President Biden, Pardons, and the Limits of Appellate Review

The power of a President to pardon anyone for a Federal Crime is limited only by the provision of U.S. Const. Art. II, section II that prevents pardons for verdicts of “impeachment:”

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

Therefore, it is almost impossible to seek meaningful appellate review of a Presidential pardon.? This appears to be intentional, as the Federal Judiciary operates with little oversight from the Legislative or the Executive Branches, other than, of course, the fact the House of Representatives controls the purse and the Senate must approve the President’s Judicial nominees — as well as the oft-forgotten power of Congress to set the jurisdiction and scope of Federal Courts by virtue of Article III, Section II:

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office. (Emphasis added.)

Given this broad power, I was neither shocked nor offended by President Biden's broad pardon of his neer-do-well son Hunter, so broad as to include any claims his son was guilty of influence-peddling with the consent of his father by, for example, serving on the Board of Directors of Ukrainian oil company Burisma despite his lack of involvement in either Ukraine or the energy industry. (See, e.g., https://www.pbs.org/newshour/politics/report-hunter-biden-sought-u-s-government-help-for-gas-company-burisma.)? The power conferred is not only broad but is personal to the President rather than being conferred on any other portion of the government. This is separate, of course, from criticism of any of the lies or prevarications from the President and/or his White House minions.? Indeed, The New York Times has reported that the pardon has been in the works for months, during which time it was said by the President and his Press Secretary — over and over again —? that no pardon or clemency would be forthcoming. (See https://www.nytimes.com/2024/12/01/us/politics/biden-pardon-son-hunter.html.)

It has often been said that a grand jury can indict a ham sandwich.? To the extent this is true, the President could later pardon the sandwich, the son of the sandwich, or the wife or husband of the sandwich.?

?