Over the past several weeks, two U.S. presidents use their executive privileges to pardon thousands of people.
In his final days in office, former President Joe Biden pardoned several members of his family, former CDC Director Anthony Fauci, members of Congress who investigated the Jan. 6 riots at the Capitol and he also commuted sentences for thousands of others. Many of the pardons were preemptive.
On his first day back in the White House, current President Donald Trump pardoned nearly 1,500 people charged with attacking the Capitol on Jan. 6.
Taken together, these pardons represent an extraordinarily sweeping use of that unilateral executive pardon power. And they’ve raised questions in many quarters about the limits of that power, too, and what the high number of pardons may add up to for the rule of law more broadly.
For more analysis, the Texas Standard was joined by University of Texas at Austin law professor Tara Grove. Listen to the interview above or read the transcript below.
This transcript has been edited lightly for clarity:
Here’s the revised text with the timestamps removed and the speaker names changed:
Texas Standard: Where does this pardon power come from and what’s the theoretical or public policy justification for it in the first place?
Tara Grove: So it comes from Article II of the United States Constitution, which itself governs presidential power. And it says the president “shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.”
Okay. That sounds pretty wide and broad. Are there any limits there?
It is very broad. So the limits really are in the text of the United States Constitution.
First, the president can only pardon people for federal crimes. So if a state brings a criminal prosecution against something or someone, the president of the United States can’t do anything about that.
The second limitation is that the president can’t do anything when someone has been impeached and removed by Congress through the impeachment process.
You know, I think, though, something that a lot of people were scratching their heads over was this idea that you can pardon someone even if they haven’t been charged with a crime. And that was something that came most notably there in the last few weeks and days of the Biden administration.
How’s that possible? How’s that covered?
So I think a lot of people might remember that President Ford did this in the case of Richard Nixon.
So there was a lot of controversy around Richard Nixon. But at the time of the pardon, Richard Nixon had not been charged with a crime. So President Ford was basically saying, “look, the country needs to get past Watergate. It needs to get past all the controversy” and just issued what was effectively a preemptive pardon.
President Biden has done the same thing. One can certainly question whether it’s a good idea to issue a preemptive pardon. But that’s really the thing about the pardon power. It is extremely broad.
And what has limited the pardon power over the years is not so much law, but rather norms and also political pressure. It’s sometimes politically dicey for a president to issue a pardon. But that doesn’t mean it’s illegal.
And I guess that’s why we see presidents do this typically at the end of their term.
Well, and especially at the end of the term, where the president has no intention or can’t run again in return.
And yet, as we’ve mentioned earlier, President Trump got into office and almost immediately pardoned people charged with attacking the Capitol on Jan. 6. How typical is that? And is there precedent for that sort of action?
My sense is that a lot of pardons right at the beginning of an administration is not something most presidents do. I think it’s more common for them to come at the end.
President Trump also didn’t pardon that many people during his first term in office. But this is something that President Trump announced and ran on, and that in and of itself is unusual – for a president during a presidential campaign to say, “I am going to pardon people.”
So in this case, this unusual case, this was something that was part of a campaign and a campaign promise.
Is it your sense that we’re entering a new era when it comes to the use of the presidential pardon?
I think we can’t know for sure.
I think because the Biden administration viewed the incoming administration as particularly dangerous, the Biden administration used the pardon power in ways that seem pretty aggressive. And I think we will not know until the future tells us whether other presidents exercise presidential power in really extraordinary ways.
