Imagine the following presidential proclamation: “I do hereby grant unconditional pardons to all United States persons for those offenses against the United States which such persons may have committed to date over their lifetimes.” Who would be covered? Virtually everyone. For which crimes? All crimes. When were they committed? Anytime in the past or maybe never.
Would that be constitutional? Probably, many legal authorities say. And yet, the case for unlimited pardons is less than compelling.
Article II, Section 2 of the Constitution grants the president nearly plenary “power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.” The Supreme Court elaborated in Ex Parte Garland (1866): “The power thus conferred is unlimited, with the exception stated. It extends to every offence known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken or during their pendency or after conviction and judgment. This power of the President is not subject to legislative control.”
Ditto, in Ex Parte Grossman (1925): “The executive can reprieve or pardon all offenses after their commission, either before trial, during trial or after trial, by individuals, or by classes, conditionally or absolutely, and this without modification or regulation by Congress.”
In other words, the pardon power is almost unbounded — excluding only state crimes, civil liability, future crimes and (perhaps) crimes by the president himself. Presumably, among the covered offenses are unidentified crimes that may or may not have occurred.
For example, Gerald Ford’s preemptive pardon of Richard Nixon was for “all offenses against the United States which he, Richard Nixon, has committed or may have committed” from Jan. 20, 1969, through Aug. 9, 1974. Similarly, Joe Biden’s preemptive pardon of family members plus Dr. Anthony Fauci, Mark Milley, members of the House Select Committee and police witnesses related to the events of Jan. 6, covered all “nonviolent offenses against the United States which they may have committed or taken part in” over a 10-year period, including seven years before Biden was inaugurated.
Most legal scholars assert that future crimes cannot be pardoned because there have been no unlawful acts that would constitute “offenses against the United States.” In other words, if an act is merely hypothetical, there’s no definitive crime to pardon. Indeed, nothing in the Federalist Papers or records of the Constitutional Convention suggests that the pardon power was meant to apply speculatively. Moreover, the acknowledged purposes of the pardon power were to express compassion, redress injustice and restore tranquility. Thus, whether referring to the pardon power’s text, history or purpose, the exclusion of future crimes seems both necessary and proper.
But wait a minute! The bases asserted for not pardoning future crimes are that they are not “offenses,” but rather, they are speculative, they haven’t previously been pardoned and their absolution would not conform to the expressed purposes of the pardon power. That same rationale dictates that putative but unidentified past crimes may not be pardoned. And, if that logic were to prevail, then both the Ford and Biden pardons should have been declared invalid. They provisionally consisted of crimes that, if not committed, were nonoffenses, speculative, never previously included and contrary to the purposes of the pardon power.
Of course, the procedural question remains unanswered: How could the Ford or Biden pardons have been judged invalid? To challenge the pardons in court, litigants must demonstrate legal standing, which requires a unique, concrete, particularized injury that is actual or imminent. Possibly, a victim of the pardoned crime would have standing, a co-defendant whose rights might have been impaired or a person who declines the pardon for reputational reasons.
More likely, however, the pardon would not be successfully challenged, and Congress would have no statutory recourse unless Ex Parte Garland were to be overruled. That leaves two remedies, the first and most obvious of which is impeachment, which might punish the president but wouldn’t affect the validity of the pardon.
Longer term, a constitutional amendment seems appropriate — perhaps a supplement to Article II, Section 2, stipulating that a pardon, to be valid, must identify the crime with reasonable particularity. The identification process might be by nature of the crime, location, timing or a combination of those factors.
Yes, courts would be faced with interpreting “reasonable particularity,” but that’s no more than courts routinely do when interpreting terms such as due process, unreasonable searches, probable cause and just compensation.
Robert A. Levy is an emeritus chairman of the Cato Institute.
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