Conservatives, and even some Left-leaning constitutional scholars, were outraged by the last minute “preemptive” pardons former President Biden issued to his family, the House January 6 Committee, and his lawfare allies.
Among those pardoned on Biden’s way out the door were General Mark Milley, Anthony Fauci, Members of Congress and staff of the January 6 Committee, Capitol and D.C. police who testified before the January 6 Committee and members of Biden’s extended family: his brother James and wife Sarah, his younger sister Valerie Biden Owens and husband John T. Owens, and his brother Francis Biden.
And it seems that the media establishment is happy to ignore this final Biden outrage and move on, but conservatives in Congress and the Trump administration should not let that assault on the Constitution go without taking the question of whether these preemptive pardons are valid all the way to the Supreme Court.
After all the Biden Department of Justice pointedly issued a memo in December of 2024 stating that for those individuals who were indicted for their activities on January 6, 2021, and expected a pardon from incoming President Donald Trump, for the pardon to take effect "The defendant would first have to accept the pardon, which necessitates a confession of guilt."
Indeed, several individuals who were pardoned in Biden’s unrelated mass pardons of child pornographers, rapists, murderers and drug dealers refused the offered pardon arguing that the “confession of guilt” requirement would taint their appeals and undermine their claims of innocence.
The two death row inmates argued that they never asked for a pardon and refused to sign the paperwork to accept the president's clemency action due to the legal avenues they are afforded on death row, according to court documents cited by FOX News.
Beyond the apparent necessity of accepting the pardon and confession of guilt requirement there is the question of whether a President can pardon, or in effect immunize, an individual if they haven’t been charged with a crime.
Supporters of the preemptive pardons cite the examples of President Gerald R. Ford’s pardon of former President Richard Nixon and President Jimmy Carter’s pardons of Vietnam-era draft dodgers as precedent for the Biden pardons of his family and lawfare allies, but those examples are not even close to precedent for Biden’s attempts to immunize his allies.
While there are many differences between those examples and Biden’s actions, the most important point is that neither of them went to the Supreme Court for a ruling that may be cited as precedent in this case.
After the Nixon pardon President Ford’s Department of Justice certainly wasn’t going to pursue any of the charges that might have been leveled against Mr. Nixon had Congress impeached him.
Likewise, Jimmy Carter’s federal prosecutors were not going to chase down and indict the draft dodgers their Boss had just pardoned.
So, those two examples remain political precedents, not legal precedents.
The Supreme Court’s stance on pardon power has historically been deferential, emphasizing its broad scope. In Ex parte Garland (1866), the Court held that the pardon power “extends to every offence known to the law, and may be exercised at any time after [its] commission.”
Clearly, Ex parte Garland presupposes the existence of an offense. Preemptive pardons, issued before any formal accusation or adjudication, stretch this rationale to a breaking point. They nullify the legal process, effectively insulating individuals from investigations that could reveal wrongdoing.
Such a precedent is an invitation to the creation of a lawless government.
If a President can just pardon anyone for anything without them admitting to or being convicted of a crime, then imagine a government that can abuse its citizens at will, refuse to indict or prosecute the malefactors, and then pardon them to protect them when the voters turn it out of office and demand accountability.
This is what the Biden pardons have done.
However, it doesn’t have to stand as Biden seemed to think it would when he issued the pardons.
The Trump administration can and should investigate each of the pardoned individuals and if the facts warrant it, they should be indicted and prosecuted for their crimes. At that point those pardoned individuals may assert their pardon as a defense and allocute that they accepted the pardon in good faith and confess to the crime or crimes for which they were pardoned.
Absent such an acceptance and confession, the trial should go forward to determine the guilt or innocence of the individual claiming they did nothing wrong and that they don’t need a pardon.
Congress may also have a role in testing the constitutionality of Biden’s preemptive pardons.
The House in particular has amassed a large volume of investigatory material bearing on the potential criminality of many of the pardoned individuals. The House can and should subpoena those individuals and question them about their conduct.
If they have accepted the pardon and confessed and are immune to prosecution they must answer all questions, even those that may incriminate them for the offenses for which they were pardoned. Failure to answer or failure to answer truthfully would put them in jeopardy of contempt of Congress and other potential charges.
Finally, there is the matter of those individuals who were not pardoned, but whose conduct may have been criminal and is related to the actions of those who were pardoned. Democrat activist attorneys Mary McCord, Mark Elias and Norman Eisen, former White House staffer Alexander Vindman and various underlings of General Milley and Anthony Fauci come immediately to mind as potential targets for such an investigation.
The Capitol Switchboard is (202-224-3121), we urge CHQ readers and friends to call their Senators and Representative to demand they continue the investigations of the Biden crime syndicate and lawfare conspiracy against Donald Trump. We also urge CHQ readers and friends to call the White House at (202-456-1111) to encourage the Trump administration to investigate, as appropriate, wrongdoing by those pardoned and their associates who may not have been pardoned.
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