What Does the POTUS’ Power to Pardon Include?

The topic of discussion for this Constitution Monday is the pardoning power of the President of the United States. Article II, Section 2, Clause 1 states: “The President … shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.” Constitution Annotated explained this pardon clause as follows: 

The Constitution establishes the President’s authority to grant clemency, encompassing not only pardons of individuals but several other forms of relief from criminal punishment as well. The power, which has historical roots in early English law, has been recognized by the Supreme Court as quite broad. In the 1886 case Ex parte Garland, the Court referred to the President’s authority to pardon as unlimited except in cases of impeachment, extending to every offence known to the law and able to be exercised either before legal proceedings are taken, or during their pendency, or after conviction and judgment. Much later, the Court wrote that the broad power conferred in the Constitution gives the President plenary authority to ‘forgive’ [a] convicted person in part or entirely, to reduce a penalty in terms of a specified number of years, or to alter it with certain conditions.

Despite the breadth of the President’s authority under the Pardon Clause, the Constitution’s text provides for at least two limits on the power: first, clemency may only be granted for Offenses against the United States, meaning that state criminal offenses and federal or state civil claims are not covered. Second, the President’s clemency authority cannot be used in Cases of impeachment.

Beyond textual limits, certain external constitutional and legal considerations may act as constraints on the power. For instance, the Court has indicated that the power may be exercised at any time after [an offense’s] commission, reflecting that the President may not preemptively immunize future criminal conduct. In Schick v. Reed, the Court recognized that an exercise of clemency may include any condition which does not other wise offend the Constitution, suggesting that the President may not make clemency subject to a condition that is prohibited by another constitutional provision. Other apparent limitations include not affecting vested rights of third parties, such as where forfeited property is sold, or proceeds paid into the treasury, which an only be secured to the former owner … through an act of [C]ongress. The Court in The Laura also alluded to an exception for fines… imposed by a co-ordinate department of the government for contempt of its authority, though a later case recognized that the President may pardon one who is subject to criminal punishment for contempt of court.

Assuming the recognized limitations are not transgressed, a full pardon granted by the President and accepted by its subject prevents or removes any of the penalties and disabilities consequent upon conviction….

Congress generally cannot substantively constrain the President’s pardon authority through legislation, as the Court has held that the power of the President is not subject to legislative control. Congress can neither limit the effect of his pardon, nor exclude from its exercise any class of offenders….

The topic of pardons is in the news currently because President Joe Biden has pardoned questionable people, including his own son Hunter Biden and thirty-seven people on death’s row. More pardons are expected to be given before noon on January 20, 2025.

According to Hailey Gomez at The Daily Signal, Victor Davis Hanson, historian, commentator, and Hoover Institution senior fellow, believes that President Biden will pardon all members of his family. Is this an admission that all members of the Biden family were involved in the Biden crime family business? Hanson also believes that Biden is pardoning people who will benefit his family or who will bring the largest response from the public. 

“It works like this. He just said, ‘I’m going to pardon people, and I have two criteria for pardoning them. Whatever they can do for the Biden family or the larger friend and associate of the Biden consortium, I’ll do it,’” Hanson said on his podcast.

“‘And whatever makes people angry, because I’m going to be a puny little Samson that’s going to pull down the temple when I go out. Give me as much chaos and nihilism as I can. Make it symbolic and the more egregious the pardon, the better.’”