Full, Free, and Absolute

It's Friday, May first, and welcome to HigherIQ. The President of the United States can, with the stroke of a pen, erase a federal conviction as if it never happened. No judge can reverse it. No court can review it. No Congress can override it. The presidential pardon is one of the most absolute powers in American democracy, and by design, it has almost no checks. A president can pardon a friend, a political ally, a family member, or someone who has never been charged with a crime. They can do it on their last day in office. They can do it in the middle of the night. They can do it for any reason or no reason at all. The only two constitutional limits are that pardons apply only to federal offenses and cannot be used to undo an impeachment. Beyond that, the power is essentially limitless. The question of whether any single person should have this much authority over the justice system is as old as the Constitution itself, and it has never been more relevant. At the Constitutional Convention in 1787, delegates debated whether the pardon power should require Senate approval. Some worried that a president could use pardons to protect co-conspirators or obstruct justice. Edmund Randolph of Virginia argued that treason should be excluded from pardonable offenses because a president "may himself be guilty." The counterargument came from James Wilson, who said the specter of impeachment would deter any president from abusing the power: "If he be himself a party to the guilt, he can be impeached and prosecuted." Alexander Hamilton made the most influential case for an unchecked pardon power in Federalist No. 74. He argued that criminal law is inherently harsh and that "without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel." A single executive, Hamilton wrote, would be a better dispenser of mercy than a legislative body, because a group of men "might encourage each other in an act of obduracy" while a single person would feel the full weight of the decision personally. Hamilton also saw pardons as essential for national reconciliation. "In seasons of insurrection or rebellion," he wrote, "there are often critical moments, when a well timed offer of pardon to the insurgents or rebels may restore the tranquility of the commonwealth." George Washington proved Hamilton right almost immediately. In 1795, Washington pardoned the leaders of the Whiskey Rebellion, a tax revolt in western Pennsylvania, choosing national unity over punishment. Abraham Lincoln used the pardon power to offer amnesty to Confederate soldiers who swore allegiance to the Union. Jimmy Carter pardoned Vietnam-era draft evaders on his second day in office. In each case, the pardon served roughly the purpose Hamilton envisioned: tempering justice with mercy in the interest of healing a divided country. The problem Hamilton didn't fully address, or perhaps chose not to, is what happens when a president uses the power not for reconciliation but for personal or political advantage. The history of controversial pardons stretches across both parties and multiple decades. Gerald Ford's 1974 pardon of Richard Nixon remains the most consequential single pardon in American history. Nixon had resigned in disgrace. Criminal charges were all but certain. Ford issued a "full, free, and absolute pardon" for any crimes Nixon "committed or may have committed" as president, before any charges were filed. Ford's approval rating dropped from seventy one percent to fifty percent in the days that followed. He was forced to testify before the House Judiciary Committee, the first sitting president to appear before the House since Abraham Lincoln. Most historians believe the pardon cost Ford the 1976 election. Ford carried a portion of the Supreme Court's opinion in Burdick v. United States in his wallet for the rest of his life, which suggested that accepting a pardon implies an admission of guilt. Bill Clinton's final-day pardon of Marc Rich in January 2001 triggered congressional investigations. Rich was a commodities trader who had been indicted on charges of tax evasion and illegally trading with Iran during the hostage crisis. He fled the country and lived in Switzerland for seventeen years. His ex-wife, Denise Rich, had donated over a million dollars to the Democratic Party and the Clinton Presidential Library. Clinton pardoned him on his last day in office. Congressional hearings followed, and even Clinton allies struggled to defend it. Clinton also pardoned his own half-brother, Roger Clinton, who had served a year in prison on a drug conviction. George H.W. Bush pardoned six officials implicated in the Iran-Contra affair, including former Defense Secretary Caspar Weinberger, whose trial was set to begin two weeks later and might have revealed details about Bush's own involvement. The independent prosecutor, Lawrence Walsh, called the pardons a cover-up. Trump's use of pardons has been the most expansive of any modern president. During his first term, he pardoned political allies including Roger Stone, who was convicted of witness tampering and lying to investigators; Michael Flynn, his former national security advisor; Steve Bannon, charged with defrauding donors to a border wall fundraising campaign; and the four Blackwater contractors convicted of killing fourteen unarmed Iraqi civilians, including two children. On his first day back in office in January 2025, Trump issued roughly fifteen hundred pardons to people charged in connection with the January 6 Capitol breach, including leaders of the Proud Boys and the Oath Keepers who were convicted of seditious conspiracy. In November 2025, he issued preemptive pardons to political allies Rudy Giuliani, Mark Meadows, and Sidney Powell, none of whom were facing federal charges at the time. Biden's use of clemency was different in character but similarly controversial. He issued over four thousand commutations, the most of any president, primarily for nonviolent drug offenders who had been released to home confinement during COVID. He commuted the death sentences of thirty seven of forty federal death row inmates, excluding the perpetrators of the Boston Marathon bombing, the Charleston church shooting, and the Pittsburgh synagogue shooting. And on his last day in office, he pardoned Dr. Anthony Fauci, members of the January 6 congressional committee, and his own son, Hunter Biden, who had been convicted of federal gun and tax charges. The contrarian question is worth asking honestly: should any single person have this power? The case for keeping it is Hamilton's original argument, updated for modern circumstances. The criminal justice system is imperfect. Prosecutors overcharge. Mandatory minimums produce sentences that even the judges who impose them consider unjust. Racial disparities in sentencing are well documented. The pardon exists as a release valve, a mechanism for mercy in a system that sometimes produces outcomes that are technically legal but substantively cruel. Obama commuted the sentence of Chelsea Manning. Trump pardoned Alice Johnson, a grandmother serving life in prison for a first-time nonviolent drug offense. Those uses of the pardon power are hard to argue against. The case against it is just as strong. The power has no meaningful oversight. There is no requirement that the president explain a pardon. There is no process for review. The Office of the Pardon Attorney in the Department of Justice is supposed to screen petitions and make recommendations, but the president can ignore the office entirely, and most controversial pardons bypass it completely. Clinton's pardon of Marc Rich didn't go through the Office. Neither did Trump's pardon of his allies. Biden's pardon of his son didn't either. The most unsettled question is whether a president can pardon themselves. Nixon considered it. His White House counsel told him he had the authority. The Justice Department's Office of Legal Counsel issued a brief memo in 1974 concluding that a president cannot be a judge in his own case, but the memo was sixty nine words long with no citations and has no binding legal authority. No president has attempted a self-pardon. No court has ruled on whether one would be valid. The question remains open, which means the most powerful pardon in the Constitution may be the one that hasn't been used yet. Every proposed reform runs into the same problem: any restriction on the pardon power would require a constitutional amendment, which requires two-thirds of Congress and three-quarters of state legislatures. The framers made the power nearly absolute on purpose. They trusted that impeachment and public accountability would prevent abuse. That calculation assumes a political system where abuse carries consequences. Whether that assumption still holds is, like much about the pardon, an open question. So if this comes up in conversation, here's how to think about it. The presidential pardon is one of the most unchecked powers in the Constitution. Hamilton argued it was necessary so that justice wouldn't be too harsh and so that presidents could heal the country in times of crisis. Washington pardoned the Whiskey Rebellion. Lincoln pardoned Confederate soldiers. Carter pardoned draft evaders. Those uses fit Hamilton's vision. Ford's pardon of Nixon, Clinton's pardon of a fugitive donor, Bush's pardons of Iran-Contra officials, Trump's fifteen hundred January 6 pardons and preemptive pardons of political allies, and Biden's pardon of his own son all test the limits of what the power was designed for. There is no judicial review, no congressional override, and no settled law on whether a president can pardon themselves. The framers built the power with almost no guardrails because they believed impeachment would prevent abuse. Two hundred and thirty eight years later, the guardrail has never been tested against the power it was meant to contain. Have a good weekend. Stay informed, stay curious, and we'll see you tomorrow.