On the heels of the unprecedented pardon of his son Hunter, U.S. President Joe Biden is reportedly considering exercising that power again, this time to pre-emptively protect figures who may be targeted by the incoming Trump administration.
According to Politico, the president and his aides are debating whether to issue some kind of blanket immunity to former Republican congresswoman Liz Cheney, senator-elect Adam Schiff and Dr. Anthony Fauci, all considered political foes of president-elect Donald Trump, who some worry may attempt to prosecute the trio.
There is precedent for the president pardoning high-profile individuals who have not been convicted of a federal crime. George Bush pardoned former defence secretary Caspar Weinberger who faced charges related to the Iran-Contra affair. And Richard Nixon, who was never charged in relation to the Watergate scandal, was pardoned by Gerald Ford to protect the former president from prosecution
But issuing blanket pardons to individuals who have not been charged with any crimes nor specifically accused of anything criminal would be new territory and is raising some concerns about the abuse of that extraordinary power.
‘Weaponization of clemency’
“The clemency power was intended to give presidents the ability to dispense mercy and defuse societal tensions, such as a war or rebellion,” said Jeffrey Crouch, an American politics professor at American University and author of The President and the Pardon Power: A Bibliographic Essay.
“What we are talking about now could lead to the weaponization of clemency. This is not what the framers had in mind,” he wrote in an email to CBC News.
Aaron J. Rappaport, a professor at the University of California College of the Law, San Francisco, told the Washington Post that it would be very hard to predict what charges would be brought.
“We’re not dealing with a situation where we can expect an ordinary use of the criminal justice process,” he said. “It puts a particularly difficult burden on anyone attempting to identify specific offences to insulate them from that abusive process.”
The U.S. Constitution gives the president the power to pardon anyone accused of federal criminal acts — with the exception of someone who has been impeached — for any reason or no reason at all. The pardon can also be applied before a charge is levelled, during a trial or after conviction.
Pardons are usually issued near the end of a presidential term. In his first term, Trump pardoned his strategist Steve Bannon and a number of his allies, friends and acquaintances. For his second term, Trump has said he’ll pardon the rioters who stormed the Capitol on Jan. 6, 2021.
Following the Watergate scandal, many legal observers believed there was enough credible evidence to prosecute Nixon. But before any potential charges could be laid, then-president Ford issued a pre-emptive pardon, saying it was time for the country to move on from the controversy. Ford pardoned Nixon for any crimes he potentially committed from his inauguration on Jan. 20, 1969, until his resignation on Aug. 9, 1974.
However, Biden’s pre-emptive pardons would cover individuals in which no specific criminal activity has been alleged; they’re simply potential targets of the new administration.
Still, according to legal experts, Biden does have that power to issue blanket pre-emptive pardons.
“The clemency language in the constitution is quite broad and gives the president a lot of flexibility,” Crouch said.
“[The framers] debated whether the president should be limited to granting clemency to someone only after they are convicted of a crime and decided not to limit clemency in this way.”
‘Exceedingly broad’
Aziz Huq, a constitutional law professor at the University of Chicago, said one can evaluate Biden’s potential blanket pardons in light of how pardons have been done in the past or in terms of what the law allows.
“I think that those two perspectives lead to different kinds of answers, because what the law allows is exceedingly broad,” he told CBC News. “But what has historically been the practice has been much more targeted.”
Just how such a blanket pardon would be worded is unclear.
“If I were writing it, I might say something like: ‘From the best of my understanding, you’ve been a model citizen who has stayed within the bounds of the law,'” constitutional scholar UCLA’s Jon Michaels said in an interview with CBC News.
“‘That said, out of an abundance of caution and given the times in which we live, I hereby pre-emptively pardon you for the following reasons, for the following dates.’ I would just use any and all acts that could be construed in good or bad faith.”
Fears of retaliation
On the weekend, Biden announced he had pardoned his son Hunter Biden, who had been convicted on federal felony gun and tax-related charges. The pardon sparked controversy as Biden had previously said he would not pardon his son nor commute his sentence after his convictions in the two cases.
The pardon covered not just those federal offences but also any that may have committed since Jan. 1, 2014 through to Dec. 1 2024.
Fears of retaliation against perceived enemies of Trump resurfaced following Trump’s nomination of Kash Patel to head the FBI. In his book Government Gangsters: The Deep State, the Truth, and the Battle for Our Democracy, Patel listed dozens of public officials as “Deep State” enemies.
Those now said to be under possible consideration for pardons are Cheney and Schiff, who were both members of the Jan. 6 committee, which investigated the riot on the Capitol. (Trump previously said that Cheney and other committee members “should go to jail.”)
Also under consideration would be Fauci, the former head of the National Institute of Allergy and Infectious Diseases, who has faced Republican ire for his response to COVID-19 and who criticized Trump for some of his actions during the pandemic.
“By analogy, some people called for president Obama to pardon Hillary Clinton to protect her from Trump’s promises to ‘Lock her up,'” Brian Kalt, a law professor at Michigan State University said in an email to CBC News. “Obama didn’t do it, and Trump’s administration didn’t prosecute Clinton. The question is whether people think Trump’s rhetoric is more serious this time.”
In a sweeping U.S. presidential act before his term is up next month, Joe Biden has pardoned his son Hunter Biden, after previously claiming he would not do so. Andrew Chang breaks down the pardon, which covers any criminal act Hunter may have committed in the last 10 years, and explains why the president changed course.
And at least one of those who Biden aides are considering for a pardon has rejected the idea.
“I would urge the president not to do that. I think it would seem defensive and unnecessary,” Schiff told Politico.
Attorney Sarah Isgur, who was a Justice Department spokesperson during the first Trump administration but who criticized the president-elect and is considered a potential target, has also raised concerns about Biden’s “blanket immunity.”
“Dangerous precedent to set,” Isgur posted on X. “Sure, we don’t want executive branch officials to be subject to politically motivated criminal charges, but we also don’t want them to know they can break the law without consequences.”
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