Pondering Pardons

1,930 words

Neither David Zsutty nor Counter-Currents are giving legal advice.

Shortly before leaving office, Biden pre-emptively pardoned several members of his family, General Milley, Doctor Fauci, the January 6 Select Committee, and several cops who had testified for the committee, despite the fact that none of them had legal proceedings against them.

I was recently asked about the constitutionality of these pardons. This article will expand upon my response and in doing so also touch upon the related issue of double jeopardy for state versus federal charges.

Are pre-emptive presidential pardons constitutional? The simple answer is that according to the black letter law of the US Constitution, yes. The power to grant pardons is contained in Article 2, Section 2 of the Constitution and includes no qualifiers except for two: 1. they must be for “offences against the United States” which means federal, not state, crimes (more on that later) and 2. cases of impeachment, which is not the issue here.

This interpretation of black letter law is buttressed by legislative history. The US Constitution was a group project and the product of contentious debate. One of the Founders, Luther Marin, advocated against pre-emptive pardons and wanted them to issue only after a conviction. Another Founder, James Wilson, objected on the grounds that pre-emptive pardons might be necessary to obtain testimony from accomplices (the Fifth Amendment right to refuse to testify dissipates if one is no longer at risk of criminal charges) and especially in the case of forgeries.[1] The end result was almost no limits on presidential pardons.

If we define pre-emptive pardons as being wholly pre-emptive, in that the individual is not subject to any legal proceedings, even an investigation, there have been very few. While not technically a pardon, in 1794 George Washington issued what was in essence a pre-emptive pardon by offering amnesty to everyone involved with the Whiskey Rebellion provided they swore an oath of allegiance and paid their taxes. Caselaw, while scarce, has upheld attaching strings and conditions to pardons. See Ex Parte Wells (1856) in which the defendant had to temporarily leave the country; see also Schick v. Reed (1974) clarifying that conditions can be attached to pardons provided they do not violate constitutional rights. Washington latter pardoned two men who were convicted of treason for their part in the Whiskey Rebellion.

A number of amnesties after the Civil War were in effect pre-emptive pardons because legal proceedings had not been initiated yet.

In 1974, Gerald Ford pardoned Richard Nixon after he resigned due to the Watergate scandal. Ford had been Nixon’s Vice President. That same year, Ford issued an amnesty for Vietnam War draft dodgers (who had not fled the country) on condition that they work a public service job for two years.[2] This was similar to Washington’s amnesty for the Whiskey Rebellion, which in its objective function was a pre-emptive pardon even if it was labelled as an amnesty.

In 1977, Jimmy Carter pardoned draft dodgers, but not deserters, from the Vietnam War.

The problem here is that none of these historical incidents were litigated in court. History can be informative, but it isn’t caselaw. There are few cases on presidential pardons at all, let alone pre-emptive pardons. In Ex-Parte Garland (1866), the US Supreme Court emphasized that the presidential power to issue pardons is “…unlimited except in cases of impeachment. It extends to every offence known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken or during their pendency, or after conviction and judgment.” However, whether presidential pardons could be pre-emptive was not at issue in that case. The issue was whether Congress could limit the legal effects of a pardon, such as by devising an oath that effectively forbade pardoned Confederates from practicing law before the Supreme Court. Rather, to buttress its ruling, the Court was emphasizing just how broad, absolute, and unlimited presidential pardons are.

Thus, the Supreme Court has not directly addressed whether pardons can be pre-emptive. And even the few historical examples of truly pre-emptive pardons have been scarce and, until now, had a common theme of national unity and healing running through them. Legal mechanisms are like rights and muscles: use them or lose them. Or at least, lose certainty about what exactly they entail.

This speaks to a foundational aspect of constitutional law: we are making it up as we go along. In fact, that’s exactly what the Founders intended. We have to use the Constitution to find out how it operates. The Founders, in their wisdom, knew they could not anticipate every contingency.

And even if there were ample case law, that does not mean that it could not be overturned. The current Supreme Court has demonstrated an unusual willingness to overturn established case law by overturning Roe v. Wade. The doctrine of stare decisis, which holds that precedent should be followed, is like the pirates’ code: at least for the Supreme Court, previous cases are more like guidelines than rules.

Thus, if Trump’s DOJ is so inclined, it could bring a case before the Supreme Court. We can’t really answer how iron-clad the pre-emptive nature of presidential pardons are, or for that matter any question in constitutional law, until we ask the sitting Supreme Court. Every rule and exception has its first seminal case.

Trump may have strategic reasons not to pursue a Supreme Court case clarifying the issue of pre-emptive presidential pardons. Remember, one of the reasons why the Founders designed presidential pardons to be so vast was to obtain testimony. Provided that these individuals accept Biden’s pardon, they will incidentally trade away their Fifth Amendment right not to testify. While Liz Cheney and Adam Schiff expressed concerns that their pardons set a bad precedent and made them look guilty, they still accepted them.

Thus, it is now possible to subpoena these individuals. We can grill the January 6 Committee before our own January 6 Committee, extract embarrassing testimony from Milley about the absolute state of a woke military, and force Fauci to confess his crimes. And while they might be immune from prosecution, a vast number of other people were involved in their misdeeds, especially for the stolen election and Covid. These co-conspirators are still quite vulnerable to federal charges.

Another solution is to pressure the states to file charges. Under federalism, the states and federal government are separate sovereigns. But there are problems with this.

First, the system of federalism has broken down. We are no longer in 1789. Before, there was a clearer divide between what was a state matter and a federal matter, but now there is significant overlap. This is because federal power has expanded and both state and federal laws have cancerously multiplied to such an extent that one can say “Show me the man, and I’ll show you the crime” as Beria did in the Soviet Union.

Therefore, for one set of facts, one can easily be vulnerable to a slew of both state and federal charges. For example, it is rumored, probably correctly, that Biden instructed his DOJ to immediately charge and arrest Derek Chauvin if he had been acquitted in state court of martyring Saint Fentanyl Floyd. This is usually not what happens. Judicial efficiency is a strong incentive as most prosecutors do not want to further clutter their already overburdened calendars. This is usually reinforced by a sense of justice.

But efficiency and justice fall by the wayside when we pass from neutral policy into Carl Schmittian politics defined by the friend-enemy distinction.

This farce is perfectly fine under the black letter interpretation of the Fifth Amendment’s protection against double jeopardy. You can’t be charged for the same crime twice, but only by the same sovereign. That many crimes (and most of life in general) is now subject to two sovereigns is irrelevant. Yet most would agree that this is an absurd situation, the absurdity of which has only been mitigated by an understanding between state and federal prosecutors that they would deconflict. But that understanding falls apart with the friend-enemy distinction.

The Founders did not intend for federalism to give prosecutors two bites at the apple. Thus, if the phenomenon of double prosecution continues, it’s possible that the Supreme Court would devise a rule limiting it. Outright abolishing double prosecution may be unwise or at least unlikely, but the Court could devise a test limiting extreme cases, just as they have laid down tests for many other issues. Novelty isn’t all that novel in constitutional law.

This cuts both ways. For example, it could be argued that the states pursuing charges against Biden’s pardonees is similar to how Congress attempted to negate the legal effects of the presidential pardon in Ex-Parte Garland for a pardoned Confederate attorney. Likewise, the talk of states pursuing charges against the J6 hostages is just a flimsy attempt to negate the legal effects of Trump’s pardon. Such charges would be even more far-fetched, however, than say murder, manslaughter, fraud, or countless other state charges against Fauci regarding Covid.

Some of the state charges being pondered against the J6 hostages seem to be based upon evidence collected during federal raids, such as gun charges. Its ambiguous as to whether such evidence should be excluded under the “fruit of the poisonous tree” doctrine. Black letter law would suggest no. But another problem with federalism is that the states have different laws, some with more robust protections than others. The states are prohibited from giving their citizens fewer rights under the national Constitution, but not more. This could be remedied by Trump’s DOJ exonerating, rather than just pardoning, the J6 hostages and declaring that the searches and seizures for J6 were illegal as they were part of a conspiracy against rights and to steal the 2020 election.

Additionally, the issue of how “fruit of the poisonous tree” interacts with double jeopardy and pardons could be brought before the Supreme Court. Judicial activism shouldn’t be a dirty word for conservatives, especially when a living Constitution better effectuates the intent of the Founders than mindlessly worshipping dead black letter law. But litigation costs time, money, and stress. Exoneration and or political bargaining would be a more efficient solution, and in line with how the Founders intended for “ambition to check ambition.” The Supreme Court also prefers it when issues with political overtones are resolved outside of the courtroom.

In conclusion, the objective answer is that under current law, Biden’s pre-emptive pardons are legally sound. But that does not limit the states from bringing their own charges if they can find a crime. General Milley is safe unless he has been carjacking in his off-duty time, Dr. Fauci not at all, Biden’s family is safe unless they have been running afoul of state laws by being totally degenerate, and for the J6 committee and Capitol police, its complicated, but they’re probably safe, except for the cops who attacked protestors.

The political answer is that we don’t know if Biden’s pre-emptive pardons are legally sound because caselaw is scarce and can always change. But it would be better to let sleeping dogs lie and instead ruthlessly exploit subpoena power to embarrass the previous regime and to produce evidence to aggressively prosecute hundreds of co-conspirators. It would be useful to hold the state charges against the Biden pardonees in abeyance as a bargaining chip to pressure the state of Minnesota to pardon Derek Chauvin and in case the Left tries to bring state charges against the J6 hostages. If that fails, the issue of double jeopardy should be brought before the Supreme Court for judicial review.

Notes

[1] https://verdict.justia.com/2025/01/20/bidens-preemptive-pardons-are-an-unprecedented-vote-of-no-confidence-in-the-new-administration

[2] https://www.politico.com/story/2018/09/16/ford-amnesty-vietnam-deserters-815747