A preemptive pardon is a presidential pardon issued before a formal indictment or conviction. The period following the end of one presidential term and the hypothetical start of another often raises questions about the use of presidential pardon power, specifically preemptive pardons. Let’s delve into what a preemptive pardon is, its historical context, and the controversies surrounding its use.
Understanding Preemptive Pardons
According to Karen Hult, a political expert at Virginia Tech, preemptive pardons are “constitutional, given the broad and quite vague language of Article 2 of the U.S. Constitution.” However, she notes that they are also rare. The key element of a preemptive pardon is that it absolves an individual of federal crimes before any charges have been formally filed or a conviction secured. This distinguishes it from a regular pardon, which typically occurs after a conviction. The ‘effectiveness’ of such a pardon is subjective and depends on the objective being pursued.
The Implications of a Preemptive Pardon
It’s important to understand the limitations of a preemptive pardon. While it prevents federal prosecution for specific alleged offenses, it does not shield individuals from public or private criticism, threats, state-level investigations, or civil lawsuits. The pardoned individual might still face legal challenges or reputational damage, even with the preemptive pardon in place.
Historical Precedents: Ford, Bush, and Beyond
Examining historical precedents helps to contextualize the use of preemptive pardons. One of the most prominent examples is President Gerald Ford’s pardon of Richard Nixon after the Watergate scandal. This pardon, issued before Nixon faced any criminal charges, aimed to heal the nation but was highly controversial. Another example is President George H.W. Bush’s Christmas Eve 1992 pardon of Defense Secretary Caspar Weinberger, who was awaiting trial for federal crimes linked to the Iran-Contra affair.
The pardon of Hunter Biden, though not strictly preemptive, is a more recent example that sparks debate and scrutiny due to its controversial nature and the timing of its issuance.
Controversies and Concerns
Preemptive pardons often spark controversy. For example, a hypothetical preemptive pardon of those involved in prosecuting a former president or participating in congressional hearings would raise significant concerns. Hult highlights the following issues:
- Exacerbating Polarization: Such pardons can worsen relations in an already polarized political environment.
- Escalating Attacks: They may contribute to the ongoing conflict between elected officials and senior appointees of the two major parties.
- Tarnishing Legacies: Issuing preemptive pardons could negatively impact a president’s reputation and accomplishments.
Acceptance and Connotations of Guilt
It is crucial to note that pardons must be accepted by the recipient. Accepting a pardon often implies guilt, even if the individual maintains their innocence. This creates a dilemma for those offered a preemptive pardon, as they must weigh the potential benefits of avoiding prosecution against the implication of wrongdoing. As Hult notes, individuals may choose not to accept a pardon, as demonstrated by newly elected Sen. Adam Schiff.
Comparing to Other Pardons: The Case of Jan. 6 Defendants and Vietnam Draft Evaders
The possibility of pardoning individuals involved in the January 6th Capitol riot can be compared to President Jimmy Carter’s pardon of Vietnam War draft evaders. Carter’s pardon, issued on his first full day in office, aimed to promote national reconciliation. However, it also sparked controversy. A key difference between Carter’s action and a hypothetical pardon of Jan. 6 defendants is that Carter’s proclamation specifically excluded deserters, recipients of dishonorable discharges, and those who committed violence during anti-war protests.
Checks and Balances on Presidential Pardon Power
The Constitution grants the president broad pardon power, which is largely unchecked. While federal courts could potentially rule against specific pardons, and Congress could pass resolutions questioning such actions, amending the Constitution seems to be the only formal, though unlikely, response to perceived abuses of this power. This absence of formal checks and balances amplifies the controversies associated with preemptive pardons.
Conclusion
A preemptive pardon is a powerful and controversial tool available to the President of the United States. Its constitutionality is generally accepted, but its use raises ethical and political questions. By examining historical precedents, potential implications, and the lack of formal checks and balances, we can better understand the complexities surrounding preemptive pardons and their impact on the American legal and political landscape.
