At a glance:
- President Joe Biden is deliberating preemptive pardons for officials and allies to protect them from potential retaliation by the incoming Trump administration.
- The proposed pardons would include individuals who have not been investigated or charged with crimes, raising constitutional and political concerns.
- Biden’s previous pardon of his son Hunter is cited as a possible precedent for these controversial moves.
President Joe Biden is exploring the unprecedented use of preemptive pardons for officials and allies who could be targeted by the incoming Trump administration. The move, reportedly discussed with senior White House aides, would aim to shield potential targets from what Biden’s team fears could be politically motivated investigations or prosecutions under President-elect Donald Trump.
The deliberations, confirmed by multiple sources, remain at the discussion stage, and no formal decisions have been made. If executed, this would mark a novel expansion of the president’s constitutional pardon power, which traditionally applies to individuals already convicted or accused of specific crimes.
Concerns About Retribution Under Trump
Biden’s team is reportedly motivated by fears that Trump and his allies, who have publicly vowed “retribution” against perceived enemies, could use the machinery of government to launch investigations against political opponents. Their concerns are legitimate, too, given that many high-profile Democrats appear to have broken the law – or at least broken convention – in targeting Republicans using lawfare for the last several years.
Among potential recipients of the pardons is Dr. Anthony Fauci, who became a polarizing figure during the pandemic and a frequent target of conservative ire. Others reportedly under consideration include witnesses in Trump’s ongoing legal battles, officials involved in Trump’s impeachment trials, and members of the Biden administration who could be vulnerable to future investigations.
Biden’s prior decision to pardon his son Hunter Biden—covering an 11-year period of potential federal offenses—serves as a template for the proposed preemptive pardons. While the Hunter Biden pardon was controversial, Biden justified it as a measure to prevent politically motivated legal actions.
Debate Within the White House
The discussions have sparked internal debates among Biden aides, some of whom are concerned about the long-term implications of such a sweeping use of presidential power.
Critics argue that issuing preemptive pardons could feed into accusations of wrongdoing by the individuals receiving clemency, thereby damaging their reputations. Additionally, some worry that such an action would set a dangerous precedent, enabling Trump to use pardons even more broadly during his presidency.
“It’s not an ideal situation at all,” said Richard Painter, former White House ethics lawyer under President George W. Bush. “We have a whole lot of bad options confronting us at this point.”
Painter reluctantly expressed support for the idea, suggesting it could deter Trump from pursuing legal actions against political opponents and encourage his administration to focus on governance instead of revenge.
Historical and Political Context
If Biden proceeds, his actions would mirror considerations made by Trump aides in 2021, when they explored issuing preemptive pardons for individuals involved in efforts to overturn the 2020 election. Those pardons never materialized.
The most famous preemptive pardon in U.S. history came in 1974, when President Gerald Ford issued a full pardon to Richard Nixon to prevent a trial over the Watergate scandal. Ford justified the decision as a way to avoid prolonging national division.
Biden’s proposal, however, diverges in scope by targeting individuals who have not been charged or accused of specific crimes, a move that raises legal and constitutional questions.
Broader Implications
While Biden mulls these extraordinary measures, his administration is also expected to issue more conventional pardons before his term ends. White House Press Secretary Karine Jean-Pierre confirmed this week that Biden is “thinking through that process very thoroughly,” particularly regarding nonviolent offenders and those convicted of minor federal crimes.
Meanwhile, Trump and his allies, including his nominee for FBI Director Kash Patel, continue to hint at aggressive actions against political opponents. Patel has pledged to target individuals he accuses of undermining Trump during his first term.
Democratic Congressman Brendan Boyle called for Biden to act decisively, stating that blanket pardons could counter Trump’s apparent focus on “settling personal scores.”
As Biden weighs his options, the controversy underscores the unprecedented tensions between two administrations and the extent to which presidential power could be wielded in America’s polarized political landscape. Whether Biden proceeds or holds back, his decision will leave a lasting mark on the constitutional limits of presidential clemency.