By Douglas V. Gibbs
The sweeping pardons issued by President Joseph Biden were unconstitutional, meaning individuals like Tony Fauci may not be protected from prosecution as they believe. To understand why, we must dissect the language of the Constitution itself.
Article II, Section 2 of the Constitution states that the President “…shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” The key phrase here is “Offenses against the United States,” which specifically refers to federal criminal offenses. For a pardon to be constitutional, there must be a specific federal offense that has been committed. The Constitution does not grant the President authority to pardon individuals preemptively for potential future actions or past actions that are not clearly defined as federal crimes.
The historical record reveals that the Framers intended this power to be narrow, not unlimited. In Federalist #74, Alexander Hamilton called the pardon power a “benign prerogative” necessary to dispense mercy when strict justice would be too severe, and to offer pardons to rebels and insurgents during crises for the sake of peace and unity in the Union. Hamilton acknowledged that this power was meant to be applied to actual offenses, not hypothetical ones.
There is ongoing debate about whether conviction should be a requirement for a federal criminal offense to be eligible for a pardon. Conservative commentator Dinesh D’Souza has suggested that accepting a presidential pardon means admitting guilt, establishing a connection between pardons and convictions. Pardons do not “unring the bell of conviction” – they simply pardon the individual from punishment.
The Founding Fathers debated the pardon power extensively during the Constitutional Convention and ratification period. Alexander Hamilton in Federalist #74, while not explicitly using the word “conviction,” strongly argued that the pardoning power should be “as little as possible fettered or embarrassed.” In essence, Hamilton argued there was a need for pre-conviction pardons.
George Mason warned about unlimited pardons. At the Virginia Ratifying Convention, he stated that while pardons should not be limited to convictions, they should only apply to clear federal criminal actions.
While the Founding Generation generally agreed pardons should not be limited to convictions, the pardon power applies only to federal offenses. President Washington set a precedent when pardoning Whiskey Rebellion participants who had not been indicted or convicted. That said, Washington also pardoned those who had been convicted.
The crucial distinction, however, is that Washington’s pardons were for a specific offense. While in many cases they were issued prior to conviction, they addressed actual violations of a specific federal statute that had already occurred. The Founding Fathers viewed the pardon power as a tool of mercy for actual offenses, not as a shield against general potential liability.
This historical understanding raises serious questions about modern preemptive pardons that appear to cover potential future conduct that might not even rise to the level of a federal offense. From an originalist perspective, such pardons would seem to exceed the constitutional limitation of “offenses against the United States” because no specific offense has yet been committed.
— Political Pistachio Conservative News and Commentary
