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Joe Biden is reportedly considering granting a series of pre-emptive pardons for Donald Trump’s biggest critics.
Many senior Democrats have urged the US president to consider blanket pardons due to fears that the president-elect will follow through on threats of legal retaliation against his critics when he takes office in January. Among those speculated to receive clemency are California Senator Adam Schiff, California Congresswoman Nancy Pelosi and former Wyoming Congresswoman Liz Cheney, all of whom have been publicly threatened by Trump.
The power of presidential pardon has been exercised by presidents, starting with George Washington, who pardoned those involved in the Whiskey Rebellionto Trump, who pardoned his political allies.
Earlier this month, Biden pardoned 39 Americans and commuted the sentences of almost 1,500 people. Those pardons, touted by the White House as the largest act of presidential clemency in a single day, followed Biden’s decision to issue a broad forgive your sonHunter, for any federal crime committed during a 10-year period beginning in 2014.
Biden’s pardons have renewed attention on the expansive power the US Constitution grants the president.
What is the power of forgiveness?
The power of presidential pardon is explicitly outlined in the US Constitution.
Section 2 of Article II says that the president has the power to “grant pardons and pardons for crimes against the United States, except in cases of impeachment.” The president’s power only applies to federal crimes, not state crimes. It also does not apply to impeachment cases.
The founders took the pardon power from England, where there was a long tradition of the king’s ability to grant pardons out of mercy. There was some debate over whether Congress should be required to approve pardons and whether there should be an exception for treason, but Alexander Hamilton lobbied the constitutional convention to include a broad pardon power vested solely in the president.
“As men generally draw confidence from their numbers, they may often encourage each other in an act of obstinacy, and may be less sensitive to fear of suspicion or censure for imprudent or affected clemency. According to these accounts, one man appears to be a more eligible dispenser of government mercy than a body of men,” he wrote in Federalist No. 74, one of a series of essays to promote ratification of the constitution.
Regarding treason, he argued that the president could use the pardon power as a tool to negotiate and unify the country. “In times of insurrection or rebellion, there are often critical moments when a timely offer of forgiveness to the insurgents or rebels can restore tranquility to the community; and that, if allowed to pass without improvement, it may never be possible to remember it,” he wrote.
Bernadette Meyler, a law professor at Stanford University who studies British and American law, described it as “the only emergency power written into the constitution, apart from the emergency power.” suspension of habeas corpus.
“One thing is a concession to the idea that there might be certain unforeseen circumstances in which the president would have to intervene,” he said. “It goes hand in hand with the president’s control also over the army, the navy and military power because, in the context in which it was being contemplated, it was really being thought of as another tool within the ability to control riots internal”.
What is a preventive pardon and has it been used before?
A preventive pardon is granted before legal action is taken against an individual. Those speculated to receive a pardon – including Schiff, Pelosi and Cheney – have not been charged or credibly accused of any crime.
Preventive pardons are not without precedent. When Gerald Ford granted Richard Nixon a full and unconditional pardon, former President Nixon had not yet been charged with a crime.
A preemptive pardon could save people years of costly litigation or criminal convictions. However, accepting such an offer could give the public an impression of guilt and create a precedent for Trump and future presidents to grant mass preemptive pardons to associates accused of wrongdoing.
How has the power of pardon been used?
George Washington issued the first pardons in 1795 to two men who were involved in the Whiskey Rebellion, a violent uprising in Pennsylvania to protest a tax on whiskey and other alcohol products imposed by the nascent federal government.
A key moment in the power of the pardon came after the Civil War, when President Andrew Johnson granted “a full pardon and amnesty” to any person “who, directly or indirectly, took part in the last insurrection or rebellion” during the civil war. This and similar pardons around the same time led the U.S. Supreme Court to interpret the pardon power to allow the president to grant broad amnesty to a group of people and not just for specific crimes already committed, Meyler said.
After Nixon resigned the presidency in the 1970s following Watergate, Ford issued a total and unconditional forgiveness for any crime.
In 1977, Jimmy Carter issued a massive pardon for those who had evaded the draft for the Vietnam War. At the end of his term in 1992, George HW Bush pardoned six people involved in the Iran-Contra affair, including former Secretary of Defense Caspar Weinberger.
On his last day in office in 2001, Bill Clinton forgave his half-brother and gave an extremely Controversial pardon for Marc Richa fugitive convicted of financial crimes whose ex-wife had been a major donor to Democrats and the Clinton campaign.
barack obama clemency granted to more than 1,700 people while he was in office, including hundreds who had been convicted of nonviolent drug crimes.
Who did Donald Trump pardon?
Trump did not hesitate to use the pardon power during his presidency to help his political allies. He forgave Charles Kushner, the father of his son-in-law Jared. Kushner’s father had pleaded guilty years before tax evasion and witness tampering (Trump has now chosen him to be ambassador to france).
He pardoned his political adviser Steve Bannon, who was facing charges of defrauding donors to a charity connected to the construction of a wall on the southern border. He also pardoned Paul Manafort, who served as a senior official in his 2016 campaign, and Trump ally Roger Stone.
Trump pardoned former New York City Police Commissioner Bernard Kerik, conservative personality Dinesh D’Souza and Elliott Broidy, a major Republican donor. He also forgave rapper Lil Wayne and Alice Marie Johnson, a woman who had spent decades in prison for drug crimes but gained considerable attention after Kim Kardashian took up her cause.
Related: Trump uses Hunter Biden’s pardon to hint at possible pardon for January 6 insurrectionists
Trump has said he will grant a massive pardon to those involved in the Jan. 6 attacks, a move that would end years of work by the Justice Department to investigate and criminally prosecute those involved in the attacks.
Do other countries have pardon power?
The power to forgive exists widely throughout the world, he stated andres novakprofessor at George Mason University and author of Comparative Executive Clemency: The Constitutional Pardon Power and the Prerogative of Mercy in Global Perspective.
But the United States is unique in allowing its chief executive the ability to forgive without having to receive input or approval from others.
“Biden can grant a pardon without anyone’s involvement, which is much more like the medieval English king’s conception of the pardon power, which is kind of ironic,” he added. “We have a somewhat outdated conception of the power of forgiveness, at least in general.”
“Having this unlimited power of forgiveness that is more like 18th century England than the current state of things in the Western world,” he added. “In most countries in Europe, and in comparable countries in the developed world, they need someone else’s input.” That contribution requirement, Novak said, can somewhat limit the use of the pardon to serve political or personal interests, as it can be used in the United States.
Many countries also do not allow pardon before conviction, Novak said, and in recent decades there has been a movement in other countries for greater transparency to ensure proper processes are followed.
About half of constitutions around the world limit pardon power to something that can only occur after a conviction, are only for specific crimes or require an executive to consult others, Novak said. It is rare for countries to prohibit forgiveness of oneself or a family member, he added.
“Maybe it’s not common because the circumstance doesn’t arise very often,” he said. “The power of forgiveness has always been a corruption risk dating back to medieval times and can be used for many forms of self-dealing, such as protecting closest associates or supporters.”
America’s founders understood that impeachment was an important check on the pardon power, Meyler said. “As we have seen, it is extremely difficult to convict in an impeachment trial, so it has proven to be in effect a fictitious limitation on the president’s power.”