Can a President Pardon Someone for Crimes They Haven’t Been Charged With?

On Inauguration Day, President Joe Biden pardoned Dr. Anthony Fauci, retired Gen. Mark Milley and members and staff of the committee that investigated the Jan. 6 attack on the Capitol, which occurred during the transition from President-elect Donald Trump to Biden.

None of the individuals pardoned had been officially charged or indicted for any crimes relating to the events. President Biden explained that the pre-emptive pardons were intended to protect them from possible retaliation by the incoming Trump administration.

Dr. Fauci played a key role in overseeing the country’s response to the COVID-19 pandemic, while Gen. Milley, a former Chairman of the Joint Chiefs of Staff, openly criticized Trump, referring to him as a fascist, and provided detailed accounts of Trump’s actions during the Jan. 6 insurrection at the Capitol.

The J6 House committee spent 18 months investigating Trump and the insurrection. It was led by Rep. Bennie Thompson, D-Miss., and former Wyoming Rep. Liz Cheney, a Republican, who later pledged to vote for Democrat Kamala Harris and campaigned with her. Biden’s statement did not list the dozens of members and staff by name.

Biden’s pardon also extends to any U.S. Capitol and D.C. metro police officers who testified before the committee. 

Biden also granted preemptive pardons to several members of his family.

Recent online search trends show there is a spike in searches about how broad presidential pardons can be.

Can a president pardon someone for a crime they have not been charged with?

Yes, a president can pardon someone for a crime they have not been charged with. 

Under the U.S. Constitution, the president has broad power to pardon someone before they are indicted, convicted or sentenced for a federal offense against the United States. This means a person can be pardoned for crimes they haven’t actually been charged with. However, a pardon cannot apply to future conduct, only past offenses. President Joe Biden previously used this right when pardoning his son, Hunter Biden.

Article II, Section 2, Clause 1 of the Constitution reads: 

“The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.”

The U.S. Supreme Court has recognized the president’s broad pardon power as far back as 1866. In the case, Ex parte Garland, the Supreme Court described a president’s authority to pardon as “unlimited except in cases of impeachment, extending to every offence known to the law and able to be exercised either before legal proceedings are taken, or during their pendency, or after conviction and judgment.” 

The Supreme Court also indicated in Ex parte Garland that the power may be exercised at any time “after [an offense’s] commission.” This means a president can issue a pardon at any point after a crime is committed and before, during or after criminal proceedings have taken place, according to SCOTUSBlog. The president cannot, however, pardon someone for future crimes. 

In 1974, the Supreme Court also wrote that the broad power conferred in the Constitution gives the president plenary authority to “forgive [a] convicted person in part or entirely, to reduce a penalty in terms of a specified number of years or to alter it with certain conditions.” 

The Justice Department’s Office of the Pardon Attorney says pardons this broad are rare, but not unprecedented.

A similarly broad pardon was issued by then-President Gerald Ford to former President Richard Nixon following Nixon’s resignation after the Watergate scandal. Ford’s pardon extended to “all offenses against the United States” that Nixon “has committed or may have committed” between Jan. 20, 1969, and Aug. 9, 1974 — the exact span of Nixon’s presidency.

Trump called Biden’s Jan. 20 pardons “disgraceful.”

The Associated Press contributed to this report.