The Constitution of the United States, Article 2 Section 2, states “The President…shall have Power to Grant Reprieves and Pardons for Offenses against the United States.”
Let’s analyze this for a moment.
In this case, an “Offense” is either a misdemeanor or a felony that has a basis in federal law. A presidential pardon can only be granted after a specific offense has been identified and “jeopardy has attached” (e.g. the individual has been charged, indicted, and/or a trial has begun).
Biden is granting pardons for crimes not yet charged. Therefore, these are not yet “offenses” that can be prosecuted. Additionally, he is granting pardons to unnamed individuals (“Members of Congress and staff who served on the Select Committee, and the U.S. Capitol and D.C. Metropolitan police officers who testified before the Select Committee…”) Hence, there is no way to know which individuals might have committed an offense and what offense(s) they may have committed.
It seems obvious that Biden is trying to protect people who performed questionable acts from being prosecuted. However, the specific offenses committed, and those who committed those offenses, have not been named. Instead, a huge blanket has been thrown over (what could be) hundreds of individuals for committing unnamed offenses. This action makes it seem that a large number of those in his administration are guilty of some kind of crime, and includes even those who merely “testified before the Select Committee”.
Are we now saying that witnesses are guilty of a crime even if they committed no crime at all?
By his actions, Biden has now held that many individuals in the Biden administration are not equal under the law. In one move, Biden has destroyed the entire concept of equal justice – at least at the federal level.
I am an individual who holds no political office and is not elite enough to whisper in the ears of those in power, but I call upon the SCOTUS to produce a per curiam opinion stating that presidential pardons can only be granted to those named individuals who have been charged with a specific offense or offenses. The Constitution is quite clear on this in Article 2 section 2 when it states “Pardons for Offenses”. There is no basis in the Constitution for a “preemptive pardon”.
On his way out, Biden is destroying what’s left of any respect for the rule of law in this country, and his actions prove it.
One other thing: now that these people have been pardoned, they cannot be prosecuted for past offenses. But they can be called to testify before Congress. If they lie or refuse to testify, 2 U.S.C. § 192 provides that they can be held in contempt and be fined up to $1000 (mostly meaningless) or spend up to a year in jail – but only if the DOJ decides to prosecute. It would be interesting to see whether a simple Executive Order to the DOJ could require prosecution of anyone who refuses to testify in front of Congress, even if they hold a presidential pardon.