by Robert Kalebra, ©2025
(Jan. 21, 2025) — People: “Robert, can Biden get away with all of these pardons for his family?”
Me: The answer is not cut and dried. Legally and ethically, the permissibility of pre-emptively pardoning a family member depends on several factors.
Legally:
In the United States, the president has the constitutional authority to grant pardons ONLY for federal crimes, and this power is generally seen as broad, including the ability to issue pardons to family members. However, a pre-emptive pardon—granted before a crime is committed or before charges are brought—would likely be seen as highly unusual and may raise questions about its legitimacy or the potential abuse of power. The U.S. Constitution doesn’t explicitly prohibit pre-emptive pardons, but they could face scrutiny if seen as a misuse of the pardon power. The U.S. Constitution grants the president the power to pardon individuals for federal offenses (Article II, Section 2). This power is broad and does not require the person to have been convicted, only that the individual has committed a federal offense. Therefore, a president could issue a pardon before any charges are brought or even before an individual is formally accused of a crime.
However, this power only applies to federal crimes, not state offenses. One historical example of a pre-emptive pardon occurred in 1974 when President Gerald Ford pardoned former President Richard Nixon for any crimes he may have committed during the Watergate scandal. Ford issued the pardon shortly after Nixon resigned from office, even though Nixon had not been formally charged with any crimes. The pardon was controversial, as it was granted before any trial or conviction, and it has been said that it was intended to help the country move past the divisiveness of the Watergate scandal when, in fact, it served no other purpose than to subvert the administration of justice and grant immunity where none was warranted. There was no constitutional or other legal means to claim immunity.
For state-level pardons, the authority is typically vested in governors, and each state may have its own rules regarding the scope and limits of pardoning power.
Ethically:
Pre-emptively pardoning a family member can be ethically problematic because it can be perceived as a conflict of interest or favoritism, especially if the pardon is seen as an attempt to shield someone from accountability. It can undermine public trust in the justice system, as it could be viewed as circumventing due process and the principles of equality before the law. Ethically, it might be argued that pardoning someone without due process, particularly when it involves a close personal relationship, could be seen as a form of nepotism or corruption, especially if done to protect a family member from prosecution for a serious crime.
The Legality of Biden’s Pardons in Light of Mental Competence:
Given recent legal challenges and revelations about President Biden’s mental fitness, there may be an added layer of complexity regarding the legitimacy of his pardons. If Biden were deemed mentally incompetent to stand trial, his capacity to fully comprehend the legal and ethical implications of granting pardons could be called into question.
Under the law, for a president to execute the powers granted to him in the Constitution, he must be mentally competent. Mental incompetence could raise doubts about whether Biden was in a sound state of mind when he issued pardons, potentially rendering them invalid. Incompetence in office has been a historically debated issue; however, if a president is ruled mentally incompetent, it might call into question whether any actions, including the issuing of pardons, can be legally upheld.
If Biden were found mentally incompetent, the pardons granted under such circumstances could be subject to legal challenges and possibly invalidated. This would represent a grave concern, as it would imply that the president did not fully understand the scope or consequences of his decisions, including the potential abuse of power inherent in pardoning individuals connected to him by family ties.
Presidential Self-Pardon:
One of the most contentious issues surrounding presidential pardons is whether a sitting president can pardon himself. While the U.S. Constitution grants the president broad pardon power, it does not directly address whether the president can pardon himself. Legal scholars remain divided on this issue. Some argue that the president, as the ultimate authority in the executive branch, could potentially pardon himself for any federal crime he might commit. This view is supported by the broad interpretation of the pardon power, which does not explicitly exclude self-pardons.
However, others assert that such an action would go against the fundamental principle that no one should be a judge in his own case, a principle that has deep roots in both common law and constitutional tradition. They argue that permitting a president to pardon himself would create an unacceptable conflict of interest and undermine the system of checks and balances. There is also the question of whether a self-pardon would be legally enforceable, as it could face challenges in the courts.
To date, no U.S. president has attempted to pardon himself, and the question remains largely theoretical. However, the possibility remains a point of legal and ethical concern. If a president were to attempt such a move, it would likely set off a political and legal firestorm, with opponents arguing that it undermines the rule of law and could lead to abuses of power.
Final Thoughts:
In summary, while a pre-emptive pardon may be legally permissible in some jurisdictions, it is likely to raise significant ethical and legal concerns, especially if perceived as an abuse of power or an attempt to avoid accountability. Given the totality of circumstances, it seems that the actions of the previous administration, especially when examined alongside concerns about Biden’s mental competence, are indicative of a government exercising power illegitimately. As we reflect on these developments, we must question whether such abuses of office can be tolerated, especially when they stem from an administration that is widely regarded as having come to power through means of usurpation. It is perhaps not surprising that these abuses of power have transpired within a government viewed by many as illegitimate, especially when compounded by the fear and reluctance of Americans to confront the ongoing erosion of their Republic.