Biden just issued historic pardons. Will preemptive ones be next?
In what he called the largest single-day act of clemency in modern history, President Joe Biden on Thursday that he was commuting the sentences of nearly 1,500 people and pardoning 39 others.
The Biden administration is reportedly also considering preemptive pardons for people who could become targets of the U.S. Department of Justice during the second Trump administration.
According to a White House statement released Thursday morning, President Biden is commuting the sentences of close to 1,500 people who were convicted of crimes but placed on home confinement during the COVID-19 pandemic and who have successfully reintegrated into their communities. He is also pardoning 39 people convicted of non-violent crimes.聽
Why We Wrote This
After pardoning his son, President Biden announced clemency for more than 1,500 people and is reportedly mulling preemptive pardons for Donald Trump's foes. Experts caution that America may be entering a new era of personal 鈥� and political 鈥� presidential pardons.
鈥淭hese actions represent the largest single-day grant of clemency in modern history,鈥欌�� the statement said.
That news comes on the heels of two other presidential pardon matters that have grabbed headlines of late: a Politico last week that President Biden was considering preemptive pardons for those who might be targets of the incoming Trump administration and a pardon for his son Hunter, convicted earlier this year of federal gun and tax charges.
The presidential pardon power is meant to be broad, and presidents often close out their terms with this gesture of clemency, meant to be an 鈥渁ct of grace鈥欌�� to further 鈥渢he public welfare,鈥欌�� according to the U.S. Constitution.聽
But the preemptive pardon鈥攐ne that covers crimes that people have not yet been accused of or protects them from being charged if they haven鈥檛 committed a crime 鈥� is rarely used, experts say. Some argue that using preemptive pardons聽in the way the Biden administration is considering聽would set a troubling precedent, enabling future presidents to create impunity zones around themselves and their political allies.
鈥淚t鈥檚 never felt necessary or appropriate,鈥� says Margaret Love, who served as the U.S. pardon attorney from 1990 to 1997. 鈥淚t鈥檚 unmoored from [the pardon powers鈥橾 original ties to the justice system. Presidents have not thought about how to use this power in a democratic society fairly, accountably, for a lot of years.鈥�
Pushing pardon boundaries
President Biden has already pushed the boundaries of the expansive pardon power. In last week鈥檚 pardon of Hunter, the clemency covered not just his son鈥檚 convictions but also any crime he may have committed during a 10-year period. Hunter has not served any time for his crimes. The only comparable pardon is Gerald Ford鈥檚 pardon of Richard Nixon after the Watergate scandal, as it protected Mr. Nixon from punishment for alleged crimes.
But granting clemency to potential targets of the incoming Trump administration 鈥� even though they may not have committed a crime 鈥� would push those boundaries even further, experts say.
Does the Trump era justify such a boundary push? In his first television interview since his reelection, President-elect Trump told 鈥淢eet the Press鈥� that the congressional committee investigating the Jan. 6 storming of the Capitol should be jailed. The committee had been investigating efforts by his supporters to keep Mr. Trump in power; federal prosecutions of Mr. Trump鈥檚 own role in the efforts have been dropped in the past month.
Some of his nominees for high-profile law enforcement positions in his administration have made similar comments over the years. Pam Bondi, his pick for U.S. attorney general, said that 鈥淭he prosecutors will be prosecuted, the bad ones,鈥� in a 2023 Fox News interview, referring broadly to government lawyers who have brought charges against Mr. Trump. Kash Patel 鈥� the nominee to lead the FBI, the country鈥檚 top domestic police agency 鈥� appended a book he published in 2022 with a 60-name 聽Some on this list are likely under consideration for the Biden administration鈥檚 potential preemptive pardons.
鈥淩espect for democracy and the rule of law doesn鈥檛 mean that Joe Biden has to sit idly by and wait for the Trump administration to do things that he would regard as unjust and destructive,鈥� says Austin Sarat, a political science professor at Amherst College.
In an about the pardon power, the U.S. Supreme Court described it as 鈥渢he benign prerogative of mercy.鈥� But Professor Sarat says the pardon power has come to be used less as an act of mercy and more as a tool to rectify injustice.
Preemptive pardons, by contrast, would not just shield individuals from potential prison time. They would also help deflect public censure, valid or not, and hefty legal expenses likely incurred defending themselves against the Trump Justice Department. Even preemptive pardons of the past have been justified as needed to achieve an essential public purpose, such as helping the country move on after a conflict. Two presidents 鈥� Abraham Lincoln and Andrew Johnson 鈥� granted blanket pardons to former Confederate officers, for example, and President Jimmy Carter gave a blanket amnesty to individuals who dodged the Vietnam War draft.
Closing a troubling chapter or opening one?
Instead of helping the country close a chapter of its history, however, experts say preemptive pardons here could open a new and troubling one.
To start, issuing preemptive pardons could make the grantees look more guilty than some Americans already believe. Second, however broad the pardons would be, the Trump administration could still likely find targets for prosecution. Most importantly, Mr. Biden would be using the pardon power in a way that future presidents could abuse.
Using pardons 鈥渢o protect one鈥檚 political allies prospectively just creates a really bad precedent,鈥� says Frank Bowman, a professor at the University of Missouri School of Law.
Such a precedent becomes even more problematic following the Supreme Court鈥檚 presidential immunity ruling earlier this year, which grants former presidents broad immunity for official acts, he adds. Preemptive pardons would mean 鈥淎ll the people in the president鈥檚 orbit [could] do whatever they want during the term and get a pardon for it.鈥�
That the Biden administration is even discussing preemptive pardons is disappointing, some experts say, and reflective of a lack of faith in the justice system鈥檚 ability to deter wrongful prosecutions.
It鈥檚 also reflective of how use of the pardon power has changed. Having issued the fewest pardons of any first-term president in history so far, Mr. Biden now seems focused on pardoning those who may not need that safety net. In doing so, he would be leaving others behind bars, like Leonard Peltier, a Native American activist now serving two life sentences despite high-profile calls for clemency.
A more effective use of the pardon power would be to use it as it has been used for the past century 鈥� namely, to correct injustice and to broadcast a message of grace, mercy, and unity to the nation, experts say. That could come through pardoning someone like Mr. Peltier, as Democratic U.S. Sen. Brian Schatz of Hawaii . Or it could come through commuting the sentences of the roughly 40 people on federal death row, as 鈥� reaching as far as 鈥� is calling for.
There is also the possibility that preemptive pardons won鈥檛 be accepted. California Sen.-elect Adam Schiff, an outspoken critic and the lead prosecutor in Mr. Trump鈥檚 2020 impeachment trial, has said he does not want a pardon. Liz Cheney appears undaunted by the prospect of being investigated.
鈥淭here is no conceivably appropriate factual or constitutional basis for what Donald Trump is suggesting 鈥� a Justice Department investigation of the work of a congressional committee,鈥� she said in on Sunday, describing his claims as 鈥渞idiculous and false.鈥�
鈥淎ny lawyer who attempts to pursue that course would quickly find themselves engaged in sanctionable conduct.鈥�
Editors note: This story, originally published Dec. 11, has been updated with President Biden's Dec. 12 clemency announcement.聽
