In one of his first executive actions following his inauguration, President Trump extended controversial, wide-reaching pardons to January 6 riot defendants. This past week, the Department of Justice extended those pardons to include gun charges that were separate but related. These pardons impacted roughly 1,500 defendants, exonerating them for their role in the riot at the U.S. Capitol.
The investiture of powers above the law to an individual is an authoritarian and oligarchic practice. It is disheartening to realize that the Constitution, under Article 2, Section 2, gives our Commander-in-Chief the ability to pardon or commute the sentences of any American convicted of a federal crime, a direct violation of these principles of justice and accountability. But this is not a criticism only of the GOP. Just before leaving office, former President Biden extended pardons to his son, Hunter, and other family members. This isn’t a partisan issue—it’s a demonstration of the warping of American values by the political class.
What Is The Presidential Pardon?
The term “presidential pardon” is often used as an umbrella term for various executive decisions. A pardon is complete forgiveness for a federal crime. Other presidential “pardons” include commutations (reduction of a sentence), reprieves (postponing of punishment like the death sentence), remissions (cancellation of fines and forfeitures), respites (delays in punishments), and amnesties (forgiveness granted to a group). The President only has grounds for the forgiveness or commutation of federal crimes, and cannot forgive himself in cases of impeachment.
While the Constitution gives this power to the President alone, state constitutions outline gubernatorial pardons at the state level. Wherever this power appears, though, it blatantly violates American values and should not have been included in the Constitution.
A Threat to Justice and Accountability
There are two ways to scrutinize the presidential pardon. One interpretation is that the pardon is a constitutional outlier, a disservice to the values the Founding Fathers claimed were so dear. In Federalist 47, James Madison famously said, “The accumulation of all powers, legislative, executive, and judiciary, in the same hands… may justly be pronounced the very definition of tyranny.” Still, he fathered a constitution empowering his Commander-in-Chief (and later himself) with the unilateral power to override judicial decisions. This presidential authority over the judicial branch focuses too heavily on the “checks” part of “checks and balances,” creating a governmental imbalance.
There is no room for totalitarian overreach and personal protection in a functioning democracy. Similarly, there is no room for dismissing charges inflicted on one’s supporters. President Trump’s granting of clemency to January 6 rioters is not only an instance of drastic overreach, but it is also a disservice to the core tenets of American democracy. The pardoning of insurrectionists who violated American law is detestable from an apolitical standpoint. From a political viewpoint, President Trump has offered any future Commander-in-Chief precedent to empower their supporters to violate the law. Ironically, he did this by using a Constitutional clause the Founding Fathers should’ve never written. Americans should not allow political allies to act with impunity; only nonpartisan scrutiny can build an impenetrable government.
It is key to realize that the pardon is unjust regardless of the president who uses it. Former President Biden’s decision to pardon his family members and prominent government officials is an inexcusable overreach and is blatantly symbolic of oligarchic values. Oligarchy is a system of government by the few—and, naturally, for the few. Regardless of the political motivations the former president lists, his decision further alienates our three branches of government from the people.
The second way to scrutinize the presidential pardon is by examining the political motivations behind its use. President Biden pardoned family members, Dr. Anthony Fauci, General Mark A. Milley, and members of the House Select Committee on the January 6 Attack because he feared politically motivated investigations and accusations against his family and government officials by the incoming administration.
Examining this reason muddies the correctness of the decision. Is President Biden’s response to this potential threat a testament to how far American democratic ideals have fallen? The basis for the invalidity of the presidential pardon should be the first ideal listed: it is a constitutional outlier. It neglects the needs of the American people, emphasizing “checks” while eroding the “balances.” However, a country where fear of political retribution is so rampant that it forces its head of state to release an unpopular pardon is a country with much deeper issues than a faulty power. That doesn’t change the fact that President Biden’s decision to issue preemptive presidential pardons was without regard for the values enshrined within our legal framework. The decision offers a glimpse into the dangers of executive overreach. Whether former President Biden’s fears of retribution were justified ultimately depends on whether President Trump chooses to seek it.
The decisions made by former President Biden and President Trump highlight a misunderstanding regarding government scrutiny. President Biden’s pardoning of government officials results in less governmental scrutiny, weighing against the risk of politically motivated punishment. In preventing a potential oligarchic scenario, he contributed to the prominence of that same system by disallowing scrutiny of any form. He also provided precedence for politically imposed punishment by indirectly hailing its possibility and prevalence in modern America. President Biden showed no belief in our judicial system; he didn’t let it run his course, and the American people were rightfully outraged.
On the other hand, President Trump’s decision stems from a misunderstanding of the events of January 6 and the subsequent legal action. Rioters broke the law. They faced charges. That sequence is the core of any judicial system, even the most unjust ones. It is nearly impossible to argue that legal action against violent protestors resulted from the opposing party’s political ambitions when many Democrats faced similar charges during the Biden presidency. President Trump and President Biden’s pardons were responses to concerns about potential political retribution. While Biden’s concerns may or may not prove legitimate as time unfolds, Trump’s rationale for his pardons is harder to justify, given the clear criminality of the actions involved.
Potential Reforms
The strongest argument for the presidential pardon is that it can—and has been—used to correct miscarriages of justice. In 1999, Bill Clinton posthumously pardoned Henry O. Flipper, who was court-martialed in 1881 under racially motivated charges. In 2018, Donald Trump posthumously pardoned Jack Johnson, an African-American heavyweight champion convicted in 1913 for traveling with a white girlfriend. In both cases, courts had previously persecuted minorities without regard for the evidence at hand, resulting in a miscarriage of justice. Unfortunately, both Flipper and Johnson had passed away by the time they were pardoned. Both Presidents issued admirable pardons, cementing the innocence of these persecuted individuals and emblematically strengthening the verity of a fair judicial system. Still, their acts were largely symbolic, conveying a necessary message without causing much legal change.
Reforming the pardon into a more symbolic gesture could prevent negative governmental decisions while perpetuating powerful messages. An independent board of approval, such as a Senate or House subcommittee with equal membership from each party, could work to agree or disagree with the issuing of non-symbolic, currently outlined presidential pardons. State legislatures could establish similar bodies to maintain governmental consistency with gubernatorial pardons. In wartime, national emergencies, or during the invocation of the Insurrection Act of 1807, the government could fully reintroduce the presidential pardon at the President’s discretion.
Reform is easier said than done. Reforming or removing the pardon power would require a constitutional amendment, of which there have been none since 1992. Realistically, this proposed 28th Amendment is unlikely to pass. Ratification requires a two-thirds vote in Congress and subsequent agreement from 38 or more state legislatures. Legislators will be prone to reject the amendment, as it would dilute their party’s role in the executive branch. Partisanship prevents senators and representatives from limiting presidential power within their parties, stagnating change—even when that change removes a corrupt, un-American practice.
It is disheartening to watch as our presidents misuse an anachronistic, unnecessary power for personal and political gain. It is worse to realize that the legislators at all levels of government would diminish the process required for change, acting with partisan interest instead of caring for the welfare and interests of the American people. Still, shifting public opinion against the pardon power can discourage presidential misuse and strengthen our democracy. Lobbying for change and highlighting the rising importance of partisanship are ways to combat oligarchy in America and ensure the government stays by the people, for the people.
