Experts Weigh In On Whether Or Not Trump Can Override Biden's Pardons!

By Tommy Wilson | Saturday, 25 January 2025 09:30 AM
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Image Credit : REUTERS via The Texas Tribune

The potential for individuals pardoned by President Joe Biden to face indictment under a Trump administration has been suggested by a former federal prosecutor.

This hypothetical scenario, if realized, could plunge the United States into a significant constitutional crisis.

According to Newsweek, former President Donald Trump has repeatedly expressed his intention to indict his political adversaries, including Republican Liz Cheney and other members of the January 6 committee. This committee, established by the House, has unequivocally attributed the responsibility for the Capitol riot on January 6, 2021, to Trump.

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The committee's final report detailed a "multipart conspiracy" led by Trump to overturn the 2020 election results. In response to Trump's threats of retaliation, President Biden issued preemptive pardons to committee members, including Adam Schiff (D-Calif.), Liz Cheney (R-Wyo.), Adam Kinzinger (R-Ill.), and Elaine Luria (D-Va.).

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Joyce Vance, a former federal prosecutor, speculated on a podcast she co-hosts that Trump could potentially indict those who did not accept Biden's pardon while he was still in office. "If I was the Trump administration and if I was hell-bent on prosecuting these folks, I would make the argument that the pardon must be accepted while the person who issues it is still in office and that if you don't affirmatively accept it, it's not valid," she stated. Vance acknowledged that her theory was speculative, with no precedent for or against it, leaving the area wide open for interpretation.

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However, Andrew Novak, a law professor at George Mason University in Virginia and author of "Comparative Executive Clemency: The Constitutional Pardon Power," dismissed the idea that Trump could override Biden's pardons. He labeled the notion as "made up nonsense," arguing that a pardon does not require affirmative acceptance to be valid. He further stated that a change in presidential administration should not affect the validity of a pardon, as it is a power of the office, not a personal right of the individual.

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Greg Germain, a law professor at Syracuse University in New York, concurred with Novak's assessment. He stated, "Once granted, it's effective unless rejected by the person pardoned. Presumably, the pardons were delivered, and were not rejected, so they would be final."

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Peter Shane, a constitutional law professor at New York University, also weighed in on the matter. He stated that a pardon does not require acceptance by the recipient to be valid. He argued that requiring an act of acceptance would render posthumous pardons impossible, which are a routine occurrence.

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While the January 6 committee is shielded by Biden's preemptive pardon, making it unlikely for Trump to indict them, there are others who have not received such protection. These individuals, including those implicated in the failed indictment of Trump on federal election interference charges in Washington, D.C., following his election victory in November 2024, could potentially become targets. This situation underscores the complex and potentially volatile nature of the presidential pardon power, and its potential implications for the nation's political landscape.

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