On Jan. 20, 2025, both previous President Biden and President Trump issued pardons according to Article 2, Part 2 of the United States Constitution. While President Biden pardoned five members of his family, Anthony Fauci, Mark Milley, and the members and employees of the House unique committee that investigated the Jan. 6, 2021, Capitol show, President Trump issued clemency to all people “convicted of acts related to events that occurred at or near the United States Capitol on January 6, 2021. ”
President Biden evidently ignored the warning of Alexander Hamilton, who instructed us in Federalist 74 “that the mild authority for accepting should be as much as possible constricted or uncomfortable. ” In four decades, Biden used his Article 2, Part 2 power more than 8,064 periods. That is more clemency and clemencies issued than the last 10 leaders, who served over 57 times.
James Wilson, the most famous speech during the conversation over the United States Constitution with more than 172 speeches and after an associate justice of the Supreme Court, called the national forgive energy “extraordinary. ” In his 1791 Lectures on Law, he taught us that this incredible power was to be used “after they have been apprehended, tried, convicted, and condemned. ” Let us be distinct, Biden’s home, Fauci, Milley, and the members of the House J6 Committee have never been apprehended, tried, or convicted, let alone condemned. They were not ready for a political forgive.
Article 2, Part 2 of the Constitution plainly states that the president has the power to forgive “for Crimes against the United States. ” But, Biden understands that these people he has pardoned have never committed an offense against the United States because his pardon speech says, “The release of these pardons should not be mistaken as an affirmation that any individual engaged in any wrong, nor should embrace be misconstrued as an admission of guilt for any offence. ” How can former President Biden pardon someone for an offense against the United States when his pardoning message says that they are not guilty of any offense?
While our Founding Fathers would have said the president could not pardon someone who has not been convicted, the Supreme Court has indicated that a president might have the power to preemptively pardon an individual. However, for someone to avail himself of this Supreme Court precedent that is not fully developed and is over 100 years old, the individual must first confess to an offense against the United States. If an individual does not confess to an offense against the United States, the court in Burdick v. U. S. made clear the pardon is not valid.
Should President Trump’s DOJ decide to investigate the Biden family, Fauci, Milley, or the members of the Jan. 6 Committee, these individuals could be prosecuted until they publicly confessed to an offense against the United States. However, even if they did that, Trump’s DOJ could still pursue the matter, arguing that Article 2, Section 2 did not give President Biden the right to preemptively pardon anyone. That issue would eventually be heard in the Supreme Court. Only then would the nation have a definitive answer as to whether a president has the power to preemptively pardon someone who has never been convicted and who has not confessed to an offense against the United States.
According to Alexander Hamilton, the purpose of the pardon power is to help heal the nation after a time of turmoil. In Federalist 74, Hamilton wrote, “ In seasons of insurrection or rebellion, there are often critical moments, when a well timed offer of pardon to the insurgents or rebels may restore the tranquility of the commonwealth. ” George Washington understood this principle when, in 1795, he issued amnesty to those engaged in Pennsylvania’s Whiskey Rebellion.
President Trump is simply following the advice of Alexander Hamilton and the example of George Washington. Democrats in Washington, D. C. , have called the events that transpired on Jan. 6, 2021, an insurrection. President Trump is using the intended purpose of his pardoning power to restore the tranquility of the nation after years of public political prosecutions.
Mark Meuser is a Constitution and election law attorney with the Dhillon Law Group. Follow him on Twitter @MarkMeuser.
