Why We Must Reform the Presidential Pardon
By Darrell Lee
America's constitutional framework, a marvel of checks and balances, hinges on the integrity of its institutions and the reasonable exercise of inherent powers. Among these powers, the presidential pardon, enshrined in Article II, Section 2 of the Constitution, is an instrument of mercy and justice. However, recent trends in its application, particularly preemptive pardons and the politicization of the Department of Justice (DOJ) and the Federal Bureau of Investigation (FBI) cast a shadow over the future of accountability and the rule of law. These contemporary uses threaten to establish a dangerous precedent, suggesting that future presidents, their allies, and even family members might operate above the law with impunity. To safeguard the foundational principles of American democracy, a critical re-evaluation and amendment of the pardon power are urgently necessary, limiting its application to individuals already convicted of a crime.
Historically viewed as an "act of grace," the presidential pardon offers a president the power to "grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment." The Supreme Court, in the landmark Ex Parte Garland (1866), broadly interpreted this power, asserting it extends to "every offense 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." This expansive interpretation opened the door for preemptive pardons, clemency granted before charges are formally brought or a conviction is secured. While rare, these preemptive acts have always generated debate, highlighting the tension between executive discretion and the public's demand for justice.
Historically, presidents have deployed preemptive pardons with varying degrees of public acceptance, often justified by calls for national unity or the closure of divisive chapters. President Abraham Lincoln, for instance, used preemptive pardons during the Civil War to encourage Confederate soldiers to lay down arms, seeking to hasten an end to the conflict and restore national cohesion. Similarly, President Jimmy Carter, on his first full day in office, issued a blanket pardon to thousands of Vietnam War draft dodgers, aiming to heal the nation's wounds from that era. These acts, though controversial, invoked a broader sense of public welfare, even if they bypassed traditional judicial processes.
The most famous, and perhaps most defining, preemptive pardon in modern American history occurred in 1974 when President Gerald Ford pardoned his predecessor, Richard Nixon, for any crimes Nixon "committed or may have committed" during the Watergate scandal. This unprecedented act, issued before any indictment against Nixon, was Ford's attempt to spare the nation the prolonged agony of prosecuting a former president, arguing it would deepen national divisions. While Ford's intentions were apparently to unify a fractured country, the pardon ignited a firestorm of criticism, with many decrying it as a denial of justice and a dangerous assertion that some individuals are indeed above the law. Yet, even in its controversy, the Ford-Nixon pardon held a unique context: it aimed to close a specific national crisis rather than to shield an ongoing pattern of behavior or to protect loyalists from future accountability.
The landscape of presidential pardons has shifted markedly in recent years, particularly under President Donald Trump and, more recently, President Joe Biden, who adopted a new character that diverges significantly from historical norms. These contemporary pardons, especially preemptive ones, coupled with concerns over political appointments in critical law enforcement agencies, suggest a systemic weakening of accountability mechanisms.
President Donald Trump's use of the pardon power provoked accusations of prioritizing personal loyalty and political expediency over justice. His pardons went to individuals convicted of or facing charges related to his administration or political agenda. For instance, he pardoned Joe Arpaio, a former sheriff convicted of criminal contempt of court for defying a judicial order to stop racially profiling Latinos. He also pardoned various individuals connected to the Russia investigation, like Michael Flynn and Roger Stone, both of whom had faced charges related to obstruction or false statements. Unlike past acts of clemency, these pardons appeared less concerned with mercy or national unity and more with rewarding political allies before they fully faced the consequences of their actions or, in some cases, before sentencing was complete. Perhaps most unique, immediately after taking office a second time, Trump granted clemency to over 1,500 individuals involved in the January 6, 2021, Capitol attack, including those convicted of serious offenses like sedition and obstruction. Critics saw this as a direct endorsement of politically motivated violence and an attack on democratic institutions.
While perceived as a return to traditional governance, President Joe Biden has also made unprecedented use of preemptive pardons with a different focus. In January 2025, just before leaving office, President Biden issued a broad preemptive pardon to five of his family members—James B. Biden, Sara Jones Biden, Valerie Biden Owens, John T. Owens, and Francis W. These pardons covered "any nonviolent offenses against the United States which they may have committed or taken part in the period from January 1, 2014, through the date of this pardon." While specified as "nonviolent," this blanket, open-ended preemptive pardon for family members marked a historical first. Furthermore, Biden also pardoned prominent individuals like Dr. Anthony Fauci and retired Gen. Mark Milley, as well as members and staff of the U.S. House committee that investigated the January 6th attack, even though they had not been convicted of, charged with, or even investigated for any crimes. These actions, particularly the family pardons, set a troubling precedent for the executive branch's reach, suggesting a president can shield their inner circle from future legal scrutiny for past actions, regardless of culpability or due process.
Beyond pardons, the politicization of the Department of Justice and the FBI further amplified concerns about accountability. The executive branch's attempts to stock leadership positions in these critical law enforcement agencies with loyalists, sometimes at the expense of apolitical civil servants, raised alarms about the independence of federal investigations and prosecutions. The saga surrounding former FBI Director James Comey's dismissal, and later Attorney General William Barr's actions in cases involving Michael Flynn and Roger Stone, demonstrated a clear pattern: a presidency actively sought to exert influence over prosecutorial decisions to protect allies or target enemies. Career prosecutors resigned in protest. The precedent of direct presidential interference with law enforcement for political ends remains a significant threat.
The combination of expansive pardon use, particularly preemptive ones, and the erosion of independence in law enforcement creates a dangerous hole in the balance between the executive and judicial branches. When presidents can grant pardons for crimes not yet charged or thoroughly investigated, and when the agencies responsible for investigating those crimes are subject to political pressure, the message is clear: specific individuals will be immune from prosecution. This fosters an environment where the most powerful believe they can operate without consequences, undermining the foundation of "a government of laws, not of men." This precedent is not theoretical; it provides a blueprint for future leaders to shield themselves, their associates, and their families from legal accountability, effectively legalizing lawbreaking for a privileged few.
The framers of the Constitution envisioned the pardon power as a tool for justice and mercy, a safeguard against judicial error, or a means to restore tranquility in exceptional circumstances. They did not intend for it to become a shield against accountability for potential criminal behavior by a president's inner circle, or worse, for the President themselves. The notion that a pardon can act as a "get out of jail free card" for offenses not yet discovered or prosecuted—let alone for future conduct—conflicts with the principle of equal justice under the law. A pardon should not serve to "license future lawbreaking on the president's behalf."
A constitutional amendment to the pardon power is imperative to address this threat to the rule of law. The current interpretation, allowing preemptive pardons, carries an inherent danger of implicitly condoning guilt without due process and enabling an executive to negate the justice system unilaterally. The solution is amending Article II, Section 2, Clause 1 to state that the President's power to "grant Reprieves and Pardons for Offenses against the United States" applies only to convicted individuals.
This proposed change would not eliminate the President's ability to exercise mercy or correct injustices. A president could still pardon a person after conviction if they believe the conviction was unjust, the sentence too harsh, or if new evidence emerges. They could still commute sentences. This amendment would ensure that the full weight of the legal system—investigation, charges, trial, and conviction—has run its course before the executive clemency power can be invoked. It would restore the pardon as a check on the judiciary rather than a preemptive shield against the initiation of justice.
Such an amendment would reinforce fundamental principles. First, it would uphold the separation of powers by preventing the executive branch from unilaterally stopping investigations or prosecutions before a judicial determination of guilt. Second, it would promote transparency and accountability. Without the possibility of a preemptive pardon, any individual accused of a federal crime would face the full scrutiny of the justice system, allowing facts to emerge through legal proceedings. Third, it would reaffirm that no one, not even the highest office holder or their closest associates, stands above the law.
Presidents Trump and Biden's contemporary use of preemptive pardons, distinct in their specifics but similar in their expansive reach, challenges the historical precedent for the limits of executive power. Coupled with the disturbing trend of politicization in the DOJ and FBI, these actions create a troubling environment. The path forward demands a defense of the rule of law through public outcry and concrete constitutional reform. Limiting the presidential pardon power to apply only after a conviction is not a radical notion; it is a necessary restoration of balance, ensuring that the promise of justice and the fear of prosecution applies equally to all Americans, regardless of their proximity to power. Even if pardons of family members, as in the case of Hunter Biden's conviction on gun and tax charges, are dismissed, at least the actions of the individuals are open to public disclosure, and the pardons, once the facts of the case are known, can come with political blowback to the current administration if the pardon is controversial and public outcry is significant.
Darrell Lee is the founder and editor of The Long Views, he has written two science fiction novels exploring themes of technological influence, science and religion, historical patterns, and the future of society. His essays draw on these long-standing interests and apply a similar analytical lens to politics, literature, artistic, societal, and historical events. He splits his time between rural east Texas and Florida’s west coast, where he spends his days performing variable star photometry, dabbling in astrophotography, thinking, napping, scuba diving, fishing, and writing, not necessarily in that order.