Is A Blanket Pardon Constitutional?

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My recent article on President Biden’s pardon of his son elicited considerable response, with the vast majority of comments agreeing with my main points.

But my brother, a lawyer and gifted writer, argues quite effectively that a blanket pardon for undisclosed crimes is unconstitutional.

IS THE HUNTER BIDEN PARDON CONSTITUTIONAL? WE THINK NOT.

By Nicholas Bentivegna

President Biden’s ten-year blanket pardon of his son, Hunter, has generated considerable chatter among the pundit class. Conspicuously absent from the conversation, however, is a most fundamental question, and that is, whether or not such a pardon is constitutional. In my opinion, it is not.

Our United States Federal Constitution is a remarkably compact document: a Preamble, seven Articles, ten Amendments known as the “Bill of Rights,” and seventeen more after that. It basically stands on principle, meaning that particular terms or concepts, such as “executive powers," or "interstate commerce," not to mention “equal protection” and “due process,” are general in scope and direction. Court decisions, legislative findings, and learned treatises, interpreting and applying what amounts to very little in terms of actual words, have been known to fill many volumes, databases, and even libraries.

Seeking to apply a constitutional provision to particular facts and circumstances? Only the Supreme Court knows for sure. Even then, among the individual justices, there can be considerable disagreement. Court “opinions” are exactly that.

All of this being said, our country has always exhibited what might be called a “constitutional culture.” Americans instinctively know when their rights are being violated, or when something else is amiss. When they learn of censorship or the jailing of governmental opponents in other countries, particularly nominally similar democracies such as Britain or Canada, they beam with pride in our American “superiority,” in terms of self-government. To put this attitude in the simplest of terms, if something looks, sounds or smells unconstitutional, it probably is. America, after all, is a land of common sense.

Authority for the granting of Presidential pardons is found in Article II, Section 2, of the U.S. Constitution. It reads that the President “shall have the Power to grant Reprieves and Pardons for Offenses against the United States, except in cases of Impeachment.” That’s basically it. Yet when read in the context of other Constitutional provisions, and the rights and privileges they enumerate, it is not difficult to determine the clause's overall intent and purpose.

In the American Constitutional form of government, persons accused of crimes are accorded certain rights of due process. These include the well-known presumption of innocence, the right to confront witnesses, and the right to determination by a jury of peers, of guilt beyond a “reasonable doubt.” It goes without saying that, in such a system, certain miscreants might escape punishment, even when they are actually guilty. But this is generally considered a small price to pay, given the alternative, and that is, that an accused might be incarcerated, or even put to death, who is actually innocent. Derivatively, this leads to a simple concern that a particular punishment, for one reason or another, may not fit the crime. Thus, we have yet another check and balance in the system, and that is, the empowerment of the executive authority to grant a pardon, or perhaps some degree of clemency, in particular cases.

Executive authorities, that is, presidents and state governors, take this power very seriously. They want to be fair, yet at the same time, are acutely aware that mistakes can be costly. Most maintain some sort of office, or staff, whereby individual applications are carefully reviewed and investigated, before being decided upon. Typically, such process is not even initiated until after an applicant has been convicted of a crime, and perhaps served a sentence for a number of years. Presidents and governors are human, of course, and so, it is not unusual for executives to grant pardons to family members, political acquaintances, or even famous persons, whom they like and respect. But, in all such cases, there is generally some sort of pretext, or rational basis, for any pardon that is ultimately granted.

One form of pardon that is exceedingly rare, is that of a “preemptive” pardon, or one which is granted before a person is even charged with a crime. The most famous of such a pardon was that given by President Gerald Ford in 1974, to former President Richard Nixon. This was an unconditional pardon for any Federal crimes Mr. Nixon may have committed during his time in in office. Shortly thereafter, in 1977, President Carter issued a blanket pardon to men, convicted or not, who had violated the Military Selective Service Act, by evading the draft, during the Vietnam War era.

Both of these pardons were controversial at the time, and rightly so. But I don't think it can be said that either of the two presidents did not have the Nation's best interests at heart. President Ford's pardon of Nixon was the act of our only unelected President, in favor of the only President who had ever resigned the office. The Carter pardon was the final act in a controversy that had roiled the country for over a decade. Both decisions involved very difficult and unusual circumstances, by any measure, constitutional or otherwise.

Is this power of pardon absolute? One would think not. Nothing else in Constitutional law is really absolute. Justice Oliver Wendell Holmes once famously observed that the right of free speech did not extend to “shouting fire in a crowded theater.” Freedom of religion does not enable human sacrifice, or the killing of persons who fail to subscribe to your particular faith. And no, the right to bear arms does not extend to private ownership of nuclear weapons, nor even personal RPG's (much to the chagrin of middle-school boys everywhere.)

Returning to the general principles of criminal law in our Constitutional government, there is a basic rule that a person charged with a crime is entitled to know the exact basis of the charge. Criminal indictments typically recite the name of the accused, the particular time and place of the alleged offense, a detailed factual description of the specific act complained of, and a citation of the statute or legal provision that the person is accused of violating. “Vagueness” is forbidden. A prosecutor cannot, for example, charge a person for unspecific “bad behavior” at an unknown place and time. Which is not to say that it hasn’t been tried, on occasion.

Preemptive pardons are purposely vague, ambiguous, and overbroad. All, in my view, are constitutionally suspect, on their face. Thus each, at the very least, should be subject to some sort of rational basis test. Hunter Biden pled guilty to certain tax evasion charges, and was convicted of specific firearms violations. Had his pardon been limited to those crimes alone, it might have fit the narrative of a father looking out for his son. The Presidential pardon power, it might have been said, is one of the perks of the office.

We all know that the pardon issued by President Biden goes far beyond any of that. It essentially exonerates young Hunter for any and all Federal crimes, going back for a period of over ten years. No specific acts, circumstances, laws, or statutes, are so much as mentioned. No overriding concern or national interest is claimed or is evident. Hunter’s father may be President, but Hunter himself is no more than a private citizen. And, a rather badly behaved one, at that. The inescapable conclusion is that the Bidens know something we don't. And, it can't be good.

What is the limit of the astonishing overbreadth this pardon represents? May a President reward political contributors by excusing them from payment of their income taxes? May a governor commission a hit man to take out a political opponent, and then “forgive” the assassin of the murder charge? May any executive simply declare that a particular person or group of persons is exempt from obeying any and all laws, for all time?

To ask any of these questions is to provide the answer. The Hunter Biden pardon is not the humble privilege of a merciful father, so much as it is the thuggish act of a dictator. The Justice Department needs to step up here, and challenge this pardon head on, before the United States Supreme Court. Once the man with the square mustache arrives on the scene, it may be too late…

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