Skip to content
Search

Latest Stories

Top Stories

Pardon who? Hunter Biden case renews ethical debate over use and limits of peculiar presidential power

Joe Biden and Hunter Biden

President Joe Biden and son Hunter Biden stepping out of a bookstore in Nantucket, Mass. on Nov. 29, 2024.

Mandel Ngan/AFP via Getty Images

The decision by President Joe Biden to pardon his son, Hunter, despite previously suggesting he would not do so, has reopened debate over the use of the presidential pardon.

Hunter Biden will be spared potential jail time not simply over his convictions for gun and tax offenses, but any “offenses against the United States which he has committed or may have committed or taken part in during the period Jan. 1, 2014 through December 1, 2024.”


During his first tenure in the White House, Donald Trump issued a total of 144 pardons. Following Biden’s move to pardon his son, Trump raised the issue of those convicted over involvement in the Jan. 6 storming of the U.S. Capitol, raising expectations that he may use the pardon in their cases – something Trump has repeatedly promised to do.

But should the pardon power be solely up to the president’s discretion? Or should there be restrictions on who can be granted a pardon?

As a scholar of ethics and political philosophy, I find that much of the public debate around pardons needs to be framed within a more fundamental question: Should there be a presidential pardon power at all in a democracy governed by the rule of law? What, after all, is the purpose of a pardon?

Sign up for The Fulcrum newsletter

From royal roots…

Black’s Law Dictionary, the go-to book for legal terms, defines the pardon power as, “an act of grace…which exempts the individual on whom it is bestowed from the punishment the law inflicts for a crime he has committed.” Although the power to pardon is probably as old as politics, the roots of the presidential pardon in the U.S. can be traced back to English law.

The English Parliament legally placed an absolute pardon power in the hands of the monarch in 1535 during the reign of King Henry VIII. In the centuries that followed, however, Parliament imposed some limitations on this power, such as preventing pardons of outrageous crimes and pardons during an impeachment.

The Founding Fathers followed the English model in establishing the powers of the executive branch in Article II of the U.S. Constitution. Section 2 of that article specifically grants the president the “power to grant reprieves and pardons for offenses against the United States” and acknowledges one limitation to this power “in cases of impeachment.”

But the anti-democratic roots of the pardon power were a point of contention during the drafting and ratification of the Constitution. In a 1788 debate, Virginia delegate George Mason, for example, said that the president “ought not to have the power of pardoning, because he may frequently pardon crimes which were advised by himself. It may happen, at some future day, that he will establish a monarchy, and destroy the republic.”

Mason’s concern clearly identifies this vestige of the absolute powers of the English monarchy as a potential threat to the new democracy. In reply, based on the assumption that the president would exercise this power cautiously, James Madison contended that the restriction on the pardon power in cases of impeachment would be a sufficient safeguard against future presidential abuse.

…to religious reasoning

The political concept of pardon is linked with the theological concept of divine mercy or the charity of an all-powerful God.

Pardon, as Supreme Court Justice Marshall noted in the 1833 United States v. Wilson ruling, is defined as “an act of grace.” Just as in the Abrahamic faiths – Islam, Judaism and Christianity – God has the power to give and to take life, kings wield the power to take life through executions and to grant life through the exercise of pardons.

Echoing the command of the Lord’s Prayer “to forgive the trespasses of others,” English philosopher Thomas Hobbes’ book “Leviathan” asserts that the sovereign ought to display grace by pardoning the offenses of those who, repenting those offenses, want pardon.

Yet, this analogy with divine mercy for all individuals collides with the legal principle of treating different cases differently. If all trespasses were forgiven, pardon would be granted to all crimes equally.

There would be no need for distinctions between the wrongly and the rightly convicted or the repentant and unrepentant criminal. All would be forgiven equally. Universal pardon thus violates the legal principle that each individual should receive their due. In the eyes of law, it is impossible to pardon everything and everyone.

The incognito of pardon

What Hobbes recognized, if imperfectly, is that the power of pardon is just as essential to political life as to our personal lives. It helps to overcome the antagonisms of the past and opens a path to peace and reconciliation with others. The act of forgiving, as political theorist Hannah Arendt puts it, allows us “to begin again” and to create a new future together.

But how can we reconcile this need for pardon with the impossibility to forgive everything?

One answer can be found in the work of French philosopher Paul Ricoeur. Ricoeur talks about the “incognito of forgiveness” – “forgiveness” literally translates to “pardon” in French. Acknowledging the difficulty of turning pardon into a universal legal rule or norm, Ricoeur suggests that pardon can exist only as an exception to legal rules and institutions.

Pardon, in Ricoeur’s words, “can find refuge only in gestures incapable of being transformed into institutions. These gestures…designate the ineluctable space of consideration due to every human being, in particular to the guilty.” In other words, it has to fly under the radar of rules and institutions.

This insight is alluded to by Justice Marshall in his Wilson ruling. Marshall states that pardon is “the private, though official act of the executive magistrate, delivered to the individual for whose benefit it is intended, and not communicated officially to the Court.” The pardon remains incognito, or under the radar, in the sense that it is an extra-legal act that does not pass through legal institutions.

In these last days of the Biden administration, this incognito of pardon offers an important reminder of the need for pardon as well as its limitations. The democratic transfer of power always involves an implicit act of pardon that remains incognito. It allows for a fresh start in which society can acknowledge the past transgressions of an outgoing administration, but move on with the hope to begin again.

Though critics of the president may reject individual acts of pardon, especially involving family members, society should not give up on the power of pardon itself: It brings a renewal of hope to democracy.

Editor’s note: This is an updated version of an article first published on Dec. 15, 2020.The Conversation

Davidson is a professor of philosophy at West Virginia University.

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Read More

Are President Trump’s Economic Promises Falling Short?

U.S. President Donald Trump takes a question from a reporter in the Oval Office at the White House on May 05, 2025 in Washington, DC.

Getty Images, Anna Moneymaker

Are President Trump’s Economic Promises Falling Short?

President Donald Trump was elected for a second term after a campaign in which voters were persuaded that he could skillfully manage the economy better than his Democratic opponent. On the campaign trail and since being elected for the second time, President Trump has promised that his policies would bolster economic growth, boost domestic manufacturing with more products “made in the USA,” reduce the price of groceries “on Day 1,” and make America “very rich” again.

These were bold promises, so how is President Trump doing, three and a half months into his term? The evidence so far is as mixed and uncertain as his roller coaster tariff policy.

Keep ReadingShow less
U.S. President Donald Trump walks towards Marine One on the South Lawn on May 1, 2025 in Washington, DC.

U.S. President Donald Trump walks towards Marine One on the South Lawn on May 1, 2025 in Washington, DC.

Getty Images, Andrew Harnik

Trump’s First 100 Days on Trial

100 Days, 122 Rulings

Presidents are typically evaluated by their accomplishments in the first 100 days. Donald Trump's second term stands out for a different reason: the unprecedented number of executive actions challenged and blocked by the courts. In just over three months, Trump issued more than 200 executive orders, targeting areas such as climate policy, civil service regulations, immigration, and education funding.

However, the most telling statistic is not the volume of orders but the judiciary's response: over 120 rulings have paused or invalidated these directives. This positions the courts, rather than Congress, as the primary institutional check on the administration's agenda. With a legislature largely aligned with the executive, the judiciary has become a critical counterbalance. The sustainability of this dynamic raises questions about the resilience of democratic institutions when one branch shoulders the burden of oversight responsibilities.

Keep ReadingShow less
The President Must Affirm His Commitment to the Constitution
The preamble to the U.S. Constitution.
Getty Images, Douglas Sacha

The President Must Affirm His Commitment to the Constitution

The United States of America is at a precarious moment. Our Constitutional republic is hanging by a thread when the President himself seems uncertain about his obligation to uphold the Constitution — while those who do are being honored for their courage, as though fidelity to our founding principles were exceptional rather than fundamental. The U.S. Constitution is what holds us together as a nation. Without allegiance to it, I fear we risk losing our very identity.

Meanwhile, the legislative branch envisioned by our founders as having the most power has completely abdicated its duty of good governance, surrendering instead to partisanship.

Keep ReadingShow less
U.S. President Donald Trump signs executive orders in the Oval Office at the White House on April 23, 2025 in Washington, DC.

U.S. President Donald Trump signs executive orders in the Oval Office at the White House on April 23, 2025 in Washington, DC.

Getty Images, Chip Somodevilla

Trump 2.0’s Alleged Trifecta Crisis

On July 25, 1933, President Franklin D. Roosevelt gave a radio address to 125 million Americans in which he coined the term “first 100 days.” Today, the 100th day of a presidency is considered a benchmark to measure the early success or failure of a president.

Mr. Trump’s 100th day of office lands on April 30, when the world has witnessed his 137 executive orders, 39 proclamations, 36 memoranda, a few Cabinet meetings, and numerous press briefings. In summary, Trump’s cabinet appointments and seemingly arbitrary, capricious, ad hoc, and erratic actions have created turmoil in the stock market, utter confusion among our international trade partners, and confounded unrest with consumers, workers, small business owners, and corporate CEOs.

Keep ReadingShow less