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Newswise — The 24 hours between the end of former President Joe Biden’s administration and the start of President Donald Trump’s second term saw unusual uses of a president’s constitutional power to pardon. Biden issued preemptive pardons protecting family members, administrators, and members of Congress from federal investigations, while Trump pardoned or commuted the sentences of all involved in the Jan. 6, 2021, insurrection at the Capitol.

Virginia Tech political expert discussed historical precedents for these pardons and what effects they could have on the partisan and governing landscape.

On the precedent for preemptive pardons and their effectiveness

“In general, preemptive pardons evidently are constitutional, given the broad and quite vague language of Article 2 of the U.S. Constitution. They have also been rare. Their ‘effectiveness,’ of course, depends on the objective being pursued. The pardons likely do not mean that those who received pardons will avoid being publicly or privately criticized or threatened or that they won’t be subject to state-level investigations or possibly civil suits. The pardons do mean that they cannot be charged with federal crimes,” Hult said.

“Before the recent and controversial Hunter Biden pardon, the primary contemporary example since the second half of the 20th century is President Gerald Ford’s pardon of Richard Nixon. A close analog might be President George H. W. Bush’s Christmas Eve 1992 pardon of defense secretary Caspar Weinberger; Secretary Weinberger, though, was awaiting trial following two indictments for federal crimes linked to the Iran Contra affair,” she said.

“President Biden’s issuing of preemptive pardons — for, among others, those involved in prosecuting Trump and participating in congressional hearings on the Jan. 6 insurrection — raises several concerns. First, they focus on possible activities by a newly elected president and his presumptive appointees. If nothing else, such pardons exacerbate relations in an already polarized and distrustful polity. They also continue an escalation of attacks between the two major parties’ elected officials and senior appointees. These pardons in all likelihood will further taint President Biden’s long and generally distinguished public service career and his accomplishments as president,” Hult said.

“It also should be noted that pardons must be accepted and that accepting a pardon at least connotes guilt,” Hult said. “Presumably, not all will accept them, as newly elected Sen. Adam Schiff already has stated.”

On the precedent for pardoning the Jan. 6 defendants

“One possible analog to the pardoning and commuting the Jan. 6 defendants might be President Jimmy Carter’s grant of a pardon to all who evaded the Vietnam War draft between 1964 and 1973, issued on his first full day in office. That too, of course, was controversial, but in contrast to Trump’s approach, Carter’s proclamation specifically excluded deserters, recipients of dishonorable discharges, and those who committed violence during anti-war protests,” Hult said.

On whether checks exist on presidential pardon power

“Pardons constitutionally are an unchecked presidential power, which some date back to the British crown. Although the federal courts might rule otherwise, and Congress could pass a ‘sense of Congress’ resolution that questions such actions, it would seem that amending the Constitution is the only formal — and unlikely — response,” Hult said. 

About Hult   
Hult, professor of political science at Virginia Tech, serves on the faculty of the ’ with expertise in the U.S. presidency, federal and state politics, policy and governance, and federal and state courts. Read her full bio .

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