The Federalist Papers are a collection of 85 essays written in the late 18th century to promote the ratification of the United States Constitution. A three-man team wrote the essays to address concerns and criticisms raised by opponents of the then newly proposed U.S. Constitution (who were attacked as Anti-Federalists). The essays were basically talking points for defending the principles of the Constitution and to help proponents argue for the need for a strong federal government to replace the Articles of Confederation, which had proven weak and ineffective during peacetime once the War of Independence was over. Effectively, if you were a supporter of the U.S. Constitution arguing with your friends at the local bar or cafe, you could use the Federalist Papers as ammunition. The Federalist Papers were authored under the pseudonym Publius by these Founding Fathers of the United States:
Alexander Hamilton, later the first Treasury Secretary
James Madison, later author of the Bill of Rights and 4th U.S. President,
John Jay, later the first Chief Justice of the U.S. Supreme Court
In Federalist #74, Hamilton explained the logic of granting the president the power to pardon offenses against the United States, meaning federal laws.
"Humanity and good policy conspire to dictate, that the benign prerogative for pardoning should be as little as possible fettered or embarrassed. The criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel. As the sense of responsibility is always strongest in proportion as it is undivided, it may be inferred that a single man would be most ready to attend to the force of those motives, which might plead for a mitigation of the rigor of the law, and least apt to yield to considerations, which were calculated to shelter a fit object of its vengeance. The reflection, that the fate of a fellow creature depended on his sole fiat, would naturally inspire scrupulousness and caution: The dread of being accused of weakness or connivance would beget equal circumspection, though of a different kind. On the other hand, as men generally derive confidence from their numbers, they might often encourage each other in an act of obduracy, and might be less sensible to the apprehension of suspicion or censure for an injudicious or affected clemency. On these accounts, one man appears to be a more eligible dispenser of the mercy of the government than a body of men."
Okay, so what is logic here? Why should the president have royal power, which is what the pardoning authority is, in fact, though we blush to admit it? In teaching the U.S. Constitution, I am always upfront with my students that the model for the presidency is the British king and that George Washington, the man they all knew would be the first president, was George III as they wish he had been. The debates on presidential monarchy, the presidency as a one man job, were also a debate on "what powers do we want Gen. Washington to have to protect the public good?"
Here in Federalist #74, Hamilton explains that:
Legal systems are inherently severe because they exist to deter crime, provide justice to the victim, and public vengeance in order to forestall private vendetta. But, sometimes, someone is on the wrong side of the letter of the law due to a mistake or tragedy. Pardons provide the necessary flexibility to address cases of "unfortunate guilt." In this case, you want one person to have the responsibility because that individual cannot escape or deflect their duty to consider unfortunate guilt onto someone else. So, what's the issue with the pardoning power today? The problem is that the American people do not have the mindset to put responsibility where it lies and make politicians really own their decisions. Partisanship makes us unreasonable. The Founders designed the system with particular values in mind, and many Americans no longer recognize or understand those values, so the system doesn't work as intended.
The issue is character, and this is why I prefer to write a non-partisan history. Team Dem and Team GOP have been lax on the issue of character, dignity, and decorum in government. Too many get their civic virtue from Hollywood's fictional portrayals where it is fun to put down the other side and act in horror when they retaliate. In real life, it leads to anything going so long as someone else's ox gets gored. The idea of Justice Department independence is a cruel fiction that leads to unaccountable actions. The people elect a president to run the DoJ, not for it to be independent of their elected president. If the DoJ was prosecuting Hunter Biden unjustly it should have been stopped by President Joe Biden using his authority as the President of the United States. Period. If it was allowed to proceed and the trials were fair, then there was no justification for the pardon other than bad character and family connection, which is a form of corruption. Hunter Biden is a private citizen, not a prince or heir to the throne. He should not have been pardoned if he was actually guilty. And if the prosecution was wrong, the president had a duty to stop it and the authority to do so. If Merrick Garland was a problem he should have been fired. The problem is that we, the American people, are letting partisanship get in the way of basic government operations and constitutional logic. Joe Biden had handled the public issues with his son badly from the beginning, especially when he refused to acknowledge his granddaughter. That is bad character, as the Founders would have understood it.
The power of pardons should be guarded and scrutinized for three very important reasons. 1) It is unappealable and cannot be revoked. 2) All laws enforced in Washington, DC, are federal laws, and the president could wield the power to great abuse in the federal district if they wanted to do so. 3) National security can be threatened or enhanced by the use and misuse of the pardoning power.
Character matters no matter which party you side with. You make exceptions at your peril, and after claiming he would not do it, the leader of Team Dem just made a big exception for his son. Team Dem can either disavow it or allow Team GOP to embrace the logic of Biden’s choice. But the power to choose remains for Team Dem and Team GOP.