Why in news?

U.S. President Joe Biden has issued a full and unconditional pardon to his son, Hunter Biden, for cases involving tax evasion and lying about drug use while purchasing a firearm.

Reports suggest Biden is also considering pre-emptive pardons for allies, including Vice President Kamala Harris, former Chief Medical Officer Anthony Fauci, and Republican Congresswoman Liz Cheney, to protect them from potential prosecution under President-elect Donald Trump.

What’s in today’s article?

• The US President’s power to pardon
• The limits of the US President’s power to pardon
• Pre-emptive pardons
• The power to pardon in India

The US President’s power to pardon

• About
  • The President of the US has the constitutional right to pardon or commute sentences related to federal crimes.
  • The US Supreme Court has held that this power is “granted without limit” and cannot be restricted by Congress.
    • Clemency is a broad executive power, and is discretionary.
    • The President is not answerable for his pardons, and does not have to provide a reason for issuing one. 
• Constitutional provision
• Article 2, Section II, Clause 1 of the U.S. Constitution grants the President the power to issue pardons for federal offenses, except in cases of impeachment.
• A pardon nullifies punishment but does not overturn convictions.
• Historical Roots of the Pardon Power
  • The concept of pardon originates from English legal traditions, tracing back to King Ine of Wessex in the 7th century, who exercised the “prerogative of mercy.”
  • This authority was later delegated to colonial authorities in America before influencing the framers of the U.S. Constitution.
• Inclusion in the U.S. Constitution
  • In 1787, Alexander Hamilton proposed the Presidential pardon power at the Constitutional Convention.
  • A debate followed about Senate involvement, but the power was ultimately vested solely in the President as part of the Executive branch, separate from legislative and judicial functions.
• Role of the Office of the Pardon Attorney
  • The Department of Justice’s Office of the Pardon Attorney processes pardon petitions, conducting initial reviews and FBI background checks.
  • The office makes non-binding recommendations to the President, who has the final authority.
• Application Process for Pardons
  • While the President can pardon federal crimes at any time, the DoJ requires individuals to apply only after a five-year period following release from confinement, demonstrating a law-abiding life during this time.

The limits of the US President’s power to pardon

• Express Limitations on Presidential Pardons
  • Federal Offenses Only: The President can pardon crimes under federal law but not offenses under state laws.
  • No Pardons in Impeachment Cases: The President’s authority does not extend to impeachment cases.
• Implied Limitation on Pardons
  • A crime must first be committed for the President to issue a pardon.
  • As ruled in Ex Parte Garland (1866), a pardon can be granted at any stage: before legal proceedings, during them, or after conviction and judgment.
• Impact and Interpretation of Pardons
  • No Erasure of Record: A pardon does not remove the conviction; both the conviction and pardon remain on the individual’s criminal record.
  • No Declaration of Innocence: A pardon does not imply innocence, nor is it definitively considered an admission of guilt.

Pre-emptive pardons

• Can the President pardon someone to protect them ‘pre-emptively’ from future criminal prosecution?
  • The President cannot preemptively pardon future criminal acts, as clarified by the Ex Parte Garland ruling and the Constitution Annotated.
• Preemptive Pardons for Past Crimes
  • While not applicable to future offenses, the President can pardon individuals for crimes already committed, even before charges are filed or sentences imposed.
• Historical examples include:
  • Gerald Ford pardoning Richard Nixon: A broad pardon for any offenses Nixon "has committed or may have committed."
  • Abraham Lincoln: Pardoned Confederate deserters during the Civil War to encourage defections.
  • Jimmy Carter: Pardoned Vietnam War draft evaders who had not been charged.

The power to pardon in India

• Presidential Pardon Powers under Article 72 of Indian Constitution
  • The President of India is empowered to grant pardons, reprieves, respites, or remissions of punishment and to suspend, remit, or commute sentences in the following cases:
    • Court Martial: Sentences imposed by military courts.
    • Union Law Offenses: Punishments for offenses under laws where the Union has executive authority.
    • Death Sentences: Cases involving the death penalty.
• Judicial Interpretation of Article 72
  • Acting on Advice: In Maru Ram v. Union of India (1980), the Supreme Court ruled that the President must act on the advice of the Central Government when granting pardons.
    • Although the President is bound by the Cabinet’s advice, Article 74(1) empowers him to return it for reconsideration once.
    • If the Council of Ministers decides against any change, the President has no option but to accept it. 
  • Judicial Review: Challenges to the use of Article 72 are limited to rare cases where the decision is deemed “wholly irrelevant, irrational, discriminatory, or mala fide.”