I did not plan to write a blog on the presidential power to pardon, but given the new precedent set by Joe Biden to preemptively pardon his family, Dr. Anthony Fauci, and General Mark Milley, it is an appropriate subject to address.
Presidential Powers
Presidential powers are outlined in Article II Section 2 Clause 1 of the Constitution. Within that clause, there is no question that the president has very broad powers to pardon any convicted criminal for any crime. Article II Section 2 Clause 1 reads, in part, the president "shall have Power to grant Reprieves and Pardons for Offences against the United States."
It is interesting to note, however, that the Presidential Pardon Clause does not grant the president the power to provide innocent persons immunity from future prosecutions and convictions. This is, in my opinion, what Joe Biden did for his family and former cabinet members. For that reason, I believe Biden’s actions are unconstitutional.
If the Biden family, General Milley, and Dr. Fauci did not do anything wrong, then why provide them immunity from all future prosecutions and convictions for crimes they may have committed in the past? Pardons are granted for offenses against the United States. Therefore, any signing of a preemptive pardon is, in my option, an admission of guilt.
Presidential Immunity v. Preemptive Pardons
The Supreme Court decided in Trump v. United States (2024) that the president has immunity from any prosecutions that may result from him or her carrying out their official duties of the office. This decision was exaggerated by some to suggest it shields the president from prosecution if they were to break the law while carrying out their presidential duties. I do not believe that to be the case. Any presidential action that breaks the law would be an impeachable offense (Article II Section 4). And, of course, impeachable offenses are not protected from criminal prosecution.
For instance, Justice Sonyia Sotomayor questioned whether presidential immunity would protect the president if he or she ordered Seal Team 6 to execute a political enemy? Justice Sotomayor’s question was outrageous because executing a political enemy is by no means an official duty of the president outlined in Article II. Yes, the president is Commander in Chief of the military, but abuse of such power would be a high crime subject to impeachment. Impeachment protects the nation and citizens from any government officials who abuse their power.
Justice Sotomayor’s hypothetical question and dissenting opinion, suggesting the president is above the law, has encouraged a lot of outrage against the Supreme Court ruling in Trump v. United States. That said, the precedent set by President Biden to preemptively pardon his family and former cabinet members is far more egregious. I agree that no one should be unfairly targeted and prosecuted. Like most people, I am against a weaponized justice system and will address this point in future blogs. But the Biden precedent is very dangerous because it allows the president to use their office as well as their friends and family for financial and political gain while providing them blanket immunity for their actions. On one hand, I do not believe, contrary to what some suggest, Trump v. United States protects criminal activity. On the other hand, the Biden pardon precedent does suggest that anyone who receives a preemptive pardon is above the law.
Summary
If the Biden family was profiting from his political influence with United States adversaries, that is a harm against the American public. If the Biden family was not paying taxes on their profiteering scams, that is a harm against the American public. If Dr. Fauci was profiting from his position and was purposely restricting the rights of the American public by deliberately using misinformation, that is a harm against the American public. If General Milley was sending backchannel messages to adversaries conveying information contrary to administration policy, that is a harm against the American public. These types of actions should not be shielded from prosecution but should be prosecuted to full extent of the law to prevent it from happening again. If anything, these crimes should at least be exposed and not covered up. The only way for the government to work effectively is if the American people have trust in it. Thus, government officials should be held to a higher standard of law, etiquette, and morality.
Patrick Bohan is not a historian or lawyer, just a patriot who has independently studied these subjects.
