Preemptive Pardons

Is a so-called Presidential “preemptive pardon” consistent with the intent and language of the Constitution? All that the Constitution says about the matter is this:

Make America Healthy A... Saphier M.D., Nicole Best Price: $12.93 Buy New $17.79 (as of 03:41 UTC - Details) ”…he (the President)  shall have the power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” {Article 2, Section 2} In the first important case to deal with these issues  ( Ex Parte Garland 71 U.S. 333, 1866) the Supreme Court (in the context of someone pardoned but still  excluded from the (state) practice of law) said the following:

“The power of pardon conferred by the Constitution upon the President is unlimited except in cases of impeachment. It extends to every offence 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 power is not subject to legislative control.”

And it is THIS interpretation of the pardoning power that was (still) used, for instance, in the “preemptive” pardoning of Richard Nixon who, although disgraced, had not been charged with any criminal offense against the federal government. Ditto for the Biden preemptive pardons.

My comments:

a. The original language in the Constitution never explicitly mentions any “preemptive” pardoning power. Moreover, the use of the term “offenses” in the Constitution appears to imply that something legal (some process; some finding; some  determination) has ALREADY begun or occured and that the presidential pardon applies to that offense or set of offenses. If this is correct, that would rule out any preemptive pardoning power. Dark Calories: How Veg... Shanahan MD, Catherine Check Amazon for Pricing.

b. Now the language from the 1866 case cited above (and the legal foundation for the notion that a preemptive pardon is Constitutional) clearly broadens the pardoning power beyond what the Founders wrote or likely reasonably intended. After all, an “offense” PRIOR to some legal proceeding,  is NOT an offense in any legal sense but only an “alleged (legal) offense.” Nowhere, however, does the pardoning power in the Constitution even hint that the President  could pardon someone  for some ALLEGED offense against the Government; or that THAT  power could somehow be “unlimited” and beyond all legislative review. It appears, then,  that the SC majority in 1866 pulled that far broader interpretation of the pardoning power right out of thin air or, more accurately, right out of a very different theory of post Civil War Presidential prerogatives.

The Best of Dom Armentano