Preemptive pardons would violate our Constitution

OPINION:

Media reports say President Biden is about to issue a slew of preemptive pardons for people associated with his administration to thwart any “revenge” the incoming Trump administration might take against them.

While the founders intended the president’s pardoning power to be nearly unlimited (there is an exception for a president who has been impeached), their intent was quite different from its use by modern presidents.

Colleen Shogan of the Rubenstein Center has written, “While the pardon power is robust, there are … important limitations,” among them is that “a crime must have been committed for a pardon to be issued.”

If reports are true, the president will ignore that limitation and pardon people who have not been indicted, convicted or sentenced for illegal acts.

Mr. Biden has ignored other laws (open borders and student loan forgiveness nixed by the Supreme Court are two examples), so what is to restrain him from bypassing constitutional mandates should he decide to do so regarding pardons?

Will these rumored pardons resemble the one he gave his son Hunter, protecting him from past, present and future violations of the law, or will they be only issued for those favored by the president who have been criticized by President-elect Donald Trump? Either way, those pardons would violate the text of the Constitution.

The most prominent people about whom speculation has swirled as possible beneficiaries of presidential pardons include Sen.-elect Adam Schiff, the California Democrat who was a constant thorn in Mr. Trump’s side when he was a member of the Jan. 6 committee, former Rep. Liz Cheney, Wyoming Republican, ditto, and Dr. Anthony Fauci, former White House chief medical adviser.

In a 500-plus-page report by a House committee, many of Dr. Fauci’s statements made amid the COVID-19 pandemic were found to have been wrong or unnecessary to contain the spread of the virus.

Asked about the possibility of preemptive pardons, Mr. Schiff told CBS News: “I think this is frankly so implausible as not to be worthy of much consideration. I would urge the president not to do that. I think it would seem defensive and unnecessary.”

He’s right.

The most famous pardon of modern presidents was the one given to Richard Nixon by Gerald Ford after Nixon left office but before he could be impeached for his role in the Watergate affair. Nixon pardoned Teamsters boss Jimmy Hoffa, who served only five years of a 13-year sentence for jury tampering, attempted bribery, conspiracy, and mail and wire fraud.

Bill Clinton pardoned his half brother Roger, but he had already served an entire prison sentence a decade earlier. Mr. Clinton also issued a pardon to Hillary’s brother Hugh Rodham, who represented Roger.

Among the most publicized pardons was the one Mr. Clinton gave fugitive commodities trader Marc Rich. Mr. Rich’s ex-wife, Denise, had been a major donor to the Democratic National Committee, Hillary Clinton’s campaign and the Clinton Library Foundation. In all, Mr. Clinton issued 456 pardons and clemencies, including to some not convicted of any crime.

The way to fix inequities in the nearly unrestricted power of a president to pardon anyone for nearly any reason is for Congress to pass a constitutional amendment. Sadly, that is unlikely to happen.

If Mr. Biden issues preemptive pardons, it can only add to the public’s disapproval of his administration, as expressed by a majority of voters in last month’s election. A poll conducted for the Daily Mail of 1,006 registered U.S. voters asked them to rank the nine elected presidents from the last 55 years from best to worst. Mr. Biden came in last.

Even Clinton pollster James Carville has called Mr. Biden “the most tragic figure in American politics in my lifetime.”

If Shakespeare were alive, no better topic for a tragedy could be found than this president. History won’t be able to grant him a pardon.

• Readers may email Cal Thomas at tcaeditors@tribpub.com. Look for Cal Thomas’ latest book, “A Watchman in the Night: What I’ve Seen Over 50 Years Reporting on America” (Humanix Books).