PREEMPTIVE PARDONS EXPLAINED: UNDERSTANDING PRESIDENT BIDEN’S FAMILY PARDONS

Author: Christen Patterson, Associate Editor

On January 19, 2025, the day before he was to leave office, President Joe Biden signed an Executive Grant of Clemency for five of his family members: James B. Biden, Sara Jones Biden, Valerie Biden Owens, John T. Owens, and Francis W. Biden.[1] The announcement of the blanket preemptive pardon shocked the country and raised questions about how the president has the authority to preemptively pardon, and what the future effect of preemptive pardons will be.[2]

Historical Overview of the Pardon Power

The president’s pardon power has been a topic of discussion for many years. Article II, Section II, Clause I of the United States Constitution grants the president authority to issue pardons.[3] It states:

The President . . . Shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Case of Impeachment.[4]

This clause gives the president the discretion to issue pardons for federal offenses, state criminal cases, and civil claims.[5]

Traditionally, pardons are granted to individuals who have been formally charged with a crime and can be extended to almost all individuals, including family members.[6] Before President Biden, three former presidents have used their executive power to pardon family members who have been charged or convicted of federal crimes: Abraham Lincoln, Bill Clinton, and Donald Trump. And in December of 2024, President Joe Biden became the fourth when he pardoned his son, Hunter Biden.[7]  However, none of these family pardons were issued preemptively, which is what makes President Biden’s current decision even more noteworthy.

Preemptive Pardons

The legitimacy of preemptive pardons was decided in Ex Parte Garland, which established that pardons may be issued at any time after the commission of a federal offense, even before federal charges have been filed or a sentence has been imposed.[8] Traditionally, the significance of the preemptive pardon is that it “blots out” the offense and prevents any penalties or charges from attaching.[9] Thus, in the eye of the law, it is as if the offender had never committed the offense.[10]

The most famous preemptive pardon was in 1974 when President Gerald Ford granted his predecessor Richard Nixon a “full, free, and absolute pardon” over the Watergate Scandal.[11] Although no indictment had been brought against Nixon, this pardon covered any federal crimes Nixon may have committed while in office, effectively shielding him from prosecution.[12] Preemptive pardons are seldom used, with only a handful granted in the past century.[13] As a result, President Biden’s decision to grant preemptive pardons to family members is particularly surprising, marking the first instance of such action in U.S. History.

President Biden’s Executive Grant of Clemency for his family states:

A Full and Unconditional Pardon For Any Nonviolent Offenses against the United States which they may have committed or taken part in the period from January 1, 2014, through the date of this pardon.[14]

Thus, this pardon does not immunize future criminal conduct after January 19, 2025, and excludes any crimes categorized as “violent.”[15]

Additionally, a pardon must be accepted by its subject.[16] The Supreme Court has stated that acceptance is found upon delivery of the pardon without a rejection.[17] Accepting a pardon has historically implied an admission of guilt.[18] However, in a statement made by former President Biden, he said, “the issuance of these pardons should not be mistaken as an acknowledgement that they engaged in any wrongdoing, nor should acceptance be misconstrued as an admission of guilt for any offense.”[19]  President Biden has stated that the reason he issued these preemptive pardons if to protect his family from “unrelenting attacks and threats, motivated solely by the desire to hurt [him].”[20] While none of his family members have been charged in connection with any crime, future charges could be brought and potentially shielded under their full pardon protection.

The Impact of Biden’s Preemptive Pardons

The significance of President Biden’s blanket pardons is that he has set a precedent for open-ended pardons used as a defensive mechanism, ones that have not been seen before in U.S. history.[21] California Senator Adam Schiff criticized President Biden’s decision, calling it “unnecessary,” setting a poor precedent for future preemptive pardons by a president on the way out of an administration [22] These broad pardons could potentially pave the way for future presidents to issue similar clemency as they leave office, not only as a tool for their own legacy, but also as a defense against incoming administration.[23]

Conclusion

While it is difficult to predict what may unfold, future administrations may adopt a different approach to preemptive pardons, potentially leading to abuses of power if used for personal gain rather than to correct unjust court proceedings, as the Framers intended.[24] To prevent such issues, Congress could establish guidelines for when the pardon power should be exercised, such as in cases involving overly harsh or punitive sentences.[25] However, altering or limiting the president’s pardon authority would require a Constitutional amendment, as the Supreme Court has ruled that this power is not “subject to legislative control.”[26] Since enacting a Constitutional amendment is notoriously difficult, we likely will continue to see presidents using their pardon power to further their own agenda.[27]

[1] Office of the Pardon Attorney, Pardons Granted by President Joseph Biden (2025) [hereinafter Joseph Biden]; Zeke Miller, Colleen Long, & Alanna Durkin Richer, Biden pardons his siblings and their spouses on his way out of the White House, AP NEWS (Jan. 20, 2025), https://apnews.com/article/biden-pardons-family-trump-white-hous-caee326c4723a4ba6d972f7daf750a0b.

[2] Erin Jones & Kelly Jones, It’s True That a President Can Pardon Someone for Crimes They Have Not Been Charged With, WKYC STUDIOS (Jan. 20, 2025), https://www.wkyc.com/article/news/verify/national-verify/biden-can-grant-preemptive-pardons-constitution-fauci-milley-cheney-fact-check/536-0b998c1d-2680-4f99-9070-c5a88717dfc8.

[3] U.S. Const. art. II, § 2, cl. 1.

[4] Id.

[5] Id.

[6] Michael A. Foster, Presidential Pardons: Overview and Selected Legal Issues, CONGRESSIONAL RESEARCH SERVICE (Jan. 14, 2020), https://crsreports.congress.gov/product/pdf/R/R46179.

[7] Marni Rose McFall, Full List of US Presidents Who Have Pardoned Relatives, NEWSWEEK (Dec. 02, 2024), https://www.newsweek.com/full-list-presidents-who-have-pardoned-relatives-joe-hunter-biden-1993960.

[8] Ex parte Garland, 71 U.S. 333, 380 (1866).

[9] Id.; Art.II.S2.C1.3.7 Legal Effect of a Pardon, Constitution Annotated, LIBRARY OF CONGRESS, https://constitution.congress.gov/browse/essay/artII-S2-C1-3-7/ALDE_00013324.

[10] Ex parte Garland, 71 U.S. 333, 381 (1866).

[11] David Badertscher, Preemptive Pardons: Constitutional Authority and Real World Implications, CRIMINAL LAW LIBRARY BLOG (Dec. 9, 2024) https://www.criminallawlibraryblog.com/preemptive-pardons-constitutional-authority-and-real-world-implications/.

[12] Presidential Pardons: Frequently Asked Questions (FAQs), Legal Sidebar, CRS REPORTS & ANALYSIS, (Aug. 8, 2017), https://sgp.fas.org/crs/misc/pardons.pdf.

[13] Badertscher, supra note 10.

[14] Joseph Biden, supra note 1.

[15] Id.

[16] Burdick v. United States, 236 U.S. 79, 89 (1915).

[17] Id. at 92.

[18] Colleen Shogan, The History of the Pardon Power;  Executive Unilateralism in the Constitution, THE WHITE HOUSE HISTORICAL ASSOCIATION, (Dec. 2, 2020), https://www.whitehousehistory.org/the-history-of-the-pardon-power.

[19] Michelle Stoddart & Lucien Bruggeman, President Biden pardons family members in final minutes of presidency, ABC NEWS (Jan. 20, 2025), https://abcnews.go.com/Politics/president-biden-pardons-family-members-final-minutes-presidency/story?id=117893348.

[20] Id.

[21] A Martinez, What Biden's preemptive pardons for family members could mean for presidential powers, NPR (Jan. 21, 2025), https://www.npr.org/2025/01/21/nx-s1-5268858/what-bidens-preemptive-pardons-for-family-members-could-mean-for-presidential-powers.

[22] Henry Gass, Do Biden’s Preemptive Pardons Offer a Safety Valve or Set Bad Precedent? THE CHRISTIAN SCIENCE MONITOR (Jan. 20, 2025), https://www.csmonitor.com/USA/Justice/2025/0120/preemptive-pardons-biden-fauci-milley.

[23] Id.

[24] Shane Croucher, Should U.S. Strip President of Pardon Power? NEWSWEEK (Dec. 3, 2024) https://www.newsweek.com/should-us-strip-presidents-pardon-power-1995040.

[25] Id.

[26] Legal Information Institute, ArtII.S2.C1.3.8 Congress’s Role in the Pardon Power, CORNELL LAW SCHOO (last visited Feb. 23, 2025).; Ex parte Garland, 71 U.S. 333, 18 L. Ed. 366 (1866).

[27] Marcia Coyle, A Constitution “Hard, But Not That Hard” to Change, NATIONAL CONSTITUTION CENTER (Aug. 19, 2024), https://constitutioncenter.org/blog/how-difficult-should-the-constitution-be-to-amend.