A presidential pardon: Is it equal justice for all or just a few? | The Excerpt
On a special episode (first released on December 12, 2024) of The Excerpt podcast: A foundational principle of the U.S. Constitution is the idea that no one is above the law. And yet, the power of the presidential pardon, based on the embrace of the concepts of mercy and amnesty, essentially guarantees that, in fact, a select few are actually not held accountable for crimes they have been found guilty of. President Joe Biden’s sweeping pardon of his son Hunter, after repeatedly promising he wouldn’t do it, is a case in point. What can the historical use of this awesome power tell us about how we should judge this political inflection point? Paste BN Justice Correspondent Bart Jansen joins The Excerpt to dig into this complex and politically fraught topic.
Hit play on the player below to hear the podcast and follow along with the transcript beneath it. This transcript was automatically generated, and then edited for clarity in its current form. There may be some differences between the audio and the text.
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Joe Biden:
With regard to the question regarding the family, I'm extremely proud of my son, Hunter. He has overcome an addiction. He's one of the brightest, most decent men I know, and I am satisfied that I'm not going to do anything I said. I abide by the jury decision, and I will do that and I'll not pardon him.
Dana Taylor:
That was President Joe Biden speaking this past June, promising not to do what he just actually did. Hello and welcome to The Excerpt. I'm Dana Taylor. Today is Thursday, December 12th, 2024, and this is a special episode of The Excerpt. Foundational principle of the US Constitution is the idea that no one is above the law and yet the power of the presidential pardon, based on the embrace of the concepts of mercy and amnesty, essentially guarantees that in fact, a select few are actually not held accountable for crimes they've been found guilty of.
President Joe Biden's sweeping pardon of his son, Hunter, after repeatedly promising he wouldn't is a case in point. Hunter was pardoned not just for the federal crimes he was convicted of or pled guilty to, but for crimes that he may have committed and not yet been prosecuted for. What can the historical use of this awesome power tell us about how we should judge this political inflection point. To dig into this complex and politically fraught topic, I'm now joined by Paste BN justice correspondent Bart Jansen. Bart, thanks for joining me.
Bart Jansen:
Thanks for having me.
Dana Taylor:
I want to begin with a bit of history regarding the pardoning of family members. Before President Biden pardoned his son, Hunter, were there other presidents who pardoned their relatives?
Bart Jansen:
Yeah, there were a couple of occasions when there were similar moves. Former President Bill Clinton pardoned his half-brother, Roger Clinton, who had been convicted of a cocaine violation and served a year in prison.
In addition, president Trump, the newly returning President Trump during his first term pardoned Charles Kushner, the father of his son-in-law, who had been convicted of preparing false tax returns, retaliating against a cooperating witness and making false statements. He served about 16 months in prison in a halfway program, but Trump has now chosen him to be his US ambassador to France.
Dana Taylor:
Bart, as I mentioned, one of the controversial aspects of the Hunter-Biden pardon, was that it covered unspecified federal crimes from 2014 to now beyond the gun convictions and guilty plea on the tax charges. What are examples of pardons for unspecified crimes?
Bart Jansen:
Well, the granddaddy of them all was former President Gerald Ford's pardon of former President Richard Nixon in 1974 for allegations or accusations associated with the Watergate scandal. Nixon wasn't actually charged, but Ford said that basically a prolonged legal battle to potentially prosecute him would be divisive to the country, it would be bitter and that Nixon would be cruelly and excessively penalized if that happened.
So Ford said it was his duty to close that tumultuous chapter in our nation's history. Former President Jimmy Carter in that same era on his first full day in office in 1977, offered a blanket pardon to Vietnam draft dodgers who had evaded the draft from 1964 to 1973, although he excluded troops that had deserted from service. And another unspecified charge was former President George H.W. Bush pardoned former defense secretary Caspar Weinberger for potential charges stemming from the Iran-Contra scandal during the 1980s.
Bush said it wasn't just out of compassion, but to avoid lengthy and costly legal proceedings that might hound Weinberger for years and to allow him an honorable retirement. Another controversial aspect of this Biden pardon, was that it came before sentencing. Most pardons come after court action has run its course. But Trump, again, during his first term, his first pardon in 2017 was to Joe Arpaio, a former sheriff in Arizona who served in law enforcement for 24 years. Arpaio was convicted of contempt of court, but not yet sentenced at that point.
Dana Taylor:
In President Biden's pardon of his son, he also broke tradition by not running it through the office of the pardon attorney at the Department of Justice. What's the role of that office and why did that raise red flags for some?
Bart Jansen:
Well, for more than 130 years, the office of Pardon attorney has investigated requests for pardons and advised the president, but the office emphatically points out that the president is the one who has the authority to grant pardons with or without the office's advice and that the office holds no restrictions on that pardon authority. So the office is basically to investigate those applications and let the president know whether there might be pitfalls, whether there might be concerns about a certain aspect of a given application.
During Biden's administration, his office received nearly 12,000 applications for clemency. Now, many pardons come at the end of a president's term because they can be controversial. Trump pardoned his former campaign chairman Paul Manafort, his strategist Steve Bannon and his former national security adviser, Michael Flynn. It's not one party or the other. Former president Bill Clinton pardoned fugitive Mark Rich, who was charged with tax fraud and Susan McDougal who had served prison time on contempt charges for refusing to testify about Clinton's role in the Whitewater scandal.
Dana Taylor:
Are there any constitutional limitations on presidential pardons?
Bart Jansen:
Pardon power comes down through English law and the tradition that allowed the king to extend mercy for convicts. In the US, it's a way for the chief of the executive branch to basically say that the executive branch went too far in prosecuting or convicting someone.
President Biden contends that Hunter Biden was singled out for prosecution because of political pressure, but critics of presidents pardoning relatives or political allies contend that pardons can cover up or forgive wrongdoing that the legislature outlawed and that the courts adjudicated. The Supreme Court has recognized the authority is virtually limitless, except in the case of impeachments, which are trials by the legislative branch.
Dana Taylor:
The public's perception on how the power of the pardon is wielded can be delicate. Some have suggested that there are two Americas, two systems of justice. How did the concepts of fairness, mercy, and privilege play into the pardon process?
Bart Jansen:
Well, reaction to pardons can be polarized basically, depending on whether you support or oppose the person receiving the clemency. President Biden has argued that he pardoned his son Hunter, after more than five years of sobriety because of unrelenting political attacks that sought to break him. But his Republican critics contend that pardoning his son smacks of covering up wrongdoing and thwarting any future investigation of his son.
Dana Taylor:
Is the acceptance of a presidential pardon and admission of guilt?
Bart Jansen:
Yes, historically, accepting a pardon is meant acknowledging guilt, but that's what makes pardons for unspecified crimes unusual. We don't know what other federal crimes Hunter Biden might have committed over the last decade, but that his father's pardon has short-circuited for any charges. White House officials are discussing whether Biden should issue preemptive pardons for people Trump has threatened to investigate when he returns to the White House in January.
Representative Adam Schiff, a Democrat of California who led the first impeachment of Trump, has said a pardon is not necessary. But one reason for accepting a pardon is to avoid the costly legal bills that can mount in defending a criminal investigation, even if you think you would be found not guilty. Senator Tim Kaine, a Virginia Democrat opposes perspective pardons because granting them for unknown activities could be subject to abuse. But Jon Tester, a Montana Democrat in the Senate, said he thought perspective pardons would be a good idea if meritorious and not, if not.
Dana Taylor:
But are presidents allowed to pardon themselves?
Bart Jansen:
That's a hotly debated subject in legal circles. It's never come up because no former president was charged after leaving office until Trump. Trump contends he has the absolute right to pardon himself. Legal experts say there's nothing in the Constitution limiting his pardon authority. But some experts have argued that a president can't pardon himself because of the legal tradition of not having someone be his own judge. The potential legal challenge would be if a prosecutor wanted to charge a former president who had pardoned himself, which courts would then have to resolve in what could become a constitutional showdown.
Dana Taylor:
Congenial to this discussion on presidential pardons is the Supreme Court's controversial ruling on presidential immunity earlier this year, which the justices ruled that a president cannot be prosecuted for actions related to the core powers of their office. Does this ruling signal that in fact, presidents are effectively above the law?
Bart Jansen:
Yeah. The Supreme Court ruled that Presidents can never be prosecuted for court duties, which includes pardons, vetoes, and appointments, the stuff that no other branch of the government can do. If the courts upheld that a president could pardon himself, that would seem to put him out of reach of most federal prosecutions.
But one exception in this case offers a political remedy. Former presidents could be charged criminally after they are impeached and convicted. The challenge to that is that no president impeached in the House has ever been convicted in the Senate, including Trump, who was acquitted twice in two Senate impeachment trials, despite majorities of the Senate voting to convict him. A two-thirds majority is required for a conviction.
Dana Taylor:
Bart, thank you so much for being on The Excerpt.
Bart Jansen:
Thanks for having me.
Dana Taylor:
Thanks to our senior producers, Shannon Rae Green and Kaely Monahan for their production assistance. Our executive producer is Laura Beatty. Let us know what you think of this episode by sending a note to podcasts at usatoday.com. Thanks for listening. I'm Dana Taylor. Taylor Wilson will be back tomorrow morning with another episode of The Excerpt.