On prior to leaving office, President Joe Biden issued several preemptive pardons, including for prominent individuals such as General Mark Milley, Adam Schiff, Liz Cheney, Dr. Anthony Fauci and members of the January 6 Committee. These pardons were intended to protect them from potential prosecutions under the incoming administration. However, this action raises significant legal and ethical questions about the power of pardons and their limitations.
What is a Presidential Pardon?
A presidential pardon is a power granted by the U.S. Constitution in Article II, Section 2. It allows the President to forgive someone for a federal crime, shielding them from federal punishment. The pardon can even be issued before charges are filed, a practice known as a preemptive pardon.
One notable example is President Gerald Ford’s 1974 pardon of Richard Nixon for any federal crimes he might have committed during the Watergate scandal, even though Nixon had not been formally charged.
Does Accepting a Pardon Mean Guilt?
Yes, in a way. The Supreme Court in Burdick v. United States (1915) held that accepting a pardon implies an admission of guilt. Even if someone hasn’t been convicted or formally charged, taking a pardon suggests they acknowledge the possibility of their guilt. This interpretation carries substantial weight, even if it’s not a formal legal confession.
The January 6 Committee and Deleted Evidence
Reports have surfaced alleging that members of the January 6 Committee, including Adam Schiff and Liz Cheney, deleted or withheld evidence related to their investigation. If these allegations are true, the legal implications could be severe:
- Destruction of Evidence: Deleting or tampering with evidence may violate federal laws, such as those prohibiting obstruction of justice or evidence tampering.
- Congressional Oversight: Congress can investigate allegations of misconduct, even against former members. While impeachment is no longer possible for non-members, findings can lead to criminal referrals.
- State Prosecutions: Federal pardons do not protect individuals from being prosecuted at the state level for crimes like tampering with evidence. If evidence destruction occurred within a state’s jurisdiction, state prosecutors could pursue charges independently.
What About Biden’s Role?
President Biden did not pardon himself, which means he remains open to investigation or prosecution if evidence of wrongdoing emerges. If Congress or prosecutors determine he misused his power—such as by issuing pardons to shield allies from accountability—there are several potential legal paths:
- Criminal Prosecution: Biden could face federal charges like obstruction of justice or abuse of power if evidence supports such claims.
- State-Level Charges: If his actions violated state laws, state prosecutors could file charges.
- Congressional Investigation: Congress has the authority to investigate former Presidents and refer their findings to federal or state prosecutors.
Hunter Biden’s Pardons
Hunter Biden was among those pardoned by President Biden. While this protects him from federal charges, it does not shield him from state prosecutions or civil lawsuits. For example, if Hunter committed state-level financial crimes, states like New York or Delaware could still bring charges. Similarly, if his actions caused harm to others, civil lawsuits could proceed regardless of the pardon.
Limits of a Presidential Pardon
While the pardon power is significant, it has clear boundaries:
- Federal Crimes Only: Pardons only apply to federal offenses and do not affect state or local charges.
- Civil Liability: A pardon does not protect against civil lawsuits. For instance, if someone’s actions caused harm, victims can still sue them for damages.
Why This Matters
The presidential pardon is a powerful tool meant to promote justice and mercy, not to enable wrongdoing or shield illegal actions. Misusing this power undermines the rule of law. However, there are mechanisms to hold people accountable: state prosecutions, congressional investigations, and criminal charges for actions beyond the pardon’s scope.
The Supreme Court’s ruling in Burdick reminds us that accepting a pardon carries an implicit acknowledgment of guilt. As the implications of these preemptive pardons unfold, it is essential to ensure that no one—whether a President, their allies, or family members—is above the law.
Citations
Constitutional Authority for Pardons
- U.S. Constitution, Article II, Section 2:
The President “shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.”
Link to Constitution
- U.S. Constitution, Article II, Section 2:
Historical Use of Preemptive Pardons
- Gerald Ford’s Pardon of Richard Nixon (1974):
Ford’s announcement and reasoning behind pardoning Nixon for any crimes he “committed or may have committed.”
Gerald R. Ford Library
- Gerald Ford’s Pardon of Richard Nixon (1974):
Supreme Court Case on Pardons
- Burdick v. United States (1915):
The case established that accepting a pardon implies an admission of guilt.
Case Summary and Opinion
- Burdick v. United States (1915):
Limits of Pardons: Federal vs. State Prosecutions
- The distinction between federal and state crimes and the inability of federal pardons to shield individuals from state prosecution.
Example: Paul Manafort’s state charges after receiving a federal pardon.
Brookings Institution Report
- The distinction between federal and state crimes and the inability of federal pardons to shield individuals from state prosecution.
Congressional Investigations and Oversight
- Congressional authority to investigate former officials for misconduct.
Congressional Research Service Report on Oversight
- Congressional authority to investigate former officials for misconduct.
Deleted Evidence Allegations: January 6 Committee
- Reports of evidence tampering by members of the January 6 Committee, including Adam Schiff and Liz Cheney.
[Source: News Articles and Public Testimonies]
Example reporting: New York Post
- Reports of evidence tampering by members of the January 6 Committee, including Adam Schiff and Liz Cheney.
State Prosecutions and Civil Liability
- Explanation of how state-level prosecutors can charge individuals for offenses outside federal jurisdiction.
Example: State charges against individuals following federal pardons.
National Association of Attorneys General
- Explanation of how state-level prosecutors can charge individuals for offenses outside federal jurisdiction.
Hunter Biden and Civil Suits
- Hunter Biden’s legal issues and potential civil liability, including investigations into financial dealings.
Example Reporting: Politico
- Hunter Biden’s legal issues and potential civil liability, including investigations into financial dealings.
Supreme Court on Accountability of Presidents
- United States v. Nixon (1974):
Established that the President is not above the law.
Case Summary and Opinion
- United States v. Nixon (1974):