President Joe Biden used his pardon power recently as the Constitution鈥檚 framers had intended: as a pre-Christmas act of mercy. He commuted the sentences of nearly 1,500 people who were released to home confinement during the pandemic and whom the president believes have successfully readjusted into society. He pardoned 39 others convicted of nonviolent crimes, such as drug offenses, following a case-by-case review of their applications.
This is a stark contrast to Biden鈥檚 ill-considered pardon of his son Hunter and to the misguided notion, still under discussion in the White House, of preemptive pardons for people who might be at risk of vindictive prosecution by President-elect Donald Trump. Though Biden has the prerogative to confer broad immunity with what are sometimes called safe harbor or protective pardons, doing so now on a large scale would be difficult to achieve, at least with any principled consistency. And it would unavoidably imply that any beneficiary broke the law in zealous pursuit of Trump. Perhaps most worrying, it would create a precedent that future presidents would use to justify their own misuses of the pardon power.
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To be sure, Democratic fears of retribution from Trump rose when the president-elect announced his intention to install as FBI director Kash Patel, who published a 60-person enemies list in a book last year and has pledged to pursue vengeance against critics of the incoming president. Pam Bondi, Trump鈥檚 pick for attorney general, said on Fox News last year: 鈥淭he prosecutors will be prosecuted, the bad ones.鈥 Adding a sense of urgency to the debate, Trump recently said on NBC that members of the House committee that investigated Jan. 6, 2021, 鈥渃ommitted a major crime鈥 and 鈥渟hould go to jail.鈥 Names reportedly under consideration for preemptive pardons include retired Gen. Mark A. Milley, Anthony S. Fauci and former congresswoman Liz Cheney, R-Wyo.
And yet one reason not to grant them pardons is that alternative protections remain available to possible targets. Lawmakers such as Cheney are protected by the Constitution鈥檚 speech or debate clause, which prohibits the prosecution of a lawmaker for fulfilling their legislative duties. Juries, judges and appellate courts could halt potential miscarriages of justice. The court of public opinion also counts. Republicans will defend their narrow House majority in 2026. ...
Imagine what might happen if senior administration officials presumed that they would get pardons at the end of every administration. Border Patrol agents could be told they would get away with assaulting migrants. A president could direct an aide to lie under oath to Congress. President Gerald Ford granted his predecessor, Richard M. Nixon, a preemptive pardon after Nixon鈥檚 resignation. The blanket pardon probably cost Ford the election two years later 鈥 but history has looked on it with kinder eyes because it helped the nation heal after Watergate.
In that sense, Ford鈥檚 pardon of Nixon is an exception that proves the rule. With sweeping preemptive pardons, however, Biden would 鈥 in the eyes of roughly half the electorate 鈥 be protecting his cronies from accountability. This would deepen the feeling, exacerbated by the Hunter Biden pardon, that there鈥檚 a two-tier system of justice.
And for all that, even the broadest presidential pardon couldn鈥檛 fully protect someone Trump was determined to harass. His IRS could engage in selective audits. The Justice Department鈥檚 Antitrust Division could scrutinize someone鈥檚 business. Without the protection of the Fifth Amendment to avoid self-incrimination, congressional Republicans could subpoena beneficiaries of the pardons. The hearings that followed would be perjury traps 鈥 and Biden鈥檚 pardons could not cover future crimes. Conservative prosecutors in Republican-run states could try to contrive local charges.
If he follows this course, Biden will be doing something that Trump opted not to do when he left office in January 2021 鈥 at a time when few conceived of his return to the presidency four years later. Trump considered pardoning himself and his adult children. At least half a dozen Republican members of Congress who were involved in the plot to overturn the 2020 election had also sought preemptive pardons, including then-Rep. Matt Gaetz, R-Fla., according to the Jan. 6 committee.
But on the final Saturday before Trump left office, White House attorneys convinced him that issuing broad pardons would signal the appearance of guilt, make him more vulnerable to reprisals and increase the odds that Senate Republicans would vote to convict him during his second impeachment trial. This is one case in which Biden would be well advised to follow Trump鈥檚 example.
