Joe Biden’s Unpardonable Pardons

The end of the Biden administration’s lawfare campaign might be marked by a vast expansion — and distortion — of the pardon power.

I t is a sad end to a failing presidency. After years of promising the public that he would never pardon his son Hunter, Joe Biden did exactly that. The pardon covered not just the two criminal convictions awaiting Hunter’s sentencing but also possible actions that have yet to be investigated or even identified. Biden reportedly is considering pardons for many others, including former representative Liz Cheney (vice chairwoman of the January 6 congressional committee), Dr. Anthony Fauci, and General Mark Milley (former head of the Joint Chiefs of Staff).

Not only would such broad use of the pardon power mark a cynical development following Biden’s own unprecedented lawfare campaign against Donald Trump, it would also disregard the reasons why the Constitution gives this power to the president.

Other presidents have pardoned family members: On his final day in office, Bill Clinton pardoned his younger half brother Roger, and, during his first term, Donald Trump pardoned Charles Kushner, the father of his son-in-law Jared. But Biden’s pardon of Hunter is incomparably more sordid because it seems designed to stymie investigation into years of corruption and influence-peddling by the Biden family, extending as far back as 2014, when Biden — the apparent “Big Guy” at the center of the family firm — was Barack Obama’s vice president and in charge of Ukraine policy.

Hunter’s pardon extends not only to tax fraud — a charge on which he faced up to 17 years in prison and $1.35 million in fines — and to a gun crime but also to any crimes he may have committed, whether charged or not, from January 2014 to December 2024. It is a preemptive pardon that includes Hunter’s “business dealings” with Ukrainian oligarchs — matters of which Joe Biden told the American people he had no knowledge whatever. It is impossible to believe that the precise temporal coverage of Hunter’s pardon is random.

If son Hunter can be let off the hook, expect brother James’s turn to come soon. Indeed, Senator Rand Paul has suggested that Biden may have a pardon in store for himself. And still more seem to be in the cards. Representative Jim Clyburn of South Carolina — who, more than anyone, helped install Biden as the Democrats’ presidential nominee in 2020 — advised Biden in favor of preemptive pardons for others as well. “I was very forceful in my discussions with him about what I thought he ought to do regarding his son,” Clyburn said. “But I also told them that I thought he ought to go even further, because all of the noise about Jack Smith and Liz Cheney and Doctor Fauci and all that.”

Biden’s pardon of Hunter, let alone his potential pardons of others, is indefensible as a matter of public policy. But in terms of pure legality, none can be faulted. The president’s pardon power, vested in him directly by the Constitution, is sweeping. True, a president may not preemptively pardon a crime that has not yet been committed, but he may pardon one that has not yet been charged or even discovered. The Supreme Court has said that the power “may be exercised at any time after [the commission of an offense], either before legal proceedings are taken, or during their pendency, or after conviction and judgment.” Article II of the Constitution declares that the president “shall have Power to grant Reprieves and Pardons for Offences against the United States, except in cases of Impeachment.” The Framers made only three exceptions. First, the president can only issue pardons for federal crimes, not state crimes. Second, the clause’s limitation to federal crimes excludes private civil lawsuits. Third, the president cannot grant pardons for impeachment. The constitutional text contains no other limitation, and the Supreme Court has never attempted to impose one.

Observers have described the breadth of the pardon power as plenary, unfettered, unqualified, and not subject to checks and balances from the other branches. Presidents have used it to pardon targets before prosecutors have charged them, while trials have been ongoing, or even long after conviction and sentencing. Consider the 1796 Whiskey Rebellion, after which none other than George Washington pardoned several leaders of the insurrection. Presidents have also granted pardons to hundreds of thousands simultaneously, as did President Andrew Johnson, who, along with his predecessor, Abraham Lincoln, ultimately pardoned 200,000 former members of the Confederacy. President Jimmy Carter extended a blanket pardon to all Vietnam War draft evaders.

Historical evidence from the Constitution’s framing cannot overcome the plain meaning of the constitutional text — if anything, it supports this textual reading. British kings have enjoyed the pardon power from as early as a.d. 688. Under the logic of English law, a violation of the criminal law was an offense against the Crown, and a pardon amounted to the king’s forgiving those who had offended him. Parliament only succeeded in placing a single limit on the power, but that limit illustrates how broad it truly is. (In the 1701 Act of Settlement, Parliament declared that the Crown could not issue pardons for impeachments.) In 1678, for example, Parliament had decided to impeach King Charles II’s treasurer, the earl of Danby, for selling British neutrality between Holland and France for 600,000 livres. Charles appeared at the House of Lords, declared that Danby had acted at his direction, and announced that he had pardoned Danby.

American revolutionaries initially sought to restrict the pardon power, once held by the royal governors, by transferring it to the legislature and restricting the crimes eligible for pardons. It should come as little surprise that the early drafts of the Constitution considered by the Philadelphia Convention, the Virginia and New Jersey Plans, did not provide for pardons. Alexander Hamilton, among others, led an effort to include a pardon power in the executive, with an exception for impeachments, that mirrored the British practice. Delegates proceeded to reject limits on the president’s power, such as proposals that would require Senate consent or allow pardons only for convictions.

An important exchange in the Constitutional Convention confirms the wide breadth of the pardon power. Edmund Randolph moved to amend the pardon clause to exclude treason as well as impeachment because the current text involved “too great a trust.” “The President may himself be guilty,” Randolph worried. “The traitors may be his own instruments.” Rising to defend the traditional grant of the pardon power in the executive, James Wilson rejected the idea that the Danby episode could repeat itself under the new constitution. “If the President be himself a party to the guilt he can be impeached and prosecuted.” Rufus King of Massachusetts suggested that vesting the power in Congress would be “inconsistent with the Constitutional separation of the Executive and Legislative powers.” He argued that “a legislative body is utterly unfit for the purpose” because “they are governed too much by the passions of the moment.” Unusually, Madison supported anti-executive sentiment and declared his preference for “an association of the Senate as a Council of advice, with the President.” Wilson and King, however, carried the day. The delegates rejected Randolph’s amendment, 8–2. The convention had the opportunity to explicitly prevent presidents from pardoning even his co-conspirators in a treasonous plot, but it clearly rejected the idea.

During the ratification debates, Anti-Federalists repeated Randolph’s argument: “The President of the United States has the unrestrained power of granting pardons for treason,” George Mason argued in his widely disseminated Objections to the Constitution, “which may be sometimes exercised to screen from punishment those whom he had secretly instigated to commit the crime, and thereby prevent a discovery of his own guilt.” During the Virginia ratifying convention, Mason repeated his charge. “The President ought not to have the power of pardoning, because he may frequently pardon crimes which were advised by himself,” Mason alleged. “If he has the power of granting pardons before indictment, or conviction, may he not stop inquiry and prevent detection?”

In Federalist No. 74, Hamilton responded to Mason and other Anti-Federalists with two reasons for pardons. The Constitution creates a pardon power “out of humanity and good policy” to allow for “mitigation from the rigour of the law.” As a result, it should be “as little as possible fettered or embarrassed.” As Chief Justice John Marshall explained in the 1833 case United States v. Wilson, “A pardon is an act of grace, proceeding from the power entrusted with the execution of the laws.” In other words, the president could issue pardons when the law produced harsh or absurd results.

Hamilton provided a second, broader defense of pardons that bears directly on today’s Trump controversy. According to Federalist No. 74, the anti-Federalists argued that “the connivance of the chief magistrate ought not to be entirely excluded” in cases of treason. In such cases, critics had demanded, the Constitution should give only Congress the right to pardon. Hamilton, however, defended the Constitution for not limiting the pardon power, even in cases of treason, and even when the president himself was one of the conspirators. He explained that the pardon power must remain unfettered so it could help end public disorder or civil war. “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,” he wrote. It is this second use of the pardon power that is potentially most sweeping and controversial.

Hamilton’s argument in favor of the pardon power was based on the Constitution’s structure, which concentrates the executive power in a single person, the president, so that the nation can act with decision, speed, and energy. The pardon power would not only moderate the occasional harshness of criminal law but could also advance the nation’s security. Almost a century after Chief Justice Marshall’s opinion, Justice Oliver Wendell Holmes Jr. turned the justification in this direction: “A pardon in our days is not a private act of grace from an individual happening to possess power,” he wrote in Biddle v. Perovich. “It is part of the Constitutional scheme. When granted it is the determination of the ultimate authority that the public welfare will be better served.”

Pardons did not just come about from executive grace; rather they served the instrumental purpose of benefiting the public. Hamilton’s wisdom undoubtedly served the nation well during the Civil War, when President Lincoln used not only the executive power to respond energetically to the existential threat of secession but also the pardon power to begin the process of national healing. The benefits of such a power, Hamilton believed, outweighed the possibilities that a future president might use pardons corruptly to benefit himself.

The original understanding, and the subsequent history and tradition — the lodestars of the Supreme Court’s approach to constitutional interpretation — recognize an almost unlimited presidential pardon power, but they also instruct that President Biden’s actions could conflict with the Constitution’s purpose. The Framers established the power for two purposes: to show mercy in individual cases of injustice and to promote the public interest by breaking up dangerous criminal conspiracies. Neither goal is pursued by the Hunter pardon.

Hunter was already convicted by a jury of his peers in his Delaware prosecution, and he pled guilty to massive tax evasion in Los Angeles. He has not been persecuted by any political enemies — the prosecutions were brought by a special counsel under the authority of Merrick Garland, the Biden administration’s own attorney general. If the public interest is at stake, it would be most advanced by investigating influence-peddling that might involve the Oval Office and the vice presidency, not by relieving potential conspirators of their criminal liability.

One might argue that pardons for the president’s aides and supporters would be in the public interest. But this would be a cynical response to the very breaking of norms by the administration itself. Before Jack Smith’s special counsel investigation into Trump, Biden’s predecessor and his main electoral rival, presidents had never indulged the temptation to use their awesome power of investigation and prosecution against their political rivals. But now that Biden has unleashed the legal furies, he fears that they might turn on him and his supporters. His pardons have only become necessary because lawfare during his term became ordinary. His further destruction of norms may give rise to a new practice — that of presidents preemptively pardoning all of their political appointees at the end of their administrations. Biden’s pardons may represent the end of the lawfare campaign, but only by a vast expansion — and distortion — of the pardon power.

John Yoo is a distinguished visiting professor at the School of Civic Leadership and a senior research fellow at the Civitas Institute at the University of Texas at Austin, the Heller Professor of Law at the University of California, Berkeley, and a nonresident senior fellow at the American Enterprise Institute. Robert Delahunty is a fellow at the Claremont Institute’s Center for the American Way of Life.