No, Trump can’t void Biden’s pardons

Reports that President Trump intends to void presidential pardons issued by former President Joe Biden have sparked a wave of legal debate. Although such a move might appeal to Trump’s political instincts and base, it is simply not within the realm of legal possibility.

To put it in legalese, it ain’t gonna happen.

But just the fact that Trump brought this up is profoundly troubling, because it evinces either an even a more profound lack of understanding of the law or a far more sinister intention.

The presidential pardon power, as enshrined in the U.S. Constitution, is one of the most sweeping and unassailable powers granted to the executive branch. It is final, absolute and beyond the reach of any future president or administration to undo. Any attempt by Trump or any other president to revoke a duly issued pardon would not only be unconstitutional, it would also undermine the very principles of executive authority and legal finality that have governed the nation since its founding.

Article II, Section 2 of the U.S. Constitution grants the president the power to issue pardons for federal offenses, with the sole exception of cases of impeachment. The text is unambiguous: “The President shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” This language has been interpreted by courts and legal scholars alike to mean that once a pardon is granted, it is final. The power does not come with an implied clause allowing a successor to undo or revoke it.

To the contrary, legal precedent makes clear that a presidential pardon is absolute once delivered and accepted.

The Supreme Court affirmed this in Ex parte Garland (1866), ruling that the pardon power “extends to every offense known to the law and may be exercised at any time after its commission, either before legal proceedings are taken or during their pendency, or after conviction and judgment.”

The court further held that the effect of a pardon is to “remove penalties and disabilities” and that it “cannot be limited by Congress.” If Congress, which holds legislative power, cannot restrict or nullify a pardon, it follows that a future president — who possesses no legislative authority — cannot do so either.

The Supreme Court reinforced the irrevocability of pardons in United States v. Klein (1871), a case that dealt with post-Civil War pardons issued by President Andrew Johnson. The court here struck down congressional attempts to interfere with the legal consequences of a pardon, emphasizing that the power to pardon is an executive prerogative that, once exercised, is beyond further review or alteration. The ruling made clear that a valid pardon cannot be disregarded, nor can its legal effects be undone.

Some may argue that because the Constitution does not explicitly state that pardons are irrevocable, a sitting president might have the power to void them. But this argument is a hard no, as it misunderstands both the nature of the pardon power and the constitutional framework.

The absence of explicit language allowing revocation is itself evidence that the power does not exist. The Framers of the Constitution intended for the pardon power to be broad and final, shielding it from political manipulation by successive administrations. To allow one president to revoke another’s pardons would turn the pardon power into a mere political tool rather than a fundamental aspect of executive clemency.

The literal and practical mechanics of a pardon illustrate why it cannot be undone. A pardon is not merely a statement of forgiveness; it has legal consequences, including the restoration of rights and the expungement of certain penalties. A person who has been pardoned and released from prison cannot simply be re-incarcerated without new due process. Similarly, a person whose conviction has been nullified by a pardon cannot have their criminal record reinstated without running afoul of constitutional protections.

Of course, revoking pardons would trigger massive legal challenges that the Trump administration would (almost) certainly lose. The courts have consistently ruled against any efforts to restrict or undo the effects of a pardon. If Trump attempted to void pardons issued by Biden, those affected would challenge the move in federal court, and the judicial system would almost certainly uphold the finality of the pardons. Any such legal battle would be a futile exercise, ultimately reinforcing the precedent that a president’s pardon is permanent and untouchable by successors.

Beyond the legal and constitutional barriers, there are also serious political and ethical implications to consider. The pardon power has long been understood as a means of granting mercy and correcting injustices, even if a very strong argument can be made that this isn’t the case in practice today. If Trump were to attempt to revoke Biden’s pardons, it would set a dangerous precedent that could be exploited by future administrations for political retribution.

Presidents could use the threat of revoking past pardons as a means of punishing political opponents or their supporters, effectively weaponizing an authority that was intended to serve justice rather than partisan interests. This would be a destabilizing force in American governance, and would undermine the credibility of the presidency itself.

Ultimately, no matter how much Trump or his allies might wish to erase Biden’s pardons, the Constitution does not give him the authority to do so. The Supreme Court has made it abundantly clear that once a pardon is granted, it is irrevocable. Any attempt to undo a predecessor’s pardons would be an unprecedented and unconstitutional overreach, one that would almost certainly be struck down by the courts. In the broader scope of American democracy, allowing one president to void the clemency decisions of another would create chaos and instability, turning the justice system into a political battleground rather than a pillar of fairness and due process.

If Trump truly wants to shape the use of the pardon power, his only legal option is to issue his own pardons moving forward. But as for those granted by Biden, they are legally untouchable, no matter how much Trump may wish otherwise.

Aron Solomon is the chief strategy officer for Amplify. He has taught entrepreneurship at McGill University and the University of Pennsylvania.

Topics

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