President Biden’s decision to pardon his son for various crimes committed or possibly committed over the past decade was constitutional, but could well be construed as an abuse of power as well. The press, the public, and the Congress must be more vigilant in trying to determine how potential presidents might use the pardon power and examine various legal remedies should it be abused, including criminal prosecution and possibly impeachment.
There can be no doubt that President Biden was well within his constitutionally established right to pardon his son. The Constitution grants the President virtually unlimited power to pardon anyone convicted or likely to be convicted of any federal crime, for whatever reason the President chooses, or for no reason at all.
And several rationales have been offered to explain, defend, or otherwise excuse Biden’s actions:
- Hunter Biden hurt nobody with his illegally obtained handgun, which he kept for less than 2 weeks;
- Hunter Biden had repaid all back taxes, along with interest and penalties, well before going on trial for tax evasion;
- Others accused of similar offenses have not always gone on trial, much less been convicted, giving credence to the President’s assertion that his son was subject to an unjust prosecution for political reasons;
- Of his four children, the President has already suffered the deaths of 2 of them, making his protectiveness of Hunter Biden both understandable and justifiable (conservative Republican Senator Tommy Tuberville of Alabama said that under the same circumstances he, Tuberville, would have pardoned his own son, but criticized Biden for allegedly lying for saying he, Biden, would not pardon Hunter before doing so);
- Other presidents, including both Bill Clinton and Donald Trump, have pardoned their own relatives, as well as various political supporters, in some instances following the receipt of generous campaign contributions.
- Etc., etc., etc.
The presidential pardon power exists for a very good reason. The men who wrote our Constitution understood that people could be wrongfully convicted, or more severely punished than the facts would justify, or could be rehabilitated to the point where further imprisonment would serve no useful purpose. Therefore, the President had to be able to step in and do justice, or temper justice with more mercy than the law might otherwise provide for.
But as numerous cases at the federal and state level may indicate, the pardon power can be abused. Presidents and governors (most of whom also have the pardon power modeled after the President’s), can practice favoritism or other forms of poor judgment to pardon convicted criminals who may not be worthy of pardons. For example:
- Former Republican Governor Mike Huckabee pardoned a convicted rapist who subsequently murdered four police officers;
- Former Republican Governor Haley Barbour of Mississippi pardoned four convicted murderers;
- Former Democratic Governor Ray Blanton of Tennessee, while not himself indicted for selling pardons for bribes, nonetheless presided over an administration in which several subordinates were so convicted.
So what can be done?
In some states the Governor lacks an independent pardon power. He can pardon only those whose requests have been endorsed by a pardon and parole board, as in Texas, or by other independently elected officials. But no such limits exist at the national level. Justice Department officials can recommend that pardons be granted or withheld, but they have no power to either compel a president to issue a pardon or block a president from doing so.
The only way to formally limit the President’s pardon power is to amend the Constitution to include requirements that applicants for pardons must meet before the President can issue pardons. In the absence of any such amendment, the press and the public must be far more assertive in demanding what criteria a potential candidate will use in issuing or denying pardons. In the recent presidential campaign, Vice-President Harris, President-elect Trump, and the media could have performed a great public service in demanding to know the candidates’ respective positions on the pardon power, with the understanding that the public could, and should, hold whoever is elected President accountable for abusing the power once elected.
Of course, as President Biden has shown, a promise not to abuse the pardon power is no guarantee that the promise will be kept. But other remedies may be available. Conceivably the President and/or his associates, if shown to have granted pardons in exchange for bribes or for other criminally suspect reasons, could be subject to criminal prosecution.
And there’s always the possibility of impeachment of a President even after he leaves office. The possibility was first raised by liberal Republican (who later turned Democrat) Senator Arlen Specter of Pennsylvania. He opposed the impeachment of President Bill Clinton and voted to acquit him, but upon learning that several of Clinton’s end-of-term pardons went to convicted criminals whose relatives had made generous financial contributions to the Democratic National Committee or Hillary Clinton’s first senate campaign, Specter demanded Clinton’s re-impeachment. Nothing came of his demand at the time, but of course the second impeachment of former/future President Trump in 2021 set a precedent which could be of use in the treatment of future Presidents who abuse their pardon powers, especially at the end of their terms.
President Biden’s pardon of his son almost certainly doesn’t rise to the level of a post-presidential impeachable offense. But his pardons, and those issued by other presidents, clearly signal the need for reform of the process and possible legal actions of future presidents who may otherwise be tempted to abuse their almost unlimited pardon power.
Malcolm L. Cross has lived in Stephenville since 1987 and taught politics and government at Tarleton for 36 years, retiring in 2023. His political and civic activities include service on the Stephenville City Council (2000-2014) and on the Erath County Republican Executive Committee (1990-2024). He was Mayor pro-tem of Stephenville from 2008 to 2014. He has served on the Board of Directors of the Stephenville
Economic Development Authority since 2018 and as chair of the Erath County Appraisal District’s Appraisal Review Board since 2015. He is also a member of the Stephenville Rotary Club, the Board of Vestry of St. Luke’s Episcopal Church, and the Executive Committee of the Boy Scouts’ Pecan Valley District. Views expressed in this column are his and do not reflect those of The Flash as a whole.
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