Legal Review: Examining the Necessity of Biden’s Jan. 6 Pardons

 

Rep. Liz Cheney speaks to detail the progress of the Select Committee to investigate the January 6th attack on the Capitol. Source: Drew Angerer via Getty Images

*Editor’s Note: The article has been revised to reflect that Senator Brewster was found not guilty on bribery charges

Factual background

On the morning of January 20, former President Joe Biden, in the waning hours of his presidency, issued a slew of preemptive pardons to individuals he feared would be targeted for political persecution under the incoming Trump administration. Among the pardoned were former members of the House Select Committee to Investigate the January 6 Attack on the United States Capitol. Questions soon arose over not just whether the pardons for these individuals were warranted, but whether they were necessary. 

Those who questioned the necessity of the pardons cited Article I, Section 6, Clause 1, of the Constitution, commonly known as the Speech or Debate Clause. The clause states that Members of Congress, except in cases of “treason, felony, and breach of the peace,” shall be “privileged from arrest…and question[ing]” during their attendance at the session of their respective House, and for “any Speech or Debate” given to that House. Believing that the clause already immunized the actions of former members of the January 6 Committee, those individuals argued that a pardon from former President Biden was unnecessary. While the prophylactic effect of the pardons on any possible political persecution remains yet to be tested, it is useful to examine what existing case law says about the necessity of the pardons. 

The situation before us today presents two intersecting issues. To what extent does the immunity conferred by a presidential pardon coincide with the immunity conferred by the Speech or Debate Clause? Does the Speech or Debate Clause eliminate the need for a President to pardon certain legislators if he wishes to immunize them from political persecution? While there is a considerable degree of overlap between the two immunities, if a President wishes to protect certain legislators from political persecution, it would still be wiser for him to exercise his unilateral pardon power rather than rely on the Speech or Debate Clause. In this article, I will discuss how the Speech or Debate Clause does not fully protect a legislator from potential persecution and that a President’s unilateral pardon authority is more encompassing.

I. The Speech or Debate clause does not fully protect a legislator from political persecution.

The idea that the immunity conferred by the Speech or Debate clause is sufficient to protect legislators from political persecution ignores the line of precedents the Supreme Court has decided and the harsh realities of political persecution. The degree of immunity afforded by the Speech and Debate clause, as interpreted by the Supreme Court, does not guard against every conceivable form of political persecution and therefore leaves a legislator vulnerable to a vengeful Executive.

A. The Speech or Debate clause only protects “legislative actions” against interference from the other two branches

It is true that the immunity granted by the Speech or Debate clause is wide-reaching. In several Supreme Court cases, the clause has immunized actions by legislators that would have easily led to a conviction had those actions not been taken in the legislator’s official capacity. United States v. Johnson, 383 U.S. 169 (1966), illustrates the extent of such immunity. 

In this case, Respondent Thomas F. Johnson, a former Congressman, had been indicted by the Government on accusations that he had conspired to defraud the United States. The Government based this indictment on a speech Johnson had given on the House floor, in which he attempted to persuade his colleagues to vote in a manner favorable to the company that was allegedly bribing him. In ruling against the Government, the Supreme Court concluded that the Speech or Debate Clause not only privileges the contents of a speech given on the House floor, but also any possible intent behind the speech (1). Though this may seem to foreclose any possibility of political persecution, the following case will demonstrate the limitations of the Speech or Debate Clause.

Emboldened by the Court’s decision in Johnson, Senator Daniel Brewster, Appellee in the Supreme Court case United States v. Brewster, 408 U.S. 501 (1972), sought to invoke the protections of the Speech or Debate clause to immunize his alleged act of accepting bribes. Contending that the Speech or Debate clause protected all actions taken by a legislator in his official capacity, and that his actions fell under this category, Brewster asked the Supreme Court to dismiss his indictment. The Supreme Court upheld his indictment, finding that “The immunities of the Speech or Debate Clause were not written into the Constitution simply for the personal or private benefit of Members of Congress, but to protect the integrity of the legislative process by insuring  the independence of individual legislators (2).” 

To determine which acts were integral to the legislative process (and thus necessitated immunity) and which acts were solely for the personal or private benefit of Congressmen, the Court drew a distinction between “legislative acts” and non-legislative acts. Defining a “legislative act” as “an act generally done in Congress in relation to the business before it (3),” the Court excluded “legitimate legislative errands,” such as holding press conferences, assisting constituents in securing government contracts, writing letters to constituents, etc. from the protections of the Speech or Debate Clause. 

This distinction dealt a large blow to Brewster’s case. Not only did it exclude acts done for “personal or private benefit” (like Brewster’s alleged acceptance of a bribe), it also excluded acts (the “legitimate legislative errands”) germane to the legislative process. While Johnson interpreted the Speech or Debate clause to extend sweeping immunity to legislators, Brewster greatly dampened the impact of Johnson by limiting the aforementioned immunity to a specific set of acts. As the next section will show, the acts excluded by Brewster provide a myriad of grounds for political persecution.

B. A leader who wishes to pursue political persecution will stop at nothing to take down their enemies.

Political persecution is a nasty process. The full investigative and punitive weight of a government is brought down upon a political enemy, digging up embarrassing personal details, harassing loved ones, and wasting the political enemy’s time. The persecutor(s) will examine every conceivable act the political enemy has taken to take them down. We can look to other countries for examples of such persecution. In Malaysia, prosecutors working under Prime Minister Mahathir Mohamed hauled in opposition leader Anwar Ibrahim’s mattress into court to convict him on politically-motivated sodomy charges (4).  In Turkey, President Erdogan indicted a gold trader who had testified against him in US federal court on the flimsiest of terrorism charges (5). Both these examples involve private acts that bear a minimal connection to legislative duties. 

If applied to the American context, the Speech or Debate Clause, as shown in the preceding section, would provide no protection from political persecution that occurs on grounds of private conduct. While I have faith that the safeguards on our justice system (such as the requirements of grand jury indictment, trial by jury, etc.) will prevent it from being as blatantly political as the aforementioned examples, I still fear a vengeful Executive might target the “legitimate legislative errands” that Brewster has excluded from the protections of the Speech or Debate clause. Liz Cheney, for example, might be targeted for a press conference she gave detailing the progress of the Select Committee. Adam Kinzinger might be targeted for denouncing the Jan 6 rioters outside of official business. The examples from around the globe and the hypotheticals listed demonstrate that the Speech or Debate clause is simply inadequate to shield legislators from all forms of political persecution.

II. The President’s unilateral pardon power provides near-infinite immunity for recipients of pardons.

The power to pardon is a power unique to the Office of the President. As an important check against the two other branches, the Supreme Court has ruled it to be examinable by neither Congress nor the judiciary. The separation of powers interest inherent in the pardon power grants the President unilateral authority to pardon individuals, and for purposes of shielding those individuals from political persecution, provides more extensive protection than does the Speech or Debate clause.

A. The separation of powers requires that the President possesses unilateral pardon power.

The power to grant pardons is commonly thought of as a vestige of the British system. As the monarch was the law in England, their power to grant pardons was not questioned, as a pardon was thought of as a regular part of the course of justice. When the Framers of the Constitution gathered at the Constitutional Convention in 1787, they discussed the practical implications of pardon power. Observing that the justice system was not infallible, Alexander Hamilton opined in Federalist No. 74 that “without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel.” The best way to prevent this “cruelty,” Hamilton stated, was to ensure that the “benign prerogative of pardoning should be as little as possible fettered or embarrassed” and that this authority be exercised by “a single man.” 

Accordingly, the Supreme Court has consistently upheld the unilaterality of the President’s pardon authority as essential to the separation of powers. In Ex parte Garland, 71 U.S. 333 (1866), the Supreme Court considered the case of a former Confederate official who had been pardoned by President Andrew Johnson for refusing to take an oath of loyalty to the United States, but nonetheless been disbarred as an attorney for refusing to take said oath. In restoring Garland’s right to practice law, the Court ruled that the President’s power to pardon was “unlimited” (with the constitutionally-prescribed exception for impeachment) and that it extended to “every offence known to the law (6).” The Court further expounded on the unilaterality of the President’s pardon power in Trump v. United States, 603 U.S. 593 (2024). In immunizing all “official acts”, including pardons, taken by the President, the Court reasoned that the separation of powers necessitated such an immunity, and that it was required to “safeguard the independence and effective functioning of the Executive Branch (7).” Therefore, the pardon authority granted to the President can immunize much more than the Speech or Debate clause.

Conclusion

Given the unilaterality of the President’s pardon power, an immunity much more sweeping than that extended by the Speech or Debate clause can be conferred by a pardon. A pardon can immunize the “legitimate legislative errands” excluded by Brewster. It can also, somewhat controversially, immunize personal acts that the President worries may be targeted for political retribution. Former President Biden, whether you agree with him or not, adequately achieved his goal of protecting members of the Select Committee from possible political persecution by granting them pardons.

1. Johnson 383 U.S. at 183 (quoting Ex parte Wason, L.R. 4 Q.B. 573, 577 (1869))

2. Brewster 408 U.S. at 507

3. Brewster 408 U.S. at 512

4. See Alvin Ung, A Stain upon Anwar’s Defense, CBS News (December 30, 1998), https://www.cbsnews.com/news/a-stain-upon-anwars-defense/

5. See Jose Pagliery and Isli Sariyuce, Turkey targets assets of US witness who claims Erdogan is corrupt, CNN (December 1, 2017), https://www.cnn.com/2017/12/01/world/reza-zarrab-us-trial-erdogan/index.html

6. Garland 71 U.S. at 380

7. Trump 603 U.S. at 606

Table of authorities

Cases

  • United States v. Johnson, 383 U.S. 169 (1966)

  • United States v. Brewster, 408 U.S. 501 (1972)

  • Ex parte Garland, 71 U.S. 333 (1866)

  • Trump v. United States, 603 U.S. 593 (2024)

Websites

 
National, Editor's PicksAndy GongNational, January 6th, Biden Pardons, Biden Administration, Legal Review, Editor's Pick2 Comments