Joe Biden abused the presidential pardoning power to a degree that is perhaps unprecedented in American history. In a naked act of nepotism, he pardoned his convicted son Hunter for “those offenses against the United States which he has committed,” as well as for those he “may have committed or taken part in,” over more than a decade-long period spanning most of Biden’s second vice-presidential term and almost all of his sole presidential term. He then granted clemency to essentially every federal death-row inmate (37 of 40), including those who had murdered in cold blood police, military servicemen, and children, not to mention guards and fellow prison inmates. Just three days before the end of his presidency, Biden then granted clemency to more convicted criminals in a single day—roughly 2,500 people with drug convictions, usually for trafficking—than any other president over the past 100 years had granted over an entire four-year term. Finally, on the morning of his final half-day in office, he proceeded to pardon Anthony Fauci, Mark Milley, and the January 6 committee, before capping his presidency by pardoning his siblings and siblings-in-law less than 20 minutes before leaving office, after he had already walked into the Capitol Rotunda for Donald Trump’s inauguration.
In his clear, unvarnished misuse of the pardoning power, however, Biden may have unwittingly done American citizens a favor. His actions have exposed the pressing need to close a dangerous loophole: the Constitution should be amended to bar presidents from exercising the pardoning power in between Election Day and Inauguration Day—during which time, for outgoing presidents, there is essentially no check on that power to guard against its abuse. Although Biden’s misuse of that power is appalling, it could be surpassed by some future president of a similar ilk if this loophole isn’t closed in the interim.
Biden’s full and unconditional pardon of his convicted son—after repeatedly pledging to voters before the election that he would not issue such a pardon—is particularly egregious, as many members of his own party have noted. Senator Michael Bennet succinctly observed that Biden’s pardon of Hunter puts “personal interest ahead of duty.” Representative Marie Gluesenkamp Perez posted that “[n]o family should be above the law.” Representative Gerry Connolly said, “I really think we have to revisit the pardon power in the Constitution, and at the very least, I think we’ve got to circumscribe it so that you don’t get to pardon relatives.”
Biden’s pardons of his three siblings and two siblings-in-law were blanket pardons “[f]or any nonviolent offenses against the United States which they may have committed or taken part in” from January 1, 2014, to January 20, 2025. As The New York Times reported, “No other president has employed executive clemency in such a broad and overt way to thwart a successor…and no other president…has pardoned so many members of his own family.” These pardons of siblings were disconnected from any reference to particular crimes, as were the pardons of Fauci, Milley, and the January 6 committee—although the latter pardons, of non-Biden family members, were limited to potential criminal actions undertaken while on the job. For example, Biden pardoned Fauci “[f]or any offenses against the United States which he may have committed or taken part in…arising from or in any manner related to his service as Director of the National Institute of Allergy and Infectious Diseases” over the past eleven years.
It is extremely unusual—if not entirely unheard of—to issue pardons that effectively grant “get out of jail free” cards to particular individuals without tying those pardons to a specific crime or a specific combination of crimes. As the Times put it, “Mr. Biden’s use of the pardon power to immunize people who have not even come under investigation, much less been charged with or convicted of a crime, has no clear precedent.” Indeed, it will be interesting to see if the Supreme Court eventually weighs in on whether granting blanket immunity from prosecution constitutes a legitimate exercise of the pardoning power under common-law precedent (dating back to England) or is something else masquerading as that long-standing power.
Biden denies that his pardons suggest his family members and favored public officials committed any crimes. But Colleen Shogan, whom the Senate confirmed in 2023 as Biden’s choice to be the Archivist of the United States, wrote for the White House Historical Association in December 2020 that although the pardoning power is “considerably broad,” among the few “important limitations” on it is this: “a crime must have been committed for a pardon to be issued.” Perhaps that’s why Senator Adam Schiff, a Democrat who was on the January 6 committee when he was a member of the House, isn’t too happy about having been pardoned, saying, “I thought the pardons for our committee as well as for the family members were unnecessary and unwise.” Conversely, perhaps Fauci’s personal knowledge of what he was up to with “gain-of-function” research and related cover-ups is why he enthusiastically welcomed the pardon, saying, “I really truly appreciate the action President Biden has taken today on my behalf.”
Although pardoning Hunter and other family members was singularly brazen and self-serving—even if befitting a chief executive who said in his Farewell Address, “to me, family is everything”—Biden’s exercise of the pardoning power in regard to death-row inmates was perhaps more troubling from a constitutional perspective. With a stroke of his pen, he essentially eliminated the federal death penalty—or at least its exercise in 93% of current cases. In the process, he effectively overruled both Congress—which made the death penalty a punishment available under the law—and the juries who had judged these crimes to have been sufficiently heinous to deserve such punishment. (Congress bans the imposition of the death penalty without a jury’s unanimous agreement that it is the just punishment in a particular case.)
To be sure, Biden wasn’t looking at the facts of particular cases and granting clemency to those with mitigating circumstances; rather, he was (with just three exceptions) effectively eliminating a whole class of federal punishment by executive fiat, thereby treading on legislative ground. A December White House press release made this abundantly plain: “He [Biden] believes that America must stop the use of the death penalty at the federal level, except in cases of terrorism and hate-motivated mass murder—which is why today’s actions apply to all but those cases.” This isn’t how the pardoning power is supposed to be wielded. It isn’t supposed to be a backdoor way for an outgoing president to impose his own legislative desires unilaterally.
Kingly Power
What would keep a future president, in the mold of Biden but building on his precedent, from exercising the pardoning power on behalf of every federal prisoner convicted on, say, drug charges? As farfetched as it might sound, what would keep such a president from pardoning every federal prisoner, period—emptying the prisons? The Supreme Court itself asked this very question a hundred years ago in Ex Parte Grossman (1925): “why not a President ordering a general jail delivery?”
The answer, disturbingly, is that nothing would keep the president from doing so, at least during his final weeks in office. Both the founders and the Court have indicated that the only checks on the president’s pardoning power are elections and Congress’s impeachment power. Neither of these checks is remotely adequate, or even applicable, during the lame-duck period between Election Day and Inauguration Day.
The president therefore wields a kingly power, modeled directly on a power held by the king of England, which, during a two-and-a-half-month stretch at the end of a presidential term, breaks free of our checks and balances. We simply trust that the president won’t abuse this tremendous power. As Chief Justice (and himself a former president) William Howard Taft said for the Court in Grossman, “Our Constitution confers this discretion on the highest officer in the nation in confidence that he will not abuse it” or “pervert it.”
The Court in Grossman, which made clear that the remedy for such abuse is impeachment, cited Ex Parte Garland (1866) on the extraordinary scope of the pardoning power. As Justice Stephen Johnson Field, an Abraham Lincoln appointee, wrote for the Court,
The Constitution provides that the President “shall have power to grant reprieves and pardons for offences against the United States, except in cases of impeachment.” …The power thus conferred is unlimited, with the exception stated. It 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. This power of the President is not subject to legislative control. Congress can neither limit the effect of his pardon nor exclude from its exercise any class of offenders.
The Constitutional Convention delegates, who engaged in such extraordinarily rich exchanges about how our government should be designed, focused remarkably little on the pardoning power. No one really made the case for its merits across the nearly four months—from May 25 to September 17, 1787—that the delegates met in Independence Hall. The power was first mentioned on June 18 during Alexander Hamilton’s day-long speech in which he proposed a chief executive elected for life with absolute veto power. It next appeared in the work of the five-man Committee of Detail, which reported to the whole convention on August 6. No one said a word about the provision until August 25, when the impeachment exception was added by general agreement.
It wasn’t until September 15, the convention’s third-to-last day, that the only multi-member debate over the provision took place. The concern expressed by Edmund Randolph, George Mason, and James Madison was over letting the presidential pardon extend to the crime of treason. Madison declared that pardons for treason were “peculiarly improper for the President,” but the effort to amend the provision failed, apparently because the delegates couldn’t agree upon where else such a pardoning power could safely reside.
During that debate, James Wilson said that the remedy for a president who pardons treasonous allies is impeachment, a claim that Madison echoed at the Virginia state ratifying convention in an exchange with Mason. Interestingly, Madison said nothing in defense of the pardoning power in The Federalist, noting only that the legislature played a role in the exercise of the pardoning power in several of the states.
In his Commentaries on the Constitution of the United States, the great Madison appointee, Justice Joseph Story, likewise provides little compelling rationale for the pardoning power and essentially no notion of how to prevent its abuse. Story applauds the founders’ decision to vest the pardoning power in the president alone, noting that the legislature “would be little apt to sift cases…thoroughly to the bottom” in order to discover miscarriages of justice—suggesting that the president would do so.
This might have made sense in the early days of the republic, when the population was comparatively tiny. The 1790 census found that there were only 3.9 million people residing in the United States (including those held in slavery), slightly fewer than the 4.1 million who now live in Oklahoma. Nowadays, the size and scope of the nation, and of the federal court system, don’t so easily lend themselves to the president’s exercise of independent judgment over individual cases. Does anyone really think that Biden scoured the proceedings and verdicts from federal trials across the nation and concluded, in a disinterested and impartial fashion, that Hunter Biden was among those most deserving of a pardon?
Perhaps the best continuing rationale for the pardoning power is provided in The Federalist when Hamilton argues that “in seasons of insurrection or rebellion, there are often critical moments, when a well-timed offer of pardon to the insurgents or rebels may restore the tranquillity of the commonwealth.”
There is a potential legal argument to be made that Biden’s rejection of a whole class of punishment—the death penalty for federal crimes apart from “terrorism and hate-motivated mass murder”—stretches the pardoning power past its limit. As the White House made clear, Biden wasn’t looking for mitigating circumstances or legal errors in particular cases; he was imposing his own idiosyncratic notions of when the death penalty should and shouldn’t be exercised, overruling Congress—and juries—in the process.
Biden’s actions in this regard bear some similarity to a clemency order issued in 2016 by Virginia governor Terry McAuliffe, which allowed some 206,000 convicted felons who had completed their sentences to start voting, holding public office, serving on a jury, and acting as a notary public—none of which they had previously been able to do under long-standing Virginia law. Virginia Chief Justice Donald Lemons, writing for the state’s Supreme Court, noted the unprecedented nature of McAuliffe’s order: “Never before have any of the prior 71 Virginia Governors issued a clemency order of any kind—including pardons, reprieves, commutations, and restoration orders—to a class of unnamed felons without regard for the nature of the crimes or any other individual circumstances relevant to the request.”
Lemons noted that when Tim Kaine had looked into doing the same thing as Virginia governor a few years earlier, his general counsel, Mark Rubin, had concluded that a “blanket order restoring the voting rights of everyone would be a rewrite of the law rather than a contemplated use of the executive clemency powers.” The court echoed that conclusion in the McAuliffe case, adding that if the governor were permitted to issue a blanket order, “this view, taken to its logical limits, would empower a Virginia Governor to suspend unilaterally the enforcement of any criminal law in the Code of Virginia, based solely on his personal disagreement with it, simply by issuing categorical, absolute pardons to everyone convicted of his disfavored crime.”
After the court ruled against him, McAuliffe got around the verdict by issuing about 173,000 individual grants of clemency—still with no genuine review of most recipients’ circumstances or records—rather than one blanket grant. The result was basically the same, at least in about five-sixths of the instances, as if he hadn’t lost the case. Shamelessly claiming the moral high ground, McAuliffe asserted that he had ended “more than 100 years of disenfranchisement and racial discrimination,” calling this his “proudest moment.” This example is instructive in showing how little a court, even one that thinks the executive has overstepped his constitutional authority, can do to prevent such abuses of power.
Increasingly Emboldened
When the presidency was occupied by George Washington, there was little need to protect against the abuse of the pardoning power. But Biden’s abuses are obvious and the potential for even greater abuses in the future is evident. The principal problem is that there is simply no meaningful constitutional check on a president who abuses such power during his final 75 days or so in office. Whatever one thinks of the Day 1 pardons Donald Trump issued to some 1,500 people in connection with the events of January 6, 2021, his exercise of power didn’t evade the intended constitutional checks. He had declared before Election Day that he intended to pardon the January 6 “hostages.” And his exercise of the pardon power left four full years for the Congress to impeach him for it if it wanted to. Once the voters can no longer punish a president, or his party, however, and the threat of impeachment becomes largely irrelevant, the president may act without significant repercussions. This dangerous constitutional loophole, whereby presidents issue pardons after they are no longer accountable for their actions, is being stretched wider with essentially each passing presidency.
Per statistics from the Department of Justice—and a statement from the Biden White House—among presidents other than Biden who served during any part of the period from 1925 until the end of the Biden presidency, the average number of exercises of the pardoning power to grant clemency (through a pardon, commutation, respite, or remission) was 167 per year, and the highest number, by Herbert Hoover, was 300. Biden blew by Hoover’s tally, averaging about 1,050 per year. (All of these statistics omit Jimmy Carter’s and Gerald Ford’s pardons of Vietnam draft dodgers or military deserters, as those numbers cannot be fully quantified and are omitted from Justice Department statistics.) Even more tellingly, about 4,000 of Biden’s exercises of the pardoning power (whether to grant a pardon or a commutation) came after Election Day 2024.
Amazingly, Biden used his pardoning power more times in just the eleven weeks after his vice president lost the election than Franklin Roosevelt (the previous record-holder for use of the pardon over the past century) did in twelve years. Indeed, comparing presidents across the past 100 years, Biden exercised the pardoning power more times on the last official federal workday of his administration (the Friday before Inauguration Day) than Barack Obama, George W. Bush, Bill Clinton, George H.W. Bush, Ronald Reagan, Jimmy Carter, Gerald Ford, Richard Nixon, Lyndon Johnson, John F. Kennedy, Dwight Eisenhower, Harry Truman, Herbert Hoover, or Calvin Coolidge did during his entire presidency, or than Donald Trump has done to date during both of his presidencies combined.
As Biden’s actions suggest, presidents’ efforts to circumvent the watchful eye of voters when exercising the pardoning power have greatly accelerated in recent decades. From Coolidge to Reagan, there were eight presidents who finished out their final terms (three others died in office or resigned), and, on average, 16% of those presidents’ exercises of the pardoning power occurred during their last, partial, fiscal year in office. Eight percent of Reagan’s exercises of the pardoning power occurred during his final, partial, fiscal year. With the exception of George W. Bush (19%), that percentage then rose steadily, to 49% under George H.W. Bush, 56% under Clinton, 61% under Obama, 84% under Trump, and a whopping 96% under Biden—all 96% of which occurred not only during his final fiscal year (which started on October 1), but post-election.
The founders put Article V, the amendment article, into the U.S. Constitution for a reason. The Constitution is not supposed to be a dead letter. It’s hard to imagine many Americans of any political persuasion objecting to an amendment to limit the president’s pardoning authority to the 95% of his presidency during which voters have the actual power to rebuke him and Congress has a meaningful power to impeach him, should he abuse what the Court has called that “unlimited” power. Such an amendment would require just ten words, making the constitutional provision in question read “he shall have Power to Grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment and during the period from Election Day through Inauguration Day.”
Such an amendment would also briefly suspend a reelected president’s exercise of the pardoning power for between 74 and 80 days (depending upon when Election Day falls), to allow for the certification of his reelection and his subsequent inauguration. This short interval, constituting about 2.5% of a two-term presidency, is sufficiently brief as to raise few concerns about its precluding the president from making a “well-timed offer of pardon” to “insurgents or rebels” as might be necessitated by extraordinary events—especially when he could issue that pardon shortly thereafter. Indeed, if a violent uprising that was not in evidence on the eve of Election Day were to materialize between then and Inauguration Day, nothing would prevent the president from making the offer of a pardon; it is merely the formal issuance of that pardon that would be momentarily delayed. Given the current sloth-like speed of our judicial system, which isn’t going to execute someone in a matter of days, this would seem to fit Hamilton’s notion of a “well-timed offer of pardon,” even in such an unusual circumstance.
Whatever slight risk a short delay in the formal issuing of a pardon could potentially entail, it would pale next to the evident danger of an outgoing president exercising the pardoning power in unchecked fashion. Recalling the Supreme Court’s question in Ex Parte Grossman, what if a future president, on his way out of office, were to empty the federal prisons by pardoning all inmates?—or, brazen as it would be, perhaps only those inmates who supported his own political party? As it stands, there is nothing that could be done to stop him, and nothing he did could be undone after his departure. Accordingly, there is far more to fear from the unchecked exercise of the pardoning power by a future outgoing president in the image of Biden than from the brief suspension of that power by a future reelected president in the image of Lincoln.
The amendment should be written to take effect during the presidential term following the one during which it is ratified. This would help to enlist bipartisan support, since no one would know which party would be holding the presidency when it would go into effect.
Simply put, the president has no business exercising the pardoning power in an unaccountable and unchecked manner—he is a president, not a king. The only potential solutions are the election of virtuous presidents who won’t take advantage of a constitutional loophole that has now been made unmistakably clear, or the passage of an amendment to provide “auxiliary precautions.” If we don’t amend the Constitution in order to prevent the exercise of the pardoning power between Election Day and Inauguration Day, we are courting more dire constitutional difficulties going forward as presidents become increasingly emboldened to wield unchecked power in furtherance of their personal interests at the expense of the public good.
