Biden’s pardon reveals the double-edged nature of executive pardons. Here’s why:

On Thursday, the White House announced that President Joe Biden would commute the sentences of about 1,500 people who were released from prison during the pandemic and subsequently placed on home confinement. This is a record number of commutations in one day. Biden also pardoned 39 other people convicted of nonviolent crimes and said he would continue to consider clemency petitions in the form of commutations or pardons.

This move highlights how important the pardon power really is. It is the last possible remedy when the criminal justice system incarcerates too many people and punishes them too harshly.

But it happened shortly after Biden showed the other side of presidential pardons. Just after Thanksgiving, Biden granted a broad pardon to his son Hunter, arguing that he had been wrongly prosecuted and that the tax evasion and firearms charges were politically motivated. This decision reestablishes a commitment to the rule of law and insulates the Justice Department from presidential conflicts of interest, after Donald Trump brazenly abandoned these principles during his first White House term. It was a significant departure from his campaign promise to restore norms.

Biden’s pardon for his son has been harshly criticized by members of Congress, including members of his own party, and appears to be unpopular with the American people. (According to an Associated Press poll, only about 2 in 10 Americans support Biden’s decision to pardon his son.) In addition to the Hunter pardon, President Trump’s past abuses of power and In the wake of the June 6, 2021 riots, lawmakers rightly renewed their calls for checks on the president’s pardon powers, following the promise of pardons for participants in the March rally.

But Thursday’s pardons underscore why power is an important tool to maintain and why efforts to reform it must be cautious. But there are still ways to ensure it is used for good and not personal gain.

However, the power to pardon is enshrined in the U.S. Constitution, so any attempt at reform would face an uphill battle. But given the bipartisan tendency to exploit it and the dissatisfaction of people in both parties with it, lawmakers may now have a unique opportunity to make amnesty a reality. Make some important changes.

How Presidents Have Used (and Abused) Pardon Power

Pardons are one of the president’s broadest and most unlimited powers. As my colleague Ian Millhiser recently pointed out, for more than 150 years the Supreme Court has held that presidents can pardon anyone and as many people as they want, and Congress and the courts have I’ve accepted that I can’t get in the way. .

The limits on pardon power are also extremely narrow. Because the president can only pardon federal crimes, a presidential pardon does not protect the recipient from prosecution under state law. And the president cannot grant pardons for crimes that may be committed in the future.

Donald Sherman, executive director and chief counsel of Citizens for Responsibility and Ethics in Washington, a nonprofit government ethics watchdog group, said, “The pardon power is certainly the broadest authority vested in the president of the United States.” “It is one of the least restrictive,” he said, “and is especially dangerous in the hands of a lawless president.”

Throughout American history, all but two presidents have used the pardon power, usually granting pardons on their way out of the White House to avoid political backlash while in office. And many presidential pardons are controversial, to say the least.

For example, President Trump pardoned close allies such as Roger Stone, Michael Flynn, and Steve Bannon. He also pardoned the father of his son-in-law and publicly pardoned him in front of former campaign chairman Paul Manafort when Manafort was under investigation for Russian interference in the 2016 presidential election. It appears that it was a flicker.

But perhaps most (infamously) of all, Gerald Ford pardoned Richard Nixon after the Watergate scandal led to his resignation, effectively putting the president above the law. It set a precedent.

But the president’s ability to grant pardons is also a powerful tool that can be used for good, especially to right historic injustices committed by federal courts, as evidenced by Biden’s decision today. Barack Obama pardoned about 2,000 people, most of them nonviolent drug offenders. And, as highlighted when President Jimmy Carter spent a day in the White House pardoning hundreds of thousands of Americans who fulfilled a campaign promise and avoided the Vietnam War draft, It can also be.

By giving the president, the people’s elected representative, the power to grant pardons, pardons essentially become the people’s only means of overturning beliefs that we, as a society, have decided are wrong.

So while the pardon power has certainly been abused, it also serves an important purpose and should not be completely abolished. Efforts to curb it should therefore focus on narrowly limiting presidential power, providing only greater transparency and oversight and the possibility of revoking corruption pardons.

What should amnesty reform look like?

One of the easiest ways to reform pardons is to create new rules at the administrative level. And while they can be easily reversed, and certainly not likely to happen during the Trump administration, they could set standards and public expectations for how presidents should grant pardons. .

For example, a future president could create a pardons commission, similar to how many states grant pardons. The committee would be staffed with experts, review petitions and provide a more transparent deliberative process than the current system. It is currently being done by the Justice Department’s Office of the Pardon Attorney, whose process for making presidential pardon recommendations has been criticized for being opaque.

More complex reforms would require constitutional amendments that provide new restrictions.

“One thing that might be worth considering is Congressional override,” Sherman said. Congress would then not necessarily have to limit the president’s power or set limits on who the president can and cannot pardon. But in highly unpopular cases that pose a conflict of interest, Congress can have a say in whether to grant pardons. “A supermajority override provision could address some of the most egregious cases,” Sherman added.

Other proposals could include placing explicit (albeit narrow) limits on the president’s powers. For example, Democratic Representative Steve Cohen of Tennessee previously introduced a constitutional amendment bill that would prohibit the president from granting pardons to himself, his family, or anyone associated with his administration or campaign. “The framers of the Constitution included the pardon clause as a safety valve against injustice, not as a way for presidents to put themselves, their families, and their allies above the law,” Cohen said in a statement at the time.

Until these reforms are implemented, the president will continue to wield one of the broadest powers without checks and balances. While Biden may have shown how he should use this power upon leaving office (Hunter pardon aside), Trump is preparing to return to the White House with more freedom than ever before. Therefore, leaving the pardon power untouched should concern all members of Congress.