January 22, 2025
Is a so-called Executive "preemptive pardon" consistent with the intent and language of the Constitution? All the Constitution says is that:
"...he (the President) shall have the power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment." {Article 2, Section 2} In the first important case to deal with these issues (Ex Parte Garland 71 U.S. 333, 1866) the Supreme Court (in the context of someone pardoned but still excluded from the practice of law) said the following:
"The power of pardon conferred by the Constitution upon the President 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. The power is not subject to legislative control."
And it is THIS interpretation that was (still) used, for instance, in the "preemptive" pardoning of Richard Nixon who, although disgraced, had not been charged with any crime or offense against the Government. Ditto for the Biden preemptive pardons.
My comments:
a. The original language in the Constitution never explicitly mentions any "preemptive" pardoning power. Moreover, the use of the term "offenses" implies that something legal (some process; some finding; some determination) has ALREADY begun or occured and that the presidential pardon applies to that offense or set of offenses.
b. The language from the 1866 case cited above (and the legal foundation for the notion that a preemptive pardon is Constitutional) clearly broadened the pardoning power beyond what the Founders wrote or reasonably intended. After all, an "offense" PRIOR to some legal proceeding is NOT an offense in any legal sense but only an "alleged offense." Nowhere, however, does the pardoning power in the Constitution even hint that the President could pardon someone for some ALLEGED offense against the Government or that THAT power could somehow be "unlimited" and beyond legislative review. It appears that the SC majority in 1866 pulled that far broader interpretation of the pardoning power right out of thin air.