The recent actions of both former President Joe Biden and current President Donald Trump have ignited a fresh debate on the constitutional power of the presidential pardon. Legal scholar Noah Feldman raises concerns that the pardon power is “evolving before our very eyes — and not in a good way.”
In the final days of his presidency, Joe Biden exercised his pardon power in an unprecedented manner, issuing pardons to government officials and family members who had not been charged with any crimes. These pardons were a proactive measure, designed to shield them from potential “vindictive prosecutions” by the incoming administration led by Donald Trump. Such a use of the pardon power raises questions about its intent and the ramifications on legal processes moving forward.
In contrast, President Donald Trump’s immediate recourse to his pardoning authority has also come under scrutiny. Once in office, Trump issued a sweeping series of pardons or commutations to approximately 1,600 individuals linked to the January 6, 2021, Capitol riots. These actions were widely interpreted as an effort to nullify the legal consequences faced by individuals attempting to overturn the certified results of the 2020 election.
The dual approach from both administrations underscores a growing trend where the pardon power is personalized by the sitting president. This development deviates significantly from its original constitutional design, which intended the pardon as a tool to serve justice and provide mercy under extenuating circumstances. Such personalization not only threatens to politicize the justice system but could also lead to a slippery slope where the rule of law becomes compromised.
To further explore these evolving interpretations of the presidential pardon power, legal professionals must examine the foundational principles and potential repercussions for future administrations. The detailed analysis by Noah Feldman can be accessed through his commentary.