his pardoning message says that they are not guilty of any offense?
Meuser goes on to state that our Founding Fathers would have made it clear that you cannot issue a pardon for someone who has not been convicted of a crime, the highest court in the land, the Supreme Court, seemingly indicated the president does indeed have the authority to issue a preemptive pardon. But there are certain conditions that have to be met in order for this to work. Keep in mind, as Meuser points out, this precedent has not been fully fleshed out and is over a century old.
To meet this precedent, an individual would have to first confess to an offense against the U.S. If there is no confession of a crime against the U.S., the Burdick v. U.S. states that the pardon is bogus and void. In other words, according to Meuser, if President Trump and his Justice Department decide they are going to open probes into the Biden family, Fauci, or Milley, or any of the members on the Jan. 6 Committee, they could still be prosecuted unless they confess to a crime committed against the country.
“However, even if they did that, Trump’s DOJ could still pursue the matter, arguing that Article 2, Section 2 did not give President Biden the right to preemptively pardon anyone. That issue would eventually be heard in the Supreme Court. Only then would the nation have a definitive answer as to whether a president has the power to preemptively pardon someone who has never been convicted and who has not confessed to an offense against the United States,” Meuser wrote.
Hamilton also wrote in Federalist 74, “In seasons of insurrection or rebellion, there are often critical moments, when a well timed offer of pardon to the insurgents or rebels may restore the tranquility of the commonwealth.”
Our first president, George Washington, understood the principle well, which is evidenced by his 1795 amnesty granted to the individuals from Pennsylvania who participated in the Whiskey Rebellion.
Meuser concluded by saying, “President Trump is simply following the advice of Alexander Hamilton and the example of George Washington. Democrats in Washington, D.C., have called the events that transpired on Jan. 6, 2021, an insurrection. President Trump is using the intended purpose of his pardoning power to restore the tranquility of the nation after years of public political prosecutions.”