President Joe Biden garnered sweeping criticism from both sides of the aisle when he pardoned his son, Hunter Biden, who was criminally convicted this year on tax and gun charges.
After invoking presidential powers to grant clemency to Hunter Biden over the weekend, his father was faulted by many for abusing the authority of his office to dole out favors to family members.
U.S. presidents have granted pardons for centuries. As questions swirl about President Biden’s recent move, here’s a look into how the practice came about.
English common law
Pardons were first recorded in England 1,000 years before the American colonies rebelled. Known as the “prerogative of mercy,” acts of clemency are rooted in English medieval practice, initially appearing during the reign of King Ine of Wessex in the seventh century. The Anglo-Saxon monarch was the first to issue a code of laws, an action that helped form the basis of the Western legal tradition.
Centuries after Ine’s code, the English Parliament gave King Henry VIII absolute pardoning powers in 1535. Parliament scaled back some of those powers in the following years, including the authority to grant a pardon during an impeachment.
The Federalist Papers
The Federalist Papers is a series of 85 essays written by three of the country’s Founding Fathers between October 1787 and May 1788. As the leaders of the United States drafted and debated the Constitution, which was to be the basis of all laws for the new country, Alexander Hamilton, John Jay, and James Madison wrote a group of essays considering and supporting the ratification of the proposed new legal document.
In Federalist No. 74, Alexander Hamilton brought the English tradition of pardons into the spotlight as he considered what powers should be granted to America’s chief executive.
He argued in favor of the practice, saying that the president should be allowed to grant “reprieves and pardons for offenses against the United States, EXCEPT IN CASES OF IMPEACHMENT.”
“Humanity and good policy conspire to dictate, that the benign prerogative of pardoning should be as little as possible fettered or embarrassed,” he said.
Hamilton’s position broke with some of his colleagues, including George Mason, who thought the power of a pardon belonged to Congress.
During a 1787 debate at the Constitutional Convention, Mason worried that granting broad pardoning powers to the president went against the unique form of government the colonists were endeavoring to set up. As opposed to a purely democratic form of government, the Founding Fathers instituted a republican system of rule, which protects individual rights against majority rule.
According to Mason, the president “ought not to have the power of pardoning, because he may frequently pardon crimes which were advised by himself. It may happen, at some future day, that he will establish a monarchy, and destroy the republic.”
Hamilton rejected concerns such as Mason’s in his Federalist writings.
“It is not to be doubted,” he explained, “that a single man of prudence and good sense is better fitted, in delicate conjunctures, to balance the motives which may plead for and against the remission of the punishment, than any numerous body whatever.”
The Constitution
Hamilton’s view won out in 1788 when the U.S. Constitution was ratified by the former colonies as the supreme law of the land. The legal document contained the powers of the pardon, launching a practice in the country that would be practiced by subsequent presidents thousands of times.
The basis for the pardon is found in Article II of the Constitution, which states: “The President … shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of impeachment.”
Just a few years after the Constitution was ratified, the country’s first president, George Washington, first put the pardoning power to use to resolve an insurrection.
Angry over a new tax levied on alcohol, whiskey distillers in 1794 rose up against the federal government in what came to be known as “the Whiskey Rebellion.”
With two of the movement’s leaders facing execution, Washington ultimately decided to instead grant them clemency.
“The misled have abandoned their errors,” Washington explained in a speech that Hamilton helped to draft. “For though I shall always think it a sacred duty to exercise with firmness and energy the constitutional powers with which I am vested, yet it appears to me no less consistent with the public good than it is with my personal feelings to mingle in the operations of Government every degree of moderation and tenderness which the national justice, dignity, and safety may permit.”
The Supreme Court has ruled through cases such as Ex Parte Garland that the pardoning power is particularly expansive.
There are only three conditions to the practice: A crime must be committed for a pardon to be issued, the presidential power is limited to federal crimes, and, similar to the English tradition, the president is not allowed to issue pardons in cases of impeachment.
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Joe Biden’s move to issue a “full and unconditional” pardon for “all offenses” that Hunter Biden “committed or may have committed or taken part from January 1, 2014, through December 1, 2024” had some legal experts questioning whether the executive action broke the first condition.
“Where this is pushing the boundary is this is granting a pardon to unidentified crimes,” Mark Osler, a law professor at the University of St. Thomas and an expert on pardons, told USA Today.