Article II of the Constitution provides that the president “shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.”
The Constitution provides only two limits to this power: clemency can be granted only for federal offenses and never in cases of impeachment. Alongside the role of commander in chief and the authority to solicit advice from principal officers, the pardon authority is one of the president’s primary powers. The Supreme Court has described the power as “unlimited” and not subject to legislative control. No court has ever overturned a presidential pardon.
What, then, is the nation to make of the recent and concerning revelations that, in President Biden’s final year in office, he may have been unaware of details surrounding his pardons and that he failed to execute physically said pardons — instead relying on the use of the autopen to accomplish the task? Under these circumstances, is there any case to be made that some of Biden’s pardons were improper?
The exercise of the pardon power should require two conditions: one, the president must execute the actual pardon, and two, the president must be aware of his action.
First, there needs to be some affirmative action of the actual pardon. This requires the president’s physical presence; he must sign the pardon and may not rely on an “autopen.” Second, when the pardon document is executed, the president must be aware of what he is doing. In other words, he should understand the consequences of his actions — that he is giving complete absolution to an individual who has committed a crime or potentially committed a crime. Fulfilling these two conditions would seem to be necessary to ensure a legitimate pardon.
There are serious questions about how clemency and pardons were handled in the final months of the Biden administration. Reports from the White House counsel’s investigation and from the House Oversight Committee reveal that Biden may not have been present at the actual time particular pardons were granted. He may have been unaware of some of the pardons. If staff executed pardons outside of Biden’s presence and via autopen, are those pardons valid? Or, even if Biden physically signed the pardon, was he mentally capable of understanding his actions? Did he know the actual details of the crimes or offenses (or potential offenses) of those he pardoned?
How could the legitimacy of these pardons be tested? The answer is straightforward: federal prosecutors should indict pardoned individuals.
Prosecutors could use the FBI to investigate the circumstances surrounding the pardons. Placing individuals under oath within the context of a criminal investigation is the best way to ensure a clean record of how the actual process occurred. The Supreme Court would quickly hear any indictment, as a District Court would, most likely, promptly dismiss the case with a prompt affirmation by an appellate court. The Supreme Court is the only body that has the authority to determine what limits the Constitution and the framers placed on a president’s pardon power.
Biden’s pardons at the conclusion of his term were unprecedented and possibly illegal and unconstitutional. Indicting individuals who may have received improper pardons will ensure they face the consequences for their actions. Delineating the limits of the pardon power will also ensure that future presidents do not abuse this powerful tool.
To preserve the integrity of the Constitution and prevent future misuse of executive clemency, the legitimacy of Biden’s final pardons must be scrutinized through legal and judicial review.