Over the course of nearly two and a half centuries, the power of presidential pardon has never been more brazenly exploited than it was in a single day by two presidents: Joe Biden and Donald Trump. Prior to vacating the Oval Office, Biden liberally dispensed what he referred to as ‘preemptive’ pardons. These were handed out like favors at a family reunion for his kinfolk as well as their spouses, a smattering of public officials like the ex-health advisor, Anthony Fauci, and former Joint Chiefs of Staff Chairman, Mark Milley, along with the ringmasters behind the January 6th committee. Mimicking his infamous son’s pardon the previous month, Biden engaged in a merry dance of clemency distribution, bearing no reasonable justification.
In a perverse imitation of his predecessor, Trump, upon assuming office, doled out unchecked pardons en masse, amounting to nearly 1,600—many of whom were individuals indicted for their roles in the January 6 assault. Such indiscriminate acts of clemency advocated for these lawbreakers seemed to erase the painstaking efforts of federal prosecutors, grossly undercutting the notion of rule of law that our nation was founded on. This has set an appallingly bad template for future presidencies.
Far from resembling each other, the actions of Trump and Biden have distinctly unique hues to them. Trump’s rash of pardons can be interpreted as a reward for those who pledged their political allegiance to him through violent acts. Biden’s pardons, on the other hand, while unarguably self-serving, sought to secure the positions of public servants in an environment fraught with prosecution threats by he and his associates.
Indeed, such actions only serve to make a charade of the very basis on which the power to pardon was conceived. Reflecting on Alexander Hamilton’s interpretation in 1788, it’s clear that this power should be reserved as an exception to impart mercy in an otherwise severe criminal justice system. The motive behind the inception of this power was to instill an attribute of compassion in the Constitution, not to bestow upon the President the unfair advantage of safeguarding their inner circles from legal justice.
With the ability to issue a preemptive pardon coupled with the expansive protections already in place for the President, the potential for corruption expands remarkably. The checks and balances envisioned by the Constitution rely heavily on the incumbent’s sense of responsibility and modicum of shame—seemingly absent in these instances. Regrettably, recent events with Biden’s presidency have only left copious space for maladministration.
These bewildering events have further undermined Democrats’ claim on the moral upper hand over the misuse of the presidential pardon power. Should Democrats regain majority control, the perception of their political maneuverings such as investigations, subpoena issuance, and public rebukes will undoubtedly suffer as a consequence of Biden’s reputation-tarnishing antics. Any credibility once held by those opposing Biden’s administration has been severely damaged.
In an ideal world, the blatant misuse of power by both parties would motivate Congress to take definitive action towards its reformation. The initiation of a bill in 2020 to overhaul presidential pardon power could be the starting point. However, while these transformations are undeniably worth pursuing, their impact is likely to be marginal at best. Unfortunately, the specter of misuse and abuse of this authority seems unlikely to dissolve.