Can a president pardon a relative? Hmm. Why might that issue come up?
Q. Can a president pardon a relative?
A. The power of the presidential pardon is derived from Article II, Section 2, Clause 1 of the United States Constitution, which grants the president the authority to "grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment." This is a substantial grant of power which gives the president a broad and largely unrestricted right to pardon individuals for federal crimes. The Supreme Court has upheld this expansive interpretation in cases such as Ex parte Garland (1866) and Schick v. Reed (1974), reinforcing the president's ability to issue pardons at their discretion, without judicial or legislative oversight.
There are four principal categories of presidential pardons that can be issued. The first is an absolute pardon, which serves to officially nullify the conviction and exculpate the offender as if the crime had never occurred. The second is a reprieve, which temporarily postpones or delays the execution of a sentenced punishment. The third is a commutation, which mitigates or reduces the severity of the court-imposed sentence, potentially leading to early release from incarceration. Finally, there is an amnesty pardon, which absolves the recipient of any outstanding legal liabilities or obligations stemming from the offense, such as the requirement to pay fines, penalties or make restitution.
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There is nothing in the case law or the Constitution that prohibits a president from using any of these powers to benefit a relative or even friend. However, the purpose of the pardon power is to offer mercy and correct injustices, not to shield personal associates or family members from legal consequences. A pardon for a friend or family member could be perceived as an abuse of power, undermining the principle of impartial justice and eroding public trust in the presidency.
What was the most controversial presidential pardon?
From time to time the use of the pardon can create controversies or even accusations of misuse. The most controversial pardons in history often involve difficult national issues. In 1868, President Andrew Johnson pardoned more than 13,000 former Confederates. President Gerald Ford’s pardon of former President Richard Nixon following the Watergate scandal was highly contentious, though legally sound. It did, however, hurt the standing of President Ford with the public and likely contributed to his election loss to Jimmy Carter in 1976.
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There have been other more personal questionable pardons. President Bill Clinton faced criticism for pardoning financier Marc Rich on his last day in office, raising questions about the ethical use of the pardon power. However, no president has pardoned a close family member in the modern era. There is an understandable sensitivity surrounding the use of the pardon power in cases where the president has a personal stake.
Yet, there is little ability to hold a president accountable for a questionable pardon. The corrupt use of the pardon power could, in theory, be subject to other criminal sanction. However, that has never been tested. Potentially, an improper pardon could have political consequences at the ballot box. Even outside of elections, a president could be damaged politically making it difficult for them to pursue their agenda and policies. Nonetheless, impeachment is likely the only legal check, and it is not a particularly likely one.
Kevin Wagner is a noted constitutional scholar and political science professor at Florida Atlantic University. The answers provided do not necessarily represent the views of the university. If you have a question about how American government and politics work, email him at kwagne15@fau.edu.
This article originally appeared on Palm Beach Post: Can Biden pardon Hunter? Constitution gives president sizable power
