Outgoing US President Joe Biden has issued what his statement calls ‘a full and unconditional pardon’ to his son Hunter Biden. The pardon has raised more than a few eyebrows, so I want to look at President Biden’s statement, as well as some of the Federalist Papers written by James Madison describing the original intent of the pardon power. Then I want to consider the Constitutional citation for the power. Finally, I want to look at some of the more recent, and controversial, uses of this power to put Joe Biden’s actions into perspective.

Foundations, Part One: Madison, The Federalist Papers and Beyond

A useful article in The Guardian outlines the history of the pardon power, from the US Constitution and before. Of interest here are the words of James Madison, in Federalist Paper Number 74

One man appears to be a more eligible dispenser of the mercy of government, than a body of men.

Madison’s argument that the power to pardon be vested exclusively in the President is interesting. Before the quote above, he says that people are inclined to serve their own interests if they are in groups, so vesting this power in one individual is preferable. Madison could obviously have not been aware of how Presidents would use the pardon power in the future, but more on this later.

In terms of the original intent, a Professor of UK and US law noted the following about the pardon power

It goes along with the president’s control also over the army and navy and military power because, in the context that it was being contemplated, it was really being thought about as another tool within the ability to control domestic unrest

The last clause seems to be the point: the pardon power was a means of maintaining domestic tranquility, seemingly by bringing the wayward back into the fold where possible (as Washington did with members of the Whiskey Rebellion). Remarkably enough, this extended even to former rebels after the Civil War, when Andrew Johnson issued pardons and amnesty to former Confederates.

Foundations, Part Two: The US Constitution

The pardon power of the US President is outlined in their Constitution, Article 2, Section 2. The text says

… [The President] shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

For clarity, ‘offences against the United States’ here refers to federal crimes, as opposed to state crimes. The Supreme Court has defined the power as ‘plenary’ meaning that it is not subject to Congressional oversight or legislative restriction. The President’s pardon power appears to be absolute then, since the Court (one check on Executive Power) has restricted the Congress (the other check) from any involvement at all. There is seemingly no limitation on whom the President may pardon, or why.

The Power in Practice: Pardons in Modern US History

We start with perhaps the most infamous pardon in US History, that issued by President Gerald Ford on September 8th, 1974. Here, Ford pardoned former President Richard Nixon for his myriad crimes relating to the Watergate scandal. Nixon had resigned the Presidency on August 9th, 1974, showing that last iota of patriotism by jumping before he was pushed (numbers existed in the Senate to convict and remove him from office). Ford’s intent was apparently to ‘heal the nation’ by sparing it Nixon’s trial, but this is arrant nonsense. By allowing Nixon to get away with his crimes, Ford showed that members of the political class were, in fact, above the law.

Next we move to President George H.W. Bush, who, as his term was ending in 1992, issued a pardon to Caspar Weinberger, former Secretary of Defence under Ronald Reagan, and five others for their involvement in the Iran-Contra scandal. Details around this pardon can be found here, but the point for our purposes is that Bush, who as Vice President under Reagan, must have known about Iran-Contra. The optics do not resound to his benefit. But, as noted above, the power of the pardon is, for all intents and purposes, absolute.

Joe Pardoning Hunter, Part One: The Statement

Having briefly looked at the history of the pardon, both from the legal and historical viewpoints, let us turn to Joe Biden’s pardon of his son Hunter.

When President Biden issued the pardon to his son, he issued a statement through the White House. The President made the following argument to justify the pardon

The charges in his [Hunter Biden’s] cases came about only after several of my political opponents in Congress instigated them to attack me and oppose my election. Then, a carefully negotiated plea deal, agreed to by the Department of Justice, unraveled in the court room – with a number of my political opponents in Congress taking credit for bringing political pressure on the process

If this sounds remarkably similar to the claims President-elect Trump about prosecutions being politically motivated (so-called law fare), that is because it is. The motivation behind the prosecution is actually irrelevant to whether the pardon is justified or not. It is also worth noting that Mr Biden’s decision to pardon his son after he said he would not is also irrelevant. Politicians lie. Mr Biden is not exceptional here. The fact that he lied does not render the pardon invalid, or less legitimate. As I have stated before, the pardon power is essentially absolute.

Self-Reflection: Am I asking the Right Question?

After reading through this analysis, particularly the legal texts, some of you may have reached the conclusion that I am asking, and hence answering, the wrong question: can Joe Biden pardon his son, rather than should Joe Biden pardon his son. Let us look at this.

The law defines what can be done, rather than what should be done. By focusing on the legal texts, as well as selected historical examples, perhaps I am focusing on what the President can do, rather than what he should do. Is it favouritism (or does it really, really stink) that the President is pardoning his own son? Perhaps, but if the power is plenary (ie at the absolute discretion of the President) then, as a previous President observed, the possibility of pardoning one’s self is not absurd. It is a limited extension to pardon one’s son.

So to answer the question, I appeal to the SCOTUS cases that defined the power as plenary. This is one example of the US President having a quite autocratic power, to use at his discretion without oversight, limit or restriction. If the President is so empowered, and this is how he wants to use that power, who are we to say otherwise?