Joe Biden’s pardon of his son and preemptive pardon of members of his family is easily the most serious abuse of the pardon power in American history.
How did we get here?
We can begin by blaming Alexander Hamilton, who proposed vesting our chief executive with the power during the Constitutional Convention.
We should pardon him for not imagining how the power would be abused in our time.
Power to pardon offenders was a prerogative of kings, about whom Hamilton and other American revolutionaries were suspicious.
But Hamilton thought the pardon power, which he called a "benign prerogative," should be wielded by our chief executive. Convention delegates considered: Should be president possess the sole power to issue pardons? Could he be trusted?
A suggestion to leave pardons to Congress went nowhere. Legislatures, Rufus King said, are "too much governed by the passions of the moment."
Roger Sherman, a crusty Connecticut delegate, argued that pardons should require the concurrence of the Senate.
He was voted down.
The delegates considered only allowing the president to pardon someone after conviction. This would have allowed President Biden to pardon his son for tax evasion and the gun crime of which he was convicted but not to immunize him for other crimes, nor to preemptively pardon other relatives.
From our perch this might seem like a good idea, but preempting preemptive pardons would have denied Gerald Ford the power to issue the most consequential pardon in American history — the 1974 pardon of Richard Nixon. That preemptive pardon brought an end to what Ford called "our long national nightmare" and spared the country the divisive spectacle of a former president on trial.
We have since experienced the acrimony that produces. "I was absolutely convinced then as I am now," Ford told Congress, "that if we had had indictment, a trial, a conviction, and anything else that transpired after this that the attention of the president, the Congress and the American people would have been diverted from the problems that we have to solve."
Our experience underscores Ford’s wisdom.
For years after his presidency Ford carried a passage from the Supreme Court decision in Burdick v. United States 236 U.S. 79 (1915), to share with anyone who said he had let Nixon off too lightly. In it the court ruled that a pardon carried an "imputation of guilt" and accepting one was "an admission of guilt."
Joe Biden, of course, does not agree. He insists that his relatives — except Hunter — did nothing illegal and that pardons do not imply otherwise.
He disparaged and defied the Supreme Court so much that this cannot surprise anyone.
The delegates to the Constitutional Convention did not foresee a president pardoning his relatives. The Constitution empowers the president to issue preemptive pardons for a more important reason.
James Wilson — one of the most active delegates and a lawyer with considerable criminal trial experience — explained that "pardon before conviction might be necessary in order to obtain the testimony of accomplices."
Plea bargains and guarantees of immunity in exchange for testimony, now common tools in criminal prosecutions, were rare in the eighteenth century.
Wilson and other delegates were concerned chiefly with the one crime they defined in the Constitution: treason.
In a world dominated by predatory monarchs who used bribery as a basic tool of international relations the danger that an American would betray the United States for money seemed very real. So did the possibility that an American would try to subvert the Constitution to gain and hold political power.
The delegates considered exempting treason from the pardoning power. It was "too great a trust," Edmund Randolph said. "The President may himself be guilty. The traitors may be his instruments." Yes, Wilson replied, but the president could be impeached and prosecuted.
After considering the matter from every angle they could imagine, the delegates decided to grant the president "power to grant reprieves and pardons for offences against the United States, except in cases of impeachment."
The convention took this step because, a delegates wrote, "many of the members cast their eyes towards General Washington as President; and shaped their Ideas of the Powers to be given to a President, by their opinions of his Virtue."
Washington did not disappoint them.
As president Washington administered the government with fairness, efficiency, and integrity, exercising presidential authority without partiality, caprice, or corruption.
The same cannot be said of his newly retired successor. Our nation depends upon the character of those to whom we entrust the government. Sometimes they fail us.
Jack Warren is an authority on the history of American politics and public life and editor of The American Crisis, an online journal of history and commentary (www.americanideal.org). His newest book is, "Freedom: The Enduring Importance of the American Revolution." Read Jack Warren's Reports — More Here.
© 2025 Newsmax. All rights reserved.