What The Founders Would Say About Biden And Trump’s Pardons

On Jan. 20, 2025, both former President Biden and President Trump issued pardons pursuant to Article 2, Section 2 of the United States Constitution. While President Biden pardoned five members of his family, Anthony Fauci, Mark Milley, and the members and staff of the House special committee that investigated the Jan. 6, 2021, Capitol demonstration, President Trump issued pardons to all individuals “convicted of offenses related to events that occurred at or near the United States Capitol on January 6, 2021.”

President Biden clearly ignored the warning of Alexander Hamilton, who instructed us in Federalist 74 “that the benign prerogative for pardoning should be as little as possible fettered or embarrassed.” In four years, Biden used his Article 2, Section 2 powers more than 8,064 times. That is more pardons and clemencies issued than the last 10 presidents, who served over 57 years.

James Wilson, the most prolific speaker during the debate over the United States Constitution with more than 172 speeches and later an associate justice of the Supreme Court, called the presidential pardon power “extraordinary.” In his 1791 Lectures on Law, he taught us that this extraordinary power was to be used “after they have been apprehended, tried, convicted, and condemned.” Let us be clear, Biden’s family, Fauci, Milley, and the members of the House J6 Committee have never been apprehended, tried, or convicted, let alone condemned. They were not eligible for a presidential pardon.

Article 2, Section 2 of the Constitution clearly states that the president has the power to pardon “for Offences against the United States.” However, Biden understands that these individuals he has pardoned have not committed an offense against the United States because his pardon statement says, “The issuance of these pardons should not be mistaken as an acknowledgment that any individual engaged in any wrongdoing, nor should acceptance be misconstrued as an admission of guilt for any offense.” How can former President Biden pardon someone for an offense against the United States when his pardoning message says that they are not guilty of any offense?

While our Founding Fathers would have said the president could not pardon someone who has not been convicted, the Supreme Court has indicated that a president might have the power to preemptively pardon an individual. However, for someone to avail himself of this Supreme Court precedent that is not fully developed and is over 100 years old, the individual must first confess to an offense against the United States. If an individual does not confess to an offense against the United States, the court in Burdick v. U.S. made clear the pardon is not valid.

Should President Trump’s DOJ decide to investigate the Biden family, Fauci, Milley, or the members of the Jan. 6 Committee, these individuals could be prosecuted until they publicly confessed to an offense against the United States. However, even if they did that, Trump’s DOJ could still pursue the matter, arguing that Article 2, Section 2 did not give President Biden the right to preemptively pardon anyone. That issue would eventually be heard in the Supreme Court. Only then would the nation have a definitive answer as to whether a president has the power to preemptively pardon someone who has never been convicted and who has not confessed to an offense against the United States.

According to Alexander Hamilton, the purpose of the pardon power is to help heal the nation after a time of turmoil. In Federalist 74, Hamilton wrote, “In seasons of insurrection or rebellion, 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 understood this principle when, in 1795, he issued amnesty to those engaged in Pennsylvania’s Whiskey Rebellion. 

President Trump is simply following the advice of Alexander Hamilton and the example of George Washington. Democrats in Washington, D.C., have called the events that transpired on Jan. 6, 2021, an insurrection. President Trump is using the intended purpose of his pardoning power to restore the tranquility of the nation after years of public political prosecutions.

Mark Meuser is a Constitution and election law attorney with the Dhillon Law Group. Follow him on Twitter @MarkMeuser.