The Framers long debated how much power should be vested in the Chief Executive. In fact, there was much debate whether we should have a unitary executive, an executive panel, or anything in between. Keep in mind the newly independent states had broken free of a tyrannical King George III. They certainly did not want to create a new governmental system that would lead to another form of monarchy. So, they eventually settled on the unitary executive concept checked by a divided government.
The Legislative and Judicial Branches were given unique authority, as was the President. One power exclusively given to the President was the ability to issue presidential pardons. A pardon is a grant of immunity to an individual for alleged criminal activity. This’s different than a commutation. A commutation is when the President or a governor changes a court imposed sentence on an individual to something else. Most often, the result is a declaration that an issued sentence is deemed to be satisfied and the person is released from further obligations.
Article II, Section 2, Clause 1 reads:
“The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.”
The power of the pardon was hotly contested at the 1787 Convention. In fact, Alexander Hamilton discusses the two schools of thought in Federalist 74. One proposal was to have the power of the pardon lay in the hands of the Legislature, especially in the area of treason. At the very least the argument was made that the Legislature should have a voice in the pardoning process and grant its approval before a presidential pardon was issued.
Hamilton makes the case for the President, or Chief Magistrate, solely holding the power of the pardon. He maintains a single person would be better equipped to issue a pardon expeditiously when deemed necessary. There may be instances where a criminal sentencing was of such significant importance that it threatened the existence of the civil society. In these critical moments, swift action would be needed. And, this is action a single person could take whereas, calling Congress together to debate and issue the pardon would take much longer. Let’s examine one such example momentarily. Abuse of the pardoning ability would be tempered by losing favor with fellow countrymen and the administration. This does assume the presence of a virtuous country represented by a well-tempered government.
Until December 1, 2024, the most sweeping pardon a President had issued was President Gerald Ford’s pardoning of former President Richard Nixon. Congress had accused Nixon of orchestrating the electronic surveillance of the Democrat National Committee’s offices in the Watergate Hotel in the runup to the 1972 Presidential Election. The Democrat Party members in Congress were pushing for articles of impeachment to be filed against President Nixon. And once Nixon began losing support of his fellow Republicans in Congress, it was clear he would be impeached and convicted. Therefore, Nixon decided to resign on August 8, 1974. Although he had avoided impeachment, Nixon still faced an indictment on criminal charges.
President Ford referred to Watergate as a “long national nightmare.” The conduct of a criminal trial against a former President risked further polarizing a country emerging from the civil unrest of the 1960s and American’s controversial involvement in the Vietnam War. President Ford decided to issue a full pardon acknowledging President Nixon’s actions in the Watergate coverup but absolving him from criminal penalties.
The pardoning of Hunter Biden is unprecedented. Whereas Ford’s pardoning of Nixon was focused on his actions surrounding a specific event, Biden absolved his son of any criminal activity from January 1, 2014 until December 1, 2024. This applies not only to Hunter Biden’s three felony gun charges and tax evasion convictions, but also to any activity during that time frame that violated criminal law, charged, alleged or currently unknown. This includes criminal activity that enriched the Biden family, violations of the Foreign Agents Registration Act and activity that potentially implicates Joe Biden himself.
The latest news in the waning days of the Biden Administration is the reported consideration of “preemptive pardons” of individuals involved in the impeachment and lawfare against President Trump. A few of the names mentioned are: Jack Smith, Anthony Fauci, Adam Schiff, Liz Cheney and numerous others.
A preemptive pardon:
- Is one issued before an individual is indicted or has been indicted but the criminal process has not concluded.
- Grants immunity from the consequences of criminal behavior.
- Is issued in anticipation of the filing of a criminal indictment.
Preemptive pardons have been issued in the past. For example, Presidents Abraham Lincoln and Andrew Johnson pardoned members of the Confederacy for their actions during the Civil War. These actions amounted to treason. Yet, the presidential pardoning authority was still used in a constitutional manner.
The Constitution was made only for a just and moral people. It is wholly inadequate to the government of any other. – John Adams
While the ability of the President to issue pardons is virtually unlimited, there’s a political cost involved. Above that, there’s the potential harm to our governmental structure and our republic. John Adams’ words are even more pertinent now in the climate of our current justice system and the weaponization of federal law enforcement against its political opponents. It remains to be seen if Joe Biden will issue additional pardons in further unprecedented ways.
The importance of knowing our history and returning to a just and moral society is as critical now as any point in my lifetime. This is why Convention of States Action’s educational role is so important. We are making strides back in that direction. This is evidenced by rejection of the Radical-Left Agenda in the November General Election and the bi-partisan opposition to the Hunter Biden pardon. Eternal vigilance is required to maintain liberty. Learn how you can be part of the peaceful and constitutional solution that’s as big as the problems. Log into www.conventionofstates.com.
In liberty,
Brett
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