Does presidential pardon obviate guilt?

The use of the constitutional provision also triggers discussions around presidents’ self-pardoning powers.

US President Joe Biden’s decision to pardon his son Hunter Biden, accused of criminal charges related to gun ownership and tax evasion, has set off intense debates in the US judicial landscape, its policy-making communities, and civil society at large. The use of presidential powers to pardon is in line with a long-running political tradition in the US.

The propensity to pardon close relatives and friends, by using the prerogative of Presidential pardon, is getting increasingly normalised in the US. Former president Bill Clinton pardoned his brother Roger for a federal drug-related offence. He even pardoned Marc Rich, a fugitive who fled the US to evade prosecution for tax evasion. Former president Donald Trump did something similar during his term when he pardoned Charles Kushner, the father of Trump’s son-in-law Jared Kushner. He was convicted of obstruction of justice and other crimes. Trump even asserted that he has the right to pardon himself. President Gerald Ford, it may be recalled, granted President Nixon a pardon even before he was charged.

The more polarised politics has become in the US, especially over the last decade, the greater the propensity to fall back on presidential pardons. This calls for a closer look at these instances and the potential possibility of a self-pardon, once Trump takes over as President.

Until recently, President Biden maintained that he would not interfere with his son’s legal charges. Now that he has pardoned his son, he has justified the decision by saying that Hunter was being politically hounded. Except in cases of impeachment, the US President is technically granted the power to reprieve and pardon, as per Article II, Section 2, Clause 1 of the US Constitution. The US Supreme Court has argued that unlike immunity granted by the US Congress, a pardon carries the imputation of guilt, acceptance, and confession of the crime (Burdick vs United States, 1915). In this case, the Court argued that a pardoned person must introduce the pardon into the court proceedings; otherwise, the pardon must be disregarded by the court. Hence the pardoned person must accept the pardon. The presidential pardon debate has come a long way since then. In the case of legislative immunity, it is noncommittal and even tantamount to silence of the witness. Some states’ High Courts have even argued that pardons have traditionally not been the business of courts and also
do not come under the purview of judicial review. Technically, even the Congress cannot constrain the President’s right to pardon.

A moral context

There has been an ongoing debate if it is morally correct for the President to exercise pardoning powers before a conviction. This is a matter of judicial opinion. There can be a positive side to presidential pardons too. In some scenarios, they are acts of mercy and compassion and can be used to correct injustices. Yet, the chances of pardons being misused for personal and political gains are very high as they essentially lack transparency. Moreover, they tend to undermine the judicial system and processes.

The US President has substantial leeway to exercise the prerogative of pardon. In effect, the President has virtually an unreviewable pardon power. Technically, however, presidential pardons apply only to federal offences and hence such individuals can still face charges in state courts.

Whether Trump, on assuming office, is legally entitled to pardon himself is a matter of legal opinion. Technically, there is no hurdle to the President in pardoning himself for a federal crime. It could even be argued that exercising the right to self-pardon
is perceived as an admission
of guilt. Though it may absolve an individual of criminal liability, the social stigma associated with their action tends to linger.

The US Constitution says the President has the power to “grant” reprieve and pardon. In other words, the interpretation is that the President can grant pardon to another person, and not necessarily to himself, though it is not explicitly prohibited. Though former president Nixon could have self-pardoned himself, it would have been a political disaster under the circumstances. Whether self-pardoning will lead to a constitutional crisis, only time will tell. If incoming president Trump pardons himself, he will be setting a precedent that is not much to be proud about. Pardoning one’s family members, and oneself too, does not augur well. Whether Presidential pardon or even self-pardon necessarily obviates all legal guilt of the offender remains a matter of debate.

(The writer is a professor in the Department of International Studies, Political Science and History, Christ deemed to be
university, Bengaluru)