“Do you really think the president can pre-emptively pardon crimes that haven’t even been charged or convicted just because Joe Biden did it?” – Jeremy
Hi Jeremy,
No. In a recent answer regarding Donald Trump’s options before he leaves office, I mentioned Joe Biden’s pardons only by way of example.
Even if Biden hadn’t issued any pardons at all, that wouldn’t have altered the long-held understanding that presidents can issue pre-emptive pardons.
When I explored the subject in an answer in December 2024 — before Biden granted his final clemency actions the following month — I noted that the Supreme Court had observed 160 years ago that the pardon power “extends to every offence known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken, or during their pendency, or after conviction and judgment.”
More recently, one of the nation’s most famous — or infamous — clemency grants was Gerald Ford’s 1974 pardon of Richard Nixon, which Ford bestowed pre-emptively, without Nixon having been charged in the Watergate scandal that prompted his resignation. Ford said at the time that “serious allegations and accusations hang like a sword over our former president’s head, threatening his health as he tries to reshape his life, a great part of which was spent in the service of this country and by the mandate of its people.”
Of course, it could be said that the Nixon pardon set the stage for today’s presidential unaccountability and attendant pardons that are clearly corrupt, even if they’re nevertheless legal due to the vast nature of this particular constitutional power.
But that vast power predates Biden and Trump and will outlast them both. The main power that the American people have over how presidents wield their clemency authority is at the ballot box, when we choose which leaders to wield it in the first place.
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