Trump, Biden and the politics of presidential pardons

The presidential pardon is one of the most sweeping powers granted to the President of the United States under the country's Constitution. Rooted in history that stretches back to Ancient Greece, Rome, and the English monarchy, this authority was envisioned by America’s founding fathers as a mechanism to serve public welfare and dispense mercy.

Alexander Hamilton, a staunch advocate for clemency, saw it as essential for the government’s ability to heal from crises and ensure justice. Yet in modern times, the use of presidential pardons has increasingly become a reflection of personal and political agendas, exposing glaring flaws in the justice system of a country which prides itself as the oldest democracy in the world.

At its core, the presidential pardon grants the President the ability to forgive individuals under investigation, charged, or convicted of federal crimes. This near-absolute authority is notably insulated from oversight -- neither Congress nor the judiciary can review or overturn it.

However, this lack of restraint has allowed power to be wielded in ways that invite criticism and erode public trust.

The presidencies of Donald Trump and Joe Biden, despite their ideological differences, highlight a troubling commonality: both leaders have used the pardon power in ways that appear self-serving and politically motivated.

Biden, in the final weeks of his term, issued a series of pre-emptive pardons and commutations. Among the recipients were prominent figures like Anthony Fauci and General Mark Milley, purportedly to shield them from politically motivated prosecutions under the incoming Trump administration.

Additionally, Biden’s pardon of his family members, including his son Hunter Biden, sparked accusations of nepotism and a misuse of executive clemency.

Trump’s use of the pardon power is turning out to be equally controversial. Upon reclaiming office, Trump granted nearly 1,600 pardons and commutations. These included clemency for individuals convicted for their roles in the January 6 Capitol riots -- an act framed as a step toward “national reconciliation”.

Trump’s earlier pardons also included political allies and family connections, such as his daughter’s father-in-law Charles Kushner.

These actions reveal systemic issues within the clemency process itself. The current system is slow, overly bureaucratic, and vulnerable to manipulation. Petitions for pardons and commutations must pass through the Department of Justice (DOJ) via the Office of the Pardon Attorney.

Recommendations made by the Pardon Attorney can often stall at the level of the Deputy Attorney General, DOJ, who, as the head of the federal prosecutors, can potentially be inherently biased toward upholding federal prosecutions.

The process is heavily influenced by prosecutorial biases, leaving deserving candidates -- such as non-violent offenders or those demonstrating genuine rehabilitation -- waiting indefinitely for relief. Instead, clemency is disproportionately granted to those with personal or political ties to those in power, perpetuating the perception of an unfair and inequitable system.

This misuse of power has far-reaching consequences. When clemency is wielded for political gain or personal favouritism, it erodes public trust in the justice system and reinforces the perception that the law serves the powerful rather than the people.

Trump’s pardons of Capitol rioters, for instance, can be interpreted as a signal to future offenders that political loyalty could shield them from accountability. Meanwhile, the lack of transparency and consistency in the clemency process undermines its original purpose as a tool for mercy and rehabilitation.

Historically, presidential pardons have been used to heal and unify. Gerald Ford’s pardon of Richard Nixon, though controversial, was intended to move the nation past a constitutional crisis -- the Watergate scandal.

But for the power of clemency to fulfil its potential as a means of justice and reconciliation, systemic reform is the need of the hour.

In its current form, the presidential pardon is a double-edged sword -- a powerful tool for justice that, when misused, becomes a vehicle for inequity and division. The actions of both Biden and Trump underscore the urgent need for reform.

Without it, this extraordinary power will continue to tarnish the US’s commitment to justice and equality. To preserve the integrity of clemency and align it with America’s democratic ideals, change is not only necessary but long overdue.