President Joe Biden’s pardon decisions have come under a spotlight in the waning days of his presidency, but his openness to granting one unusual type of clemency has reignited legal debate.
Biden’s sweeping preemptive pardon for his son Hunter Biden and the president’s recent admissions that he is weighing similar pardons for some of President-elect Donald Trump’s top political adversaries, such as former Rep. Liz Cheney and Dr. Anthony Fauci, have left some questioning if they are appropriate.
Ilya Shapiro, director of constitutional studies at the Manhattan Institute, told the Washington Examiner a president’s broad pardon authority does indeed extend to preemptive pardons but that they were not necessarily suitable for Cheney, Fauci, or other public figures who have attracted Trump’s wrath.
“Whether it’s the right thing to do or politically smart are different questions, of course — though at this point, I doubt Biden cares about such niceties,” Shapiro said.
Pardons for people who have not yet faced federal charges, known as preemptive pardons, are not novel, but they are “highly unusual,” according to the Office of the Pardon Attorney. Presidents can issue them for a person’s past conduct but not future conduct, and the pardons cannot prevent state charges.
‘Insider favoritism’
Former U.S. Attorney John Fishwick of Virginia, an Obama appointee, cautioned against ever using such clemency, saying its constitutionality could “be subject to legal challenges.”
“Preemptive pardons should be used very sparingly or not at all,” Fishwick told the Washington Examiner. “Our Founding Fathers did not anticipate Presidents granting pardons to political allies for charges that could come down the pike from their political opponents. It sends a message to the average person of insider favoritism.”
Before Joe Biden’s controversial pardon for Hunter Biden, which covered not just the first son’s two criminal cases but all his uncharged conduct over the past 11 years, several other presidents used the authority.
The late President Jimmy Carter issued blanket preemptive pardons in 1977 to hundreds of thousands of people who were thought to have evaded the Vietnam War draft. President Gerald Ford famously pardoned his predecessor, Richard Nixon, before Nixon could face charges for the Watergate scandal. Precedent for them dates back to President George Washington, who used them after the Whiskey Rebellion.
The case for preemptive pardons
Legal experts have long been divided over preemptive pardons. Critics have warned they are ripe for abuse and render their recipients above the law by shielding them from the justice system, thereby undermining it. Others are more open to them.
Legal analyst Norm Eisen, who led Democrats’ first impeachment case against Trump, argued preemptive pardons do not undercut the justice system. Instead, he said, they simply protect a person from drawn-out, expensive court proceedings that could upend his or her life.
“It has absolutely nothing to with faith in the justice system because somebody can be dragged through the mud by Donald Trump or Kash Patel or Pam Bondi simply because they testified truthfully against Donald Trump, and Trump and those around him have made their desire for revenge clear,” Eisen told the Washington Examiner.
Patel, Trump’s pick to lead the FBI, identified in his book members of the so-called deep state who he said were “criminals.” The list included dozens of prominent Democrats, Republicans who have fallen out of favor with Trump, and other current and former government officials. A Trump transition spokesman has since said Patel does not plan to pursue “law-abiding” citizens.
“Kash Patel is going to end the weaponization of law enforcement,” the spokesman said. “The FBI will target crime, not law-abiding individuals with Kash leading the bureau.”
Joe Biden was asked during a recent interview in USA Today if pardons for Cheney, Fauci, and others were on the table.
“A little bit of it depends on who he puts in what positions,” he said. He added that when he met with Trump, Biden “tried to make it clear that there was no need, and it was counterintuitive for his interest to go back and try to settle scores.”
On Friday, White House press secretary Karine Jean-Pierre indicated that preemptive pardons remained an option.
“I’m not going to get into the scope, I’m not going to get ahead of the president, but we will be making some more, additional announcements on pardons and commutations before the end of his term,” Jean-Pierre said.
Possible recipients
Trump’s most vocal supporters have said pardons for Cheney and Fauci, in particular, would be damning in the public eye. Cheney is an anti-Trump Republican who served on the committee that investigated Trump over the Jan. 6 Capitol riot, and Fauci, the face of the government’s response to COVID-19, was targeted for his claims about the disease’s origins.
“If he does pardon them, this will forever mark Fauci as the chief criminal of COVID and Liz Cheney as the architect of the J6 coverup,” TPUSA President Charlie Kirk wrote on X.
Trump’s bombastic rhetoric about punishing his political opponents attracted much attention during his presidential campaign and became the impetus for conversations about Joe Biden issuing the preemptive pardons.
In August, Trump shared a Truth Social post of an AI photo of Fauci, Joe Biden, Vice President Kamala Harris, former House Speaker Nancy Pelosi, and billionaire Bill Gates in orange jumpsuits with the caption, “HOW TO ACTUALLY ‘FIX THE SYSTEM.’”
In July, he amplified a post that said, “Elizabeth Lynne Cheney is guilty of treason. Retruth if you want televised military tribunals.”
Special counsel Jack Smith, who led two unsuccessful criminal prosecutions against Trump, has drawn perhaps the most intense ire from the president-elect.
On the campaign trail, Trump vowed to fire Smith in “two seconds,” said he should be “thrown out of the country,” and called him a “sick puppy,” “deranged,” a “Trump hating THUG,” a “fully weaponized monster,” and a “criminal.” Trump also called for Smith’s arrest.
Others on Trump’s radar have included New York Attorney General Letitia James, whom Trump has decried as “fraudulent” and accused of election interference for bringing a civil fraud trial against him while he was running for office.
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Since winning the election, Trump has signaled that his threatening words could be mere bluster. He told Meet the Press in a television interview that while he believes Cheney and other lawmakers on the Jan. 6 committee should go to jail, he will not direct his Justice Department to attempt to bring charges against them.
He characterized himself as forgiving while speaking about the media to Fox News in November, saying he was “not looking for retribution, grandstanding or to destroy people who treated [him] very unfairly, or even badly beyond comprehension.”