What Should We Do About Biden Pardoning His Family?

A Litigator's Perspective

By Kevin N. Anderson

The scope of the Pardon Power has rarely been judicially challenged. It’s scope has not been fully judicially determined. Even for some of the “precedents” for its use that are appearing in the press coverage of Ex-President Biden’s departing pardons.

Trump should consider pursing some of the pardonees to test the limits and to get judicial determinations now. If the judiciary holds true to its prevailing political leanings, most judges would be more likely to protect the Biden recipients than Trump’s recipients four years from now. If you favor broad authority, better to get the scope determined now.

The Pardon Power is not as absolute as some may think. The Constitution’s pardon clause (the first clause of Article II Section 2) expressly sets forth two limits: First, there is a declared constitutional exclusion of “Cases of Impeachment.” Second, it only applies to “Offenses against the United States.” This has been held to mean federal criminal offenses. State criminal offenses and federal or state civil claims are not covered.

This leaves some pretty big holes—even at the federal level. For example, while criminal contempt of court might be pardoned, civil contempt would not be. Contempt of Congress also can be civil or criminal. Whether the President may issue a pardon for criminal contempt of Congress, has been the subject of debate but has not been addressed by the Supreme Court. Civil contempt seems easier, but also has not been tested in the context of a pardon.

Many federal agencies also pursue civil enforcement actions. Civil rights violations are pursued through civil lawsuits. Section 201 of the Congressional Accountability Act applies Title VII of the Civil Rights Act of 1964 to Congress. Members and staff of the United States House Select Committee on the January 6 Attack could be at risk civil enforcement actions for civil rights violations.

The Department of Labor’s Office of Labor-Management Standards also can conduct civil investigations of alleged violations of many labor laws. With this power come the power to investigate. This includes authority to enter businesses to inspect records and accounts, and to question anyone they deem necessary to enable them to determine the facts.

The Securities and Exchange Commission (SEC) has no criminal enforcement powers but has broad civil enforcement powers. The SEC can investigate potential violations of securities laws, file civil lawsuits in federal court, and seek to impose a wide variety of sometimes onerous financial and injunctive remedies on civil defendants. Historically, post-pardon civil enforcement actions have not been sought. The boundaries of civil vs. criminal enforcement in this context have not been judicially determined. The SEC sued James Biden’s former business associate and investigated Hunter Biden in connection with a tribal bond scheme in 2016.

The Internal Revenue Code, 26 U.S.C. § 7403, authorizes the United States to file a civil actions against taxpayers who refuse or neglect to pay taxes, to enforce a federal tax lien, or to subject any of the delinquent taxpayer’s property and rights to property to the payment of tax.

The Federal Election Commission can seek civil enforcement of federal campaign finance laws. Enforcement cases can come from audits—also a civil, not criminal, pursuit.

The list goes on. And on.

Considering civil actions brings up the issue of immunity. Presidents and past presidents are generally immune from liability for actions relating to the core powers of the office, and a presumption of immunity for official acts. Thus, in a civil case filed after his term expired, Nixon was held to be immune from a suit for damages. Trump’s immunity was remanded to the lower courts for additional factual determinations. There are some cases that suggest other government officials may enjoy a qualified immunity for discretionary “official” acts. Again, judicial guidance while the shoe is not on Trump era government officials might be helpful.

The current raging debate is on preemptive pardons. Preemptive pardons are given before someone has actually been convicted. More rarely, before they’ve been charged or even investigated. As offensive as some think they are, they are a common prosecutorial tool used for people who might be inclined to cooperate with law enforcement. At the presidential level there are historic examples:

1. Abraham Lincoln extended preemptive pardons to Confederate sympathizers and soldiers as an incentive to lay down arms and support the Union during the Civil War.

2. Gerald Ford pardoned Richard Nixon (1974) of unspecified federal offenses that may or may not have been committed: “all offenses against the United States” which Nixon had or may have committed during his term in office.

3. Jimmy Carter pardoned Vietnam draft evaders (1977) who had not been charged for their actions.

4. George H.W. Bush preemptively pardoned former CIA officials Duane Clarridge and former Secretary of Defense Caspar Weinberger for their conduct related to the Iran-Contra Affair (1992).

5. Donald Trump’s pardon of Michael Flynn (2020) had preemptive aspects to it.

These examples are not, however, legal precedent legitimizing the unfettered power to issue them. None were ever tested in court. They could be—and maybe should be now, rather than after Trump’s second term.

Preemptive pardons do not, however, apply to offenses not yet committed. The president can tell a thief not to worry about being convicted for the crime he has committed yesterday because he has pardoned him. But a pardon today cannot forgive a crime committed tomorrow.

Another area of discussion is the implication of accepting a pardon. Based on language in a U.S. Supreme Court case Burdick v. United States, 236 U.S. 79, 94 (1915), many believe it “carries an imputation of guilt; acceptance a confession of it.” No federal court has applied Burdick to hold that accepting a presidential pardon has the legal effect of a confession of guilt. However, as the Tenth Circuit Court of Appeals recently noted, “acceptance of a pardon may imply a public perception of guilt . . . .” Lorance v. Commandant, U.S. Disciplinary Barracks, 13 F.4th 1150, 1159 (10th Cir. 2021).

On the other hand, except perhaps where a pardon is explicitly granted based on a determination of innocence, a pardon does not erase a conviction. It simply erases the penalties and at least some disabilities attendant on a conviction—or a potential one.

Trump should pursue Fauci, Biden family members, and maybe others, to establish the limits of the blanket preemptive Presidential pardons and test the ability of federal government to pursue post-pardon civil enforcement actions. Discussing this should give all of them a little post-pardon anxiety.

Kevin N. Anderson is an attorney at the law firm of Fabian VanCott with over 40 years of litigation experience in state and federal courts, arbitration, mediation, and administrative forums across the US. He grew up in the Washington, D.C. area. His father was Jack Anderson, a Pulitzer Prize winning investigative reporter.

The opinions expressed are his own and not those of Fabian VanCott or Breaking Battlegrounds staff. This post is for informational purposes only and should not be construed as legal advice on any subject matter.