Preemptive Pardons: A Constitutional Crisis Happening

The presidential pardon power, outlined in Article II, Section 2 of the Constitution, was intended as a tool of measured mercy, a final safeguard against the miscarriages of justice. Yet, when abused, it transforms into an instrument of unaccountable power that undermines the rule of law. In a brazen move that challenges both constitutional boundaries and public trust, President Joe Biden issued last-minute preemptive pardons for several family members, including his brothers James and Francis W. Biden, sister-in-law Sara Biden, sister Valerie Biden Owens and brother-in-law John T. Owens. These actions epitomize the dangers of preemptive pardons, raising critical questions about their constitutionality, propriety and implications for the separation of powers. This essay argues that preemptive pardons—pardons granted before an individual is charged or convicted—are antithetical to constitutional principles and threaten the fabric of American justice.

The Constitutional Framework: Intentions vs. Abuses

The pardon power, as articulated by Alexander Hamilton in Federalist No. 74, was designed to “heal the animosities of the state” and provide a “humane and expedient” remedy for judicial errors. This noble intention, however, was always tempered by an assumption of responsible use. The preemptive pardon—shielding individuals from potential prosecution before legal proceedings have even commenced—fundamentally subverts this intent. Such actions bypass the judiciary, preempt due process and allow the executive to declare guilt or innocence in advance of an impartial inquiry.

Consider the Framers’ view of checks and balances. The Constitution’s architects were deeply wary of concentrated power. James Madison warned in Federalist No. 47 that “The accumulation of all powers, legislative, executive, and judiciary, in the same hands… may justly be pronounced the very definition of tyranny.” A preemptive pardon effectively places the president above the judiciary, granting the executive the unilateral ability to block accountability before it can even be sought.

The ‘Take Care’ Clause: A Mandate for Accountability

Article II’s Take Care Clause obliges the president to “take Care that the Laws be faithfully executed.” Preemptive pardons inherently violate this clause by obstructing the natural course of justice. In granting these pardons to his own family, President Biden not only raised ethical questions but also undermined the principle that no one is above the law. The pardon power, while broad, is not a license for self-dealing or the shielding of political allies from accountability.

Eroding Public Trust and Equal Justice

The optics of preemptive pardons, especially for close associates or family members, are corrosive to public confidence in the justice system. Pardons granted without an indictment or trial leave a cloud of suspicion, fostering the perception that those in power are immune from scrutiny. In President Biden’s case, the timing of these pardons—issued in the last 15 minutes of his term—was a calculated maneuver to avoid political fallout while leaving the justice system impotent.

Thomas Jefferson’s admonition resonates here: “An honest man can feel no pleasure in the exercise of power over his fellow citizens.” Yet, preemptive pardons offer precisely the opposite—the pleasure of unchecked power wielded without accountability.

Judicial Interpretation and Historical Precedents

The Supreme Court’s stance on pardon power has historically been deferential, emphasizing its broad scope. In Ex parte Garland (1866), the Court held that the pardon power “extends to every offence known to the law, and may be exercised at any time after [its] commission.” However, this interpretation presupposes the existence of an offense. Preemptive pardons, issued before any formal accusation or adjudication, stretch this rationale to a breaking point. They nullify the legal process, effectively insulating individuals from investigations that could reveal wrongdoing.

Critics may point to President Ford’s pardon of Richard Nixon as a precedent. Yet, Ford’s action, while controversial, addressed specific charges related to the Watergate scandal, seeking to end national turmoil. Biden’s sweeping pardons of his family, devoid of explicit charges, lack even this tenuous justification, highlighting the dangers of normalizing such abuses.

The Ethical and Practical Implications

Ethical governance requires accountability. Preemptive pardons invert this principle, allowing presidents to preemptively exonerate individuals without public scrutiny or judicial review. They provide no incentive for transparency and encourage the concealment of misconduct. Furthermore, the precedent set by Biden’s pardons risks emboldening future presidents to extend such protections to their allies, undermining the concept of impartial justice.

Conclusion

Preemptive pardons are a constitutional aberration and a profound threat to the rule of law. By sidestepping the judicial process, they erode due process, disrupt the balance of powers and shatter public trust in the integrity of governance. President Biden’s last-minute family pardons stand as a cautionary tale of how this power can be abused to serve personal interests rather than the public good. The Framers designed a system where power would be checked, and justice would be impartial. Preemptive pardons betray that vision, leaving a legacy of unaccountability and undermining the very foundations of American democracy.

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