[Juan]

What specific legal challenges are expected regarding Biden’s pardons?

[Bailey]

Possible legal disputes concerning President Biden’s pardons might be along the lines of the following:

Dispute over the validity of signautres:

• The primary contention is concerning the auto-pen forgiveness signing.
• Detractors may contend that not personally signing the document as a president makes it a constitutional violation which renders the pardons useless.

Conflict of Interest:

• Lawsuits claiming conflict of interest violation might arise especially for the pardons granted to people within Biden’s immediate circles, which includes his family and political associates.
• Detractors will assert that the primary motive for such actions stems from personal rather than public-benefit concerns.

Nature of the Offenses:

• The spenders may also be criticized on the basis that the if the pardons were issued on the basis of indefensible conviction of grave crimes.
• Detractors may counter such arguments by stating that while such acts may be regarded as pardoning, actually it is a negation of law and public confidence.

Insufficient openess may be considered lack of transparency:

• Legal challenges might also center around the lack of openness concerning the merits behind the decision to grant the pardon.
• If the pardons were given in insufficient public exposition or reasoning, many will claim this is violation of the accountability principles.
• Biden’s opponents and legal scholars will at some point use the presidential pardon precedents and the context of history to argue there are no preconditions or baseline rules which serve these objectives.

Judicial Review:

• As a final step in a legal challenge, there may be judicial review, which will analyze if the pardons were within the legal constitutional and statutory framework.
• This may set major precedential rulings for the use of presidential pardoning authority.

These challenges could bring about intense legal scrutiny, giving the perception that the pardons are less justified.

[Juan]

Can you provide examples of past presidential pardons that faced similar challenges?

[Bailey]

Ford and Nixon (1974)

Notable Pardon:

• President Ford decided to grant Nixon a pardon for any deeds he did during his presidency, including the Watergate scandal.

Challenges:

• This pardon faced legal hurdles and public backlash.
• Many critics also claimed it set a dangerous precedent for the American democracy.

Jimmy Carter and Vietnam War Draft Evaders (1977):

Notable Pardon:

• Ignoring the draft during the Vietnam War is considered a crime.
• However, President Carter decided to pardon those who did so.

Challenges:

• There were sustained protests from veterans and active personnel.
• Fulfilling the social contract and escaping were starkly divided, leading to intense public discussion.

Marc Rich and Bill Clinton (2001)

Notable Pardon:

• Financial fugitive Marc Rich was controversially pardoned by Clinton.
• He faced multiple charges for tax evasion and other financial crimes.

Challenges:

• People widely disapproved Clinton’s decision due to the political donations which came from Rich.
• It raised concerns regarding the money inteferance in the pardon and political inquiry became very common.

George W. Bush granted clemency to I. Lewis “Scooter” Libby in 2007 on the following grounds:

Pardon:

• President Bush commuted the sentence of I. Lewis Libby, who was convicted of perjury and obstruction of justice in the CIA leak case.

Challenges:

• The decision faced criticism for seeming to protect a political ally from facing consequences, igniting discussions regarding the legitimacy of presidential pardons in cases that are politically volatile.

Donald Trump’s term in office from 2017 to 2021 came with several controversial pardons.

Pardon:

• President Trump issued several controversial pardons, including those for individuals involved in high-profile criminal cases, such as Michael Flynn and Roger Stone.

Challenges:

• The pardons drew fierce criticism and scrutiny, especially from people who believed there was no substantial justification for the pardons other than the recipients’ association with Trump.

The examples highlight how the use of presidential pardons, this time in the hands of Presidents Trump and Bush, can result in multifaceted legal complications that provoke critical thought about the state of democracy in the country.

[Juan]

Were any of these pardons later overturned or legally challenged successfully?

[Bailey]

Once granted, no presidential pardons have been legally contested as being irrevocably bound to the U.S Constitution’s executive powers, and would be considered nullified. Despite public scrunity, several pardons have been literally challenged within a legal framework but not fundamentally revoked. A few descriptions are provided below:

Gerald Ford and Richard Nixon

Despite ire and political unpopularity, Nixon’s pardon was never revoked and resisted out of court. The legal battles were more around the broader context and implications of the pardon instead of a claim for action that would seek to lift the legal order.

Jimmy Carter and Vietnam War Draft Evaders

Carter’s pardon was subject to criticism, but there was never a legal tussle where they sought to issue a challenge for revocation. The political cost was enormous but they politically processed these documents.

Bill Clinton and Marc Rich

Rich’s pardon did incur some backlash including calls for legal challenge but to no avail. Political arguments surrounding it were centered on the existence of a court without defenses based on political motivations.

George W. Bush and I. Lewis “Scooter” Libby

There were scrutizny and demands for his conviction after Liber’s sentence was commuted but the pardon received no legal litigation, nor was there debate to sue over it.

Donald Trump and His Widley Disregarded Pardons

Pardons problematic in their public reception, such as those given to Michael Flynn and Roger Stone, had no legal challenges that could rescind them. The legal difficulties concerning the questions for the underlying convictions remained estranged from the legal issues relevant to the pardons.

In general, the controversies surrounding granting pardons are numerous and heavily fraught with partisanship and agitated allegations. However, the legal structure dealing with the power to issue a presidential pardon creates obstacles to rescinding it after it has already been exercised.

[Juan]

Has there ever been a serious attempt to amend the Constitution regarding pardons?

[Bailey]

Indeed, there were discussions and attempts to modify the U.S. Constitution with respect to the power of presidential pardon, albeit none have gone through the required legislative procedures.

Following are some attempts and discussions of these:

Historical Proposals:

• Over the years, a number of American lawmakers and legal scholars have come up with suggestions proposing a limitation or at least some form of clarification to the presidential pardoning powers.
• These suggestions came as a direct response to controversial and highly publicized pardons that sparked a nationwide wave of public anger.

Post-Watergate Reforms:

• There were debates to limit the pardon powers after President Ford pardoned former President Nixon due to fears of future misuse.
• There were suggestions that stated pardons should be accompanied with congressional approval, or at the very least, be suffocated for serious crimes.

1980s and 1990s Discussions:

• During the Reagan and Clinton’s presidential terms, there was a notable rise in the discussion concerning reforms to the process of pardoning.
• Almost all stakeholders advocated for more control and visibility over the issuance of controversial pardons.

Recent Proposals:

• More recently, there have been legislative considerations to amend the constitution, especially following high-profile pardons by Presidents Trump and Biden.
• Such proposals tend to center around issues of political corruption, granting an increased focus on accountability by enforcing a review process prior to the grant of pardon.

Regardless of the conversations held, no constitutional amendments concerning presidential pardons have garnered enough attention to progress through Congress. It is purposefully made hard to change or amend the Constitution in the USA – it requires a two-thirds majority in both the House and Senate, or two-thirds of state legislatures call a convention. After that, three-fourths of the states have to approve it. Therefore, suggestions to amend the pardon power exist as mere speculation and have not resulted in formal legislative proposals.