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Who can the president pardon? Here's what to know as Biden wraps up his term

Brendan Rascius, The Charlotte Observer on

Published in News & Features

In keeping with a long-standing Thanksgiving tradition, President Joe Biden recently pardoned a pair of turkeys. During a ceremony at the White House, the birds — named Peach and Blossom — were spared from the dinner table and given a new lease on life.

While it was an act of pure political pageantry, it highlights the president’s expansive pardon powers — which could be used liberally during his final two months in office.

Historically, presidents have issued numerous pardons during their lame duck periods, including quite a few that have raised eyebrows.

Here is what to know about presidential pardons.

Presidential pardon power

Article II of the Constitution enables the president to grant clemency for any federal crime, according to a Congressional Research Service (CRS) report. This authority is rooted in an old English law that permits monarchs to bestow mercy on criminals.

“The president’s power to pardon is astronomical,” Taylor Stoermer, a historian at Johns Hopkins University, told McClatchy News. “The Constitution doesn’t even require an explanation. The only real limits are that it doesn’t apply to state crimes or impeachment cases.”

“So the president can grant full pardons, commute sentences, or even offer amnesty, on an individual basis or for an entire class of people,” Stoermer said.

How often do presidents grant clemency?

Most presidents have issued numerous acts of clemency throughout their terms in office, according to historians.

For example, Donald Trump, during his first term, granted 143 pardons and 94 commutations, according to the Pew Research Center. During Barack Obama’s eight years in office, he issued 212 pardons and 1,715 commutations.

Among the commutations granted by both men were multiple that concerned low-level drug offenses, such as possession of marijuana.

However, these acts of clemency have not typically been distributed evenly throughout a president’s tenure.

Since 1945, every president — with the exception of Lyndon Johnson — granted clemency at a higher rate during the last four months of their terms, according to CRS.

For example, Obama granted an average of 296 acts of clemency per month during his final four months in office, compared with an average of eight per month before that. Similarly, Trump issued an average of 50 per month during the last four months compared with an average of one per month before that.

“Trump certainly kept to that pattern, and I would not be surprised if Biden does as well,” Thomas Balcerski, a presidential historian at Eastern Connecticut State University, told McClatchy News.

Additionally, these 11th hour acts of mercy tend to be the most controversial ones.

“Most save the big, bold pardons for the end of their terms,” Stoermer said. “And because exactly why you’d think: No voters to answer to.”

Controversial acts of clemency

Throughout history, presidents have issued a fair number of pardons, commutations and acts of amnesty that have received widespread scrutiny.

“The most famous, of course, is Gerald Ford’s pardoning of Richard Nixon,” Vernon Burton, an emeritus history professor at Clemson University, told McClatchy News.

In September 1974, following the Watergate scandal and Nixon’s resignation, Ford issued a full pardon for any crimes Nixon “committed or may have committed” against the United States.

 

Jimmy Carter also took flak for pardoning “all of the Vietnam War draft dodgers,” Burton said. “That was huge.”

This pardon, issued on Carter’s first day in office in 1977, applied to roughly 100,000 military-age men who avoided going to war, according to Politico.

“Then there’s George H.W. Bush pardoning key players in Iran-Contra,” Stoermer said.

With less than one month until he left office, Bush pardoned six people, including a former secretary of defense, wrapped up in the illegal arms scandal.

More recently, Obama reduced the sentence of Oscar Lopez Rivera, a Puerto Rican activist whose political organization was responsible for dozens of robberies and bombings in the U.S. And Trump preemptively pardoned adviser Steven Bannon, who was charged with bilking donors out of money they gave toward the construction of a border wall.

“These kinds of moves show how the pardon power can get tangled up in political strategy or personal connections — and that’s what makes it fascinating (or infuriating) to watch,” Stoermer said.

Have presidents pardoned family members?

Given that Biden’s son Hunter Biden has been convicted of felony offenses, some have wondered whether he will issue a pardon before he leaves office.

“Would he pardon Hunter Biden? That’d be quite something,” Balcerski said. “There is some precedent.”

On his last day in office, President Bill Clinton issued a pardon for his half-brother Roger Clinton, who had pleaded guilty to a cocaine distribution charge.

“That was slightly less impactful because Roger Clinton had already served the time,” Stoermer said. “So that was mostly about clearing his record than dodging accountability.”

Biden, though, has said he has no plans to grant clemency to his son.

Could Trump break the mold?

Trump could break with long-standing tradition of issuing controversial pardons at the end of his term, historians said.

The president-elect has vowed to pardon some of the people convicted of participating in the Jan. 6, 2021, Capitol riot on his first day in office.

“I am inclined to pardon many of them,” he wrote on social media in March, according to ABC News.

Throughout the country, about 1,500 people have been charged in connection with the riot, including about 547 who were charged with “assaulting, resisting, or impeding officers or employees.”

“It wouldn’t be surprising to see an unprecedented wave of pardons right out of the gate, particularly for January 6 rioters,” Stoermer said. “That would take the use of the pardon power into completely uncharted territory.”

“Of course, there is a precedent: Carter’s first-day pardon of draft evaders of the Vietnam era,” Stoermer said. “That applied to hundreds of thousands of people. But that’s not quite the same as a coup.”

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©2024 The Charlotte Observer. Visit charlotteobserver.com. Distributed by Tribune Content Agency, LLC.

 

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