During President Donald Trump’s first term (2017- 2021), hordes of Democrat lawyers took to research and writing law review articles on why Trump could not pardon himself, why pardons of family members and close associates would be invalid, and how Trump could be prosecuted as a co-conspirator for obstructing justice by abusing his pardon power. Since President Trump did not pardon himself, his family members, or staff, the Republicans on the Hill and in the administration should repurpose the Democrats’ excellent research. It is comprehensive research on the eight-hundred-year history of pardons, the constitutional case law on pardons, and the limits of the pardon power. Congress and the administration should read it as they seek to expose the truth behind Biden’s pardons.
More significantly, these articles provide a well-crafted roadmap for the Trump administration and/or Congress to evaluate whether President Biden committed a crime by pardoning Hunter Biden and others who may have been involved in a conspiracy to defraud the federal government by giving false testimony and misusing government resources.
Let’s start with the most common conclusion. In 2020, Bob Bauer, White House Counsel to Obama and Biden’s personal lawyer, wrote:
A pardon or commutation is ‘absolute’ for the beneficiary of the crime pardoned. But a pardon does not afford the president, as the grantor, immunity from the commission of a crime in connection with granting the pardon.
While Bauer believes his target is Trump, his conclusions expose Biden to prosecution should the pardons be part of protecting himself.
Expanding on Bauer’s narrow focus on abuses of the pardon power is a sixty-page, well-cited 2021 University of Chicago law review, Limiting the Pardon Power, by professor Albert W. Alschuler. The professor outlines several ways to prosecute President Trump if he misused his pardon power. The focus of Alschuler, like Bauer, was to ensure Trump was indicted for abuse of the pardon power. They assumed Trump would issue a self-pardon or participate in a conspiracy to obstruct justice. Under the law of unintended consequences, the Democrat’s theory applies to Biden’s use of the pardon power.
Alschuler notes:
The pardon power [1] does not authorize a president to violate criminal statutes that are broadly enforced and apply to public officials in the same way they apply to everyone else. [2] Pardons granted to individuals that fail to specify the convictions they forgive are invalid. [3] Pardons are also invalid when they have been obtained by trickery, bribery, or other fraudulent conduct.
All three concerns are relevant to the facts underlying activities of Hunter Biden’s pardon and the pardons issued to the January 6th Committee and administration officials.
Under Professor Alschuler’s theory, the pardons could be deemed invalid since President Biden did not specify the crimes committed. Moreover, the allegations against Hunter Biden, specifically the improper payments from Burisma and the implication of sharing them with Joe Biden, raise the question: was the pardon of Hunter and the other government officials granted as part of a conspiracy?
Professor Alschuler’s law review introduces a novel and intriguing theory that liability could be attached to a president who violates the ‘Take Care’ clause by granting an improper pardon. He argues that the “Take Care” clause imposes a fiduciary duty on the president, requiring him to act impartially in the public’s best interests and refrain from self-dealing and corruption. He cites other pardon scholars, i.e., Lieb and Shugerman, who conclude that “the president may not pardon himself or pardon his closest associates for self-interested reasons;” and that such pardons are “invalid.”
Professor Andrew Kent of Fordham Law School agrees: “A pardon of a third party motivated principally by the president’s desire to protect himself would seem to violate the faithful execution principles.” He reasons that other enumerated and implicit constitutional principles constrain all provisions of the Constitution.
Professor Alschuler provides additional reasoning to Professor Kent’s conclusion. He persuasively writes that the president’s pardon power does not exempt him from broadly enforcing criminal laws. He uses the example that since the pardon power does not exempt a president from murder; it does not authorize him to induce a witness to lie or stonewall authorities. Moreover, pardon power does not authorize the president to commit crimes and protect himself.
The most persuasive argument is that a president cannot pardon members of a conspiracy he is a member of. Sam Berger, former senior policy advisor at the White House and senior advisor to the Center for American Progress, asserts that a pardon can only “apply to actions that occurred before it is issued, but in the case, any obstructive pardon would be a continuation of a conspiracy so that the crime would be ongoing. Put another way: you cannot pardon a crime when the pardon itself continues the crime.” To allow “pardons of ongoing or future crimes would mean the president could suspend any and all laws for any person or group of persons, making a mockery of our legal system.” Since a conspiracy is an ongoing crime, the pardon cannot eliminate the continuation of the crime. Such a pardon is invalid.
Acceptance of a pardon is an admission of guilt. Biden’s spin on his preemptive pardons for General Milley, “Mr. I am science Fauci,” members of Congress, the staff on the January 6th Committee, and certain witnesses before the Committee was that the pardons were issued because of threats of unjustified and politically motivated prosecutions by the incoming Trump administration. Biden stated:
The issuance of these pardons should not be mistaken as an acknowledgment that any individual engaged in any wrongdoing, nor should acceptance be misconstrued as an admission of guilt for any offense.”
Fauci and Milley accepted the pardons, stating that they had committed no crime and were only accepting them to avoid immeasurable and intolerable distress for themselves and their families.
Biden’s statement justifying the pardons is pure imagination. While no U.S. Supreme Court case is precisely on point, the courts that have addressed the limits of the pardon power view the acceptance of a pardon as an acknowledgment of guilt.
The U.S. Supreme Court, in Burdick v. U.S. (1915), addressed the status of a pardon by a person who refused to accept it so that he could assert his constitutional right against self-incrimination. The court noted that had the pardon been accepted, it would have absolved the petitioner of the consequences of every such criminal act. However a pardon is an “imputation of guilt and acceptance of a confession of it.”
More recently, the liberal DC Circuit held that a pardon does not blot out guilt. In another case, the court sitting en banc held that while a pardon sets aside the petitioner’s convictions and their legal consequences, it does not require the court to close its eyes to the offense. Instead, the pardoned offense could be used in disciplinary proceedings to assess the petitioner’s moral character.
There is a long way to go before the results of the Biden pardons are known. The pardons issued by Biden are unique in American history because they are preemptive and apply to family members and a significant number of government officials not yet charged with crimes.
There are two parts to the Biden pardon story that need further investigation. Part one is whether there is a conspiracy between Joe Biden and his son. Since Hunter Biden can no longer plead the Fifth, he must testify since he is no longer at risk of being charged with a crime other than perjury should he lie. If he refuses to testify, he can be charged with obstruction of justice. Part two is whether those pardoned can claim to the world they are innocent.
Congress and the administration should forget about prosecutions, which will take more time than they have. Since none of those pardoned will be jailed, there is no reason to allow history to write Biden and Trump tried to jail their political opponents. Let Joe Biden be the sole president with that stigma printed in the history books.
Congress and the administration need to make a comprehensive factual record of Biden’s pardons. History will then be able to provide the truth about the actions of Joe and Hunter, the January 6th committee, and the Biden family. History can administer justice much quicker, and such justice will be far more punishment than any jail cell can inflict.
William L. Kovacs, author of Devolution of Power: Rolling Back the Federal State to Preserve the Republic. It received five stars from Readers’ Favorite. His previous book, Reform the Kakistocracy, received the 2021 Independent Press Award for Political/Social Change. He served as senior vice president for the U.S. Chamber of Commerce and chief counsel to a congressional committee. He can be contacted at wlk@ReformTheKakistocracy.com
