The Presidential pardon – A power of mercy or a license for misuse?

By Dr. Avi Verma
Publisher, IndoUS Tribune

The recent pardon granted by President Joe Biden to his son Hunter Biden has once again drawn attention to one of the most extraordinary and controversial powers vested in the U.S. Constitution: the Presidential pardon. While intended as a tool for justice and mercy, its unchecked nature has long raised questions about fairness, accountability, and the erosion of public trust in the system.

The power of the Presidential pardon, as outlined in Section 2 of Article II of the Constitution, allows the President to “grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.” Rooted in English traditions where kings could issue mercy pardons, this authority was shaped by Alexander Hamilton’s vision that a single individual, rather than a legislative body, would be better equipped to dispense clemency swiftly and judiciously.

Hamilton’s arguments, articulated in Federalist No. 74, reflected the historical context of rebellion and insurrection, where pardons could serve as tools to quell unrest and restore peace. He believed a unified, decisive action could achieve what collective deliberation might delay. It was also seen as an “emergency power” meant for extraordinary circumstances, akin to the President’s control over military actions during crises.

However, in the modern era, this expansive and unconditional power has frequently been misused, with decisions more reflective of personal or political motivations than justice. From George Washington’s pardon of the Whiskey Rebellion participants to Donald Trump’s clemency for political allies, the exercise of this power has often been mired in controversy.

President Biden’s decision to pardon Hunter Biden for federal crimes he “committed or may have committed” has fueled criticism, particularly among Republicans, who view this as blatant favoritism. They argue that such actions undermine the perception of justice, especially when tied to familial connections. Yet, this pardon also underscores the broader issue: the lack of checks and balances on this power.

Presidents have used pardons in ways that appear self-serving or partisan. Gerald Ford’s pardon of Richard Nixon shielded a former President from accountability in the Watergate scandal. Bill Clinton’s pardon of financier Marc Rich, a major donor, raised ethical concerns. Donald Trump’s pardons of allies like Michael Flynn and Roger Stone were widely criticized for undermining the rule of law.

Despite its original intent as a mechanism to heal and unify, the Presidential pardon power, in its current form, has become a tool that can erode trust in governance. The lack of oversight—whether judicial or legislative—has allowed its misuse, tarnishing its noble purpose.

Should such power remain unconditional? It’s time for a national conversation. Proposals for reform include requiring congressional approval for certain pardons, restricting clemency for close associates or family members, or mandating transparency in the decision-making process.

While the framers of the Constitution envisioned the pardon as an act of mercy, its unchecked nature has proven to be a double-edged sword. President Biden’s pardon of Hunter Biden is not just a political flashpoint—it’s a call to reexamine whether this extraordinary power still serves its intended purpose in a modern democracy.