President Joe Biden is weighing whether to issue sweeping pardons for officials and aides who the White House fears could be unfairly targeted by President-elect Donald Trump’s administration, a preemptive move that would be a novel and risky use of the president’s extraordinary constitutional powers.
Discussions so far have been at the level of White House lawyers. But Biden himself has discussed the matter with some senior aides, according to two people familiar with the matter who spoke on condition of anonymity Thursday to discuss the sensitive matter. No decision has been made, the people said, and it’s possible Biden chose to do nothing.
Pardons have historically been granted to those accused of specific crimes — and usually those who have already been convicted of a crime — but Biden’s team is considering releasing those who have not even been investigated, let alone charged. They fear that Trump and his allies, who have boasted an enemies list, could launch “retaliatory” investigations that would be reputational and financially costly for their targets even if they don’t result in indictments.
While the president’s pardon power is absolute, Biden’s use of it in this fashion marks a significant expansion of how they are deployed, and some Biden allies fear it could set the stage for Trump to use it more harshly. They also worry that issuing pardons could lead to claims that Trump and his allies have committed acts that require immunity.
Recipients could include infectious-disease specialist Dr. Anthony Fauci, who played a key role in fighting the coronavirus pandemic and has become a scapegoat for conservatives angry about mask mandates and vaccines. Others include witnesses in Trump’s criminal or civil trials and Biden administration officials who have drawn the ire of the incoming president and his aides.
Some alarmed former officials have reached out to the Biden White House seeking some form of protection from a future Trump administration, one of the people said.
It follows Biden’s decision to pardon his son Hunter – Not only for his convictions on federal gun and tax violations, but for any potential federal crime committed during the 11-year period, the president feared that Trump’s aides would prosecute his son for other crimes. It could serve as a model for other pardons Biden could issue to those who might be in legal jeopardy under Trump.
Biden is not the first person to consider such a pardon — Trump’s allies considered it for him and his supporters who were involved in a failed attempt to overturn the 2020 presidential election that culminated in violent riots at the Capitol on January 6, 2021. But he might be. Trump’s pardons never materialized before he left office nearly four years ago, issuing them for the first time.
Gerald Ford gave his predecessor Richard Nixon a “full, free and complete pardon” in 1974 over the Watergate scandal. He believed that a possible trial would “lead to a long and divisive debate on the justification for further punishment and exposure to the fallout of someone who has already paid an unprecedented penalty for abandoning the highest elective office in the United States,” the pardon announcement read.
Politico first reported that Biden was studying the use of preemptive pardons.
On the campaign trail, Trump made no secret of his desire to prosecute or retaliate against those who cross him.
Trump has spoken of “enemies from within” and has circulated social media posts calling for the jailing of Biden, Vice President Kamala Harris, former Vice President Mike Pence and Sens. Mitch McConnell and Chuck Schumer. He also zeroed in on former Republican Rep. Liz Cheney, who campaigned for Harris and helped lead the investigation on Jan. 6, and promoted a social media post in which she suggested a military tribunal for alleged treason was needed.
Kash Patel, who Trump announced as his nominee for FBI director, listed dozens of former government officials he wanted to “come after.” Trump critic Richard Painter, who served as a top White House ethics lawyer under President George W. Bush, said he was reluctant to support broad amnesty in the Biden case for people who could be targeted by the Trump administration. He hoped to “wipe the slate clean” for the next president and encourage his political allies to focus on governing rather than punishing them.
“It’s not an ideal situation at all,” Painter said. “At this point we have a lot worse options.” Although the Supreme Court ruled this year that the president enjoys broad immunity from prosecution for what could be considered official acts, his aides and aides enjoy no such shield. Some fear that Trump could use the promise of a blanket amnesty to encourage his allies to take action otherwise they might resist for fear of breaking the law.
“There could be clear illegal conduct over the next four years, and he could go out and excuse his people before he leaves office,” Painter said. “But if he’s going to do that, he’s going to do whatever Biden does.” More traditional pardons from Biden, such as those for disparate sentences for people convicted of federal crimes, are expected before the end of the year, the White House said.