If it wasn’t already clear – after nearly 250 years – that pardons are a permanent invitation to abuse of power and corruption, two presidents on the same day this week confirmed it.
On leaving office, Joe Biden issued “preemptive” pardons for his siblings and their spouses; to several public officials, including former medical adviser Anthony Fauci and former Chairman of the Joint Chiefs of Staff Mark Milley; and for MPs and staff working on the January 6 Committee. This began a historic series of apologies and commutations during Biden’s presidency and echoed his vaguely reasoned apology to son Hunter in December.
Meanwhile, upon entering office, Donald Trump granted indiscriminate pardons to nearly 1,600 people charged in connection with the January 6 attack – including hundreds found guilty of assaulting or obstructing police officers at the US Capitol – thereby undoing years of work by federal prosecutors. , seriously weakened the rule of law and promised to set a terrible precedent for the remainder of his term.
These acts are not equivalent. Trump is pardoning hundreds of violent rioters because he supported him politically. Biden’s pardon of his family is certainly self-serving, but his clemency for public servants — in light of the lawsuits Trump and his allies have threatened — is at least plausibly defensible.
However, these measures together make a mockery of the basic logic of the pardon power. As Alexander Hamilton summarized it in 1788: “The criminal code of every country contains so much essential severity, that without easy access to exceptions in favor of unfortunate crime, the face of justice would be much more indifferent and cruel.” The idea was to enshrine the virtue of mercy in the Constitution, not to give the President extra judicial prerogatives to protect his friends and family.
Trump’s embarrassing pardons had to compete for attention during the first day with the likes of rescinding dozens of his predecessor’s executive orders, withdrawing from the Paris climate accord and the World Health Organization, ending federal diversity initiatives, delaying a ban on TikTok , limiting birthright citizenship and including. And much more. But they may prove to be one of his most consequential acts of the day.
A President, already equipped with pre-emptive pardon powers along with blanket immunity granted in office, may have wide scope for corruption. Unfortunately, the Constitution envisages that power will be largely self-regulating – that is, constrained by the president’s sense of responsibility, or indeed shame. As one pardon lawyer advised Congress in 1952: “In the exercise of the pardon power, the President is answerable only to the dictates of his conscience, unhindered and uncontrolled by any person or branch of the Government.”
Prudence is not among Trump’s most prominent characteristics. To make matters worse, whatever moral high ground the Democrats in Congress might have claimed to prevent this abuse of power has been seriously eroded. Even if they regain the majority, the tools typically available to the opposition – launching investigations, issuing subpoenas, naming and shaming, and so on – have little credibility in light of Biden’s actions. Will keep.
One might hope that such bipartisan ill will will eventually lead Congress to make serious efforts to curtail this power; A bill introduced in 2020 provides a good place to start. But while such reforms are worth pursuing, they will only help marginally – and this perennial problem will, in all likelihood, continue.
(Except for the headline, this story has not been edited by NDTV staff and is published from a syndicated feed.)
