Outgoing US President Joe Biden on Sunday pardoned his son, Hunter, for any federal crimes “he committed or may have committed” between January 1, 2014, and December 1, 2024. The 54-year-old was facing legal troubles involving tax violations and firearms-related charges. This has brought renewed attention to the US Constitution’s provision granting the president the authority to offer clemency, a power wielded by every president since George Washington.
What is the Presidential Pardon?
The US Constitution grants the president the power to pardon federal offences. Section 2 of Article II dictates that the president can “grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.” This power applies only to federal crimes, not state ones, and does not cover impeachment cases.
The concept of the pardon power was taken from England, where kings had the authority to grant mercy. While there was debate during the Constitutional Convention about whether Congress should approve pardons or whether treason should be an exception, Alexander Hamilton argued the power should rest solely with the president. In ‘Federalist No. 74’, Mr Hamilton explained that having one person in charge of issuing pardons would avoid the dangers of group decisions, which could lead to inconsistency or leniency. He also saw power as a tool to unite the country, especially in times of rebellion or crisis.
Historical use of the Presidential Pardon
The power to pardon is one of the most controversial and widely discussed aspects of the presidency. George Washington’s first use of the pardon came in 1795 when he forgave participants in the Whiskey Rebellion, a violent protest against a federal tax.
Abraham Lincoln famously used his pardon power during and after the Civil War, offering amnesty to former Confederate soldiers as part of his efforts to heal a divided nation. In 1974, President Gerald Ford issued a controversial pardon to Richard Nixon for any crimes committed during the Watergate scandal. It was met with significant criticism.
President Jimmy Carter also utilised the pardon power early in his administration, granting amnesty to individuals who evaded the draft during the Vietnam War. The decision was aimed at reconciling a nation deeply divided over the conflict.
As George W Bush wrapped his presidency in 1992, he pardoned six individuals, including former Defence Secretary Caspar Weinberger, involved in the Iran-Contra affair.
Bill Clinton’s final day in office in 2001 saw him pardon his half-brother and make a highly controversial decision to grant clemency to Marc Rich, a fugitive convicted of financial crimes whose ex-wife had been a significant donor to Clinton’s campaign.
During his tenure, Barack Obama granted clemency to over 1,700 individuals, with a focus on those convicted of nonviolent drug offences.
More recently, Donald Trump, during his first term, used his pardon power to help political allies and associates. He pardoned Charles Kushner, the father of his son-in-law Jared, convicted of tax evasion and witness tampering. Other pardons included political advisor Steve Bannon, who faced charges related to defrauding donors for a border wall project, and Paul Manafort, a top official in Trump’s 2016 campaign. Trump also pardoned Roger Stone, former New York City police commissioner Bernard Kerik, conservative figure Dinesh D’Souza, and Republican donor Elliott Broidy.
Trump also granted clemency to rapper Lil Wayne and Alice Marie Johnson, who spent years in prison for drug offences. Trump suggested he might pardon those involved in the January 6 Capitol attack, which would undo investigations and prosecutions related to the event.
Does India have the Presidential Pardon power?
In India, the President holds the power to grant pardons, reprieves, respites, and remissions of punishment, as outlined in Article 72 of the Indian Constitution. The power allows the President to reduce or remove the punishment for individuals convicted of crimes, particularly in cases involving offences against Union law.
But, unlike the US President, who has almost unrestricted power to grant pardons, the President of India must act on the advice of the Cabinet.
The President can exercise this power in certain situations, such as in cases where the punishment is for an offence under Union jurisdiction, including military offences. One of the most significant uses of this power is in cases involving the death penalty. The President can grant a pardon or reduce the sentence to life imprisonment or a lesser punishment.